Tech fought The Law, but can the Law ever win?
Written by Paul Maher
Tech leaders like to claim there is a cataclysmic clash between tech’s dynamic innovation and the fuddy-duddy lawmakers trying to rein them in and break their spirit.
According to this well-worn meme, out of touch old Luddites adjudicate and make laws in complete ignorance of the benefits of new tech to society.
There’s some evidence to prove this theory. Remember when Zuck had to explain to the US Senator Orrin Hatch how exactly Facebook, at the time the most valuable company on the planet, made any profit at all? “We sell adverts” explained the young Meta CEO.
Of course, by now we know surely tech businesses need to play by the rules. History shows what happened to Big Oil, Big Pharma and Big Tobacco. Those who enthusiastically bend the rules often, eventually and literally, pay the price to clean up their mess.
But Big Tech is different. It has a chequered history of ‘getting away with it’.
In 2013, the EU levied a $731m fine on Microsoft, for failing to ‘play fair’. By restricting users the option to fairly opt for any web browser other than its own Internet Explorer, some 23 months earlier it all but killed off all the competition. Few of us now remember the rise and fall of worthy browser rival FireFox.
But the effectiveness of this action lies in the fact that this fine was only a tenth of the actual fine which the EU could have levied. Had the Brussels bureaucrats actually fined a then much smaller Microsoft the full 10% of annual turnover which, even at that time, would have been $7.4bn, things may have ended up very differently.
Move fast and break things
Timing is everything with tech and two years is enough time for a tech firm to see off most, if not all, of its rivals.. The speed of legal processes versus innovation in tech is the tortoise and hare fable of modern business. A key tenet of tech for years has been “First Mover Advantage” and the Facebook founder’s motto was for years “Move fast and break things”.
Sometimes moving fast means breaking laws, not just ‘things’. A case in point was the $20bn WhatsApp acquisition in 2014 by Facebook, now known as Meta, which was widely described as its best ever. It has literally paid dividends for Meta shareholders ever since.
At the time, lawmakers were concerned about the potential pooling of data between Facebook and WhatsApp users. They were, though, placated and waved the merger through in just a month, only for Meta to do a mea culpa three years later, when it was fined €110m. Other fines have followed and are ongoing, but when your business is ‘printing cash’ all day every day, slow fines hurt a lot less.
For a deterrent to stop the advancement of tech, legal action needs to be immediate and all consuming. This brings us to the current bill making its way through the UK Parliament at present, the misleadingly labelled Online Safety Bill.
The out of line online bill
The UK Government has taken legislation originally named in a previous decade the Online Harms Bill, designed to protect child abuse, and morphed its scope into the Online Safety Bill, now recast with the tech-like acronym, OSB, to include a head-on clash with the privacy all of those who use messaging apps expect.
Now a bloated 262 pages, up from 145, it has a much wider remit, and a longer title: “A Bill to make provision for and in connection with the regulation by OFCOM of certain internet services; for and in connection with communications offences; and for connected purposes”.
Freedom versus free of charge
Unfortunately for users of tech, including the billions in the UK, the bill now suggests a third-party body, the gaffe prone UK communications regulator, OFCOM, surveils all the private messages exchanged on WhatsApp, Signal, Element and others. Perhaps unsurprisingly, those who make a living serving the public by carrying these messages, often free of direct transmission costs to consumers, are not happy.
But there is much more at stake on this legal argument than the UK’s legislature grasp of tech. By seeking to ‘backdoor’ the end-to-end encryption which keeps our messages to friends, family, lovers, medical or legal advisors and the free press private, the way this law has progressed shows how out of step tech and the law are today.
Frenemies against the state
The unintended consequences of the OSB passing were laid out in an unprecedented Open Letter, signed by 12 rival CEOs of messaging companies. The media paid some attention, but quickly moved on. But the OSB has a long tail of unthought-through and long lasting effects on individual liberty including
- Can we trust anybody, even an elected Government, to use our information only for the purposes set out, when the data is essentially accessible and there just waiting to be used against us?
- How sure can we be that public sector IT is secure enough to stop criminals and foreign powers from accessing our data when it is all held in one ‘honeypot’?
- Why would criminals and child abusers stay on unencrypted networks, when they could very easily move to the Dark Web and avoid all detection?
- How could a free press or Government officials, who both love WhatsApp, operate when one of its top means of communicating confidentiality with whistleblowers and other sources was compromised?
- What would modern life be like if secure messaging suppliers decided it was commercially unattractive to make a ‘special’, less secure version for the UK market?
This last point is not rhetorical. Many of the true tech innovators who provide the services we all know and love, have threatened dire consequences for UK users should the OSB come to pass. These include Wikipedia’s founder Jimmy Wales whose organization has made its position clear. Perhaps not as clear as Meta has with its direct threat to withdraw WhatsApp from the UK.
History would indicate a hardline stance by regulators, will soften in the final analysis. But these slow-motion clashes, between the gunslingers of tech and those we empower to create laws, are wasteful for all but the lawyers’ pockets. Modern and digital life are synonymous, when will the tech illiterate finally get to grips with tech? Let’s hope it happens before the next tech wave of AI powered by Large Language Models, takes the ‘human software’ out of the equation.