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The battle of our times: State versus Big Tech

The battle between governments and Big Tech around the world is not surprising — both want to control information (not just the message, but also the medium), and thereby, power (and in the case of the latter, also money).

Romantics see Big Tech as a unifying, liberating and free (in all meanings of the word) force. It may have been that at one time, but the truth is that Big Tech is mostly a commercial force, trading in user information and influence.

By a quirk of how laws have evolved, it also enjoys considerable licence — for instance, many large technology firms make much of their revenue from the traditional media model, but without any of the responsibilities that being a media company entails. It’s called intermediary immunity, but many such firms behave like anything but intermediaries. To have companies that make money by tracking users and their behaviour (and then selling this data to others) speak of privacy and rights is worrying — almost as much as it is to allow Big Tech to be the arbiter of what people see (and what they don’t), and what is true (and what is not), or even who gets to be on a purportedly public media platform (and who doesn’t).

States, even democratic ones with progressive views, are rarely the benign force for good they see themselves as. And if there is a legal provision that can help them control information, they will use it every time — even if they claim that they will do so only in rare circumstances.

No State, however well-meaning, can be expected to use powers such as this responsibly. National security, sovereignty, communal harmony, and public safety are all real issues, but experience has shown that no State is immune from the temptation to use these bogies to choke dissent and stifle criticism. Laws and frameworks that depend on goodness or virtue or morality (of people, governments, or companies) are destined to fail.

It was only a matter of time before the two clashed. Information is at the core of any power structure and what governments everywhere and Big Tech are fighting about is control — as in, who gets to control information and, therefore, the narrative.

Political power has always meant (among other things) being at the right place in the information hierarchy. At one time, those who knew ruled, and those who didn’t, were ruled. Now, in an era of alternative facts (they are actually very real to some people), it has become clear that it is actually possible to manipulate information and shape the narrative, and decide what is shared, with whom, and when. Companies were among the first to realise how to do this by side-stepping established media channels and messaging techniques, and using Big Tech to go, as they say, DTC or direct-to-consumer. It was only a matter of time before political parties and governments caught on and caught up.

It is important to understand the interests of the two warring sides. Companies want to be able to continue growing their user base, get their users to engage more (and create more content), enjoy intermediary immunity, and be in control of user data (for this is central to their revenue). The ideological framework they use to push these ends revolves around the idea of freedom.

Governments want to control information — which means their efforts to regulate Big Tech are also, in many ways, an attempt to control all of us, by determining the sources and nature of information, and also the timing and volume of delivery. The ideological framework they use to push their objectives revolves around the idea of accountability.

Users are caught between the State and Big Tech, and neither is particularly interested in their rights.

Expectedly, regulating Big Tech is a tricky issue — and one that, in many countries in the world, has ended up before the courts, which too, aren’t always up to the task.

Approached from the perspective of first principles, though, it’s easy (some might say simplistic) to define the objectives of such regulation.

One, regulations have to ensure that Big Tech follows all other laws of the land, pertaining to individuals as well as companies. They will also have to protect the right of citizens to free speech, with restrictions, as stipulated in the fundamental rights chapter of the Constitution.

Two, the regulatory framework has to protect the privacy of users, not discriminate against them in any way, and not unfairly affect their lives and livelihoods. In most countries, including India, these are all fundamental rights.

Three, especially where content is concerned, Big Tech has to be responsible for what is on their platform. This may mean an end to intermediary immunity (and there has been a lot of research on how this is related to things such as freedom of expression and innovation), but companies whose primary business can be defined as media must be treated as media companies.

Four (and this is covered in one, but merits repetition), the regulations should prevent the formation of monopolies (and Big Tech thrives on monopolies).

Five, the regulatory regime will need to have enough safeguards to insulate it from partisan political pressure. The legitimacy of the regime rests on the State acting for the larger good, and not achieving narrow political objectives.

These five principles could serve as a touchstone for any regulatory regime — and also for any challenges on the same. This will enhance the credibility of the policy as something that makes sure Big Tech conforms to the laws of the land while assuring citizens that it will not (and actually cannot) be used to stifle dissent.

At the heart of this debate is an old question that has always confronted democratic societies — the balance between freedom and accountability. Big Tech is primarily focused on the former; the State is primarily focused on the latter; but for citizens, only the right balance works. Finding this balance has become more complex because of the nature of technology, the existence of multiple jurisdictions, the fact that each controversy gets linked to existing political positions rather than being treated on merit, and because neither complete control (like in China) nor complete, almost anarchy-like freedom (like in the early days of Big Tech where a policy regime was absent) is possible or desirable in India.

Would traceability of messages, the main point of contention between WhatsApp and the Indian government pass the test? That’s for the Delhi High Court to decide. But both the WhatsApp case and the recent controversy with Twitter point to one fundamental truth. India needs a balanced regulatory regime, with the objective of protecting and empowering citizens, soon.

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