In the wake of scandals like Cambridge Analytica and the 2016 presidential election interference, many have deemed “Big Tech” too powerful.[1] But U.S. policymakers are yet to implement comprehensive regulations—perhaps because major issues range from anticompetitive behavior to disinformation. Thus, some suggest looking to our European counterparts for help.

 

The European Union (“EU”) has a reputation for being the toughest on Big Tech. In 2021, following the enactment of its landmark privacy law, the General Data Protection Regulation (“GDPR”),[2] the EU introduced the Digital Markets Act (“DMA”) and Digital Services Act (“DSA”),[3] arguably the most comprehensive set of laws regulating the technology sector. The DMA would penalize large online platforms for anticompetitive practices, and the DSA would focus on illegal content regulation and data transparency.[4] Together, the laws aim to improve consumer choice and encourage digital competition and innovation.[5] When in force, they would affect companies like Google, Amazon, and Facebook—largely American companies.[6]

 

Concerned about the effects on the U.S. for years to come, the Biden Administration is lobbying to broaden the DMA’s rules to include companies outside of the U.S.[7] Nevertheless, the Biden Administration has indicated a desire to crackdown on Big Tech.[8] Many interpreted Biden appointing harsh Big Tech critics to his economic council as a stronger commitment to technology policy than his Democratic predecessor, Barack Obama.[9] In July 2021, Biden signed the “Executive Order on Promotion Competition in the American Economy,”[10] which encourages the Federal Trade Commission to set rules for surveillance, data collection, and anticompetitive internet practices.[11]  

 

Congress is acting along similar lines. The Senate recently introduced the American Innovation and Choice Online Act,[12] which would bar large technology companies from pushing their products over competitors.[13] The bill has bipartisan support but raises the same concerns as the DMA and the DSA—that it would target domestic companies.[14]

 

While the U.S. and EU want cooperation, the U.S. must reckon with disproportionate consequences on American companies. Lobbying efforts aside, technology firms also want comprehensive regulation. Compliance is challenging in a fragmented regulatory landscape when operating large international platforms.[15]

 

The U.S.’ usual approach to regulating large technology companies—antitrust lawsuits that last for years and occur after the fact—is a patchwork solution. The EU’s approach is also not tried and true. One option is to view the EU as a testing ground before passing similar legislation. Others suggest creating a separate federal agency to oversee technology platforms.[16] While unknowns still linger, what we know for certain is that Big Tech will only become more intertwined with our economy, politics, and global order.

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[1] Lauren Feiner, How Cambridge Analytica and the Trump Campaign Changed Big Tech Forever, CNBC, https://www.cnbc.com/2019/12/24/how-facebook-and-big-tech-gained-dc-scrutiny-in-the-2010s.html (last updated Dec. 26, 2019, 3:51 PM).

[2] Ben Wolford, What is GDPR, the EU’s New Data Protection Law?, GDPR.EU, https://gdpr.eu/what-is-gdpr/ (last visited Feb. 12, 2022). 

[3] Ryan Browne, Europe Tries to Set the Global Narrative on Regulating Big Tech, CNBC, https://www.cnbc.com/2020/12/16/europe-tries-to-set-the-global-narrative-on-regulating-big-tech.html (last updated Dec. 16, 2020, 10:07 AM).

[4] Ashley Gold, Europe Triples Down on Tough Rules for Tech, Axios (Dec. 15, 2020), https://www.axios.com/eu-tech-restraints-gatekeepers-digital-services-markets-b7966063-aa23-4711-80f5-71c06a1aff6f.html; Digital Markets Act: Parliament Ready to Start Negotiations with Council, European Parliament: Press Room (Dec. 15, 2021, 7:15 PM), https://www.europarl.europa.eu/news/en/press-room/20211210IPR19211/digital-markets-act-parliament-ready-to-start-negotiations-with-council; Digital Services Act: Regulating Platforms for a Safer Online Space for Users, European Parliament: Press Room (Jan. 1, 2022, 4:21 PM), https://www.europarl.europa.eu/news/en/press-room/20220114IPR21017/digital-services-act-regulating-platforms-for-a-safer-online-space-for-users.

[5] Id.

[6] See EU Lawmakers Agree on Rules to Target Big Tech - FT, Reuters (Nov. 17, 2021, 3:46 PM), https://www.reuters.com/technology/eu-lawmakers-agree-rules-target-big-tech-ft-2021-11-17/.

[7] Samuel Stolton, US Pushes to Change EU’s Digital Gatekeeper Rules, Politico (Jan. 31, 2022, 1:16 PM), https://www.politico.eu/article/us-government-in-bid-to-change-eu-digital-markets-act/. 

[8] Joe Biden’s Tech Policy is Becoming Clear, Economist (Nov. 27, 2021), https://www.economist.com/united-states/2021/11/27/joe-bidens-tech-policy-is-becoming-clearer.

[9] Id.; see also Cat Zakrzewski, The Technology 202: Biden Has Stacked Federal Antitrust Watchdogs with Big Tech Critics, Wash. Post (July 21, 2021, 9:33 AM), https://www.washingtonpost.com/politics/2021/07/21/technology-202-biden-has-stacked-federal-antitrust-watchdogs-with-big-tech-critics/; see also Bobby Allyn, How Will Tech Policy Change in the Biden White House? Here’s What You Need to Know, Nat’l Pub. Radio (Nov. 9, 2020, 5:00 AM), https://www.npr.org/2020/11/09/931039648/how-will-tech-policy-change-in-the-biden-white-house-heres-what-you-need-to-know.

[10] Exec. Order No. 14,036, 86 Fed. Reg. 36,987 (July 9, 2021); Sarah Kolinovsky & Molly Nagle, Biden Signs Executive Order Aimed at Increasing Competition in US Economy, ABC News (July 9, 2021, 12:44 PM),

https://abcnews.go.com/Politics/biden-sign-executive-order-aimed-increasing-competition-us/story?id=78753616.

[11] Joe Biden’s Tech Policy is Becoming Clear, supra note 9; Exec. Order No. 14036, supra note 10.

[12] S. 2992, 117th Cong. (2022) (as reported by S. Comm. on the Judiciary, Mar. 2, 2022).  

[13] Ryan Tracy, Senate Panel Approves Antitrust Bill Restricting Big Tech Platforms, Wall St. J. (Jan. 20, 2022, 3:57 PM), https://www.wsj.com/articles/senate-panel-approves-antitrust-bill-restricting-big-tech-platforms-11642701487.

[14] Id.

[15] Ashley Gold, The World Regulates Big Tech While U.S. Dithers, Axios (Apr. 28, 2021), https://www.axios.com/world-tech-regulation-8d96502a-1400-4439-9ca8-c73ee4594a3b.html.

[16] Tom Wheeler, Phil Verveer & Gene Kimmelman, The Need for Regulation of Big Tech Beyond Antitrust, Brookings (Sept. 23, 2020), https://www.brookings.edu/blog/techtank/2020/09/23/the-need-for-regulation-of-big-tech-beyond-antitrust/.