Threats of regulation are complex, but not enough to prevent oversight

Threats of regulation are a complex mechanism operating in all societies and sectors. While not new in the market system of public-private dynamics, it deserves careful attention when used in the context of internet management and technological developments. This opinion will analyze whether threats of regulation should be considered an internet governance mechanism and how to approach its research from a different methodological perspective. It will also provide recommendations to assess the other factors interplay in using this mechanism, emphasizing the importance of its publicity, transparency, and scrutiny.

Internet governance was conceived as a model and system in which multiple stakeholders have a key role to play in managing the Internet based on norms and principles. When we look at threats of regulation seeking, deliberatively or not, to influence technological companies’ voluntary practices, the scope can be limited to a dual relationship: State<>private sector. How these threats operate at early stages, and the interests at play will hardly be uniform in all instances, including when companies seek to preempt the threat in the first place or when the intentions of the State do not align with actual benefits for society, the rule of law and the information ecosystem. From a principled standpoint, this analysis of a State-private sector dynamic overlooks the role of civil society and academia in monitoring, promoting, and documenting these processes. This device should be placed outside the framework of Internet governance. Although, in practice, it can be motivated by legitimate interests seeking to maximize the social and economic benefits of society, this is not always the case, and the likelihood of abuse is apparent. Only when threats of regulation are accompanied by the engagement and effective participation of other relevant stakeholders and the publicness of the process before the public debate is easily accessible, should they be placed within this framework.

The research scope should be broadened in terms of process but narrowed to specific use cases. Big technological companies invest millions of dollars in anticipating the regulatory landscape in what they call markets at national and regional levels. The threats of regulation highly likely occur at a mid-phase of a broader process rather than an isolated attempt to influence tech companies’ behaviour. Broadening the scope of the process would mean that multiple scenarios precede a threat of regulation and would be critical to consider whether inter alia: a) companies failed to anticipate the upcoming regulatory concerns in specific markets; b) the secret negotiations between public officials, lobbyists and companies were unsuccessful and the threats of regulation are a result of this setback; c) public officials unilaterally made an assessment of the issue and the bills will hardly get somewhere; and d) other stakeholders have been pushing for regulation for some time and contextual conditions accelerate the process. These considerations could be part of a more robust qualitative analysis that broadens the factors and sources of information to understand how threats to regulation arise in specific contexts and their effectiveness depending on the original factors motivating regulation. For example, Mexican Senator Monreal proposed social media regulation in 2021, wherein social media companies and civil society played a reactionary role, at the same time that the motivations and processes preceding the bill, as well as the changes in companies’ practices, are less known. A similar approach can be explored in the case of Australia and the United Kingdom Online Safety Acts, wherein companies and civil society were actively engaged, and voluntary changes were part of the game.

Building a strong case for publicity of these processes requires understanding the complexity of and relationship among the different variables in the process, interests, principles, stakeholders, and results surrounding threats of regulation of technological companies. This means, among other things, demonstrating the impacts these negotiations and opaque conversations have on the rights, economies, and social welfare of individuals, communities and the evolution of the Internet. In this context, reiterating the importance of Internet Governance principles is crucial: a system of shared values, norms and decision-making procedures that shape the use and evolution of internet for the benefit of everyone. A place to start is making the case for the public interest on the records of public officials and legislators. Public Records Acts, Freedom of Information laws and litigation against denials of providing public versions of emails, meeting minutes, direct messaging and other forms of communication can enable the traceability of these processes. While it is monumental task, good practices exist, for example, in requesting the negotiating documentation of trade agreements, in particular records involving big technological companies and governments negotiations.

All in all, this opinion recommends including other sources of information and a broader analysis of the threats of regulation processes, having flexibility in including multiple variables based on case studies that provide an overview of how and when this mechanism can be legitimate and actually useful for the governance of the Internet.