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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.

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.

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.

Here, the company has been proactive. Between January and March 2018, Facebook removed 1.9m messages encouraging terrorist propaganda, an increase of 800,000 comments compared to the previous three months. A total of 99.5% of these messages were located with the aid of advancing technology.

But Facebook hasn’t released figures showing how prevalent terrorist propaganda is on its site. So we really don’t know how successful the software is in this respect.

on self-regulation,

Between the two three-month periods there was a 183% increase in the amount of posts removed that were labelled graphically violent. A total of 86% of these comments were flagged by a computer system.

But we also know that Facebook’s figures also show that up to 27 out of every 10,000 comments that made it past the detection technology contained graphic violence.

One estimate suggests that 510,000 comments are posted every minute. If accurate, that would mean 1,982,880 violent comments are posted every 24 hours.

Facebook has also used technology to aid the removal of graphic violence from its site.

This brings us to the other significant figure not included in the data released by Facebook: the total number of comments reported by users. As this is a fundamental mechanism in tackling online abuse, the amount of reports made to the company should be made publicly available

However, even Facebook still has a long way to go to get to total transparency. Ideally, all social networking sites would release annual reports on how they are tackling abuse online. This would enable regulators and the public to hold the firms more directly to account for failures to remove online abuse from their servers.

In that regard, account should be taken, in particular, of the overall presentation of the product marketed by the third party, the circumstances in which a distinction is made between that mark and the sign used by that the third party, and the effort made by that third party to ensure that consumers distinguish its products from those of which it is not the trade mark owner

in part of the European Union, an EU trade mark with a reputation and a sign peacefully coexist

It cannot be excluded that the conduct which can be expected of the third party so that its use of the sign follows honest practices in industrial or commercial matters must be analysed differently in a part of the European Union where consumers have a particular affinity with the geographical word contained in the mark and the sign at issue than in a part of the European Union where that affinity is weaker.

allows the conclusion that in another part of the European Union, where that peaceful coexistence is absent, there is due cause legitimising the use of that sign.

intellectual property infringement.

The Google/Equustek case is not one of permissionless innovation, but is still an example of a large internet intermediary taking the position that it can do as it damned well pleases because, after all, it operates in multiple jurisdictions—in fact it operates in cyberspace, where, according to some, normal regulatory practices and laws shouldn’t apply or we will “stifle innovation”.

One innovation that Google has instituted is to tweak its geolocation system

The excuse of “it’s not my fault; blame the algorithm”, also won’t fly anymore. Google’s algorithms are the “secret sauce” that differentiates it from its competitors, and the dominance of Google is proof of the effectiveness of its search formulae.

But scooping up every bit of information and interpreting what people want (or what Google thinks they want) through an algorithm has its downsides. A German court has found that Google cannot hide behind its algorithms when it comes to producing perverse search results

AI is great, until it isn’t, and there is no doubt that regulators will start to look at legal issues surrounding AI.

Companies like Google and Facebook will not be able to duck their responsibility just because results that are potentially illegal are produced by algorithms or AI

One area where human judgement is very much involved is in the placing of ads, although Youtube and others are quick to blame automated programs when legitimate ads appear alongside questionable or illegal content. Platforms have no obligation to accept ads as long as they don’t engage in non-competitive trade practices

Google has already learned its lesson on pharmaceutical products the hard way, having been fined $500 million in 2011 for running ads on its Adwords service from unlicenced Canadian online pharmacies illegally (according to US law) selling prescriptions to US consumers.

Google is a deep-pocketed corporation but it seems to have got the message when it comes to pharmaceuticals. What galls me is that if Google can remove Adwords placements promoting illegal drug products, why, when I google “watch pirated movies”, do I get an Adwords listing on page 1 of search that says “Watch HD Free Full Movies Online”.

At the end of the day whether it is Google, Facebook, Amazon, or any other major internet intermediary, the old wheeze that respect for privacy, respect for copyright and just plain old respect for the law in general gets in the way of innovation is being increasingly shown to be a threadbare argument.

What is interesting is that many cyber-libertarians who oppose any attempt to impose copyright obligations and publishing liability on internet platforms are suddenly starting to get nervous about misuse of data by these same platforms when it comes to privacy.

This is a remarkable revelation for someone who has not only advocated that Canada adopt in NAFTA the overly-broad US safe harbour provisions found in the Communications Decency Act, a provision that has been widely abused in the US by internet intermediaries as a way of ducking any responsibility for the content they make available, but who has consistently crusaded against any strengthening of copyright laws that might impose greater obligations on internet platforms.

proponents of reasonable internet regulation

Against that background, the Chamber considered that the applicant company had been in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail.

Lastly, the Court observes that the applicant company has argued (see paragraph 78 above) that the Court should have due regard to the notice-and-take-down system that it had introduced. If accompanied by effective procedures allowing for rapid response, this system can in the Court’s view function in many cases as an appropriate tool for balancing the rights and interests of all those involved. However, in cases such as the present one, where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals, as understood in the Court’s case-law (see paragraph 136 above), the Court considers, as stated above (see paragraph 153), that the rights and interests of others and of society as a whole may entitle Contracting States to impose liability on Internet news portals, without contravening Article 10 of the Convention, if they fail to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties.

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.

Miguel takes a dim view of the accuracy figure. “Accuracy is only judged by agreement. If me and the auditor both allow the obvious sale of heroin, Cognizant was ‘correct,’ because we both agreed,” he says. “This number is fake.”

Even with an ever-changing rulebook, moderators are granted only the slimmest margins of error. The job resembles a high-stakes video game in which you start out with 100 points — a perfect accuracy score — and then scratch and claw to keep as many of those points as you can. Because once you fall below 95, your job is at risk. If a quality assurance manager marks Miguel’s decision wrong, he can appeal the decision. Getting the QA to agree with you is known as “getting the point back.” In the short term, an “error” is whatever a QA says it is, and so moderators have good reason to appeal every time they are marked wrong. (Recently, Cognizant made it even harder to get a point back, by requiring moderators to first get a SME to approve their appeal before it would be forwarded to the QA.)

eforeBefore Miguel can take a break, he clicks a browser extension to let Cognizant know he is leaving his desk. (“That’s a standard thing in this type of industry,” Facebook’s Davidson tells me. “To be able to track, so you know where your workforce is.”)

f it advocates crimes against humanity; incites or advocates terrorist acts; or incites hatred, violence, discrimination or insults against a person or a group of people on grounds of origin, alleged race, religion, ethnic background, nationality, gender, sexual orientation, gender identity or disability, whether real or alleged.

obligations be imposed on the largest content-sharing platform operators, that is, any natural or legal person offering, on a professional basis, whether for remuneration or not, an online content-sharing platform, wherever it is based, used by at least 20% of the population of the French-speaking region of Belgium or the bilingual Brussels-Capital region.

iged to remove or block content notified to them that is ‘clearly illegal’ within 24 hours. T

need to put in place reporting procedures as well as processes for contesting their decisions

appoint an official contact person

half-yearly report on compliance with their obligation

The Internet has grown exponentially in size since the DMCA was enacted, but we should not forget that the problem of large-scale infringement was an expected development—and one that the safe harbors were specifically designed to manage.