There has been a wave of legislative proposals on both sides of the Atlantic that purport to improve consumer choice and the competitiveness of digital markets. In a new working paper published by the Stanford-Vienna Transatlantic Technology Law Forum, I analyzed five such bills: the EU Digital Services Act, the EU Digital Markets Act, and U.S. bills sponsored by Rep. David Cicilline (D-R.I.), Rep. Mary Gay Scanlon (D-Pa.), Sen. Amy Klobuchar (D-Minn.) and Sen. Richard Blumenthal (D-Conn.). I concluded that all those bills would have negative and unaddressed consequences in terms of information privacy and security.
In this post, I present the main points from the working paper regarding two regulatory solutions: (1) mandating interoperability and (2) mandating device neutrality (which leads to a possibility of sideloading applications, a special case of interoperability.) The full working paper also covers the risks of compulsory data access (by vetted researchers or by authorities).
Interoperability
Interoperability is increasingly presented as a potential solution to some of the alleged problems associated with digital services and with large online platforms, in particular (see, e.g., here and here). For example, interoperability might allow third-party developers to offer different “flavors” of social-media newsfeeds, with varying approaches to content ranking and moderation. This way, it might matter less than it does now what content moderation decisions Facebook or other platforms make. Facebook users could choose alternative content moderators, delivering the kind of news feed that those users expect.
The concept of interoperability is popular not only among thought leaders, but also among legislators. The DMA, as well as the U.S. bills by Rep. Scanlon, Rep. Cicilline, and Sen. Klobuchar, all include interoperability mandates.
At the most basic level, interoperability means a capacity to exchange information between computer systems. Email is an example of an interoperable standard that most of us use today. It is telling that supporters of interoperability mandates use services like email as their model examples. Email (more precisely, the SMTP protocol) originally was designed in a notoriously insecure way. It is a perfect example of the opposite of privacy by design. A good analogy for the levels of privacy and security provided by email, as originally conceived, is that of a postcard message sent without an envelope that passes through many hands before reaching the addressee. Even today, email continues to be a source of security concerns, due to its prioritization of interoperability (see, e.g., here).
Using currently available technology to provide alternative interfaces or moderation services for social-media platforms, third-party developers would have to be able to access much of the platform content that is potentially available to a user. This would include not just content produced by users who explicitly agree to share their data with third parties, but also content—e.g., posts, comments, likes—created by others who may have strong objections to such sharing. It does not require much imagination to see how, without adequate safeguards, mandating this kind of information exchange would inevitably result in something akin to the 2018 Cambridge Analytica data scandal.
There are several constraints for interoperability frameworks that must be in place to safeguard privacy and security effectively.
First, solutions should be targeted toward real users of digital services, without assuming away some common but inconvenient characteristics. In particular, solutions should not assume unrealistic levels of user interest and technical acumen.
Second, solutions must address the issue of effective enforcement. Even the best information privacy and security laws do not, in and of themselves, solve any problems. Such rules must be followed, which requires addressing the problems of procedure and enforcement. In both the EU and the United States, the current framework and practice of privacy law enforcement offers little confidence that misuses of broadly construed interoperability would be detected and prosecuted, much less that they would be prevented. This is especially true for smaller and “judgment-proof” rulebreakers, including those from foreign jurisdictions.
If the service providers are placed under a broad interoperability mandate with non-discrimination provisions (preventing effective vetting of third parties, unilateral denials of access, and so on), then the burden placed on law enforcement will be mammoth. Just one bad actor, perhaps working from Russia or North Korea, could cause immense damage by taking advantage of interoperability mandates to exfiltrate user data or to execute a hacking (e.g., phishing) campaign. Of course, such foreign bad actors would be in violation of the EU GDPR, but that is unlikely to have any practical significance.
It would not be sufficient to allow (or require) service providers to enforce merely technical filters, such as a requirement to check whether the interoperating third parties’ IP address comes from a jurisdiction with sufficient privacy protections. Working around such technical limitations does not pose a significant difficulty to motivated bad actors.
Art 6(1) of the original DMA proposal included some general interoperability provisions applicable to “gatekeepers”—i.e., the largest online platforms. Those interoperability mandates were somewhat limited – applying only to “ancillary services” (e.g., payment or identification services) or requiring only one-way data portability. However, even here, there may be some risks. For example, users may choose poorly secured identification services and thus become victims of attacks. Therefore, it is important that gatekeepers not be prevented from protecting their users adequately.
The drafts of the DMA adopted by the European Council and by the European Parliament attempt to address that, but they only allow gatekeepers to do what is “strictly necessary” (Council) or “indispensable” (Parliament). This standard may be too high and could push gatekeepers to offer lower security to avoid liability for adopting measures that would be judged by EU institutions and the courts as going beyond what is strictly necessary or indispensable.
The more recent DMA proposal from the European Parliament goes significantly beyond the original proposal, mandating full interoperability of a number of “independent interpersonal communication services” and of social-networking services. The Parliament’s proposals are good examples of overly broad and irresponsible interoperability mandates. They would cover “any providers” wanting to interconnect with gatekeepers, without adequate vetting. The safeguard proviso mentioning “high level of security and personal data protection” does not come close to addressing the seriousness of the risks created by the mandate. Instead of facing up to the risks and ensuring that the mandate itself be limited in ways that minimize them, the proposal seems just to expect that the gatekeepers can solve the problems if they only “nerd harder.”
All U.S. bills considered here introduce some interoperability mandates and none of them do so in a way that would effectively safeguard information privacy and security. For example, Rep. Cicilline’s American Choice and Innovation Online Act (ACIOA) would make it unlawful (in Section 2(b)(1)) to:
All U.S. bills considered here introduce some interoperability mandates and none of them do so in a way that would effectively safeguard information privacy and security. For example, Rep. Cicilline’s American Choice and Innovation Online Act (ACIOA) would make it unlawful (in Section 2(b)(1)) to:
restrict or impede the capacity of a business user to access or interoperate with the same platform, operating system, hardware and software features that are available to the covered platform operator’s own products, services, or lines of business.
The language of the prohibition in Sen. Klobuchar’s American Innovation and Choice Online Act (AICOA) is similar (also in Section 2(b)(1)). Both ACIOA and AICOA allow for affirmative defenses that a service provider could use if sued under the statute. While those defenses mention privacy and security, they are narrow (“narrowly tailored, could not be achieved through a less discriminatory means, was nonpretextual, and was necessary”) and would not prevent service providers from incurring significant litigation costs. Hence, just like the provisions of the DMA, they would heavily incentivize covered service providers not to adopt the most effective protections of privacy and security.
Device Neutrality (Sideloading)
Article 6(1)(c) of the DMA contains specific provisions about “sideloading”—i.e., allowing installation of third-party software through alternative app stores other than the one provided by the manufacturer (e.g., Apple’s App Store for iOS devices). A similar express provision for sideloading is included in Sen. Blumenthal’s Open App Markets Act (Section 3(d)(2)). Moreover, the broad interoperability provisions in the other U.S. bills discussed above may also be interpreted to require permitting sideloading.
A sideloading mandate aims to give users more choice. It can only achieve this, however, by taking away the option of choosing a device with a “walled garden” approach to privacy and security (such as is taken by Apple with iOS). By taking away the choice of a walled garden environment, a sideloading mandate will effectively force users to use whatever alternative app stores are preferred by particular app developers. App developers would have strong incentive to set up their own app stores or to move their apps to app stores with the least friction (for developers, not users), which would also mean the least privacy and security scrutiny.
This is not to say that Apple’s app scrutiny is perfect, but it is reasonable for an ordinary user to prefer Apple’s approach because it provides greater security (see, e.g., here and here). Thus, a legislative choice to override the revealed preference of millions of users for a “walled garden” approach should not be made lightly.
Privacy and security safeguards in the DMA’s sideloading provisions, as amended by the European Council and by the European Parliament, as well as in Sen. Blumenthal’s Open App Markets Act, share the same problem of narrowness as the safeguards discussed above.
There is a more general privacy and security issue here, however, that those safeguards cannot address. The proposed sideloading mandate would prohibit outright a privacy and security-protection model that many users rationally choose today. Even with broader exemptions, this loss will be genuine. It is unclear whether taking away this choice from users is justified.
Conclusion
All the U.S. and EU legislative proposals considered here betray a policy preference of privileging uncertain and speculative competition gains at the expense of introducing a new and clear danger to information privacy and security. The proponents of these (or even stronger) legislative interventions seem much more concerned, for example, that privacy safeguards are “not abused by Apple and Google to protect their respective app store monopoly in the guise of user security” (source).
Given the problems with ensuring effective enforcement of privacy protections (especially with respect to actors coming from outside the EU, the United States, and other broadly privacy-respecting jurisdictions), the lip service paid by the legislative proposals to privacy and security is not much more than that. Policymakers should be expected to offer a much more detailed vision of concrete safeguards and mechanisms of enforcement when proposing rules that come with significant and entirely predictable privacy and security risks. Such vision is lacking on both sides of the Atlantic.
I do not want to suggest that interoperability is undesirable. The argument of this paper was focused on legally mandated interoperability. Firms experiment with interoperability all the time—the prevalence of open APIs on the Internet is testament to this. My aim, however, is to highlight that interoperability is complex and exposes firms and their users to potentially large-scale cyber vulnerabilities.
Generalized obligations on firms to open their data, or to create service interoperability, can short-circuit the private ordering processes that seek out those forms of interoperability and sharing that pass a cost-benefit test. The result will likely be both overinclusive and underinclusive. It would be overinclusive to require all firms in the regulated class to broadly open their services and data to all interested parties, even where it wouldn’t make sense for privacy, security, or other efficiency reasons. It is underinclusive in that the broad mandate will necessarily sap regulated firms’ resources and deter them from looking for new innovative uses that might make sense, but that are outside of the broad mandate. Thus, the likely result is less security and privacy, more expense, and less innovation.
