The House Commerce Committee recently approved a new federal data privacy bill with a strong 53-2 bipartisan majority. The vote suggests that the House is likely to pass it.
The American Data Privacy and Protection Act intends to rein in Big Tech giants and platforms such as Facebook, Google, and Amazon while giving people more control over how their data are used. But although its goals are worthwhile, the bill is likely to backfire on conservatives. The bill may also entrench the oligopoly of the very tech giants it’s aimed at while giving bureaucrats more influence over what we see online.
The ADPPA would let people request deletion or correction of their data, require consent for the use or transfer of personal data to third parties, and create a searchable public registry of third-party data brokers. A specialized division of the Federal Trade Commission would enforce it.
One problem: Any regulatory framework that imposes wide-reaching obligations outside of contracts between users and providers is bound to impose disproportionate burdens on relatively smaller players. The biggest firms, like Facebook, have the resources to recruit compliance staff. That could explain why Google increased its share of the European digital advertising market to 95% after the European Union’s 2018 data privacy regulation was passed. In contrast, half of EU businesses and about 70% of British businesses were expected to remain noncompliant once the regulation took effect.
This is perhaps why Big Tech lobbying opposition to the ADPPA has been relatively muted. The law also requires that large companies conduct yearly “algorithmic impact assessments” evaluating the harms their algorithms could cause, how these are being addressed, and whether the algorithm is “necessary” and “proportionate” for meeting its purpose. This legislative language is based on valid concerns. Leaked internal research reveals that Instagram and Facebook negatively affect teenagers’ mental health and self-image.
Again, however, what constitutes “harm” is an amorphous notion prone to political influence.
Democratic politicians, including President Joe Biden and Sen. Elizabeth Warren (D-MA), continually blame companies such as Facebook for harboring or amplifying supposed “fake news,” “misinformation,” and “extremist content.” This often means conservatives suffer the most. Current FTC Chairwoman and Biden appointee Lina Khan is also a vocal critic of Big Tech’s algorithms. Khan advocates a hard-line vision of antitrust enforcement, moving beyond establishing that companies’ allegedly anti-competitive actions actually undermine consumer welfare before they’re punished.
The ADPPA does note some broad categories of algorithmic harm, including harm to minors and disparate harm to individuals based on race, religion, sex, disability, or political party registration. However, it otherwise gives unelected FTC bureaucrats the authority to determine what they think constitutes harm. It could thus result in even more suppression of controversial opinion and speech in fear that allowing its spread might run afoul of regulators.
Existing political pressure has already driven the rise of “fact-checkers” who have targeted conservative satire, flagged controversial, albeit legitimate, opinions as false or misleading, and branded claims and even scientific studies on issues as misinformation.
At a minimum, the bill ought to specify concrete harms that warrant action to eliminate subjective regulatory discretion. Conservatives concerned about both Big Tech’s purported dominance and the dangers of greater political and regulatory control should consider these issues before casting their votes.
Satya Marar is a Washington, D.C.-based tech policy professional and foreign-trained lawyer.
