The first question forms the title of this recent op-ed in the New York Times by Kate Klonick, a social media expert who is a law professor at St John’s University Law School as well as a fellow at the Yale Law School and the Brookings Institution. Professor Klonick’s question also provides me a golden opportunity to conclude my review of Mark Lemley’s paper “The Contradictions of Platform Regulation“.
For starters, how are we supposed to answer Professor Klonick’s rhetorical question? To the point: “Compared to what?”
Alas, although Prof Klonick makes a number of good points, her op-ed contains no comparative analysis whatsoever. Instead, she criticizes the way Facebook measures “user engagement” and then recommends “laws demanding transparency from platforms, a new agency to specialize in online issues, and more science.”
For my part, although I agree with Klonick’s call for “more science”– i.e. more independent studies about the harmful and beneficial effects of social media — I caution against her call for more laws and a new public Internet agency for the reasons Mark Lemley gives in Part 2 of his excellent paper. In summary, Professor Lemley gives two-and-a-half slam-dunk reasons why calls for regulation of tech platforms are likely to backfire:
1. Trade-offs are unavoidable (p. 324): “Real regulation of technology platforms is likely to require difficult tradeoffs, giving some people what they want but making things worse in other respects.”
2a. Perverse effects on new entrants: Regulations often make it difficult for new entrants to compete with existing big players, or in Lemley’s own words (p. 332): “… once government creates a comprehensive set of regulations for an industry, it makes it harder for others to break into that industry, since they don’t have the experience dealing with those complex regulations.”
2b. Entrenchment effects (p. 335, footnote omitted): “… in the long run, regulatory choices that impose obligations on incumbents to do the things we want them to do as a matter of social policy are likely to entrench those incumbents, making it harder and more costly for someone to compete with them and eliminating the possibility of competing by offering a different set of policies.”
Notice that I say “two-and-a-half reasons” because the last two points are really two sides of the same coin, but be that as it may, the larger point that Lemley (and I) want to make is that bottom-up competition, not top-down regulation, is the way to go. If you don’t like Facebook, there is always Twitter and TikTok! And if you don’t like Twitter or TikTok, why not start your own social network? My motto, then, is let a thousand social media sites bloom! Yes, all of these platforms are going to be imperfect, but I want to live in a world where users have choices, where it is easy for new platforms to enter the Internet market.