Facebook is in trouble. Or perhaps more accurately, it should be in trouble, but it’s really not. A deluge of negative headlines have bombarded the social media giant over the past few weeks. Their products are negatively impacting teen girls’ mental health and are directly linked to suicides. The company is making its users angrier and its own tools have been weaponized to spread disinformation about COVID-19. For any other company, such a flurry of scandals would put the company into full-blown crisis mode as it does all it can to avoid hemorrhaging users and save the company from bankruptcy. We know from past scandals (and there’s been a lot of them) that Facebook is not likely to face the same fate. Instead, Facebook is cloaked in the fortified armor of network effects and user lock-in. Things can get bad on Facebook, but no competitor can replicate its access to so many individual, business, and institutional users. Until we break through this competitive barrier, nothing much is going to change. We need interoperability and data portability — Facebook’s competitive kryptonite. We need the Augmenting Compatibility and Competition by Enabling Service Switching Act (the “ACCESS Act”).
In case you didn’t catch every second of the marathon 29-hour House Judiciary Committee markup of the antitrust bills late last month, you might have missed a couple of really important bills in the fight to hold Big Tech accountable. Led by Antitrust Subcommittee Chairman David Cicilline (D-RI) and Ranking Member Ken Buck (R-CO), Congress is finally back in the business of competition legislating on the heels of a blockbuster investigation into the major platforms last year. This piece is one of several from Public Knowledge that will serve as a deep dive into the bills that make up the legislative package. The ACCESS Act would bring interoperability and data portability to dominant digital platforms. I will break down exactly what the bill does, answer lingering questions about the bill and its effects, and then finally talk about what’s next for this landmark piece of legislation.
At its heart, the ACCESS Act would mandate two related, yet distinct things: data portability and interoperability. Data portability would allow you to either take the data you’ve put into a digital platform yourself and either download it for your own uses or directly port it to a competitor. You’d be much more likely to leave a platform like Facebook if you could take the years of pictures and statuses (even those awkward angsty middle school ones) and automatically upload them to your new network. As an apt analogy for data portability, think of how you can keep your phone number even if you switch mobile carriers — avoiding a cumbersome mass update for everyone in your phone contacts list. For interoperability, look at your ability to call friends and family no matter their chosen mobile network — phone networks don’t compete based on who is on what network, and there’s no reason social networks can’t operate in much the same way. Interoperability would allow competing social networks to talk to one another at your direction. Dominant platforms couldn’t just relax their efforts to aggressively compete just because they have the biggest network but would instead be forced to compete on quality and how effectively they do what consumers want. Both interoperability and data portability are important, and it’s important to note they aren’t substitutes for one another. For more on these concepts, check out this excellent post from one of PK’s most handsome advocates.
The ACCESS Act’s promises of interoperability and data portability will benefit from enforcement and oversight by the Federal Trade Commission. The bill also establishes a technical committee to help the FTC develop interoperability standards, comprised of technical experts, academics, and public-interest advocates. Platforms can also send a non-voting advisory member as well. The technical committee might help with implementation, but it’s the FTC that would be solely responsible for the decision making. The FTC also has some limited rulemaking responsibilities in defining “data” for implementing and enforcing the Act. The final definition must include information “reasonably linkable” to a specific user but specifically exclude a platform’s own “proprietary data” not linkable to a user. The FTC will also set minimum reasonable privacy standards that interoperable services would have to follow. Given this is a complex and fact-specific inquiry, along with the need to iterate and update as technology evolves, this is best suited to an expert agency determination.
The first thing to note is that under the definition of “covered platform” offered by the ACCESS Act the bill’s provisions, for now would only apply to five companies — Google, Facebook, Amazon, Apple, and (almost certainly) Microsoft. The only mandatory requirements in the ACCESS Act (and in most of the rest of the package) fall squarely on those five companies — everyone else can choose if they want to be interoperable or portable with others. What about the costs and burdens of the bill upon those five companies? Well, as defined by the bills, each has at least a $600 billion market cap, which — combined with perhaps the greatest collection of tech talent in the world — means they should be able to do what the bill asks of them. Worries about the technological burden and costs associated with portability and interoperability most likely pale in comparison to the beneficial competitive effects the ACCESS Act will bring about. Costs could include increased bandwidth, the engineering know-how to properly develop an interface, and standardization of user data. The dominant digital platforms already offer interoperability and portability — only cabined to the services they own. Instagram and Facebook have all sorts of cross-posting and messaging features and Google’s own ad tech tools work pretty well together. The ACCESS Act would simply force them to open that up to other competitors. Dominant platforms can also charge a reasonable fee for interoperability services to recoup their costs, which should also discourage disingenuous use and keep overall costs down.
With Privacy In Mind
Moving data from one company to another naturally raises the question of privacy protections, so there are safeguards built into the bill that should make users feel comfortable taking advantage of these new capabilities. First, users control whether to opt into data portability and interoperability, so no user’s information will be shared without their consent. Second, there’s an “if you abuse it, you lose it” provision where shady characters should get promptly cut off from the boons of interoperability and portability. As a condition of getting access to user data, competitor platforms must both reasonably secure it and not introduce additional security risks. Those platforms that fail to do so face possible prosecution from the FTC along with FTC mandates that covered platforms cease sharing data with them.
Other privacy protections include a non-commercialization section that prohibits both covered platforms and other business users from using user data gleaned through interoperability for commercial purposes. This targets the incentive for a platform to misuse user data. Finally, an amendment during the markup process further strengthened privacy protections inherent in the bill, requiring compliance with the National Institute of Standards and Technology’s (NIST) privacy framework.
It should also be noted that using interoperability to open up competition in digital markets can make platforms more receptive to user’s privacy concerns. Perhaps the most egregious privacy violation of the past few years was Facebook’s Cambridge Analytica debacle. Note how there was no massive outflow of Facebook users in the wake of the scandal as they simply had nowhere else to go. With interoperability and data portability in place, Facebook would know that competitors are waiting in the wings if they don’t respond appropriately to their customers’ privacy concerns.
While the ACCESS Act can have beneficial effects on privacy, it should, of course, not be taken as a substitute for a comprehensive federal privacy law. Interoperability and portability are competition tools targeted at a competition problem. A law that, among other things, protects the fundamental right to privacy online, prohibits discriminatory data uses, and creates a strong state and federal enforcement mechanism can reinforce the impact of the bill. Congress should pass both the ACCESS Act and comprehensive privacy protections for all consumers.
As with any legislative markup process, the ACCESS Act underwent a few changes during the marathon session. Along with the aforementioned privacy amendment, there was also an amendment requiring a report to Congress on implementing interoperability. More transparency is always good. However, two additional amendments are slightly more concerning—both offered by Rep. Zoe Lofgren (D-CA), who is generally critical of these efforts.
The first involves how a platform can change its interoperability interface. Under the bill, covered platforms are required to develop transparent and third-party accessible interfaces to effectuate both interoperability and portability. This interface is what allows other companies to connect. Dominant platforms are wily and could use interface changes to hamper potential competitors. A seemingly minor change to the interface, like how data is classified or structured, could have catastrophic implications for real-time interoperability. It could break an important feature for competitors such as cross-posting. In a fast-moving market like tech, interoperability hiccups, even if resolved fairly quickly, could be a death knell for a would-be competitor. Interoperability only works if it is reliable and consistent. If upstart competitors are rife with technical issues, consumers will stick with the same, dominant incumbents. If all of your friends’ social media posts suddenly disappear, you’ll probably just go back to where you know you can find them: Facebook. It will be up to federal regulators to ensure this doesn’t happen. That’s why the original bill required FTC pre-approval for changes that would affect interoperability. An amendment passed at mark-up limits the pre-approval process so that the FTC will have to decide what circumstances require pre-approval. While this can still be effective, reverting to the original version would provide greater protections to make sure users of competing services are always getting the best experience.
The second amendment has to do with how broadly we want interoperability to apply to digital platforms. It’s perhaps most intuitive to think of interoperability in terms of social networks, and that’s why most of the examples in this piece have focused on them. However, interoperability has far greater potential to reinvigorate competition in other areas, such as online advertising. The main player in this space is Google, which offers a bevy of different tools that share key business user data most clearly and fully only when they talk to other Google advertising tools. This makes competition against Google for any one tool extremely difficult. A competitor would have to enter multiple businesses at once in order to compete effectively. A particularly pernicious example is that one of the only ways to get analytics on how well your Google Ad is doing is to ask Google itself. Interoperability could ensure that independent third-parties verify this information and Google is not “grading its own homework” with obvious incentives to inflate numbers.
However, this might not be possible due to an amendment that interoperability “shall only be at the direction of the user and with the user’s express affirmative consent.” The general concept of interoperability only at a user’s request is of course correct. But, if “the data of a user” includes all information even peripherally related to a particular user, the ACCESS Act may not be able to help business users interested in vertical interoperability, such as with Google’s ad tech tools.
There’s still time to address these wrinkles as the ACCESS Act continues its legislative journey. Next up is a full House vote and hopefully movement on a Senate companion. The ACCESS Act was originally a Senate bill from Senators Mark Warner (D-VA) and Richard Blumenthal (D-CT), so we expect they will introduce an updated version for this Congress. The ACCESS Act would be a tremendous step forward and is also very feasible. There’s a reason it received the most bipartisan support of the four substantive bills in the House package.
Of course, interoperability is not a panacea for all the competitive ills ailing digital markets. We need non-discrimination laws, tech-specific merger reforms, a structural separation tool, broad antitrust reforms, market-specific app store legislation, more resources for enforcers, and agency rulemaking — just to name a few. Check out our Contact Congress tool on the House bills for a quick and easy way to tell Congress to pass the entire Rein In Big Tech package.
Perhaps the most damning theme of the flood of Facebook malfeasance was that it was the company’s own internal research that was the source of the allegations. Yet, Facebook did nothing. Perhaps they did nothing because they weren’t incentivized to do so, because they didn’t face any competitive pressure to make their platforms a better place. I don’t expect Facebook to do this on their own. We need to make them — through interoperability, data portability, and the ACCESS Act.