About the Book
Regulating Digital Industries is the first book to address the tech backlash within a coherent policy framework. It treats competition, privacy and free speech as objectives that must be pursued in a coordinated fashion by a dedicated industry regulator. It contains detailed discussions of current policy controversies involving social media companies, search engines, electronic commerce platforms and mobile apps. It argues for new laws and regulations to promote competition, privacy and free speech in tech and outlines the structure and powers of a regulatory agency able to develop, implement and enforce digital rules for the twenty-first century.
Deeply informed by the history of regulation and antitrust in the United States, it brings to bear insights from the breakup of AT&T and the Microsoft case and from broadcasting and financial services regulation to enrich the discussion of remedies to the failure of tech competition, the massive invasion of privacy by digital firms and the information disorder perpetuated by social media platforms. It offers a comprehensive summary of regulatory reform efforts in the United States and abroad and shows how accomplishing the goals of these reform efforts requires the establishment of a single digital agency with jurisdiction to reconcile and balance the complementary and conflicting goals of promoting competition, protecting privacy, and preserving free speech in digital industries.
It discusses in detail how a digital regulatory agency would be structured and the powers it would need to have. It confronts head on some of the challenges in establishing a strong digital regulator including the First Amendment roadblock that limits government authority over digital speech and the judicial opposition to the expansion of the administrative state. It is essential reading for policymakers, public interest advocates, industry representatives, academic researchers and the general public interested in a coherent policy approach to today’s tech industry discontents.
Table of Contents:
Foreword
Digital Industries and Their DiscontentsIntroduction
Dominance in Digital Industries
Centrality of Digital Services
Privacy Challenges
Content Moderation Challenges
The Regulatory Solutions
The Digital Regulator
Coda: From Here to There
Competition Rules for Digital IndustriesThe Anti-Monopoly Moment
Promoting Competition in the Telephone Industry
Preventing Monopolization in Computer Software
The New Pro-Competitive Tools
Amazon’s Antitrust Troubles
The Google-Apple Mobile App Duopoly
Google’s Search Monopoly
The Ad-Tech Conundrum
Facebook’s Mergers
Privacy and Content Moderation in Digital Mergers
Data Portability, Interoperability and Nondiscrimination for Social Media
Regulatory Forbearance
Conclusion
Privacy Rules for Digital IndustriesIntroduction
What is Privacy?
Limitations of Privacy as Individual Control
Legal Bases for Data Use
Data Minimization and Purpose Limitation
Ban on Abusive System Design
Fiduciary Duties of Care and Loyalty
Restricted Use
Expert and Balanced Enforcement
First Amendment Issues
Coda
Content Moderation Rules for Social Media CompaniesIntroduction
User Transparency
Transparency Reporting
Access to Social Media Data for Researchers
Regulation of Social Media Algorithms
A Dispute Resolution Program for Social Media Companies
Notice Liability
Political Pluralism
Social Media Duties to Political Candidates
First Amendment Issues
The Digital RegulatorIntroduction
Defining Digital Industries
Defining Dominance and Centrality
Agency Structure and Jurisdiction
Exclusive jurisdiction
Independence
Limited Authority
Accountability
Co-Regulation
Internal Organization
Resources
Other Policy Issues
Regulatory Capture
Balancing Agency Missions
Judicial Review
Chevron Deference
Non-Delegation
Implications for the Digital Regulator
Conclusion
Where Do We Go From Here? Introduction
Competition Policy
Privacy
Content Moderation
Coda
About the Author :
Mark MacCarthy is adjunct professor at Georgetown University’s Communication, Culture, & Technology Program, a nonresident senior fellow at the Brookings Institution, and a nonresident fellow at the Institute for Technology Law and Policy at Georgetown Law. He was formerly a public policy advocate for Capital Cities/ABC, the Wexler/Walker Group, Visa, and the Software & Information Industry Association. In the 1980s, he served as professional staff member of the Committee on Energy and Commerce of the US House of Representatives under the chairmanship of Representative John D. Dingell Jr. of Michigan. A prolific writer and researcher, he publishes commentary regularly on tech policy issues with Brookings, Lawfare, The Hill, Forbes, and the Centre for International Governance Innovation. He lives in Bethesda, Maryland, with his wife, Ana Maria Espinoza.
Review :
Few people have thought as deeply about how to effectively regulate digital technologies as Professor MacCarthy. This timely book is an urgent and well-argued reminder that we do not have to accept a status quo where a few wildly powerful tech companies continue to operate with virtually no regulation -- hurting competition, undermining democracy, and addicting a generation of America’s kids. Professor MacCarthy sheds light on the 40-year campaign to discredit government regulation, which has left the American people unprotected against the coming wave of digital disruption -- from machine-learning algorithms to generative artificial intelligence. His book is an urgent call to learn from our history and empower an expert regulator for the tech sector, no different than how we oversaw the railroad, aviation, or broadcast television sectors in past eras. For the sake of our children and democracy, we would do well to answer Professor MacCarthy's call.
With a deep grasp of history and a sharp policy acumen, Mark MacCarthy provides readers with a detailed and alarming portrait of the ever-expanding threats from Big Tech. As MacCarthy illustrates, the government’s laissez-faire approach to technology regulation has decisively failed, leaving us with entrenched monopolies, a vast corporate surveillance apparatus, and a youth mental health crisis. Regulating Digital Industries is required reading for students, policymakers, and anyone who cares about the future of our democracy.
Mark MacCarthy makes a strong case for addressing the challenges arising from big tech using the regulatory tools we've developed for other industries. An important contribution to the debate of the decade.
In this book, Mark MacCarthy takes on the most challenging problem in today's digital world -- how can the public enjoy the enormous benefits of digital platforms without ceding to these companies control of our digital lives? With scholarly precision, MacCarthy shows that decades of reliance on "self-regulation" and existing consumer protection laws have created a world where a handful of mammoth digital platforms exercise outsized control over how we do everything from look for work, shop for goods and services, and receive our daily news that shapes our opinions and our democracy. Fortunately, MacCarthy presents a workable solution to give us back control of our digital lives -- creating a new federal agency with both the expertise and the regulatory power to restore our online autonomy and protect our democratic institutions from the current flood of disinformation and harassment. This approach has worked before and can work again -- if policymakers find the political will to follow the proposals in this book and make it happen.
Mark MacCarthy astutely points out the key ways in which current U.S. law fails to address the enormous economic and social harms caused by dominant digital platforms and then provides a cogent and comprehensive solution: a public oversight body up to the task of reining in digital market abuses. By reviving the time-tested sector regulatory model updated to reflect today's market realities, MacCarthy delivers a challenge for lawmakers that must be addressed to preserve our democratic institutions and competitive marketplace principles.
Mark MacCarthy’s decades of experience in government, the private sector, and academia is reflected in a work of great importance, certain to influence the ongoing policy debates surrounding the incalculable benefits and the substantial costs attributable to the digital sector. Dr. MacCarthy’s proposed solution, a dedicated digital regulatory agency with sufficient legal authority and relevant expertise, is designed to protect the benefits while minimizing the costs.
Regulating Digital Industries describes the digital business models and the reasons that today’s legal and regulatory institutions have not been successful in addressing market power, privacy protection, and “information disorder” issues that have emerged from those business models. By going beyond admiring the problems and offering a practical, if long term, solution, Dr. MacCarthy has made a material contribution to one of the most important policy debates of our time.
Mark MacCarthy has produced a clean, clear, and thought-provoking analysis of the challenges of the digital platform economy. While the problems of privacy invasion, competition destruction, and misinformation are well documented, the solutions are not. MacCarthy’s solution: the revival of government’s recognition that new technologies require new kinds of oversight. This book belongs on every policymaker’s desk.
With the idea of a regulator for AI gaining traction, Professor Mark MacCarthy’s blueprint for sectoral digital regulation is timely and important. He explains why and how decades of experimentation in an unregulated digital sphere produced the predicted results of undue concentration, information disorder, and commercial surveillance. AI looks ready to supercharge these problems. But regulation is difficult. Professor MacCarthy has been providing thought leadership on how to stand up digital regulation for years and his work has never been more important.
MacCarthy has a remarkable knack for focusing on the right questions, at the right time. In a field too often dominated by handwaving and yelling, he provides the thing we really need: lucid, thoughtful, and timely analysis.
To begin to address the damage neoliberalism and tech-utopianism have wrought, Mark MacCarthy offers big, creative solutions, rooted in history but designed for current challenges. He recognizes that guardrails can mitigate societal harms while enhancing innovation. It is a handy guide for policymakers and citizens alike eager for practical options.
It took Progressive-era reforms to tame the Gilded Age. Professor MacCarthy, a skilled Washington insider as well as an accomplished scholar, explains how to re-invent both competition and privacy protection to tame today’s second Gilded Age.
