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America’s leading tech companies are in a bad odor these days, with politicians and intellectuals across the political spectrum levying sharp critiques. To pick the most prominent example: Sen. Al Franken (D-MN) gave a high-profile speech about technology policy last week. Wired magazine captioned it as “the speech big tech has been dreading.”
In his speech, Franken suggested that social media companies should have some sort of “neutrality” policy and should not “pick and choose which content reaches consumers and which doesn’t.” Franken was echoing a concern about the danger of technology companies as gatekeepers, which many other commentators share. He also warned about the dangers that arise when a technology company doesn’t prevent a “hostile foreign power using its platform to spread lies and sow discord.”
These are incompatible goals. By definition, forbidding content that “sows discord” is a non-neutral policy. Franken absolutely cannot have both his wishes.
In practice he can’t entirely have either. For a communication platform to be usable, there must be some mechanism to restrain spam, impersonation, and other harmful content. These policies will inevitably require some measure of judgment, for instance, to distinguish (benign) parody from (harmful) impersonation. Conversely, there is no perfect test for whether content “sows discord” — discord is in the eye of the beholder. Every social media company must make messy and awkward trade-offs, and different companies generally make different trade-offs.
Congress is unlikely to help
Congress is poorly positioned to help companies make these trade-offs. Politicians are professionally ill-prepared to discuss and reason about technical trade-offs. It is nigh universal — it is even a structural inevitability — that candidates for office emphasize only the positive consequences of their policies and even sometimes allege that there will only be positive consequences.
For tax policy (and budgeting generally), Congress relies on technical experts to articulate these trade-offs for them: The Congressional Budget Office makes a definite prediction about what a bill will cost. Earlier in the legislative drafting process, representatives can rely on projections from think tanks and academic experts. There is no congressional software design office, nor even a sizable community of impartial design experts in a position to advise.
Trade-offs can be subtle
The trade-offs in product design can be much more subtle than the clash between neutrality and filtering undesirable content. Consider the role of names. We might reasonably want a social network to require accounts to belong to humans and to be labeled with the actual name of the person associated with it. Facebook and Twitter both have policies along these lines. However, those policies had surprising consequences. Nobody wants a social network where popular singer Rihanna is identified only as “Robyn Fenty” (her legal name). Many people, not just pop stars, have social names that do not match their official documents, and the lines between stage name, alias, and false identity are subjective.
Congress should act cautiously
Any congressional attempt to tell technology companies “thou shalt not filter content” or “thou shalt not cause social disharmony” is likely to go badly. If we are lucky, the statute will be meaningless or so hopelessly self-contradictory that the courts refuse to enforce it. If we are unlucky, it will turn out that technology companies are forced to produce unpleasant or even dangerously insecure products.
Unlike legislators, engineers are trained to reason about trade-offs and limitations. A good engineer thinks through possible approaches and consults stakeholders (management, customers, and so forth) before settling on one approach. Usually, even the best approach is imperfect, and it is the duty of an engineer to “provide full disclosure of all pertinent system limitations and problems.”
Unlike legislators, users directly experience design trade-offs and can adopt the products they want to use. Social media is not like employment, where workers might be coerced into unsafe conditions, nor like medicine, where most people lack the expertise to evaluate safety and efficacy. If you think Twitter is a garbage fire of hate and Facebook is a tool of the Russians, you are free to use Google Plus, LinkedIn, or any other tool you like. Users seem to mostly have a rather more positive impression of both platforms, however.
Congress would do well to leave the design and evaluation of consumer software products to the professionals and users.
Congress is not equipped to help American tech companies make technical decisions about how they treat content. The design and evaluation of consumer software products is better left to professionals.
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