The internet is the most powerful and pervasive platform in the history of the planet. Yet, the absence of government oversight has allowed it to be ruled by a handful of corporate autocrats. Competitive markets and the well-being of consumers are collateral damage as digital networks and the services they deliver close an inherently open technology to advantage themselves financially and, in the case of social media, undermine the foundation necessary for democracy to function.

That the representatives of We the People have failed to act means the behavioral rules for the new economy, and for so much of our democratic debate, are being made by digital autocrats. Now is a legacy moment to determine whether, and how, the people, acting through their government, will assert the public interest in the digital environment.

Essential Networks Have Historically Been Open Networks

The challenge begins with the networks that deliver the digital services. Companies whose business used to be the delivery of telephone or television service have become “internet service providers” (ISPs) delivering high-speed service to homes and businesses. For most Americans, unfortunately, there is little or no competition for high-speed internet service (100 megabits per second).

The internet has become more important than the telephone ever was. Yet, while telephone networks have always been regulated as “common carriers,” required to provide nondiscriminatory access, internet delivery has no such mandate. In the early days of the internet, services such as America Online existed because phone networks, as common carriers, were required to provide access. Such common carrier status meant young upstarts like AOL had immediate access to a national market to try out their ideas. Compare this with the other wire into American homes, cable television service, where—because the networks are not common carriers—corporate executives make the decisions about what their subscribers will be allowed to receive.

As these young upstarts began making money, telephone network executives began working to change the open access policy. Digital was different, they argued; and if cable networks could pick and choose (and charge for access to their network), why couldn’t telephone networks? Both parties, of course, conveniently overlooked how consumers were already paying for network connectivity.

For almost a decade, the Federal Communications Commission (FCC) and the ISPs jousted over whether local internet service had to be open to all or whether the companies could discriminate in controlling access to the networks. In 2007, Comcast began blocking competition from the online peer-to-peer file-sharing service BitTorrent, and in 2008 the Republican-controlled FCC told Comcast to cease and desist. In what would become common ISP practice, Comcast sued, and the appeals court ruled that the agency had overstepped its authority. When the Obama FCC tried to impose nondiscrimination in 2010, it was Verizon that sued, again successfully. Standing before the court, the company’s attorney stated that it intended to discriminate. Such discrimination could include creating network “fast lanes” and “slow lanes” depending on whether and how much an internet service paid the ISP to prioritize its traffic.

At the root of these court decisions was the fact that the manner in which the FCC went about requiring nondiscrimination had stopped short of declaring the providers of internet delivery to be common carriers. Finally, in early 2015, the FCC (I was chair at the time) passed its Open Internet Order (commonly referred to as net neutrality) on a 3-2 vote, with the Republican commissioners opposing. It was upheld in court in June 2016. The new rule provided that the companies delivering the last mile of internet service were common carriers and thus required to be nondiscriminatory in their actions. Only 18 months after the order was affirmed by the appeals court, the Trump FCC voted to repeal it in December 2017 at the request of the ISPs. The dangers of throttling were demonstrated only seven months later in the huge 2018 Mendocino Complex Fire in California, when, at the height of the wildfire, the fire department had its service throttled down because it was not paying for a higher-priority service.

President Biden, having indicated his support of net neutrality, nominated Gigi Sohn, a well-respected consumer advocate and supporter of net neutrality, to a seat on the FCC. The affected companies mounted a lobbying campaign that successfully blocked her confirmation by the Senate, thus effectively killing timely net neutrality action since Republican opposition continues and the FCC remains deadlocked at two Democrats and two Republicans. In January, President Biden renominated Sohn; in March, facing unyielding resistance, Sohn withdrew her name from consideration.

Building a Closed Superstructure

Internet platforms such as Facebook and Google strongly supported an open network because it assured access to their consumers. In their own businesses, however, the platforms practice the opposite, maintaining a closed superstructure atop that network to trap users into an environment the companies control.

This closed environment has allowed the platform companies to implement a powerful new business plan based on a self-perpetuating digital chain reaction. The seminal force in this business model is how the companies confiscate personal information and convert it into their own corporate asset. Once in control of the asset, the companies hoard it to keep it away from potential competitors, thus controlling their markets by limiting competition. The platforms then combine market control and data control to assert content control that selects the news and information consumers receive. User response to that process creates additional data about each user—and the chain reaction begins again.

The economic beauty of the platforms’ plan is twofold. First, the low cost of internet distribution, coupled with the low cost of computing, means the digital platform services have almost zero marginal cost. Unlike, for instance, when Ford builds a new truck and must buy and assemble all the components, when Facebook adds a new user, it simply reuses previously written software and connects to a network, with marginal costs approaching zero. The resulting profits have made the platforms among the most valuable companies in the world.

Second, to protect their unregulated reign, the companies redirect some of these vast profits to campaigns to block government oversight of their activities. “Tech companies have built a perfect record so far in blocking major legislation in Congress,” The Wall Street Journal reported last year as the 117th Congress came to a close. A key to its unblemished record was “prodigious spending on Beltway lobbying,” the paper observed. This included a reported expenditure in 2021 and 2022 of more than $100 million on anti-regulation advertising, including scare tactics such as the claim that “Congress wants to dismantle technologies we depend on.”

Undermining the Key to Democracy

When social media platforms harness the new business model, the effect is not just on economic activity, but also on democracy itself.

For democracy to work, individuals must overcome tribal instincts in search of a common good. The Founding Fathers reflected this in the words on the Great Seal of the United States, E Pluribus Unum—“Out of Many, One.” To create such an Unum requires an electorate informed by commonly shared information. The business plan of social media platforms works to contradict this democratic imperative.

It was not supposed to be this way. In the early days of the internet, many people anticipated the creation of a new public commons for the sharing of ideas and opinion. It was hoped that when anyone with an internet connection had the potential reach of The New York Times or NBC, the diversity of all these new voices would be a boon to democratic ideals.

But then the algorithms stepped in to exploit the closed platforms.

Instead of providing a common set of facts, social media targets news and information the same way it targets advertisements—by utilizing the private information collected from each user. This time the goal is to deliver content that will hold users’ attention so as to generate revenue by displaying as many advertisements as possible. One of the best ways to ensure such engagement is to agitate and stimulate tribal instincts.

These algorithms maximize revenue for the platforms by denying citizens two essential components of the free flow of information. The first component to suffer is the quality of the information as social media platforms curate for cash. Whether the information selected for distribution is spreading lies, hate, or the propaganda of adversarial nations is secondary to whether it increases user engagement in order to maximize the number of advertisements the user sees. The second ingredient of the free flow of information—the ability to “turn the channel” and discover countervailing information—is undermined by the designed-in lack of interoperability among platforms that holds users (and thus the dollars they generate) captive.

The algorithm-driven consequences of social media platforms are far different from the effects of an algorithm that recommends a book or answers a search query. By selecting specific types of information, often of questionable origin and veracity, to microtarget individuals, platform algorithms corrupt our ability to overcome tribal instincts through an understanding of the broad public good. The platforms profit from turning the Founders’ concept upside down to emphasize Pluribus over Unum.

Frog on the Fencepost

The technologies that made all this possible were gifts from the American people. At the heart of the smartphone, for instance, are technologies whose development was supported by the U.S. government and its citizens. Consider just these six examples:

• The packet data concept that is the heart of the internet was developed by RAND Corporation researcher Paul Baran under a Department of Defense (DoD) grant.
• Another DoD project, from the Advanced Research Project Agency (ARPA), built the first iteration of the internet by connecting the networks serving the computers at four U.S. research institutions.
• The software algorithm that became Google was developed by Sergey Brin and Larry Page while they were working on a Stanford University project funded by the National Science Foundation.
• The computing power of microchips that is so essential to the digital era enjoyed multiple boosts from the government. It was antitrust enforcement against AT&T that opened the essential transistor patents the company controlled. Government contracts were then a key to the early demand for the microprocessors utilizing that transistor technology.
• The lingua franca of the internet, TCP/IP, was developed by computer scientists Vint Cerf and Robert Kahn at the Defense Advanced Research Projects Agency (as ARPA had been renamed).
• The first operational installation of a cellular telephone network—on the Metroliner in 1969—was paid for by the Department of Transportation.

The innovators who built the networks and platforms should rightly be recognized and rewarded. But they are like the frog who found himself on the fencepost: They didn’t get there by themselves. The people of the United States made possible the technologies that have now been co-opted by a handful of companies to invade personal privacy, keep markets from being competitive, and spread lies, hate, and misinformation.

Surely, the people who made this all possible have the right to expect they will not be abused by that which they helped create.

Needed: Rules and a Referee

If the internet and its services are the most powerful platform in history, there must be guardrails to protect the public interest. Thus far, the internet autocrats, at both the networks and the platforms, have made the decisions that define online behavior. It should come as no surprise that those decisions benefit the companies rather than protecting the broader public’s well-being.

The time has come to assert the rights of the people. This means the establishment of behavioral expectations for the networks and platforms, accompanied by a referee to throw the flag if those expectations are not met.

Such a strategy begins with a break from the regulatory models established to respond to industrial activities. Just as clever engineers and entrepreneurs pioneered new ways of thinking about the application of technology, so must policymakers pioneer new ways of protecting against the adverse effects of those applications. The statutes and structures created to deal with abuses of the industrial era are not sufficient for the realities of the internet era. The rigid, top-down, bureaucratic micromanagement that worked to protect consumers and competition then can be harmful to the rapidly evolving technological and marketplace innovation of today. Companies aren’t wrong when they argue that old-style rules can’t keep up with digital innovation—but they are wrong to use the old regulatory model to argue against any regulation at all.

Regulatory oversight of the dominant digital companies must be designed to address the digital age rather than the industrial age. Such regulation must protect consumers, promote innovation and investment, and be nimble enough to respond to the internet era’s fast pace of change.

Such new policies begin with an open and nondiscriminatory internet protected with agile oversight. As English common law developed beginning in the twelfth century, there emerged a “duty to deal,” meaning that essential facilities—such as a river ferry or food and lodging—could not discriminate between one user and another. It was a policy adopted in the United States during the industrial era for the railroad, telegraph, and telephone networks; it remains valid in the internet era.

Nondiscrimination must remain the underlying expectation for networks. The velocity of change inherent in today’s digital reality, however, demands that its oversight evolve to keep pace. Old-style regulation of utilities dictated company behavior in detail. Applying such concepts today runs the risk of creating a digital Maginot Line of rigid policies unable to adjust to changes in technology and the marketplace. It was precisely the concept of a flexible approach to applying a nondiscrimination rule—called the General Conduct Rule—that was at the heart of the FCC’s 2015 Open Internet Order, which called for networks to be nondiscriminatory and specified that as markets and technology changed, the FCC had to have the authority to ensure the networks’ new behaviors were just and reasonable.

When it comes to the platforms that utilize the internet, a different form of agile oversight is required. While enforcement of antitrust laws is essential, it is not sufficient. Reliably lengthy and uncertain in outcome, antitrust lawsuits are typically focused on one company and its behavior. The targeted nature of antitrust enforcement also makes it insufficient for tackling broad challenges such as privacy and misinformation.

What is needed is the ability to address the dominant digital platforms’ systemic behaviors through generally applicable behavioral rules. This requires focused expertise accompanied by rule-making authority and enforcement. Simply bolting new responsibilities on to existing federal agencies—as talented and well-intentioned as their leadership may be—is not enough. Expecting agencies built to address industrial abuses to suddenly pivot and use the same regulatory tools to deal with internet abuses is like expecting a workhorse to become a racehorse.

Instead, we need a new federal agency dedicated to the new digital realities. Such a focused Digital Platform Agency (DPA) would put a new cop on the beat who has specialized expertise. Perhaps of even greater importance is that the DPA would bring new, more agile regulatory tools to the challenge of establishing enforceable codes that reflect the operations of digital companies rather than industrial practices.

The Moment is Now

The rest of the world is not waiting. While the United States is debating whether to do anything, the European Union, United Kingdom, and other nations are already acting to shape policy that suits them.

The EU is beginning the implementation of its Digital Markets Act (dealing with the market behavior of dominant platforms deemed to be “gatekeepers”) and Digital Services Act (dealing with content distributed by digital platforms). We will soon see the effects of these policies as European consumers begin to enjoy rights and protections that the platforms have kept from being adopted in the United States—notably, for example, Apple’s apparent decision in Europe to allow downloading of software from third parties without having to use its App Store (so-called “sideloading”).

For too long, American policy has allowed digital innovators to make their own rules with little regard to the impact on the public interest. The digital companies have become pseudo-governments, utilizing their economic and political muscle to prevent the democratically elected government from acting to protect the common good. As I wrote above, the internet is the most powerful and pervasive platform in the history of the planet. It is time for We the People to assert the public interest in its oversight.