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he democratic right for non-Americans to determine the rules under which we should live is not even considered. Instead, attempts by democratic governments to impose legitimate democratic regulation on these companies, many of which have assumed the status of essential infrastructure, is derided as creeping authoritarianism or as a threat to the free and open internet.

At the very least, thinking of internet governance in these terms should make us more sympathetic to attempts by the Australian, Canadian, German and United Kingdom governments to legislate in this area, rather than be dismissive of the legitimacy of (democratic) governance on its face. If we value democratic oversight, state regulation is almost the only game in town, an approach that can be complemented with international treaty-making among democratic states so as to create agreed-upon minimum standards for regulating cross-border platform activities.

o address the first question, in a sense, the global American platforms are free riders on the notion that the internet as a network should be global in reach. Here, a useful analogy is the global financial system. Although we have a global financial system, it is characterized by domestic regulation and, in many countries

many of the social harms perpetuated by platforms are the likely result of their business models, which incentivize extremist speech and pervasive surveillance

Speech regulation without addressing these root causes is unlikely to be successful. If tools such as internet search functions truly have become essential to knowledge discovery and exhibit natural monopoly characteristics, countries should have the ability to determine for themselves what form they should take. To be blunt, public ownership should be on the table, even if it isn’t, currently, in the United States.

Google’s threat (which mirrored Facebook’s) to cut off its search service to Australia was likely due as much, if not more, to Australia’s plan to exercise oversight over its proprietary algorithm than it was about Australia’s plan to force Google to give a cut of its revenues to various Australian media outlets. The harshness of this threat highlights exactly how hard it will be for non-US countries to exert any meaningful control over the services currently monopolized by these US companies.

Already, the United States, as the home of these companies, is working to solidify the market and social dominance of its platforms.

As already mentioned, the CUSMA contains provisions protecting free cross-border data flows that, while justified in terms of encouraging trade, serve to preserve the dominance of the US platforms in Canada and Mexico. To this, we can add its successful inclusion of CDA Section 230 language in the agreement, effectively pre-empting Canadian and Mexican debates over what values we wish to apply to platform governance.

he first step to coming up with a sound policy involves understanding the policy terrain. In internet governance, and particularly in platform governance, this involves understanding the extent to which the dominant debates and landscape reflect particular US interests and values

hese interests and values do not necessarily reflect those of people living in other countries. Both Canadians and Americans believe in free speech and market competition. However, our interpretations of the limits of each differ. This reality — the acknowledgement of legitimate differences and the necessity of democratic accountability — should be our starting point in discussions of internet governance, not the desire to preserve a global internet and platform ecosystem that is much less global, and much more American, than it appears.

The implications of cloud platforms such as Salesforce, Microsoft, Apple, Amazon and others differ again. A business built on a technology platform with a track record of well-developed data and model governance, audit capability, responsible product development practices and a culture and track record of transparency will likely reduce some risks related to biased data and model transparency, while encouraging (and even enforcing) adoption of those same practices and norms throughout its ecosystem.

policies that govern their internal practices for responsible technology development; guidance, tools and educational resources for their customers’ responsible use of their technologies; and policies (enforced in terms of service) that govern the acceptable use of not only their platforms but also specific technologies, such as face recognition or gait detection.

At the same time, overreliance on a small, well-funded, global group of technology vendors to set the agenda for responsible and ethical use of AI may create a novel set of risks.

Audit is another area that, while promising, is also fraught with potential conflict. Companies such as O’Neil Risk Consulting and Algorithmic Auditing, founded by the author of Weapons of Math Destruction, Cathy O’Neil, provide algorithmic audit and other services intended to help companies better understand and remediate data and model issues related to discriminatory outcomes. Unlike, for example, audits of financial statements, algorithmic audit services are as yet entirely voluntary, lack oversight by any type of governing board, and do not carry disclosure requirements or penalties. As a result, no matter how thorough the analysis or comprehensive the results, these types of services are vulnerable to manipulation or exploitation by their customers for “ethics-washing” purposes.

, we must broaden our understanding of platforms beyond social media sites to other types of business platforms, examine those risks in context, and approach governance in a way that accounts not only for the technologies themselves, but also for the disparate impacts among industries and business models.

This is a time-sensitive issue

arge technology companies — for a range of reasons — are trying to fill the policy void, creating the potential for a kind of demilitarized zone for AI, one in which neither established laws nor corporate policy hold sway.

As Phillips argues, “we’re not going to solve the climate crisis if people just stop drinking water out of water bottles. But we need to start minimizing the amount of pollution that’s even put into the landscape. It’s a place to start; it’s not the place to end.”

There may not be a one-size-fits-all analogy for platforms, but “horizontalizing” can help us to understand which solutions worked in other industries, which were under-ambitious and which had unintended consequences. Comparing horizontally also reminds us that the problems of how to regulate the online world are not unique, and will prove as difficult to resolve as those of other large industries.  

The key to vertical thinking is to figure out how not to lock in incumbents or to tilt the playing field even more toward them. We often forget that small rivals do exist, and our regulation should think about how to include them. This means fostering a market that has room for ponies and stable horses as well as unicorns.

Vertical thinking has started to spread in Washington, DC. In mid January, the antitrust subcommittee in Congress held a hearing with four smaller tech firms. All of them asked for regulatory intervention. The CEO of phone accessory maker PopSockets called Amazon’s behaviour “bullying with a smile.” Amazon purportedly ignored the selling of counterfeited PopSocket products on its platform and punished PopSocket for wanting to end its relationship with Amazon. Both Republicans and Democrats seemed sympathetic to smaller firms’ travails. The question is how to adequately address vertical concerns.

Without Improved Governance, Big Firms Will Weaponize Regulation

One is the question of intellectual property. Pa

Big companies can marshall an army of lawyers, which even medium-sized firms could never afford to do.

A second aspect to consider is sliding scales of regulation.

A third aspect is burden of proof. One option is to flip the present default and make big companies prove that they are not engaging in harmful behaviour

The EU head of antitrust, Margrethe Vestager, is considering whether to turn this on its head: in cases where the European Union suspects monopolistic behaviour, major digital platforms would have to prove that users benefit from their services.

Companies would have to prove gains, rather than Brussels having to prove damages. This change would relieve pressure on smaller companies to show harms. It would put obligations on companies such as Google, which Vestager sees as so dominant that she has called them “de facto regulators” in their markets. 

A final aspect to consider is possibly mandating larger firms to open up.

In other cases, human moderators have had their decisions overturned. The Oversight Board also upheld Facebook’s decision to remove a dehumanizing ethnic slur against Azerbaijanis in the context of an active conflict over the Nagorno-Karabakh disputed region.

But Facebook and other social media companies do not have to engage in a transparent, publicly accountable process to make their decisions. However, Facebook claims that in its decision-making, it upholds the human right of freedom of expression. However, freedom of expression does not mean the same thing to everyone

rivate organizations are currently the only consistent governors of data and social media.

However, the Oversight Board deals with only a small fraction of possible cases.

Facebook’s dominance in social media, however, is notable not because it’s a private company. Mass communication has been privatized, at least in the U.S., for a long time. Rather, Facebook’s insertion into the regulation of freedom of expression and its claim to support human rights is notable because these have traditionally been the territory of governments. While far from perfect, democracies provide citizens and other groups influence over the enforcement of human rights.

Facebook and other social media companies, however, have no such accountability to the public. Ensuring human rights needs to go beyond volunteerism by private companies. Perhaps with the Australia versus Facebook showdown, governments finally have an impetus to pay attention to the effects of technology companies on fundamental human rights.

corporate responsibility

Since the mid-1990s, internet companies have been absolved from liability – by Section 230 of the 1996 US Telecommunications Act and to some extent by the EU’s e-commerce directive – for the damage that their platforms do.

Sooner or later, democracies will have to bring these outfits under control and the only question is how best to do it. The white paper suggests one possible way forward.

essentially a responsibility for unintended consequences of the way you have set up and run your business.

The white paper says that the government will establish a new statutory duty of care on relevant companies “to take reasonable steps to keep their users safe and tackle illegal and harmful activity on their services”.

for example assessing and responding to the risk associated with emerging harms or technology

Stirring stuff, eh? It has certainly taken much of the tech industry aback, especially those for whom the idea of government regulation has always been anathema and who regard this fancy new “duty of care’ as a legal fantasy dreamed up in an undergraduate seminar.

To which the best riposte is perhaps the old Chinese proverb that the longest journey begins with a single step. This white paper is it.

However, the protection granted by the Directive is not absolute. Article 1(2)(b), bolstered by Recital 11, concedes that secrecy will take a back seat if the ‘Union or national rules require trade secret holders to disclose, for reasons of public interest, information, including trade secrets, to the public or to administrative or judicial authorities for the performance of the duties of those authorities’. 

With regard to trade secrets in general, in the Microsoft case, the CJEU held that a refusal by Microsoft to share interoperability information with a competitor constituted a breach of Article 102 TFEU.

Although trade secrets remained protected from the public and competitors, Google had to disclose Page Rank parameters to the Commission as the administrative authority for the performance of its investigative duties. It is possible that a similar examination will take place in the recently launched probe in Amazon’s treatment of third-party sellers. 

For instance, in February 2020, the District Court of the Hague held that the System Risk Indication algorithm that the Dutch government used to detect fraud in areas such as benefits, allowances, and taxes, violated the right to privacy (Article 8 ECHR), inter alia, because it was not transparent enough, i.e. the government has neither publicized the risk model and indicators that make up the risk model, nor submitted them to the Court (para 6 (49)).

Article 22 still remains one of the most unenforceable provisions of the GDPR. Some scholars (see, e.g. Wachter) question the existence of such a right to explanation altogether claiming that if the right does not withstand the balancing against trade secrets, it is of little value.

In 2019, to ensure competition in the platform economy, the European Parliament and the Council adopted Platform-to-Business (P2B) Regulation. To create a level playing field between businesses, the Regulation for the first time mandates the platforms to disclose to the businesses the main parameters of the ranking systems they employ, i.e. ‘algorithmic sequencing, rating or review mechanisms, visual highlights, or other saliency tools’ while recognising the protection of algorithms by the Trade Secrets Directive (Article 1(5)).

The recent Guidelines on ranking transparency by the European Commission interpret the ‘main parameters’ to mean ‘what drove the design of the algorithm in the first place’ (para 41).

The German Interstate Media Law that entered into force in October 2020, transposes the revised Audio-Visual Services Directive, but also goes well beyond the Directive in tackling automated decision-making that leads to prioritization and recommendation of content.

This obligation to ‘explain the algorithm’ makes it the first national law that, in ensuring fairness for all journalistic and editorial offers, also aims more generally at diversity of opinion and information in the digital space – a distinct human rights dimension. If the provision proves enforceable, it might serve as an example for other Member States to emulate. 

Lastly, the draft DSA grants the newly introduced Digital Service Coordinators, the Commission, as well as vetted researchers (under conditions to be specified) the powers of data access to ensure compliance with the DSA. The core of this right, however, is undermined in Article 31(6), which effectively allows the platforms to refuse such access based on trade secrecy concerns. 

This shows that although addressing algorithms in a horizontal instrument is a move in the right direction, to make it enforceable, the final DSA, as well as any ensuing guidelines, should differentiate between three tiers of disclosure: 1) full disclosure – granting supervisory bodies the right of access, which may not be refused by the IP owners, to all confidential information; 2) limited disclosure – granting vetted researchers the right of access limited in time and scope, with legal guarantees for protection of trade secrecy; and 3) explanation of main parameters – granting individuals information in accessible language without prejudice to trade secrets.