The dangers of lawmakers’ contradiction and confusion on Big Tech

By Shane Tews

Sen. Richard Blumenthal’s (D-CT) mention of a “finsta,” or fake Instagram account, during a recent Senate hearing on children’s online safety immediately became fodder for discussion across social media. The clip went viral and sparked a debate over both Blumenthal’s misunderstanding and Congress’ ability to understand how tech companies work and how consumers use technology. One thing remains clear: There is a problematic gap between some lawmakers’ understanding of the tech sector and their relentless desire to regulate it.

Enter Sen. Marsha Blackburn’s (R-TN) contradictory comment from the same hearing, further highlighting the dangers of lawmakers’ conflicting and sometimes illogical attitudes toward tech companies — often based on an incomplete understanding of how society uses technologies like Instagram or Facebook. Citing a Facebook internal report, Blackburn told a company witness, “Facebook knew about content devoted to coercing women into domestic servitude. Yet they chose to do nothing to stop it, until Apple threatened to pull Facebook from the App Store.” Blackburn seemingly cheered Apple’s strict App Store policies that allowed Apple to police Facebook in response to harmful content on the Facebook app, even when the social media company was reluctant to do so itself. Apple’s ability to control access to its App Store ― what the aforementioned Facebook report referred to only as “Apple escalation” ― prevents malicious or misleading software applications from reaching 1.65 billion active Apple devices. The threat of being removed from the App Store and losing access to Apple’s global customer base motivates developers to adhere to security and privacy guidelines that protect those customers — as Blackburn’s Facebook example proves. 

Sens. Marsha Blackburn (R-TN) and Richard Blumenthal (D-CT) question a witness at a Senate Commerce, Science, and Transportation Committee hearing, October 5, 2021, via Reuters

Blackburn doesn’t seem to understand that one of her legislative proposals would ban the exact practice she praised Apple for employing — ensuring Facebook can’t track iOS users — thanks to Apple’s control over its App Store ecosystem. Along with Blumenthal and Sen. Amy Klobuchar (D-MN), Blackburn is a co-sponsor of the “Open App Markets Act,” which would effectively block platforms like Apple from prohibiting user downloads of unvetted and potentially harmful apps from third-party app stores and web browsers through a process known as “sideloading.” The law clearly targets Apple and Google, but seems to forget Facebook entirely, including that the company owns four of the App Store’s top ten apps: Facebook, Instagram, Messenger and WhatsApp. If this law were passed, Facebook would be allowed to bundle its applications for these services and bypass existing security and privacy measures imposed by app store operators.

Blackburn’s cognitive dissonance reflects a dangerous trend of lawmakers saying one thing and doing another when it comes to digital platforms. This year, the Senate passed the United States Innovation and Competition Act, a $110 billion investment in technology research. It’s disconcerting to see the Senate pass legislation to boost America’s technology industry with funding towards research and development then come forward with a handful of proposals that would devastate American tech companies in the name of “competition.” The Open App Markets Act and the House Judiciary Committee’s antitrust legislative package specifically target Apple, Amazon, Facebook and Google — companies that have made the United States the world leader in digital innovation.

Data collection is the real issue driving the concerns of many in Congress. If Congress wants to help consumers have a more secure digital experience, they should be focused on passing a federal privacy law. Having a clear set of guidelines around how companies collect, maintain, share, and dispose of consumer data would be the best guidance Congress could give tech companies to help consumers. By confusing consumer safety with competition, Congress is going down an inconsistent legislative path that limits American technological innovation but does not promote policies that could help consumers make more informed choices.

Currently, American consumers are living under European regulations by default due to our lack of comprehensive federal privacy laws. Europe’s General Data Protection Regulation has taken a commanding lead in dictating how global companies manage their data flow — or face major financial consequences. America’s lead in the global technology race is ultimately threatened by its own lack of a national privacy law that encompasses data collection transparency and clear cybersecurity standards. How US-based companies have changed their data collection processes to appease European regulators is a fact we must consider as Europe’s regulations shape how the rest of the world uses the internet for both commerce and communications.

Lawmakers should focus on giving consumers much-deserved clarity and security around collection of their data. Measures that enable better data protection would be the best regulatory guidance Congress could provide. Contradictory legislative proposals, however, won’t help protect American consumers or give American companies guidance on how to conduct and secure information flow — a core driver of technological innovation.

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