You can view the introduction of this series at publicknowledge.org/Movin’. Download detailed charts of both legislative proposals to follow along with our analysis.
The Black-empowerment hit-maker James Brown mostly sang about movement – physical, mental, emotional, spiritual, social, political, and even economic. The Godfather of Soul recalls being dehydrated and fatigued on tour, but he jolted back to life when he saw the audience in a Fort Lauderdale club reflecting his exhaustion. He yelled “Get Up Offa That Thang, and dance ‘til you feel better… SING!” And that was the birth of his 1974 smash-hit. The cure for collective exhaustion was movement. As consumers, we are exhausted with the harms of some of the largest digital platforms. We all want the choice to start moving. But, movement away from the largest digital platforms isn’t easy. Nevertheless, we must push ourselves and our communities to “Get Up Offa Them Thangs” with interoperability.
A growing class of Afro-descendant tech entrepreneurs have heard and experienced the downsides of the largest digital platforms and have decided to create their own platforms. The pre-Facebook social media network Black Planet, as well as The Cookout, Bean, RAMŚE, and Black Twitter, all want to compete with Facebook to create safer and more inclusive spaces for Black communities. Fanbase and MelaninPeople are seeking to compete with YouTube for Black content creators who often get uncredited and underpaid for viral content. TruSo and Zimela are vying to compete with Microsoft-owned LinkedIn to cultivate a professional social network. Black-owned wholesale retailers like WeBuyBlack.com are seeking to offer more diverse and culturally inclusive products directly from sellers of color around the world. Platforms that carefully curate Black-owned businesses and Black-inspired goods, services, and experiences like Support Black Owned, Official Black Wall Street, Black Owned Association, Black Owned Brooklyn, and EatOkra are trying to offer alternatives to Google’s ginormous search engine and Amazon’s mammoth marketplace of everything.
And you have likely never heard of these companies because they don’t have wide audiences. None of these promising Black-owned digital platforms have even 1% of “50,000,000 United States-based monthly active users” nor a fraction of “100,000 United States-based monthly active business users” (criteria for “covered platforms” from the American Innovation and Choice Online Act (“AICO” or S. 2992, Section 2(4)(aa)-(bb)). Apple, Amazon, Google, and Meta, however, have tens of millions of monthly users and business users over the statutory limit on multiple subsidiaries they own. These incumbent platforms erect tall gates to capitalize on the inherent network effects – “the economic phenomenon whereby a product or service gains additional value as more people use it” (Google/Oxford). Color of Change explained that the biggest companies are known to monitor relevant markets, then “acquire” and “kill” their potential rivals. Big Tech locks out rival products, emerging businesses, and disruptive app features, to lock consumers inside the gates of their walled gardens. Black-owned/serving social networks, online marketplaces, and search engines struggle to achieve profitability and long-term market viability because they cannot easily reach consumers walled inside incumbent platforms. Consumers cannot easily switch to Black-owned platforms because the costs of switching (e.g., moving photos and memories, re-building friend groups, curating music preferences in new apps) are too high. One of the ways in which these companies have tried to overcome the barriers and reach potential consumers is through buying ads, buying impressions, and creating groups on the very incumbent platforms they want to compete with.
The American Innovation and Choice Online Act targets 10 forms of economic discrimination by covered platforms, including discriminatory interoperability. Specifically, the Senate Judiciary Committee included a nondiscriminatory interoperability provision, Section 3(a)(4), which gives tech platforms the choice to interoperate with the dominant platforms to the extent that the incumbents already allow interoperability among their subsidiary services and other chosen companies. Section 3(a)(4) circles in on how Apple, Amazon, Google, Meta, and Microsoft use selective interoperability between their own platforms or with other large digital platforms to lock in consumers while locking out competitors. Meta, for instance, preferences its own product-lines by offering cross-posting, centralized messaging (including businesses), and friend-finding between Meta-owned Facebook and Instagram. Meta has also elected to interoperate with other large platforms, and these handshakes between giants lock competition out of markets. Google puts its selective interoperability on display with “one boxes” for common searches. People searching Google for restaurants, hair salons, or local shops see the results on a prominently featured Google Map. People searching for particular products see the Google Shopping Ads rotating window above the enumerated results. Google compiles key information from top websites in knowledge panels at the right-hand side of the results, but Google selectively gives those sources attribution (in really small font at the bottom with spotty hyperlinks). Google searches for words and their meanings defaults to Oxford Languages’ embedded search bar in English. Yet searches for words in Arabic, French, Swahili, Hausa, other French and English-based Creoles – the other languages most spoken among the African Diaspora – defaults to Google Translate without an embedded search function. Google hasn’t made their global search tool truly global. Apple, Amazon, and Microsoft also engage in selective interoperability that 3(a)(4) targets. However, interoperability should be more than a leveraging tool to advantage one’s own services or mere handshakes among powerful companies to lock out competitors. Rather, it should be a tool that lowers barriers of entry for smaller competitors. Businesses can only truly be successful if they control their own destiny.
Once enacted, emerging Black-owned/serving platforms could advocate for the Federal Trade Commission to enforce nondiscriminatory interoperability and gain access to consumers under Section 3(a)(4). Just as Meta offers cross-posting and cross-messaging between its sister-services, under Section 3(a)(4), Fanbase and MelaninPeople could argue for nondiscriminatory interoperability with Meta products. Black content creators on Fanbase and MelaninPeople could then cross-post on Instagram or message users on Facebook, and showcase their brilliant talent to 3 billion monthly active users around the world. Similarly, Zimela and TruSo might want to offer interoperability with LinkedIn so that Black workers can represent their professional projects and lives in more culturally inclusive ways that progress diversity, equity, inclusion, and belonging. If the FTC determined that LinkedIn was a critical trading partner (a principal intermediary between business users and individual users) and thus a covered platform, and Zimela and TruSo found that any interoperability between other Microsoft-owned products useful to compete in the market, then Zimela and TruSo could firmly argue that under Section 3(a)(4) Microsoft must make the same capabilities available to them too. Nondiscriminatory interoperability between these platforms would give tens of thousands of subscribers access to the 58 million companies on LinkedIn. And just like Google shows brick-and-mortar results in its proprietary map, BlackOwnedAssociation.com would have the opportunity to display its 1,800 Black-owned shops on its glossier map product, or EatOkra might want to display its 9,500 Black-owned restaurants, eateries, and food trucks nationwide with its own native map featuring little pentagonal Okra pods. If Google products and Google affiliates get their chance in the one box, Black-owned businesses and cultural goods should also be readily retrievable for the public. The odds should always be in favor of the best results, not the ones owned or preferred by dominant platforms. Meta, Google, Microsoft, or any of the covered platforms should no longer be allowed to leverage interoperability to advantage their own services and bottom lines. That’s cheating, not competing.
Again, these examples of how AICO’s interoperability provision might work; but how it will actually work depends on the emerging platforms themselves and the FTC and Department of Justice enforcement guidelines. Nascent companies like Fanbase, TruSo, and BlackedOwnedAssociation can go to the FTC, the DOJ, or states’ Attorneys General with concerns about covered platforms discriminating in interoperability under 3(a)(4), or any of the other nine discriminatory practices in Section 3(a).
In sum, Congress must pass S.2992 – The American Innovation and Choice Online Act to open the largest covered platforms’ networks to newer and smaller platforms like the aforementioned Black-owned/serving companies. Once passed, the bill’s nondiscriminatory interoperability provision will finally give tech entrepreneurs who build products that serve Indigenous American, Latine, Asian American and Pacific Islander, Immigrant, LGTBQIA2S+, low-income communities, and people with disabilities a real opportunity to Get Up Offa them dominant platforms and thrive in the global economy!
Stay tuned for our next episode, where we discuss how other key provisions of S.2992 and S.2710 give Black entrepreneurs real economic opportunity!