Digital Platform Commission Act Introduced in U.S. Senate

As first reported in the Washington Post, this week U.S. Senator Michael Bennet (D-CO) introduced the Digital Platform Commission Act, which if enacted would "create an expert federal body empowered to provide comprehensive, sector-specific regulation of digital platforms to protect consumers, promote competition, and defend the public interest," according to a press release from the Senator's office.

“It’s past time for a thoughtful and comprehensive approach to regulating digital platforms that have amassed extraordinary power over our economy, society, and democracy,” Bennet said in the release, which included endorsements from Federal Communications Commission (FCC) Commissioner Tom Wheeler, Colorado Attorney General Phil Weiser, and Public Knowledge Senior Vice President Harold Feld, as well as a handful of academics. “We don’t have to choose between letting digital platforms write their own rules, allowing competitors like China and the E.U. write those rules, or leaving it to politicians in Congress. We should follow the long precedent in American history of empowering an expert body to protect the public interest through common sense rules and oversight for complex and powerful sectors of the economy.”

What the bill says

The 63-page document starts with what it calls "findings" or the "sense of Congress" as to the problem the Act is designed to solve. Noting the power that major tech platforms have accrued since the "last time Congress enacted legislation to meaningfully regulate the technology or telecommunications sector" with the passage of the Telecommunications Act of 1996, the Act asserts that digital platforms "remain largely unregulated and are left to write their own rules without meaningful democratic input or accountability." This has produced "demonstrable harm," including to small businesses, local journalism, and mental health, while enabling the dissemination of hate speech, the undermining of privacy and "in some cases, radicalizing individuals to violence."

The Act also notes that the U.S. government's "failure" to regulate tech "cedes to foreign competitors" the role of "setting reasonable rules of the road and technical standards for emerging technologies." The Act, then, would create a new federal agency to "develop appropriate regulations and policies" and adopt "a risk management regulatory approach that prioritizes anticipating, limiting, and balancing against other interests the broad economic, social, and political risks of harm posed by the activities and operations of a person or class of persons." It would have amongst its goals the "prevention of harmful levels of concentration of private power over critical digital infrastructure," the protection of consumers from deceptive and unjust practices, and the assurance that "the algorithmic processes of digital platforms are fair, transparent, and safe."

The Act creates the Commission, to include a Chair and four Commissioners all appointed by the President and subject to Senate confirmation. As at other federal agencies, the President would designate the Chair, and Commissioners serve for five years. The Commission can hire staff into bureaus focused on its "principal workload operations," with personnel fulfilling "legal, engineering, accounting, administrative, clerical, and other" roles as necessary.

The Code Council and the Research Office

The Act also creates a "Code Council," which it says "shall develop proposed voluntary or enforceable behavioral codes, technical standards, or other policies for digital platforms" to govern their function. The Council would include 18 members, six from digital platforms, six "representatives of nonprofit public interest groups, academics, and other experts not affiliated with commercial enterprises, with demonstrated expertise in technology policy, law, consumer protection, privacy, competition, disinformation" and other areas, and six "technical experts in engineering, application development, computer science, data science, machine learning, communications, media studies" and other relevant disciplines. Code Council positions would be for a term of three years, and are appointed by the Chair of the Commission.

The Act would establish a "Research Office" staffed with at least twenty employees to "to conduct internal research, and collaborate with outside academics and experts" as necessary. The Research Office will also award grants to academics and experts to conduct research. The Act also establishes a "Pilot Research Program for Sensitive Data" that would allow "vetted, nonprofit, financially disinterested academic institutions and experts to access data and other information" from platforms in a privacy-safe manner.

Systemically Important Digital Platforms

The Commission will be tasked with tailoring its rules "based on the size, dominance, and other attributes" of digital platforms. While the Commission has latitude in how it chooses to define "Systemically Important Digital Platforms," or SIDPS, generally it means big platforms operating at national or international scale that produce "economic, social or political impacts" or have the ability to "cause a person significant, immediate, and demonstrable" harms by exclusion. Daily users is a metric, as well. SIDPS have various reporting requirements, including annual reports to be filed with the Commission at the close of each year.

Investigative Authorities, Input on Acquisitions and Enforcement

The Commission will have investigative authority to "inquire into the management of the business of digital platforms" and to "keep itself informed" about "technical and business developments in the provision of online services."

With regard to SIDPS, the Commission may require platforms to submit information about potential acquisitions, which would inform its "recommendation to the Federal Trade Commission and the Assistant Attorney General on whether the covered acquisition violates any of the purposes of the Commission" to protect the public. The FTC and the Attorney General, in turn, "may use the recommendation of the Commission as a basis for rejecting the covered acquisition, or imposing additional requirements to consummate the acquisition, even if the covered acquisition does not violate antitrust laws but violates other purposes of the Commission" in the public interest.

The Act would allow "any person, any body politic or municipal organization, or any State attorney general or State commission, complaining of anything done or omitted to be done by any digital platform subject to this Act" to petition the Commission with a statement of complaint. Digital platforms that make "reparation for the injury alleged to have been caused" would be relieved of "liability to the complainant," otherwise the Commission may choose to "investigate the matters complained of in such manner and by such means as the Commission determines proper" and to determine penalties if necessary.

Funding

The Act imagines that the Commission can carry out its functions for $100 million in its first year, increasing $50 - $100 million each year until year five, when it would reach a steady state budget of $500 million a year.

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The Act, introduced in the Senate, bears some conceptual similarities to a bill introduced in the House earlier this year to establish a Bureau of Digital Services Oversight and Safety, but that bill- the Digital Services Oversight and Safety Act (DSOSA) would place the Bureau inside the FTC. The DSOSA offers an alternative mechanism for platform transparency and access for researchers to another Senate proposal, the Platform Accountability and Transparency Act, put forward by Senators Chris Coons (D-DE), Rob Portman (R-OH) and Amy Klobuchar (D-MN) last year.

“Sen. Michael Bennet’s Digital Platform Commission Act brings national policies into the digital age. New technologies require new oversight mechanisms. Sen. Bennet’s bill is significant not only in the establishment of a new expert agency, but also in the new agile regulatory model the agency is to follow. Policies and procedures that worked in the industrial era have proven insufficient for the challenges of the internet era. Sen. Bennet’s bill is visionary in its approach to the challenges of the digital 21st century,” said former FCC Chairman Tom Wheeler, now a Visiting Fellow at the Brookings Institution.