Opening the Hood
Given that algorithms and their limits have come up in two recent newsletters, it seems important to flag the arrival of a new bill in Congress that would “open up Big Tech’s hood” and allow people to peer into the algorithmic innards of major digital platforms.
Two Democrats, Senator Ed Markey of Massachusetts and Congresswoman Doris Matsui of California, brought this bill forward last week. It’s called the “Algorithmic Justice and Online Platform Transparency Act” and among its major action items is a ban on discriminatory algorithms (for example, algorithms that help push housing ads aimed only at people of certain races). This bill would also set minimum safety standards for algorithms, require their functions and data-collection practices to be described to users “in plain language,” and open up Big Tech’s algorithms for review by the Federal Trade Commission.
At present, the algorithms used to pick the information you’re served by Facebook, Twitter, Google, and other digital giants all sit inside what’s often described as a “black box.” Simply put: If you want to examine these algorithms, sorry, you can’t.
Another common use of the “black box” metaphor also does a decent job of highlighting the importance of this new bill. For the general public, the phrase “black box” likely conjures up images of a feature on airplanes that investigators search out and open up after crashes. This “black box” (which, in truth, is bright orange) contains a recorded history of a flight and, hopefully, a clear indication of things that went wrong. Just as the government has a legitimate interest in passenger jets carrying “black boxes” so they can be opened up and analyzed after a harmful crash, it has a clear interest in being able to open up the black-boxed algorithms of tech companies that may be harmfully crashing through federal anti-discrimination guardrails or worrisomely funneling people into falsehood-filled online echo-chambers that end up helping to incite a deadly riot at the US Capitol while a presidential election is being certified.
One of the most interesting things about this new proposal from Sen. Markey and Rep. Matsui, though, is the path it travels to get to digital platform regulation. Rather than directly challenge the longstanding federal immunity provided to such platforms under Section 230, as other current regulatory proposals do, this new law sidesteps that whole mess. Section 230, at its core, is about online speech and who can be held legally accountable for its consequences (short answer: not digital platforms), and by instead targeting the algorithms that amplify online speech (rather than the online speech itself), Sen. Markey and Rep. Matsui seem to have found a less-protected target.
They also believe they’ve found, in Rep. Matsui’s words, “an essential roadmap for digital justice.” Industry groups are not so sure, warning that “fully lifting the hood on tech algorithms could provide a road map for hackers, Russian trolls, and conspiracy theorists.” But these are all just opening salvos. This bill is not yet a week old. There’ll be much more to come.
In addition to the question of how much transparency we should be entitled to when it comes to algorithms, there’s also the long-simmering question of how much transparency government should mandate for online ads.
This remains an issue because the major innovation of online ads is that they can be finely targeted to niche groups of digital consumers (say, newlywed pilates instructors who are cartoon crazy) while effectively being invisible to the rest of us. And so questions regularly arise, like: Who gets to know all the details on how this ad-targeting is happening? Who’s allowed to analyze the latest trends in micro-targeted online manipulation and, when necessary, alert the public and regulators to deceptive ad strategies that appear to go too far?
Another new proposal in Congress, the Social Media DATA Act, offers an answer by requiring digital platforms to open their ad details to “academic researchers” who would then be permitted to mine vast amounts of now-private data about the targeting and delivery of digital ads in order to draw conclusions about those ads’ uses, abuses, and real-world impacts.
To the extent average consumers even follow this issue, it’s generally in the context of shady political ads that, after being exposed by journalists and other watchdogs, end up begging questions like: Who purchased these ads? Who all were they sent to? How many times were they actually seen?
The voluntary political ad archives launched by a few of the major digital platforms in the U.S. don’t provide all the necessary answers, and even researchers selected by Facebook for special access to the company’s U.S. political ad data say they’re being shown insufficiently detailed information, especially when it comes to ad targeting.
Meanwhile, in places like Honduras, the political ad games remain in full swing with even fewer checks than now exist in the U.S. The Social Media DATA Act looks to be yet another slow-moving potential solution to the ongoing digital ad problem in this country, set atop an already long list. That list, by the way, also includes…
The case of Washington State vs. Google, filed in February. This state-level lawsuit seeks to take the global search giant to task over its alleged failure to disclose targeting, reach, and price data for local online political ads in Washington (where a unique law requires such disclosures). While the wider world dithers on digital ad regulation, can one U.S. state enforce its unusually strong election transparency laws against an international mega-company like Google?
That’s a major question at play in this case, which will be closely watched by Wild West but is off to a somewhat plodding start. More than three months have passed since Washington State Attorney General Bob Ferguson filed the suit, but Google has yet to file any response to the AG’s allegations.
Instead, the company’s answer to the suit, originally due mid-March, has been delayed four separate times. Court paperwork explaining the latest delay hasn’t appeared online yet, but the three previous delays were all agreed to by both parties, with each attesting that “the interests of justice are served” by delaying Google’s deadline for explaining itself.
Neither Google nor the AG’s office offered Wild West any answers about what’s causing the repeated delays (extended settlement talks? one really long game of rock, paper, scissors? someone’s truly fantastic vacation?). But if settlement talks were indeed the delay culprit, one of the more recent filings in the case suggests this particular settlement window may be closing. The filing shows Google signing up a highly credentialed trial attorney in Seattle, Steven Fogg.
Some of the stories I’ve been reading this week:
• “Americans Actually Want Privacy” — Greg Bensinger on what happened after Apple forced app-makers to give users more control over their personal information.
• The right to repair — Pay attention to this movement, which has tech companies in its sights (but not exclusively tech companies). Rather than allowing corporate giants from John Deere to Microsoft to monopolize the repairs of their products, the movement seeks to make “access to essential tools and less expensive repair options a legal right.” In 27 states, “right to repair” laws were under consideration by lawmakers this year. And in 27 states, they were shot down with help from industry lobbyists.
• Banning bans — Florida will levy fines against digital platforms that permanently ban politicians. This is a first, and it’s already being challenged in court as a violation of the platforms’ First Amendment rights.
• The number of QAnon adherents in America now rivals some religions — What a world.
• The Israeli-Palestinian conflict is causing internal conflict at Facebook —
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