Privacy and Security Implications of Regulation of Digital Services in the EU and in the US
The attached is a part of the Transatlantic Technology Law Forum’s (TTLF) Working Paper Series, which presents original research on technology, and business-related law and policy issues of the European Union and the United States. TTLF is a joint initiative of Stanford Law School and the University of Vienna School of Law.
The goal of this project is to assess the data privacy and security implications of the “new wave” of legislation on digital services—both in the United States and in the EU. In the European Union, the proposals for the Digital Services Act and the Digital Markets Act include provisions that have potentially significant security and privacy implications, like interoperability obligations for online platforms or provisions for data access for researchers. Similar provisions, e.g., on interoperability, are included in bills currently being considered by the U.S .Congress (e.g., in Rep. David Cicilline’s American Choice and Innovation Online Act and in Sen. Amy Klobuchar’s American Innovation and Choice Online Act). Some stakeholders are advocating that the EU and U.S. legislatures go even further than currently contemplated in a direction that could potentially have negative security and privacy consequences—especially on interoperability. I aim to assess whether the legislative proposals in their current form adequately addresses potential privacy and security risks, and what changes in the proposed legislation might help to alleviate the risks.
Increasing information privacy and security through the law is notoriously difficult, even if that is the explicit goal of legislation. Thus, perhaps we should instead expect the law at least not to unintentionally decrease the level of privacy and security. Unfortunately, pursuing even seemingly unrelated policy aims through legislation may have that negative effect. In this paper, I analyze several legislative proposals from the EU and from the United States belonging to the new “techlash” wave. All those bills purport to improve the situation of consumers or competitiveness of digital markets. However, as I argue, they would all have
negative and unaddressed consequences in terms of information privacy and security.
On the EU side, I consider the Digital Services Act (DSA) and the Digital Markets Act (DMA) proposals. The DSA and the DMA have been proceeding through the EU legislative process with unexpected speed and given what looks like significant political momentum, it is possible that they will become law. On the U.S. side, I look at Rep. David Cicilline’s (D-R.I.) American Choice and Innovation Online Act, Rep. Mary Gay Scanlon’s (D-Pa.) Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act, Sen. Amy Klobuchar’s (D-Minn.) American Innovation and Choice Online Act, and Sen. Richard Blumenthal’s (D-Conn.) Open App Markets Act.
I chose to focus on three regulatory solutions: (1) mandating interoperability, (2) mandating device neutrality (a possibility of sideloading applications), and (3) compulsory data access (by vetted researchers or by authorities). The first two models are shared by most of the discussed legislative proposals, other than the DSA. The last one is only included in the DSA.