Potential Unintended Consequences for Social Media of Mandatory Interoperability Requirements in Sen. Klobuchar’s Tech Reform Bill
The Senate Judiciary Committee voted on January 20 to advance the American Innovation and Choice Online Act, a bill sponsored by Sen. Amy Klobuchar (D-MN) that would impose a wide array of new rules on a handful of large tech companies. It is worth considering not only the merits and objections to the goals of this legislation, but also some of its potential unintended consequences. In particular, its provision on interoperability may have significant unintended consequences for average Americans on social media.
The legislation outlines a number of practices that it would make unlawful for dominant platforms. One key provision in the legislation would make it unlawful for a covered platform to:
materially restrict, impede, or unreasonably delay the capacity of a business user to access or interoperate with the same platform, operating system, or hardware or software features that are available to the products, services, or lines of business of the covered platform operator that compete or would compete with products or services offered by business users on the covered platform.
Presumably, this provision is intended to prevent covered platforms from intentionally restricting competitors’ access to key platform features in order to make it difficult for them to compete with the platforms’ own products and services. For example, this provision would ensure that Garmin or Samsung smartwatches have access to the same features in an iPhone’s operating system that the Apple Watch can access, and that Apple cannot degrade competing watchmakers’ access to these iOS features in an effort to make rival products less appealing.
However, as the provision is currently worded, it opens the door for almost any competing business user to demand access to core functionality of large platforms, even if it would significantly harm consumers. Consider the following scenarios.
Scenario 1: Facebook and YouTube Forced to Allow Online Hate Groups
Facebook and YouTube are themselves business users of their own social networks, using them to advertise and promote their own products and services, which means under this legislation they would not be allowed to limit other business users from accessing their platforms in the same way. However, Facebook and YouTube routinely deny access to their platforms to extremist groups trafficking in hate speech, including neo-Nazi and white supremacist groups like The Daily Stormer and Proud Boys. These organizations, as long as they are using these social networks to promote their activities, would clearly meet the definition of “business user,” and thus Facebook and YouTube would be restricted from imposing any limits on their activities, such as deplatforming them or limiting their ability to advertise, without facing the risk of running afoul of this legislation.
Scenario 2: Facebook, Instagram, and WhatsApp Forced to Interoperate With Parler and Gab
Facebook has pushed for a tighter integration of its various social networks. For example, some users on Facebook Messenger and Instagram can message one another across the two platforms. This legislation would seemly prohibit Facebook from denying competitors similar access to these features. As a result, Facebook could be forced to allow Parler and Gab, two platforms favored by the far-right for their commitment to allowing extremist speech prohibited on mainstream social networks, to interoperate with their social networks. Facebook would then face obstacles to protecting its users on Facebook and Instagram from potentially unwelcome or harassing messages from users on Parler and Gab.
Scenario 3: Facebook, Instagram, and WhatsApp Unable to Restrict Third-Party Apps That Misuse Personal Data or Target Children
Facebook, Instagram, and WhatsApp have released a number of official apps for their services. However, other companies have also made third-party apps to provide users an alternative app to access them (e.g., WhatsApp Delta and GB WhatsApp for WhatsApp, and Friendly Social Browser, NoSeen, and Phoenix for Facebook and Facebook Messenger). In some cases, these platforms allow the copycat apps (either officially or unofficially) while in other cases they have prohibited them. The interoperability provision would prohibit platforms from restricting third-party apps, even if those apps present potential privacy or security risks to users, such as capturing their logins or misusing their personal data. In addition, Facebook would not be able to restrict others from creating an alternative to its Messenger Kids app, which has been specifically designed with child safety in mind. As a result, Facebook would have little ability to prevent children on its platform from receiving inappropriate content.
The only carveout in this legislation to the interoperability requirement is an exception noting that covered platforms will not be required to interoperate or share data with businesses on any export-control lists, nor with businesses that have been identified as national security risks. While this carveout is important and necessary, it is insufficient to limit all of the potential abuses of the interoperability provisions, including from foreign actors.
As the Senate considers the future of the American Innovation and Choice Online Act, fixing the interoperability requirements—by adding additional exceptions, narrowing it to specific scenarios, or dropping it entirely—should be a top priority. Policymakers should consider the unintended consequences of forced interoperability and ensure that platforms can limit interoperability when those restrictions benefit consumers.
