Congress Needs to Rethink Its Outdated Digital Privacy Laws Now (Guest Column)

US Capitol and Peter Barbey - Inset - Getty - H 2018
Jemal Countess (Barbey), Mark Wilson (Capitol Building), all Getty Images

Federal legislation enacted in the late 1990s holds up a hyper-profitable business model that’s damaged our media and compromised our democracy, writes the president and CEO of the Village Voice.

When social media and search engines first became a part of our lives, the promise of sharing open information and free expression with friends and the world community at large was liberating, empowering and exciting. But, in an astonishingly short time, Cambridge Analytica and Russian intelligence operators have proved that free access to news, information and everyone’s personal data is not a utopian, self-regulating concept.

It’s hard to understand how we got to this point, which is, no doubt, the product of a complex array of forces. But more than anything, two federal laws enacted in the late 1990s serve as the legislative tentpoles holding up the hyper-profitable business model that’s commoditized our privacy, damaged our media and compromised our democracy.

The laws need change.

The first piece of legislation is Section 230 of the Communication Decency Act whose consequential importance, despite its bland bureaucratic name, has been vast. Section 230 effectively grants digital platforms government-like immunity from the liability normal publishers face for the content they publish. With this blanket of immunity, platforms like Google and Facebook can pass along to consumers almost any information — true or false, good or bad, benign or harmful — with little or no risk. While the downsides are practically nonexistent, the upside of value-agnostic publication of digital content is immense profit. It should come as no surprise, then, that digital platforms have historically done their best to wish away or ignore problems associated with content.

A few years after the passage of Section 230, Congress enacted the Digital Millennium Copyright Act, or DMCA, allowing platforms to aggregate or curate other people’s proprietary Internet content into digital news websites, blogs and feeds without being subjected to the copyright ownership claims that non-digital publishers are bound by.

The justification for the DMCA was to allow the growth of basic utilities serving the Internet, including commercial search platforms like Google and social platforms like Facebook. Publishers, creators and consumers alike would benefit from the exemption made by the DMCA — or so the thinking went.

But not everyone benefited. Granting digital platforms this exemption from copyright severely hurt publishers and creators. Unable to prevent digital platforms from aggregating their stories into free news alternatives supported by programmatic advertising, legitimate publishers have seen almost two decades of plummeting revenues and shrinking (or, in some cases, vanishing) newsrooms. Meanwhile, hyper-partisan and fake news aggregators — effectively subsidized by the same DMCA legislation—have flourished.

In an instance of unintended consequences of monumental proportions, the DMCA precipitated a situation in which professional writers, rigorously trained to report facts and truth, find it next to impossible to make a living. Ironically, hacks and con men dedicated to spreading falsehood and sowing discord have never had it better.

As damaging as these effects have been, it’s the overall surrender of our privacy that’s the most frightening, and potentially harmful, outcome of the Internet business model built on these twin pieces of 1990’s legislation. We now have developed an Internet that knows what you read, write, see and like. Commercial interests know how, when and why we are vulnerable to their most aggressive and invasive sales and marketing tactics. Without us knowing, politicians and political parties know how we might be inclined to think and react before we arrive at the voting booth, and how to influence us. And, most insidiously, foreign actors know which mistruths and propaganda to use that will most effectively lead us astray. We grant all of the oversight and control to private, non-transparent, tech giants.

We have yet to see any serious legislative or political effort to address the problems Congress has ignored or caused with poorly written Internet legislation. Google and Facebook, a de facto duopoly created after the legislation went into effect, are now the primary rails on which the world of news, politics and information travel. Their stock shares are owned by investors on Wall Street and in Washington, and they have hundreds of lobbyists on Capitol Hill. The current administration, which hired Cambridge Analytica and enjoyed the benefits of the present situation, can veto any future legislation that limits their abilities.

Thus, fixing this will be politically hard. But it’s clear that the Internet is broken, and our social model is badly damaged. Few could have predicted that a good faith effort to support the growth of technology that would serve as the world’s greatest library, information directory, personal broadcast and publishing tool, and global community bulletin board would be co-opted to supply powerful commercial and political interests with our most intimate data at a scale once only dreamed of by the world’s intelligence agencies.

It is apparent that we are now at an inflection point. The effort to set ourselves on a better course will depend on our ability to extend privacy laws and fix the simplistic legislation that serves as the foundations of the digital Tower of Babel built in our name. We need new laws. It will take political courage. It will be complex. But, fundamentally, it’s time for Congress to acknowledge and restore our rights, both privacy rights for the consumer and copyrights for the creators, so we have the power and protections we need to fix this problem ourselves.

Peter Barbey is the president and CEO of the Village Voice and Reading Eagle.