Is the UK really going to innovate in regulation of Big Tech?

On Tuesday last week the UK Competition and Markets Authority (CMA) outlined plans for an innovative way of regulating powerful tech firms in a way that overcomes the procedural treacle-wading implicit in competition law that had been designed for an analogue era.

The proposals emerged from an urgent investigation by the Digital Markets Taskforce, an ad-hoc body set up in March and led by the CMA with inputs from the Information Commissioner’s Office and OFCOM, the telecommunications and media regulator. The Taskforce was charged with providing advice to the government on the design and implementation of a pro-competition regime for digital markets. It was set up following the publication of the Treasury’s Furman Review on ‘Unlocking digital competition’ which reported in March 2019 and drew on evidence from the CMA’s previous market study into online platforms and digital advertising.

This is an intriguing development in many ways. First of all it seems genuinely innovative. Hitherto, competition laws have been framed to cover market domination or monopolistic abuse without mentioning any particular company, but the new UK approach for tech companies could set specific rules for named companies — Facebook and Google, say. More importantly, the approach bypasses the sterile arguments we have had for years about whether antique conceptions of ‘monopoly’ actually apply to firms which adroitly argue that they don’t meet the definition — while at the same time patently functioning as monopolies. Witness the disputes about whether Amazon really is a monopoly in retailing.

Rather than being lured down that particular rabbit-hole, the CMA proposes instead to focus attention on firms with what it calls ‘Strategic Market Status’ (SMS), i.e. firms with dominant presences in digital markets where there’s not much actual competition. That is to say, markets where difficulty of entry or expansion by potential rivals is effectively undermined by factors like network effects, economies of scale, consumer passivity (i.e. learned helplessness), the power of default settings, unequal (and possibly illegal) access to user data, lack of transparency, vertical integration and conflicts of interest.

At the heart of the new proposals is the establishment of a powerful, statutory Digital Markets Unit (DMU) located within the Competition and Markets Authority. This would have the power to impose legally-enforceable Codes of Conduct on SMS firms. The codes would, according to the proposals, be based on relatively high-level principles like ‘fair trading’, ‘open choices’ and ‘trust and transparency’ — all of which are novel ideas for tech firms. Possible remedies for specific companies (think Facebook and Google) could include mandated data access and interoperability to address Facebook’s dominance in social media or Google’s market power in general search.

It would be odd if, in due course, Amazon, Apple and Microsoft don’t also fall into the SMS category of “strategic”. Indeed it’s inconceivable that Amazon would not, given that it has morphed into critical infrastructure for many locked-down economies.

The government says that it going to consult on these radical proposals early next year and will then legislate to put the DMU on a statutory basis “when Parliamentary time allows”.

Accordingly, we can now look forward to a period of intensive corporate lobbying from Facebook & Co as they seek to derail or emasculate the proposals. Given recent history and the behaviour of which these outfits are capable, it would be prudent for journalists and civil society organisations to keep their guard up until this stuff is on the statute book.

The day after the CMA proposals were published (and after a prolonged legal battle) the Bureau of Investigative Journalists were finally able to publish the Minutes of a secret meeting that Matt Hancock had with the Facebook boss, Mark Zuckerberg, in May 2018. Hancock was at that time Secretary of State for DCMS, the department charged with combating digital harms. According to the Bureau’s report, he had sought “increased dialogue” with Zuckerberg, so he could “bring forward the message that he has support from Facebook at the highest level”. The meeting took place at the VivaTech conference in Paris. It was arranged “after several days of wrangling” by Matthew Gould, the former culture department civil servant that Hancock later made chief executive of NHS X. Civil servants had to give Zuckerberg “explicit assurances” that the meeting would be positive and Hancock would not simply demand that the Facebook boss attend the DCMS Select Committee inquiry into the Cambridge Analytica scandal (which he had refused to do).

The following month Hancock had a follow-up meeting with Elliot Schrage, Facebook’s top lobbyist, who afterwards wrote to the minister thanking him for setting out his thinking on “how we can work together on building a model for sensible co-regulation on online safety issues”.

Now that the UK government is intent on demonstrating its independence from foreign domination, perhaps the time has come to explain to tech companies a couple of novel ideas. Sovereign nations do regulation, not ‘co-regulation’; and companies obey the law.

……………………..

A version of this post was published in the Observer on Sunday, 13 December, 2020.

Great expectations: the role of digital media for protest diffusion in the 2010s

The decade after the 2008 economic crisis started with great expectations about the empowering potential of digital media for social movements. The wave of contention that started from Iceland and the MENA countries swept also Europe, where hundreds of thousands Spanish protesters took part in the Indignados protests in 2011 and a smaller but dedicated group organized Occupy London – the British version of the US Occupy movement that shook US politics for years to come. Protesters during the Arab Spring were often carrying posters and placards with the logos and names of Facebook, Twitter and similar platforms or were even spraying them as graffiti on walls.

It was a period of ubiquitous enthusiasm with some scholars even claiming that the Internet is a necessary and sufficient condition for democratizaton. What is more, a number of scholars saw in the rise of digital platforms a great opportunity for the diffusion of protests within nations and transnationally at an unprecedented speed – leading political journalists and researchers noted that digital media had a key role in ‘Occupy protests spreading like wildfire’ and in spreading information during the Arab Spring.

Photo by Essam Sharaf

Already back in the early 2010s, the beginning of this techno-utopian decade, researchers emphasized that in Egypt, protests and information about them in fact spread in more traditional ways – through the interpersonal networks of cab drivers, labour unions, and football hooligans, among others. What is more, protests in the aftermath of the 2008 economic crisis spread much more slowly than the 1848 Spring of the Peoples protests due to the need of laborious cultural translation from one region to another. Ultimately, in spite of the major promises of social media, most protest mobilization and diffusion still depends on face-to-face interactions and established protest traditions.

Yet, the trend of expecting too much from digital media is countered by an equally dangerous trend – claiming they haven’t changed anything in the world of mobilization. The media ecology approach of Emilano Trere and Alice Mattoni escapes the pitfalls of both approaches by studying how activists use digital media in combination and interaction with a number of other types of media in hybrid media ecologies.

In a book that I just published, I apply the media ecology approach to study the diffusion of Green and left-wing protests against austerity and free trade in the EU after 2008. One of the greatest things about trying to focus on other media beyond Facebook and Twitter is the multiple unexpected angles it gives to events we all thought we knew well. While both activists and researchers alike have been fascinated with the promise of digital media, looking at the empirical material with unbiased eyes revealed so much about the key role of other types of media for protest diffusion.

To begin with: books! The very name of the Indignados protests came from the title of Stéphane Hessel’s book “Indignez-vous!”. But the books by authors such as Joseph Stiglitz, Wolfgang Streeck, Ernesto Laclau and Yannis Varoufakis have been no less important for spreading ideas and informing protesters across the EU. In his recent book “Translating the Crisis”, Spanish scholar Fruela Fernandez notes the boom of publishing houses translating political books in Spain in the period surrounding the birth and eruption into public space of the Indignados movement.

Similarly, mainstream media have been of crucial importance for spreading information on protests, protest ideas and tactics across the EU in the last decade. Mainstream media such as The Guardian, BBC, El País, etc. reported in much detail on the use of digital media by social movements such as Occupy or Indignados, even sharing Twitter and Facebook hashtags, links to Facebook groups and live-streams in articles. Mainstream media thus popularized the message (and media practices) of protesters further than they could have possibly imagined. In fact, mainstream media’s fascination with the digital practices of new social movements goes a long way to explain their largely favourable attitude to the protests of the early 2010s, Such a favorable coverage by mainstream media indeed contradicts most expectations of social movement scholars that media would largely ignore or misrepresent protesters.

Another type of protest diffusion that has remained woefully neglected but played a key role in the spread of progressive economic protests in the EU was face-to-face communication and, as simple as it may sound, walking! During the Spanish Indignados protests hundreds of protesters marched from all parts of Spain to gather in Madrid. A small part of them continued marching to Brussels where they staged theater plays and discussions and then headed to Greece. These marches took weeks and involved protesters stopping in villages and cities on the way and engaging local people in discussions. Sharing a physical space and sharing food have been among the most efficient ways to diffuse a message and reach more people with it. Of course, the marchers kept live blogs and diaries of their journeys (which in themselves constitute rich materials for future research), but it is the combination of diffusion through traveling, meeting people in person, and using digital media which is the truly interesting combination.

In my book, I give many more examples of how progressive protesters used various types of media to spread protest. Beyond providing a richer and more accurate picture of progressive economic protests in the 2010s, the book can hopefully serve also as a useful reminder for researchers of the radical right. The 2010s that started with research on social movements and democratization end with a major academic trend for studying the far right, and especially the way the far right has blossomed in the digital sphere.

If there is one thing to be learned from my book, it is that digital media are not the only tool activists use to spread protest. Thus, if one needs to understand the diffusion of far right campaigns and ideas, one needs to focus also on the blossoming of far right publishing houses, the increasing mainstreaming of far right ideas in mainstream press, and last but not least, the ways in which far right activists make inroads into civil society organizations and travel to share experiences – it is well-known, for example, that during the refugee crisis far right activists from Western Europe made several joint actions with activists from Eastern Europe to patrol borders together.

Understanding how protests, protest ideas and repertoires diffuse is crucial for activists who want to help spread progressive causes, but also for those who are worried about the spread of dangerous and anti-democratic ideas. After a decade of great expectations about the potential of digital media to democratize our societies, we find ourselves politically in an era of backlash. Yet, at least analytically we are now past the naive enthusiasm of the early 2010s and have a much better instrumentarium to understand how protest diffusion works. To rephrase Gramsci, we are now entering a period of pessimism of the will and optimism of the intellect.

It is not what we wished for. But shedding our illusions and utopian expectations about the potential of digital media is an important step for moving beyond techno-fetishism and understanding better the processes of mobilization that currently define our society.

Seeing Like a Social Media Site

The Anarchist’s Approach to Facebook

When John Perry Barlow published “A Declaration of the Independence of Cyberspace” nearly twenty-five years ago, he was expressing an idea that seemed almost obvious at the time: the internet was going to be a powerful tool to subvert state control. As Barlow explained to the “governments of the Industrial World,” those “weary giants of flesh and steel”—cyberspace does not lie within your borders. Cyberspace was a “civilization of the mind.” States might be able to control individuals’ bodies, but their weakness lay in their inability to capture minds.

In retrospect, this is a rather peculiar perspective of states’ real weakness, which has always been space. Literal, physical space—the endlessly vast terrain of the physical world—has historically been the friend of those attempting to avoid the state. As scholar James Scott documented in The Art of Not Being Governed, in early stages of state formation if the central government got too overbearing the population simply could—and often did—move. Similarly, John Torpey noted inThe Invention of the Passport that individuals wanting to avoid eighteenth-century France’s system of passes could simply walk from town to town, and passes were often “lost” (or, indeed, actually lost). As Richard Cobb noted, “there is no one more difficult to control than the pedestrian.” More technologically-savvy ways of traveling—the bus, the boat, the airplane—actually made it easier for the state to track and control movement.

Cyberspace may be the easiest place to track of all. It is, by definition, a mediated space. To visit, you must be in possession of hardware, which must be connected to a network, which is connected to other hardware, and other networks, and so on and so forth. Every single thing in the digital world is owned, controlled or monitored by someone else. It is impossible to be a pedestrian in cyberspace—you never walk alone. 

States have always attempted to make their populations more trackable, and thus more controllable. Scott calls this the process of making things “legible.” It includes “the creation of permanent last names, the standardization of weights and measures, the establishment of cadastral surveys and population registers, the invention of freehold tenure, the standardization of language and legal discourse, the design of cities, and the organization of transportation.” These things make previously complicated, complex and unstandardized facts knowable to the center, and thus more easy to administrate. If the state knows who you are, and where you are, then it can design systems to control you. What is legible is manipulable.

Cyberspace—and the associated processing of data—offers exciting new possibilities for the administrative center to make individuals more legible precisely because, as Barlow noted, it is “a space of the mind.” Only now, it’s not just states that have the capacity to do this—but sites. As Shoshana Zuboff documented in her book The Age of Surveillance Capitalism, sites like Facebook collect data about us in an attempt to make us more legible and, thus, more manipulatable. This is not, however, the first time that “technologically brilliant” centralized administrators have attempted to engineer society. 

Scott use the term “high modernism” to characterize schemes—attempted by planners across the political spectrum—that possess a “self-confidence about scientific and technical progress, the expansion of production, the growing satisfaction of human needs, the mastery of nature (including human nature), and, above all, the rational design of social order commensurate with the scientific understanding of natural laws.” In Seeing Like a State, Scott examines a number of these “high modernist” attempts to engineer forests in eighteenth-century Prussia and Saxony, urban cities in Paris and Brasilia, rural populations in ujamaa villages, and agricultural production in Soviet collective farms (to name a few). Each time, central administrators attempted to make complex, complicated processes—from people to nature—legible, and then engineer them into rational, organized systems based on scientific principles. It usually ended up going disastrously wrong—or, at least, not at all the way central authorities had planned it. 

The problem, Scott explained, is that “certain forms of knowledge and control require a narrowing of vision. . . designed or planned social order is necessarily schematic; it always ignores essential features of any real, functioning social order.” For example, mono-cropped forests became more vulnerable to disease and depleted soil structure—not to mention destroyed the diversity of the flora, insect, mammal, and bird populations which took generations to restore. The streets of Brasilia had not been designed with any local, community spaces where neighbors might interact; and, anyway, they forgot—ironically—to plan for construction workers, who subsequently founded their own settlement on the outskirts of the city, organized to defend their land and demanded urban services and secure titles. By 1980, Scott explained, “seventy-five percent of the population of Brasilia lived in settlements that had never been anticipated, while the planned city had reached less than half of its projected population of 557,000.” Contrary to Zuboff’s assertion that we are losing “the right to a future tense,” individuals and organic social processes have shown a remarkable capacity to resist and subvert otherwise brilliant plans to control them.

And yet this high-modernism characterizes most approaches to “regulating” social media, whether self-regulatory or state-imposed. And, precisely because cyberspace is so mediated, it is more difficult for users to resist or subvert the centrally-controlled processes imposed upon them. Misinformation on Facebook proliferates—and so the central administrators of Facebook try to engineer better algorithms, or hire legions of content moderators, or make centralized decisions about labeling posts, or simply kick off users. It is, in other words, a classic high-modernist approach to socially engineer the space of Facebook, and all it does is result in the platforms’ ruler—Mark Zuckerberg—consolidating more power. (Coincidentally, fellow Power-Shift contributor Jennifer Cobbe argued something quite similar in her recent article about the power of algorithmic censorship). Like previous attempts to engineer society, this one probably will not work well in practice—and there may be disastrous, authoritarian consequences as a result.

So what is the anarchist approach to social media? Consider this description of an urban community by twentieth-century activist Jane Jacobs, as recounted by Scott:

“The public peace-the sidewalk and street peace-of cities . . . is kept by an intricate, almost unconscious network of voluntary controls and standards among the people themselves, and enforced by the people themselves. . . . [an] incident that occurred on [Jacobs’] mixed-used street in Manhattan when an older man seemed to be trying to cajole an eight or nine-year-old girl to go with him. As Jacobs watched this from her second-floor window, wondering if she should intervene, the butcher’s wife appeared on the sidewalk, as did the owner of the deli, two patrons of a bar, a fruit vendor, and a laundryman, and several other people watched openly from their tenement windows, ready to frustrate a possible abduction. No “peace officer” appeared or was necessary. . . . There are no formal public or voluntary organizations of urban order here—no police, no private guards or neighborhood watch, no formal meetings or officeholders. Instead, the order is embedded in the logic of daily practice.”

How do we make social media sites more like Jacobs’ Manhattan, where people—not police or administrators—on “sidewalk terms” are empowered to shape their own cyber spaces? 

There may already be one example: Wikipedia. 

Wikipedia is not often thought of as an example of a social media site—but, as many librarians will tell you, it is not an encyclopedia. Yet Wikipedia is not only a remarkable repository of user-generated content, it also has been incredibly resilient to misinformation and extremist content. Indeed, as debates around Facebook wonder whether the site has eroded public discourse to such an extent that democracy itself has been undermined, debates around Wikipedia center around whether it is as accurate as the expert-generated content of Encyclopedia Britannica. (Encyclopedia Britannica says no; Wikipedia says it’s close.)

The difference is that Wikipedia empowers users. Anyone, absolutely anyone, can update Wikipedia. Everyone can see who has edited what, allowing users to self-regulate—and how users identified that suspected Russian agent Maria Butina was probably changing her own Wikipedia page, and changed it back. This radical transparency and empowerment produces organic social processes where, much like in the Manhattan street, individuals collectively mediate their own space. And, most importantly, it is dynamic—Wikipedia changes all the time. Instead of a static ruling (such as Facebook’s determination that the iconic photo of Napalm Girl would be banned for child nudity), Wikipedia’s process produces dialogue and deliberation, where communities constantly socially construct meaning and knowledge. Finally, because cyberspace is ultimately mediated space—individuals cannot just “walk” or “wander” across sidewalks, like in the real world—Wikipedia is mission-driven. It does not have the amorphous goal of “connecting the global community”, but rather “to create a world in which everyone can freely share in the sum of all knowledge.”

This suggests that no amount of design updates or changes to terms of service will ever “fix” Facebook—whether they are imposed by the US government, Mark Zuckerberg or Facebook’s Oversight Board. Instead, it is the high-modernism that is the problem. The anarchist’s approach would prioritize building designs that empower people and communities—so why not adopt the wiki-approach to the public square functions that social media currently serves, like wiki-newspapers or wiki-newsfeeds?

It might be better to take the anarchist’s approach. No algorithms are needed.

by Alina Utrata

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