By William E. Kovacic (George Washington University) & David A. Hyman (Georgetown University)
Big Tech (Amazon, Apple, Facebook, and Google) is under regulatory assault. Cases have been brought against each of these companies in multiple countries around the world, but there is an emerging consensus that more needs to be done – most likely in the form of ex ante regulation that prescribes rules of conduct for dominant information platforms. The European Union and the United Kingdom are well on the way to establishing such frameworks, and the United States appears poised to undertake similar measures in the coming years. Most of the debate has focused on the case for ex ante regulation of Big Tech, with much less attention to the complexities of developing and implementing such regulation.
This is not the first time that regulators have sought to use ex ante regulation to govern a technologically dynamic sector of the economy. In 2003, the U.S. Federal Trade Commission (FTC) promulgated its Do-Not-Call (DNC) Rule, which allows individuals to block unsolicited commercial telephone calls by enrolling in a national registry. The DNC Rule provides a useful case study of the complexities of developing and implementing ex ante regulation of a dynamic industry in the face of substantial legal, technological, and political risks. We identify a series of lessons for those now seeking to use similar strategies to regulate Big Tech.
