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Harold Feld, senior vice president of public knowledge, is the author of that book and our guest on Tech Talk today. Welcome, Harold. Thank you very much for having me. Oh, it is such a pleasure. So do you think big tech and major digital platforms have too much power? But maybe before you answer that, define digital platforms for us, so we know we're on the same page. Well, it's important because one of the approaches that I I take and I think is important is we're talking about a sector of the economy. It's easy to get mad at a specific company. Like, oh, Facebook is in the news this week. I hate them now. Amazon's in the news this week. I hate them now. That's not what we make policy on. What I try to do here is take a look at, okay, first, what is a digital platform? And, what I look at in particular is I say, well, the big things about this are first of all, these are businesses that are delivered over the internet And that has huge implications for the cost structure, the incentives, the normal investment that you would have to make. The next thing I look at is these are multi sided markets. This is something that has been around for a while. We talk about network effects but the nature of these platforms because they allow people to play multiple roles simultaneously. You can be a product reviewer, a product buyer, and a product seller all at the same time on Facebook or Etsy or any of these retail platforms. Or you can be a content creator and a consumer, all at the same time on Facebook, or any of these social media platforms. So this produces particularly powerful network effects which amplify the, the power that these companies have and also create incentives for them to engage in particular types of anti competitive behavior. In particular, something that they call in Silicon Valley blitz scaling, which means pumping yourself up so quickly that you can capture a whole segment of the market. You know, nobody else can ever catch up to you, because these network effects are just so strong that if you win this race to the top of the mountain that nobody's gonna be able to push off.

too important and too embedded in our economy and in every aspect of our society for us to let them just make their own rules. And for me, it's not a question of are they good companies or bad companies, is a good person or bad person. It's the same with, things like broadband access or medicine or agriculture or any other specific sector of the economy that we look at and we say, hey, you know, this is just so important that somebody has to be keeping an eye on these things. And particularly, when we're talking about, companies that have the potential to significantly impact our democracy itself. Then that is the kind of thing where we really need

complex nature of this and the nuance here. Because the problem we've had so far is that tech is something of a black box for most people. So for a long time, we had this like, oh, don't do anything. Don't, you know, look inside the black box. If you do, you're gonna frighten the genie that gives us all the good stuff. And now that we're seeing all these problems that are coming along whether it's, you know, interference in our elections or, you know, concerns about market power or concerns about privacy. Now we're seeing people say, well, you know what? I don't care. You know, we will just tell you to do stuff. You're a magic black box. I want you to start nerd harder and and and make things happen. So we're seeing increasingly my view bad laws are bad recommendations that are being made that are just completely unenforceable. Things that they're talking about in Europe for example, the you must take down all terrorist content in an hour, or, you know, the just sort of let's break them up. And as if that were somehow easy. I think that first of all, people don't realize when we say, well, let's break them up what that means or or what kind of a record you need for that. There's no kind of dotted line, that you can just cut through particularly, yeah, for a lot of these companies. And so I would say that I'm hoping that this book will get people to understand. Yeah. We should have these things on the table. There should be a point at which we say, yeah. Companies need to be broken up because they have too much market power, or their products need to be separated and they have to operate through separate affiliates because if we let them work together, it's too easy for them to favor their own products and discriminate against competitors, or we need to have ways to make sure that, they're not rigging elections and and essentially engaging fraud on the public, through things like armies of bots that make it look like public opinion is shifting one way or another when it's really just a very small number of people. So, you know, but all of these things are easier said than done and, will require a good deal of careful attention to detail in order to get right. And that's why you have a solution then.

I come at this from a communications law perspective. I've been practicing communications law for about twenty years. So I went and looked at the history here, and I said, we have a hundred and fifty years of history of disruptive communications technologies. And communications technologies are particularly important and disruptive because human beings were all about communication. I mean that's what we're doing here now is just talking and people are listening and that's how we process these things. So when we talk about these networks that impact how we communicate with each other, they quickly come to affect how we do business, how we interrelate with each other, everything about our news, and how we look at ourselves as a society. So we have a history here of dealing with these kinds of very disruptive technologies. And, what we did in the 1934 was something called the Communications Act, which said, hey, you know, and this wasn't something that they just, you know, thought up. It was actually actually something took twenty years of different laws and different regulatory regimes to get right. But ultimately, they said, hey, you know what? We now have enough experience with these sorts of technologies to have a framework, which will address not just issues of competition, but fundamental enduring values that have guided our laws around communication in society. So a concern for democracy and what we call robust marketplace of ideas. A concern for promoting competition, not just defending existing competition the way antitrust does, but to affirmatively promote competition for the benefits that competition brings. For recognizing that, on the one hand, we want to use these technologies for public safety such as emergency alerts, and to bring people important information in times of crisis. But at the same time, we have concerns about government abuse, government censorship, government surveillance, and finally, a recognition of consumer protection in this space. Again, because human beings, we are so much about communicating with each other. It is very easy to engage in fraud, to engage in, harassment and harmful behavior. It these technologies magnify everything good about human beings and everything bad about human

it's very hard for Congress when it's dealing with a complicated area of technology, particularly one that's dynamic and shifting, to be able to put these things in law except in the most general Gotcha. Kind of ways. An agency can continue to educate itself, can adapt these general principles to specific rules that make sense, can handle a field as diverse as digital platforms in the same way that electronic broadcasting and communications are diverse. They're very different from each other. But because we're talking about the same sorts of fundamental values and the same kinds of technology, in the the case of communication spectrum by wire, in the case of digital platforms, this whole idea of a multi sided market, and services distributed over the Internet. That's exactly the kind of place where you want an expert agency that can engage in regular oversight. So that all of these things that were right now trying to either solve through antitrust as a one off, like, oh, let let's go after Facebook, or or let's go after Google, or let's go after Amazon. You have an agency that's able to set rules, that's able to deal with the specific cases, and which can also deal with the things that competition in antitrust law don't deal with. Sure. Such as, you know, threats to democracy or threats to individuals.

Well, the idea is to we have an analogy in physical interconnection. One of the things that has made competition in the telecommunications world possible, is that we said, okay. You know what? We're going to require that the network have some kind of universal interface where I can attach whatever device I want provided it doesn't hurt the network. Or where I'm a telecommunications network, you have to interconnect with me so that I can reach the subscribers on your network and you get to reach the subscribers on my network. So we've dealt with this type of problem before. The interesting question here is we're dealing more in the realm of code and intellectual property. What typically happens though is still the same sort of thing that we have, these days where industry organization set standards except instead of it being voluntary and instead of it being entirely industry, what we would have is essentially a the the regulatory agency looking over the shoulder of the, standard setting bodies to say, well, okay. It has to meet certain types of criteria. If you're gonna have proprietary patents or copyrighted material in the API, those have to be available and they have to be available at fair, reasonable and nondiscriminatory terms. So, that anybody who wants to can plug into them in the same way that, you know, anybody who wanted to fit anything that went into the standard phone jack could make something that fit into the standard phone jack. And, these things can't become either bottlenecks or ways in which the industry gets together to engage in any kind of anti competitive, collusion. So, it's a means of basically taking processes that exist now, and making them, mandatory and ensuring that they serve,

Right. This is really one of the new things that I'm putting out there and that I'm hoping, people will, respond to, Which is, what makes these, platforms so important is that, if you are excluded from them, you suffer significant loss. Not all of them, obviously. And it's not as if you were can't live without them. But, for example, there was a great set of articles, a couple of months ago about a woman who were decided to set up a VPN to prevent her from interacting in any way with certain of the, the major platforms and the impacts were astounding. We don't realize how deeply embedded these things are in our lives until you cut them off, and then you notice that, hey, you know, sometimes the cost is just social like, oh, I'm not on Facebook anymore. I don't know, you know, stuff that people expect me to know. I've lost track of my calendars or whatever. You know, to seriously because so much is hosted now through Amazon's AWS service. If you cut off your relationship with Amazon, you are cutting out half the internet practically. So this is, in my opinion, how we ought to measure whether a platform is sufficiently dominant to require particular types of regulation. Because some types of regulation should be applicable to everybody. Anti fraud regulation for example is something which Yeah. We'd all agree. It doesn't matter if you're big or small. You shouldn't be, deceiving people, and engaging in fraud or harassment. But, for economic regulation in particular, we usually say, well, the market works okay on its own. It's only where one firm reaches dominance or a tipping point that we need to step in, and impose some pro competitive rules to make sure that these companies don't maintain their dominance except by producing better products. So, antitrust has a lot of trouble dealing with these digital platforms. They don't fit traditional geographic market definitions. They don't fit traditional, industrial market definitions. So this new metric cost of exclusion tells you, do you have market power essentially? Do you have dominance? Because kicking you off the platform is so painful that you're willing to put up with a lot of my, you know, nonsense to use a polite word here on podcast. I know we're not subject to the FCC decency rule. But, you know, are you willing to put up with a heck of a lot, you know, for the privilege of staying on the platform? Yeah. And if it's more than you would expect people to put up with, then we should assume that that's a dominant platform. Yeah. I know. That's a really interesting metric. So you have this

on this regulatory aspect. Until now, the huge focus has been on antitrust, break them up, or on certain certain individual elements of regulation like personal privacy. Where we're going next is we want to get people to first of all view this as a comprehensive whole. See these companies as a sector of the economy in the same way that we see, you know, mobile phones as a distinct sector or cable providers as a distinct sector, rather than view them as individual unrelated companies. Then my hope is that we can get Congress to begin actually looking at this as a framework. That instead of having hearings on just privacy or just any trust, that we would see hearings that would look at could we pass a digital platform act. Now, well obviously it's gonna take a while. Mhmm. There's Policy does not move fast. Policy does not move quickly, but, you know, my hope is that we are able to move this in the right direction and, you know, both get the lawn regulation that we do need and at the same time, avoid seeing some of the, the crazy things that we're seeing now, in the EU that are just not enforceable in the long term.