Jan. 6 Changed Tech Forever

The digital insurrection finally happened.

Last week, Twitter blocked @realDonaldTrump for life. Meanwhile, Facebook head Mark Zuckerberg wrote, “We believe the risks of allowing the President to continue to use our service during this period are simply too great,” as his own company was cutting U.S. President Donald Trump off from millions of digital disciples for the duration of his presidency. Then, the digital payments company Stripe booted all payment activities related to the Trump campaign, while Shopify took down Trump-associated online stores. With Pinterest, GoFundMe, Snapchat, and many others piling on, suddenly the bandwagon was spilling over. As the dominant platforms became inhospitable for the Trumpists, there was a rush to more welcoming alternatives; yet the principal refuge, Parler, soon found that Google, Apple, and Amazon had shut off its oxygen.

All that is to say, Jan. 6—the day a pro-Trump mob overran the Capitol building—will change tech as we know it. Quite possibly, the siege served as the proverbial last straw, and even Big Tech, with all its aspirations for facilitating unfettered communications, could not look the other way after much of the day’s violence was set off on their platforms.

That said, there was a second momentous event that occurred on Jan. 6 that may also have contributed to this sudden surge of high-mindedness. The Democrats picked up two Senate seats in Georgia on that day and, after President-elect Joe Biden’s inauguration, will control the presidency and both branches of Congress. The Democrats already had a hefty 449-page report from the House Subcommittee on Antitrust, Commercial, and Administrative Law to use to build a case for reviewing and reimagining the power of Big Tech, long a goal of the party, and now it had to power to do so as well.

After last week’s violence, it may seem like a good thing that a new reality for tech is unfolding. There are, however, several reasons to be concerned, too.

The most significant cause for concern is one I wrote on earlier this month: Tech has not been a high priority for the most important person in the new government, Biden. But to get it right, Biden cannot simply turn to the industry as a convenient scapegoat now; he needs to take a more holistic view, seeing the sector as a tool for addressing many of his priorities: pandemic response, economic recovery, racial justice, and climate action.

Calls for reining in the power of tech companies—and the industry’s own responses—are inevitably reactive.

Second, calls for reining in the power of tech companies—and the industry’s own responses—are inevitably reactive. This was true when news of privacy breaches, such as Facebook’s deal with Cambridge Analytica, broke. It is true when concerns about misinformation—about a raging pandemic or political conspiracy theories—reach a boiling point. It is true when a presidential Twitter account with over 88 million followers at its peak is shut down after it has already delivered 59,558 tweets, rife with untruths, provocation, and outright dangerous content. Trump has been analyzed as the single largest driver of pandemic misinformation and the most prominent disseminator of elections misinformation, but his social media accounts were allowed to persist until rioters took the Capitol. Given the centrality of the industry in the global discourse, in the world economy, and in the stock market, it is unacceptable that Big Tech has not actively taken a long view and anticipated the risks and opportunities its products offer. The same goes for governments, which still struggle to cobble together forward-looking policy and legal frameworks that can withstand and obviate the nonstop sequence of crises. When remedial action is taken by the likes of a Twitter or Facebook CEO, it should make everyone uneasy that a few individuals can wield so much power to determine the future of democracy. It should make them wonder why elected officials let it get to this point.

Third, any drastic action that is expedient and reactive can have unintended consequences. For example, by banning certain users on their platforms, Twitter, Facebook, and Google create fertile ground for new splinter platforms to gather adherents—and, before long, you have the digital parallels of Fox News. To make matters worse, these alternatives can fly under the law enforcement or regulatory radar as they turn to end-to-end encryption and blockchain technologies. How else would organized armed “protests” at 50 state capitols already be planned in the lead-up to Inauguration Day? On the other hand, enacting laws that hold the platforms directly accountable for all the content they carry adds new risks, as only very large, dominant players, like Facebook, Google, and Twitter, will survive, as they are the only ones that can afford the legal consequences.

All this is not to say that Jan. 6 broke tech and there is nothing to do about it. Instead, here are three ways in which Biden and tech leaders can, as the incoming president might say, build back better.

First, Biden should appoint an internet czar and stand up a regulatory agency with oversight across the tech industry: a Federal Digital Commission, perhaps? The United States should have a single point of accountability and integration. Currently, there is no such agency overseeing one of the nation’s most significant, complex, and multidimensional industries. The Federal Communications Commission and the Federal Trade Commission have been pinch-hitting, because some of the issues fall under their jurisdiction. But a holistic regulation of tech requires more than piecemeal approaches or litigation that focuses on narrow issues, either because there is no government agency with a broad enough mandate or because the lawyers do not believe they can win a more complex case. Technology is not just a modern version of the telephone or the telegraph. It integrates communication, algorithmic analysis and decision-making, cybersecurity and public safety, commerce, payments, user-driven innovation and creativity, entrepreneurship, social justice and inclusion, artificial intelligence, automation and data insights, and so much more.

One of the historical challenges with establishing a brand-new federal agency was the divided nature of government; while both Democrats and Republican lawmakers have had an interest in curtailing the power of tech, they have never been able to agree on their core concerns. Now, with full control over government, the Democrats have the votes to, finally, put a dedicated regulator in place with authority to regulate the tech sector in an integrative and forward-looking manner.

Second, the government does need to take action on reforming tech, but the focus should change. The drumbeat prior to the election was about anti-competitive behavior and antitrust. These are important concerns, but more essential ones have arisen and should take priority. As I have noted earlier, antitrust litigation, historically, drags on for a long time and mostly results in settlements. Antitrust action wins headlines and is certainly going to keep some powerful supporters who will wish to persist with it: Sen. Amy Klobuchar, a likely advocate, is now writing a book on the subject. But a long, drawn-out litigation process might completely overshadow a more pressing unresolved tech-related issue that has emerged as the central lesson of the Jan. 6 attack. This has to do with an arcane but essential law that has been described as “one of the most valuable tools for protecting freedom of expression and innovation on the Internet”: Section 230 of the Communications Decency Act, which provides websites, including social media companies, that host or moderate content generated by others with immunity from liability, thereby allowing them to host a wide variety of content.

There is little doubt that a systematic reworking of this liability shield will have the political winds blowing on its back. Democratic Reps. Anna Eshoo and Tom Malinowski intend to update and reintroduce a bill eliminating such protections when it comes to content that foments civil rights abuses or terrorism. Fellow Democratic Rep. Jan Schakowsky also plans to act to limit Section 230 protections for companies that fail to consistently enforce their terms of service. But the circumstances of last week have shifted the balance on Section 230 reform; apart from the difficulty of finding a clean way to rework the law, one of the issues with taking a consistent path forward had been that Republicans felt that the shield gave license to the social media platforms to censor conservative voices, while Democrats felt that the shield was permitting too many such voices to be given a megaphone. To make matters worse, Biden had suggested revoking the law altogether—which would have shut down the web as we know it and, sadly, cannot be taken as serious presidential guidance. Now, there is likely to be more urgency and consensus on the objectives of a reform that balances the numerous concerns and helps pave a better path toward reformulating it.

Finally, investors—who are, ultimately, the most powerful stakeholders influencing executive decisions in tech companies—should step up. In recent years, environmental, social, and governance (ESG) ratings have become an important part of investability considerations. ESG investing is expected to accelerate in a post-pandemic world. And so, CEOs of the tech companies have an incentive to not run afoul of this surging class of investors. After Jan. 6, a key part of the “S” in ESG as it relates to Big Tech should include a company’s impact on democratic institutions and the actions it takes to protect society against violence, “infodemics,” or misinformation in both public health and public discourse and acts of civil unrest—even while supporting open discourse and free speech.

Shutting down @realDonaldTrump after the mayhem of Jan. 6 was the easy part—even though it took an unprecedented national crisis to get to it. Even taking the first steps toward impeaching the man for a second time, while an event of historic proportions, seems so inevitable that it appears straightforward. Now the hard work of fixing the fundamental democratic institutions must begin. A key part of that effort is to fixing tech. The first step in this journey is to recognize that one of the most powerful foundations of the American democratic project, which was threatened and then revived last week, is the Constitution. It has mostly held up because of wisdom and foresight on the part of its framers. Tech, too, is now foundational to the American project and for others worldwide. It is time we applied those principles of wisdom and foresight to the way we way we approach tech as well.