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October 5, 2018
In The News

With Democrats expecting to take back the House in November, party leadership has been quietly assembling a laundry list of policies they intend to highlight—and investigations they plan to launch—as soon as the speaker’s gavel is handed back to Nancy Pelosi. Most seem designed to make Donald Trump’s life hell, such as issuing subpoenas for his tax returns, or for records related to his botched hurricane response in Puerto Rico. But Democrats are also circling legislation that could help rebrand the party, and bolster their political position, ahead of the 2020 election. One of their emerging priorities? Finally cracking down on Big Tech. “Something needs to be done,” Pelosi told Kara Swisher this week during an interview for The New York Times, to “protect the privacy of the American people.”

Plenty of people in Washington have talked about following in Europe’s footsteps and creating a so-called Internet Bill of Rights. But Democrats appear to actually be doing it. Six months ago, Swisher reports, Pelosi deputized Silicon Valley congressman Ro Khanna to be her James Madison. And Swisher got her hands on the document.

The 10 enumerated “rights” read like a cocktail of Obama-era net neutrality guidelines and G.D.P.R., the new European consumer protection laws that went into effect this year. The first states that Americans should have the right to “have access to and knowledge of all collection and uses of personal data by companies.” The 10th asserts that any entity that collects your personal data should have “reasonable business practices and accountability to protect your privacy.” So far, so good. In between however, there’s plenty of gray area—and many “rights” that could prove problematic, for Washington, Democrats, and for tech companies. Broadly speaking, the rules are friendly to consumers, and privacy advocates are likely to appreciate the second “right”—the right to opt-in to consent to data collection—as well as the third, which gives users the right to “obtain, correct, or delete personal data controlled by any company.”

The provisions about net neutrality are likely to be broadly popular among voters and tech companies, though not necessarily with telecoms and Republicans. The rights “to access and use the internet without internet service providers blocking, throttling, engaging in paid prioritization or otherwise unfairly favoring content, applications, services or devices” and “to have access to multiple viable, affordable internet platforms, services and providers with clear and transparent pricing” sound a lot like F.C.C. net neutrality guidelines passed in 2015 under Obama, which at of the end of 2017 had the support of 83 percent of voters; several states have already sought to restore the 2015 rules in the wake of F.C.C. chairman Ajit Pai overturning them this year. The state of California passed legislation that would restore those protections to its residents, though the Department of Justice has sued the state for trying to go against federal rules.

Tech companies are likely to bristle at some of the rules, including the fifth, which would empower consumers “to move all personal data from one network to the next.” Facebook and Twitter, among other companies, make it impossible to find your friends on competing social platforms; even when you download all of your personal data from one of those two big tech companies, they don’t hand over contact information for your so-called “social graph,” despite building those networks by persuading users to fork over data from their own phone and e-mail contact lists. Much like the Telecommunications Act of 1996, which allowed you to bring your phone number to a new network, the Internet Bill of Rights wants your friends list to be portable, not confined to a single platform—essentially treating it as a digital possession. Such a rule would help empower start-ups and users alike, while drawing some power away from incumbent giants in Silicon Valley.

Khanna’s Internet Bill of Rights isn’t perfect, but it seems to provide a workable compromise between the interests of large tech companies and the political factions seeking to break them up entirely. On the right, both Donald Trump and his Justice Department have made threats, however laughable for legal experts, to cut down on the power held by companies like Google and Facebook; on the left, lawmakers have questioned the monopolistic impulses of these companies, their unchecked power, and their unfortunate habit of being hijacked by foreign powers. Abroad, governments have been more stringent with Big Tech, passing laws like G.D.P.R. to help protect user data. Legislation that could appease both right and left might be appealing to Silicon Valley, too, if entrenched interests think Khanna’s bill would forestall more radical possibilities.

According to Swisher, Khanna consulted with a number of influential voices in the industry, like the creator of the World Wide Web Tim Berners-Lee, to draft his set of principles. In theory, then, the list already has buy-in from critical thought leaders. (“If the Internet is to live up to its potential as a force for good in the world, we need safeguards that ensure fairness, openness and human dignity,” Berners-Lee told the Times.) The more pressing question is whether the most powerful tech companies will push back. Together, four of the largest—Facebook, Amazon, Apple, and Google—spent more than $50 million on lobbying costs in 2017, and that number is only likely to increase given the enhanced scrutiny they have faced in the wake of scandals like the one at Facebook. “This is a 15-year fight, but I do not think tech is immediately primed against it, and Congress is more willing to be strong on regulation,” Khanna told the Times. “Tech is amoral—it is great in many ways but not as great in others, and they need to now spend the next 10 years thinking about how they shape that tech for public good.”

The legislation could be a net benefit for Democrats, too, providing the party with a simple, nonpartisan message to promote ahead of the next presidential election. As activists like John Oliver revealed in 2014, when he went to war with the F.C.C. over net neutrality, there are millions of engaged voters who care passionately about protecting access to the Internet—and who do not necessarily fall into preordained political tribes. Regulating Silicon Valley could be one of the rare issues of the Trump era that unifies young people on the right and left. And if Establishment Republicans decide to take the side of Big Business? Then that’s just one more political weapon Pelosi can wield against Trump.

Here’s the draft bill, below:

You should have the right:

1. to have access to and knowledge of all collection and uses of personal data by companies;

2. to opt-in consent to the collection of personal data by any party and to the sharing of personal data with a third party;
3. where context is appropriate and with a fair process, to obtain, correct or delete personal data controlled by any company and to have those requests honored by third parties;

4. to have personal data secured and to be notified in a timely manner when a security breach or unauthorized access of personal data is discovered;

5. to move all personal data from one network to the next;

6. to access and use the Internet without Internet service providers blocking, throttling, engaging in paid prioritization or otherwise unfairly favoring content, applications, services, or devices;

7. to Internet service without the collection of data that is unnecessary for providing the requested service absent opt-in consent;

8. to have access to multiple viable, affordable Internet platforms, services, and providers with clear and transparent pricing;
9. not to be unfairly discriminated against or exploited based on your personal data; and

10. to have an entity that collects your personal data have reasonable business practices and accountability to protect your privacy.