Through the pervasive implementation of its code and business practices, Big Tech today is continuously rewriting the rules of our democracies. Laws and policies intended to promote diversity and pluralism in media are effectively nullified when the news and information we see (as well as the advertising that supports its production) are largely controlled by just two companies, Google and Facebook. And rules requiring funding transparency in political ads aired on TV (along with similar campaign governance intended to protect fair elections) are wholly undermined when election spending shifts to the digital realm which has none of the same requirements — and where the policies that do exist are solely decided by the business interests of a handful of tech companies.
With Amazon flouting competition laws intended to prohibit predatory behavior by surveilling third-party sellers, and companies like Uber evading labor protections by designing a gig-worker system premised on locking-in workers as independent contractors, the question is not whether Big Tech's code is causing real world harms. It's what are we going to do about it.
<aside> <img src="https://s3-us-west-2.amazonaws.com/secure.notion-static.com/21baa65f-f886-4c75-a514-5f55d3168e81/waypoint-map.png" alt="https://s3-us-west-2.amazonaws.com/secure.notion-static.com/21baa65f-f886-4c75-a514-5f55d3168e81/waypoint-map.png" width="40px" /> How did we get here?
Just before the new millennium was set to begin, Harvard Law Professor Lawrence Lessig declared “code is law” in his 1999 book, *Code and Other Laws of Cyberspace. *****In the seminal text, Lessig argued that even in the absence of government laws, the code of the internet served as its own regulator: “In cyberspace we must understand how a different 'code' regulates — how the software and hardware (i.e., the 'code' of cyberspace) that make cyberspace what it is also regulate cyberspace as it is."
At the time, significant debate existed over whether this new innovation — “the internet” — should be regulated. Should commercial interests, along with government regulation, be permitted to code-in rules for the internet? If so, would such "rules" limit free speech and privacy, or more generally diminish the openness of the internet that so far had distinguished it from existing mediums such as TV, radio, and newspapers?
Unfortunately, many advocates, thinkers, and policymakers of the day chose to reduce these complex questions to an all-or-nothing proposition: to regulate, or not. But as Lessig rightly warned:
“Our choice is not between 'regulation' and 'no regulation.' The code regulates. It implements values, or not . . . People choose how the code does these things. People write the code. Thus the choice is not whether people will decide how cyberspace regulates. People — coders — will. The only choice is whether we collectively will have a role in their choice — and thus in determining how these values regulate — or whether collectively we will allow the coders to select our values for us.”
In the end, the anti-regulatory voices largely won out — leaving coders and tech companies free to shape the internet’s future. After twenty years of minimal regulation and government oversight, their code has become the de-facto law, shaping not only the values and outcomes of the internet — but our world writ large.
<aside> <img src="https://s3-us-west-2.amazonaws.com/secure.notion-static.com/cf0c75fb-2350-404b-a45f-44e675deddb1/conference-background-selected.png" alt="https://s3-us-west-2.amazonaws.com/secure.notion-static.com/cf0c75fb-2350-404b-a45f-44e675deddb1/conference-background-selected.png" width="40px" /> How can we respond?
Democracies have faced problems such as these before. The industrial revolution brought tremendous innovation, but also considerable harms like monopolization, pollution, and exploitative labor practices. In the 20th century, democracies responded by putting in place laws and regulations to protect self-government and improve outcomes for workers and society while still maintaining technological progress.
Unfortunately, policymakers today do not have a comparable window of time within which to respond to the harms being caused by Big Tech’s code. Our civic discourse — the foundation upon which functioning democracies operate — is buckling under a deluge of digital disinformation that threatens our elections and enables racist and other extremist ideologies to gain new momentum and outsized influence. And our personal data is continuously being extracted and exploited to shape and manipulate our political and social views (while also being fed into other harmful purposes that we cannot possibly anticipate, let alone give consent to).
Early on in the development of the internet, it may indeed have been prudent for lawmakers and regulators to give nascent technologies room to grow and develop. But those days have long since passed. The companies that leveraged the internet are now titans of industry and commerce around the world.
With recent regulations like the General Data Protection Regulation and the California Consumer Protection Act, and an increasing number of antitrust investigations and enforcement actions, Big Tech’s long-standing exemption from democratic governance is beginning to erode. But even with these changes, many of our governments’ oversight and regulatory tools will need to be adapted and updated to account for the realities of the digital age. Before it's too late, democracies around the world must take action to advance the public interest and develop governance, laws, and regulations to recode the rules for tech so that the internet works for — not against — democracy.
<aside> <img src="https://s3-us-west-2.amazonaws.com/secure.notion-static.com/44f92548-ffb1-4c13-9890-0dccd96b4a5b/book.png" alt="https://s3-us-west-2.amazonaws.com/secure.notion-static.com/44f92548-ffb1-4c13-9890-0dccd96b4a5b/book.png" width="40px" /> Lawrence Lessig, Code: And Other Laws of Cyberspace (Basic Books, 1999).