Neb. AG Sees Growing State Concern With Big Tech

State engagement in antitrust cases has “significantly increased because of Big Tech,” Nebraska Attorney General Doug Peterson (R) said at a Nebraska Governance and Technology Center conference livestreamed Friday. With increasing interest in tech litigation and legislation, states should seek to avoid unintended consequences, warned academics and industry officials.

States’ concern with large technology companies is bipartisan, said Peterson. "There's not any AG that I ran across who didn't understand what the harm and the imbalance was" between users and social media companies. In the past, smaller states like Nebraska weren’t as engaged in antitrust cases, leaving much of the work to California and New York state, or depending on DOJ and the FTC to lead, said Peterson. “That’s changed completely.” Various state groups joined multiple ongoing tech antitrust suits, with Nebraska most engaged in an antitrust suit with DOJ and 28 states concerning Google search, said the AG. All 50 states are participating in a consumer-protection probe of social media platforms, with a focus on children, he added.

State privacy laws are “are going to gain some momentum,” predicted Peterson, noting four states passed laws. But were Nebraska to pass a law, the AG office wouldn’t be able to robustly enforce it with current resources, said Peterson: “There would need to be an important dialogue” with the legislature about “doing an appropriation to make sure that there’s sufficient enforcement.”

Peterson dreams citizens will “completely control” their own data one day, he said. The AG recalled how, at a 2018 National Association of Attorneys General event, he realized Big Tech companies are “storing a ton of data” and that “power is really dangerous,” with the potential to influence elections and other things “beyond just making money.” Enforcement can promote healthy markets without squelching industry innovation, said Peterson: Taking a nonenforcement approach would mean "shirking our responsibilities to make sure there's sufficient competition."

Most state and federal bills targeting tech focus on “potential harm," but "there are a lot of benefits that people get from being on social media," said Shannon McGregor, senior researcher-University of North Carolina Center for Information, Technology and Public Life, in a prerecorded keynote. “We have to think about the unintended consequences of many policies or regulations on those benefits that people say they find from social media.”

Many Americans hold an “internal paradox” about social media, said McGregor: They think it has many positive benefits like connecting with other people, finding information and free expression, but they’re also concerned it also makes it easier to spread harmful information. While politics have some effect on Americans’ views on social media, they don’t split neatly by party affiliation, said the academic. “There is no clear partisan path forward.”

"We haven't changed a whole lot, but our politics have changed a whole lot,” said Eric Peterson, Pelican Institute Center for Technology and Innovation Policy director, on a panel. “And where politics interact with technology is changing." State legislation often comes from tech industry in-fighting rather than consumers asking for it, he said: Regular people aren’t showing up at state capitals complaining they were blocked on social media, but there's a clear mandate from Americans to act on privacy, he said.

Americans want government to act on privacy, but average citizens aren’t calling for app-store bills that surfaced in several states, said Graham Dufault, ACT|The App Association senior director-public policy. The bills would allow developers to deal directly with customers and avoid app store fees from Apple and Google. It wasn’t ACT’s small app developer members who called for such measures, but rather Fortnite developer Epic Games, who sued Apple over the issue, said Dufault: State legislators seeking ways to fight Big Tech happily took up the issue.

Every industry uses data somehow, cautioned NetChoice Policy Counsel Jennifer Huddleston: policymakers should avoid writing laws that break services that consumers like.