- Journal Archives
- Volume 21
- Volume 20
- Volume 19
- Volume 18
- Volume 17
- Volume 16
- Volume 15
- Volume 14
- Volume 13
- Volume 12
- Volume 11
- Volume 10
- Volume 9
- Volume 8
- Volume 7
- Volume 6
- Volume 5
- Volume 4
- Volume 3
- Volume 2
- Volume 1
- 2019-2020 Symposium
- 2018-2019 Symposium
- 2017-2018 Symposium
- 2016-2017 Symposium
- 2015-2016 Symposium
- 2014-2015 Symposium
- 2013-2014 Symposium
- 2012-2013 Symposium
- 2011-2012 Symposium
- 2010-2011 Symposium
- 2009-2010 Symposium
- 2008-2009 Symposium
- 2007-2008 Symposium
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 relativel
y 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*
Recent Blog Posts
- JETLaw Sympo 2020 “SPHERES OF INFLUENCE” takes place on February 20
- Changes Are Needed: The NFL’s Troubling, Opaque, and Inconsistent Treatment of Domestic Violence Allegations
- Torts in Space: Are Commercial Satellite Operators Liable for Their Actions?
- New Jersey Police Departments Banned from Using Controversial Facial-Recognition Technology
- Powerful Ad Groups Asks California to Delay Implementation of CCPA
- Amazon v. Trump: The Fight for the JEDI Contract
Tagsadvertising antitrust Apple books career celebrities contracts copyright copyright infringement courts creative content criminal law entertainment Facebook FCC film/television financial First Amendment games Google government intellectual property internet JETLaw journalism lawsuits legislation media medicine Monday Morning JETLawg music NFL patents privacy progress publicity rights radio social networking sports Supreme Court of the United States (SCOTUS) technology telecommunications trademarks Twitter U.S. Constitution