When 51 leading CEOs recently sent a letter to Congressional leaders to urge the adoption of a national consumer data privacy law, they indicated that one reason for its enactment would be to “enable continued innovation and growth in the data economy.” Now, a focused bipartisan Senate bill has emerged that promises to support greater innovation through stimulating competition among internet platform providers. It has a clunky name—Augmenting Capability and Competition by Enabling Service Switching—that allows it to use the acronym “ACCESS,” but that’s probably the only part that should be overlooked.

The core of the legislation, introduced by Senators Mark Warner (D-VA), Richard Blumenthal (D-CT) and Josh Hawley (R-MO), would be a federal requirement that every major tech platform (i.e., with over 100 million monthly users) must offer consumers the ability to transfer their personal data to a competing provider, utilizing a structured, commonly-used machine-readable format. That ability exists today throughout the European Union, in Canada and Mexico, and even in Saudi Arabia. In effect, this would mean that if you wanted to move from Gmail to Hotmail, or from Facebook to LinkedIn, the process would be relatively seamless, based on a user request to transfer data from one account to another.

This has obvious benefits for consumers, who would not be locked into a particular platform service due to having important data that resides there. But equally important, this would provide a competitive spur for companies, allowing better offerings of privacy-enhancing features that would help to retain existing users and attract new ones.

This type of system would work. November will mark the 16th anniversary since the Federal Communications Commission (“FCC”) required number portability for all landline and wireless telephone providers, which allows consumers to leave their service painlessly for another in the same geographic area. Simply put, if you like your number, you can keep it.

Competition here has proven to be a powerful economic regulator, as customers can switch services freely when a more attractive deal, such as unlimited data or a better family plan, comes along. For data portability, a similar competitive environment can take hold; companies may begin offering enhanced privacy protection if there is an economic penalty at risk in the form of fewer customers and reduced advertising revenue.

There are technical issues at play in data portability, and these should not be underestimated. Platform services have not been designed with this capability, and they would need to make appropriate adjustments to enable handing off large amounts of personalized data to another provider, securely and without error. But they are not about to initiate such a sea change without a legal requirement that they do so.

Legislation could accomplish this, but there may be a quicker, more effective way to achieve a comparable outcome. The FCC, which developed the mandatory number portability regime for telephones, could initiate a rulemaking proceeding to extend this policy framework to internet platform services.

Although the FCC does not have direct regulatory authority over Facebook, Google, and their peers, the agency has power to regulate the practices of Internet Service Providers (“ISPs”), which are the gateways for platform services. ISPs thus are in a strong position to facilitate the offering of data portability by platform services. Under this scenario, the FCC could develop a regulation that all ISPs enable this, with the costs of data transfer to be borne by the platform services, not the ISPs or consumers. This would promote competition among platform service providers. Some phase-in period also would be necessary to enable the development of technical standards for data transfer and testing.

The FCC has already managed number portability successfully, and the ISPs have deep technical capability that could be leveraged by platform services as they move to comply with this new requirement. Given the uncertainty of having the ACCESS Act passed during this Congress, there is no reason to have such a good idea linger without a practical implementation alternative.

In an economy driven by the holy grail of competition, which the letter-writing CEOs extolled, data portability is premised on accepted business principles, common sense, and good social policy, rather than government overreach.

The linkage between consumer privacy protection and continued digital innovation in the digital economy now faces a reality check. Data portability is Exhibit A for whether competition rhetoric can be translated into a tangible plan that benefits consumers and businesses alike.

Stuart N. Brotman*

*Stuart N. Brotman is a Fellow at the Woodrow Wilson International Center for Scholars in Washington, DC. He is based in its Science and Technology Innovation Program, focusing on digital privacy policy issues.

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