Over the past few years, Europe has seen a groundbreaking online privacy law go into effect, passed sweeping regulations to stem the dominance of the tech giants and on Friday approached a deal on new legislation to protect its citizens from harmful online content.
For those who keep the score, that’s Europe: three. United States: zero.
The United States may be the birthplace of the iPhone and the most widely used search engine and social network, and it could also bring the world into the so-called metaverse. But global technical regulation leadership is taking place more than 3,000 miles from Washington, by European leaders representing 27 countries with 24 languages, who have nevertheless agreed on basic online protection for their approximately 450 million citizens.
In the United States, Congress has not passed a single piece of comprehensive regulation to protect Internet consumers and rein in the power of its tech giants.
It’s not for lack of trying. Over 25 years, dozens of federal privacy laws have been proposed and eventually repealed without bipartisan support. With every major bank or retailer hack, lawmakers have introduced data breaches and security accounts, all of which have withered on the vine. A flurry of speech laws has sunk in the quicksand of partisan disagreements over free speech. And antitrust laws to curtail the power of Apple, Amazon, Google and Meta, the owner of Facebook and Instagram, have remained in limbo amid fierce lobbying opposition.
In the past 25 years, only two narrow federal technology laws have been passed — one to protect children’s privacy and the other to get rid of sex-trafficking content sites.
“Slowness is too kind of a word to describe what happened in the United States; there was a lack of will, courage and understanding of the problem and the technologies,” said Jeffrey Chester, the executive director of the Center for Digital Democracy, a public interest group. “And consumers have no protection here and a lot of confusion.”
The prospects that legislation will pass in the near term are dim, although regulation is almost inevitable at some point because of the way technology affects so many aspects of life. Of all the proposals currently before Congress, an antitrust law that would ban Apple, Alphabet and Amazon from promoting their own products in their marketplaces and app stores over those of their rivals has the best chance.
A co-author of the bill, Minnesota Democrat Senator Amy Klobuchar, said Democratic leaders had promised it would be put to a vote this summer. But even that bill, with bipartisan support, faces an uphill climb amid so many other priorities in Congress and a fierce tech lobby to beat it.
If history is any guide, the road to US engineering regulation will be a long one. It took decades of public anger to regulate the railroads with the creation of the Interstate Commerce Commission in 1887. It took nearly 50 years from the first medical reports on the dangers of cigarettes to the regulation of tobacco.
There is no reason for any progress in Congress. Proposals have become mired in the age-old partisan divisions over how to protect consumers while boosting business growth. Then there are the hundreds of tech lobbyists who are blocking legislation that could hurt their profits. Legislators have also sometimes failed to understand the technologies they are trying to regulate, thus making them public weaknesses over tech to internet memes.
Tech companies have taken advantage of that blind spot of knowledge, said Tom Wheeler, former chairman of the Federal Communications Commission.
“It’s what I call the ‘big con’ where the tech companies tell a story that they’re doing magic and that if Washington hits their companies with regulation, they’re responsible for breaking that magic,” he said.
In the vacuum of federal regulation, states have instead created a patchwork of technical regulations. California, Virginia, Utah and Colorado have passed their own privacy laws. Florida and Texas have passed social media laws aimed at punishing internet platforms for censoring conservative views.
Amazon, Alphabet, Apple, Meta and Microsoft said they supported federal regulations. But when printed, some of them have fought for the most permissive versions of the laws considered. For example, Meta has pushed for weaker federal privacy law that would override stronger laws in the states.
Tech’s lobbying power is now fully visible in Washington with the antitrust threat posed by Ms. Klobuchar and Senator Charles E. Grassley, an Iowa Republican. The proposal passed the first hurdle in the vote in January, much to the surprise of the tech industry.
In response, many of the tech companies mobilized an extensive lobbying and marketing campaign to beat the bill. Through a trade group, Amazon claimed in television and newspaper ads that the bill would effectively end the Prime membership program. Kent Walker, Google’s chief legal officer, wrote in a blog post that the legislation would “break” popular products and prevent the company from displaying Google maps in search results.
Ms. Klobuchar said the companies’ claims were exaggerated. She warned that by going against the proposal, tech companies could choose the worst of two tough options.
“They let Europe set the agenda for internet regulation,” said Ms Klobuchar. “In any case, we have listened to everyone’s concerns and adjusted our bill.”
The passivity may seem surprising, given that Republicans and Democrats appear to be aligned on how tech companies have turned into global powerhouses.
“Consumers need to be confident that their data is protected, and businesses need to know that they can continue to innovate while meeting a strong, workable national privacy standard,” said Mississippi Republican Senator Roger Wicker. “The US cannot afford to relinquish leadership in this area.”
Lawmakers have also forced many tech executives — including Amazon’s Jeff Bezos, Apple’s Tim Cook, Google’s Sundar Pichai and Meta’s Mark Zuckerberg — to testify before Congress several times in recent years. In some of those televised hearings, lawmakers from both sides have told executives that their companies — with a combined market value of $6.4 trillion — are not above government or public responsibility.
“Some of these companies are countries, not companies,” Louisiana Republican Senator John Kennedy said at a January antitrust hearing, adding that they are “clearing the field for the truth.”
But so far the conversation has not translated into new laws. The path to privacy regulation provides the clearest case study on that state of inactivity.
Since 1995, Massachusetts Democrat Senator Edward J. Markey has enacted a dozen privacy laws for Internet service providers, drones, and third-party data brokers. In 2018, the year the European General Data Protection Regulation came into effect, he proposed a bill to ask a consumer for consent to share or sell data.
Mr. Markey has also made two attempts to update and strengthen youth privacy laws in line with his 1998 law, the Children’s Online Privacy Protection Act.
In every effort, industry lobby groups have denounced the bills as damaging to innovation. Many Republican lawmakers have opposed the proposals, saying they don’t align with business needs.
“Big Tech sees data as dollar signs, so for decades they’ve funded industry lobbyists to help them evade responsibility,” said Mr. markey. “We have reached a breaking point.”
