Holding Big Tech to Account
I recently met up with an old friend and colleague who now works in AI. He casually said to me, “you have no idea if I’m recording our conversation with my retinas.” Charlie Brooker’s fictional Black Mirror predictions were suddenly alive and well in a South London café in 2019.
I have every faith that he wasn’t actually wearing retinal implants, though it is something that will be a reality in the not-too-distant future. But what if he was? Is there much I can do to control the technology? The simple answer: probably not.
Want to control the tech giants? Stop trying to control the tech itself. Instead, look at the standard pillars within the “analogue” toolkit, the rules of law we already use to manage corporate power: company law, competition law, and lobbying regulations.
The seeds of the 2006 UK Companies Act were sown during the massive Company Law Review launched in 1998. There were strong recommendations at the time to hold directors more personally accountable for a range of social and environmental impacts. But politicians eventually shied away from full accountability, instead preferring to use the lens of “having regard” for these issues, insofar as they affect shareholder value. That choice now looks to be folly.
Shareholders still profit very nicely from companies ignoring societal impacts, at least in the short term. Witness the rise of zero hours contracts, ongoing extraction of fossil fuels, and exploitation of human rights by the fashion industry as examples. Revisiting this clause — and the wider social duties of companies — would seem to provide an opportunity to stem malfeasance in a range of industries, not least the tech sector. They can bring far stronger checks and balances, and ensure accountable stakeholder governance where the voices of employees, human rights experts, or environmental movements are involved in corporate decision-making.
Google staff recently put their heads above the parapet to call for greater involvement and transparency around Google’s development of a search engine for China, arguing that it contravened the company’s own ethical guidelines for AI. Unfortunately, these guidelines are entirely voluntary and have no legal bearing. Had stakeholder governance been required in company or corporate law (and even commensurate listing rules), having employees involved in ethical decisions would be mandatory.
Given the reach of tech, national laws alone won’t be sufficient. But it’s certainly a step in the right direction and there’s no reason why company law approaches can’t be aligned internationally, much as we’ve done for international accounting standards. Most importantly, corporate governance regulation can temper a multitude of sins through a range of means: who sits on the board, what measures are used to determine success, how decisions are made, excessive compensation, and transparency.
So what about competition law? The EU had the opportunity to limit the power of Facebook when it sought approval to purchase WhatsApp in 2014. But the regulators couldn’t find a reason to hold the acquisition back. Competition law and its application wasn’t mature enough to grasp the consequences of aggregated data and analytics power. As a consequence, the consolidation of Facebook’s domination was solidified.
Research into competition in the digital space has shown that competition law hasn’t been effective in this area. According to Ariel Ezrachi, a professor of competition law at Oxford University, markets alone won’t hold the tech companies to account. Competition law, he says, needs to find a way to factor in issues beyond price and the new forms of power and abuse that come with the dominance of the tech sector. “Competition law has an important role to play where market dynamics can’t sustain healthy and open competition, where consumers are easily monitored and targeted, have limited alternatives, and are at the mercy of a handful of key digital platforms.”
Several competition authorities are already looking at Facebook’s abuse of dominance in the market, and the BEUC, The European Consumer Organisation, has requested a European cross-institutional investigation on the issue. Competition law, the BEUC argues, can leave gaping holes in how big tech is regulated. While we have data protection and other consumer instruments, this could be one of the keys to managing their undue power. But any regulatory reforms are moving too slowly to keep up with the market.
Which raises a final question: Why are governments all so soft on tech companies and corporate power in general? Look no further than corporate lobbying.
In April, the EU published guidelines on the use of AI. According to Wired magazine, areas that were to be tackled included what types of AI should be prohibited, such as extreme surveillance and social monitoring, already being used in China. The final guidelines, however, have no red lines on any technology at all, instead urging caution. Such technologies are said to be of “critical concern,” but their application in practice remains wholly possible. According to two professors involved in the expert group, this transpired because the experts designing the guidelines were from the tech industry itself.
Campaigners at Corporate Europe Observatory long ago raised a red flag about company insiders being allowed on EU expert groups, creating a revolving door between companies and government. When it comes to tech companies, this interference is supersized. The Google Transparency Project highlights a multitude of extreme lobbying activity between Google and governments around the world, including revealing that dozens of Google employees have recently shifted to working for European governments.
Green regulations, financial regulations, trade and tech rules — all are designed by the subjects of the regulations themselves. This results in weaker rules that can have negative impacts on our rights, our freedoms, and our democracies. This is self-regulation masquerading as officialdom.
Let’s consider an analogy. Few of us would understand how to clone a human. While we haven’t halted the development of the cloning technology itself, our regulatory oversight of how the science of cloning is applied remains strong.
Legislation to control the tech sector isn’t some sort of mysterious formula lodged only in the imagination of Charlie Brooker. We need to stop focusing on the algorithms and the tech and simply get back to basics. Company law, competition law, and lobbying regulations can all provide more solid frameworks to hold the tech sector, and many others, to account. But they need to be adapted rapidly to deal with the galloping realities of the digital age.
Photo by Matthew Brodeur on Unsplash