Even as the debate continues about the effects of giant technology platforms on U.S. culture and society, federal lawmakers remain focused on economic impact. In October, Senators Mark R. Warner (D-VA) and Josh Hawley (R-MO)—who are particularly well-known for their critiques of big tech and companies that deal in consumer data—teamed up with Senator Richard Blumenthal (D-CT) to introduce S.2658, the Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act, which Senator Hawley says will “boost competition and give consumers the power to move their data from one service to another.”
Specifically, the ACCESS Act would enable consumers to obtain their user data from the largest online communications and information providers and transfer it to competitor platforms by mandating data portability from the dominant platforms and interoperability with competitor services. However, there are several reasons to question whether the solutions offered under the Act are likely to be effective.
The Access Act Mandates Data Portability and Interoperability
By mandating data portability, lawmakers hope to increase competition in the online communications and information market by empowering users to exert control over their personal data by taking it to a competitor. The ACCESS Act would require consumer-facing communications and information services providers with a product or service that (a) has more than 100 million monthly active U.S. users and (b) generates income from personal data it collects about individual users (“large communications platform providers”) to establish external interfaces that would allow users to safely download their own data or directly port it to a competing communications provider.
To facilitate consumers’ transfer rights, the ACCESS Act would also require large communications platform providers to establish and maintain external interoperability interfaces by which competitors can securely receive ported consumer data. The Act also includes a non-discrimination provision that obligates the large communications platform providers to operate the interface “based on fair, reasonable, and nondiscriminatory terms.”
The Act assigns responsibility for oversight and enforcement to the Federal Trade Commission. Statements by Senator Blumenthal indicate the Act is specifically intended to apply to tech giants like Facebook and Google, but the broad scope of the term “communications provider” on its face would also encompass telecommunication companies like AT&T and Verizon—which are already regulated by the Federal Communications Commission (at least with respect to their telecommunications services although not their Internet access services, and “communications service” is not defined in the bill).
Existing Data Portability and Interoperability Options
It is not clear that the Act would achieve its purported aims. Advocates argue it is needed to “restore competition” in the online communications and information market “without burdensome regulation,” and that the portability and interoperability requirements have broad parallels in the requirements imposed on former monopoly landline phone companies under the Telecommunications Act of 1996 – requirements that significantly contributed to the development of competition in the phone industry.
Even so, these requirements may be unnecessary—many companies with platforms likely to be the intended targets of the Act already offer programs and tools providing for user data portability and interoperability. Google, Facebook, and Instagram already offer functionalities that allow users to download a local copy of their complete account data to use as they see fit. And in 2018, Google and Microsoft launched the Data Transfer Project to develop an open-source platform that will enable data transfers between participating service providers, including companies such as Apple, Facebook, and Twitter.
Moreover, there is reason to doubt that these requirements would increase competition within the targeted industries. It does not appear that users of popular social media platforms already offering data portability actually take advantage of that function in the manner envisioned by ACCESS Act proponents.
In contrast with many reports about social media users who, after downloading a copy of their data, decided to change their account usage or delete it altogether, for example, there are few reports of users who then decided to re-upload their content to an alternative platform. This suggests the Act’s proposed mandates are unlikely to spur consumers to transfer their data from an existing platform to a smaller competitor.
On the other hand, the obligation on large platforms to establish interfaces from which competitors could automatically transfer information without burdening the consumer would be new and, at least in theory, could make a difference.
Platforms Continue Call for Comprehensive Federal Legislation
Irrespective of whether data portability and interoperability promote competition, there is a clear trend towards imposing such obligations on consumer-facing online platforms more generally. Both the GDPR and the CCPA already grant individuals a specific right to data portability without regard to industry (although the CCPA does exempt businesses that do not meet its threshold size or revenue criteria).
While the proposed ACCESS Act—which narrowly focuses only on the largest communications platform providers—is clearly on trend, it would further entrench the United States’ patchwork approach to consumer and personal data protection laws.
Indeed, many large communications platform providers have called for federal legislation that comprehensively addresses the collection and use of consumer data across all industries and assert that such an approach would be most beneficial for both companies and consumers. Federal privacy bills were recently introduced in the House and Senate.