Daniel O'Connor, Computer & Communications Industry Association
Matthew Schruers, VP of Law & Policy, CCIA; Adjunct Professor, Georgetown University
Although the term “platform” pervades contemporary technology, business, and economic scholarship, there is little consensus on what platforms are — neither within disciplines, nor across them. Nevertheless, some policymakers have seized upon the term, or have been urged to, in order to achieve a wide variety of regulatory objectives that generally have little to do with platforms. Policymakers pursuing “platforms” as a regulatory basis may be confused about what they propose to regulate, or may be adopting an unbounded term in order to expand their regulatory ambit. In fact, existing legal doctrine — including privacy and data protection, consumer protection, and competition law — already govern the vast majority of concerns cited when calling for “platform regulation,” a sui generis framework which lacks foundation in existing law. Nevertheless, some policymakers remain enamored with the notion of broad, horizontal ex ante online platform regulation, a fact reflected by the elimination of language which would have taken online platform regulation off the table between drafts of the European Commission’s Online Platforms Communication, and the proliferation of platform regulation proposals in individual countries. When theories of regulation are not anchored in robust foundational principles, there is greater risk of manipulation of regulators and regulatory capture. To safeguard against these problems, new policies require at least four elements: (a) a precise understanding of the harms the regulation aims to address; (b) a clear definition of which actors are regulated; (c) a nexus between how regulating the first addresses the second; and (d) evidence that current regulations are inadequate to deal with the identified harms.