Net Neutrality and the Deplatforming of Trump

Brian: [00:01:30] Hello and welcome to Future Commerce, the podcast about next generation commerce. I'm Brian.

Phillip: [00:01:35] I'm Phillip. And we're welcoming back to the show, the SVP of Policy and Advocacy at MediaMath. Welcome back, Danny Sepulveda.

Danny: [00:01:43] Thank you, boys. It's good to be with you.

Phillip: [00:01:46] Yeah, thank you.

Brian: [00:01:47] It's good to have you.

Phillip: [00:01:47] And it's been quite a long time. My goodness. But old friend of the show, I had said, I think inaccurately, Brian, that one of our recent guests was the most tenured guest of Future Commerce. It's actually Danny. When I went back and counted...

Danny: [00:02:04] Oh wow.

Phillip: [00:02:04] I think this is your seventh or eighth time appearing on the show.

Danny: [00:02:09] It is an honor.

Phillip: [00:02:09] And it's an honor to have you. What have you been doing? Catch us up on the last year and a half. You're at MediaMath, and you're in the private sector. Tell us a little bit about what you do over there.

Danny: [00:02:22] Yes, I work for the CEO and I work on a series of policy, both internal policy and external policy, projects related to data and partnerships and issues around privacy and competition and the media ecosystem in general. So after I left the Obama administration, I went to work for Joe Zawadzki, who is the CEO of MediaMath. He asked me what I wanted to do and I said I wasn't really sure. And he was like, "Why don't we fix advertising?" I was like, "That sounds cool. Let's do that." And then I had to sort of figure out what was wrong with advertising. And to some degree, with the conclusion that we've come to as a company is that the digital advertising ecosystem, so how a creative goes from the mind of someone at an agency or marketer through the process of becoming digitized, going through a tech pipeline and reaching a specific audience or even a specific individual on a website or another digital property is incredibly opaque. There are significantly more actors in that supply chain than I was aware of beforehand. And going back to transparency, it's unclear what the governing rules are on data use, data collection, data distribution, as well as even sort of fees and the value added for any given additional actor in the supply chain. And those are all the kinds of things that we've been working on to try to fix and from a transparency perspective, from participation in the market perspective. And then in addition to that, we think a lot about what kind of content our clients' advertising finances. So I've been working with a global disinformation index and with NewsGuard and others to protect our clients from landing on misinformation and disinformation, which is kind of topical to where we are today.

Brian: [00:04:18] Yeah, absolutely. It's such an important topic right now and coming out of the current administration. And Ajit Pai and net neutrality and everything that happened with it being repealed...

Phillip: [00:04:32] Or didn't happen or...

Brian: [00:04:34] Or didn't happened. Exactly. It's such an important topic right now and it's such a relevant topic. And I think a lot of people are wondering what's going to happen in the next four years in terms of policy and rulings and just general sentiment around how things should go. And we look back and even in just this past month, so many interesting things have happened with private sector companies sort of leading the way in terms of how they viewed and how they regulated the content that was going to be on their platforms, the products that were going to be on the platforms, the types of businesses that were going to be on their platforms. We think about Shopify and what they did with with any sort of Trump related stores. And they sort of led the way from a platform perspective and we don't want to engage in things that fuel the types of unrest that we've seen recently. Now we're seeing even payment providers, ISPs and Internet-like utilities, sort of kind of like AWS shutting off services as well, like with Parler. What do you expect to see coming up here as far as the next steps in our understanding of how the Internet should function and work? Is it a policy thing? Is it a private thing? Where do you think the administration is going to go with this? Give me your thoughts.

Danny: [00:06:08] Well, it's a policy thing and a private thing. And it's also, this is a key inflection point in this conversation, but it's not a new conversation. So going back, if you mentioned Ajit Pai. And Ajit is an old friend, and we've never agreed on an issue in public policy since our youth. But he worked for a Kansas senator when I was very young, working for a California senator on opposite sides of the aisle. And at that time, we were talking about whether or not there was an allegation from the right that we were going to try to impose equal time rules which used to exist for broadcast television on the Internet. And Republicans objected very strongly to that. And then we had a follow on debate to that around what net neutrality is and what it means. And again, Democrats were on the side of marketing innovation in that space, ensuring that ISPs couldn't prefer services over other services. And again, we were kind of on our own on that one. And it's interesting now to see sort of this demand for really super aggressive governmental action in response to the events of the last last few years and particularly maybe even the last few months. [00:07:20] So these issues have now risen from being sort of niche issues of tech and telecom nerds to really be front page issues. And in that transition, where you get to a place where a President is threatening to veto and actually did veto a part of the defense funding bill over Section 230... I don't know how we got there, but we're here. And that means that we need to have a much larger and more inclusive conversation about what we want the future of the Internet to look like, who we want to make value and judgment decisions for the Internet and whether or not it's fulfilling its original promise. [00:08:02] So I don't want to filibuster this, but in the beginning, we had a very... We, including myself and many on my side of the aisle and my friends had a very, very romantic notion of the Internet as a platform for the democratization of commerce and discourse, and that it would act as a tool for anyone with a good idea or a better argument to win the day over highly established incumbents who were just riding the coattails of incumbency. And that fundamental premise of whether or not the Internet ever was that or is today is really at the root of how I think those of us who are on the left think about how to approach these issues. We still want that to be the truth of the Internet. And how we go about making that happen is the underlying challenge.

Phillip: [00:08:52] What I find to be really interesting in this conversation right now is around the... It seems like the conversation around net neutrality could be a double edged sword, because depending on where you stand right now, the de-platforming of the President in social media and in commerce, and in finance, and those who support him in Congress, this could be a positive that businesses have the ability to make these sort of judgment calls and can exercise their free will to do so and remove them based on some sort of, at least in Twitter's case, some reading between the lines of a particular violation of their terms of service. I'm curious what you think about had we gone down the path of having more regulated net neutrality rules around communications and infrastructure on the Internet if this would still have been possible. If we could maybe kind of role play or scenario that out and think about like, is this the conservative standpoint of... Has this worked against them in this one particular scenario and does that pose a threat in the future? I guess, is the question I'm asking.

Danny: [00:10:26] So let's do a little history here. Network neutrality started. It was Tim Wu essentially, and Larry Lessig who brought the concept to the popular consumption and brought it to Congress. And the concept was that Internet service providers, which is essentially the argument being that those who provide you access to what we consider a commons, which is the global Internet, could not act as gatekeepers for you upon entry and interaction with legal actors on the Internet. That is different than arguing that an application on the Internet, in this case, Twitter, Facebook, whatever, a privately owned service, has to provide a neutral platform. And they don't provide a neutral platform. I don't even think anyone is arguing that they should provide a neutral platform. Maybe somebody or some people are. It would be a horrible argument. There are many, many, many things that are not allowed on these platforms that would be allowed under a law. So nudity on Facebook, for example. And then things that aren't allowed under law, which are also not allowed under the platform, thank God, like child pornography and other terrorist activity and other things. So when we talk about network neutrality, it is a concept which has historically been rooted on the idea of gatekeeper access to a commons, to the platform of the Internet. And there is a legitimate question to be asked today, given the concentration of operating systems on mobile and given the concentration of browser capabilities in Chrome and Safari as to whether or not they have become gatekeepers themselves. But that is still a debatable proposition. At the end of the day, in traditional telecom and tech law, we have concepts of common carriage and essential facilities, and we do need to revisit these concepts if the Internet as a guy who writes for Techery wrote today or yesterday, has become as a function of a platform where you gain power by controlling access to demand to people versus supply. So supply of information or supply of goods then does that require revisiting of all kinds of law, everything from antitrust to concentration to speech to any number of issues? And I think. Yeah, yeah. But I don't pretend to know the answer to those questions. I do think we're going to have to have a joint conversation that is to the best ability that we can non-partisan about these questions and agree on some first principles of what we want the Internet to enable or not enable.

Brian: [00:13:41] That's really, really important. I totally agree, and I think that you brought up so many good points in what you just said. One of the ones that I kind of want to pull the thread on a little bit further is the idea that... Well, back to net neutrality. So you talked about how it really has to do more with ISPs and how they provide Internet without bias, it's not so much the platforms, right? It's how we would be able to get the Internet via the ISPs and utility like services that are on the Internet. Do you think we're going to see some reclassification coming up ahead? Do you think that we'll see a move back towards net neutrality? And I do want to go back to what the Internet should look like and antitrust and such. But before we get there, I just kind of want to get your final thoughts on net neutrality as a concept going into the next four years. Do you see us moving back that direction?

Danny: [00:14:51] The Biden administration, the Biden campaign did commit to a restoration of Title 2 authority over Internet service providers, which would restore the provisions of Title 2 that provide for network neutrality at the Internet service provider level. So yes, ultimately, I think that a Democratic FCC will revisit that question. But I do think it's time for a reexamination of the underlying premises. You have to remember that when we first started talking about network neutrality, the fear was that a Comcast with twenty five million households could prefer its own or an affiliated social network and kill Facebook. That fundamental presumption is currently just not plausible. The twenty five million households is an immense amount of power and I don't want to begrudge Comcast its power, but Facebook has two billion users. It's just not... We're not in a place now where Internet based firms are nascent or the Internet industry itself is nascent and subject to capture by the pipe, probably. Right? And again, like I'm just speaking for myself. I do think that enough time has passed in the market in the way that the Internet works has matured to a degree that it requires a reexamination by people who have much more knowledge than I do and people arguably who aren't lawyers but are technically rooted in markets to ensure that what are we trying to do? Again, [00:16:35] returning to why we as Democrats supported network neutrality, it was to ensure that large entities could not snuff out small entities or that big voices could not silence small voices. Those are still worthy principles. And we should stay true to them and see if their application is best solved by any given one solution. Net neutrality or otherwise. [00:16:58]

Brian: [00:16:59] Well, and I think that leads right into the antitrust conversation. We're seeing Google is facing some antitrust right now. I think Facebook took a lot of questions over this past year. I think there's going to be a lot more of this coming up in the next four years as well. Do you see more lawsuits around antitrust? Because like you said, we're looking to protect little voices. Do you think that we have given certain corporations too much power, maybe the big four, the Faang companies?

Phillip: [00:17:44] {laughter} Is that even a question? I think we all know how powerful they are.

Danny: [00:17:50] So the antitrust lawsuits have a life of their own. The FTC is an independent agency. The Department of Justice is not an independent agency, but they've brought forth a suit. There are state attorneys general, I believe forty eight have brought suit against Google.

Phillip: [00:18:07] Yeah.

Danny: [00:18:07] A number have brought suit against Facebook. So I think one of the things that we've learned from the past administration, or this administration is coming to an end, is that you don't want to use antitrust as a tool. That is wrong to use antitrust as a tool to punish your political enemies. That's not the point of antitrust. It's not its purpose. And I don't expect that the Biden administration would use it in that way. There's a long history of the application of antitrust law to determine whether or not a company has market dominance and is abusing that market dominance. And those tools should be applied to it to evaluate the Faangs of the world. But it can be argued that there are questions that are not questions of competition, but questions of culture and society that require tools outside of antitrust to address. So I mean, I think I would call, for instance, privacy falls into that category. I think content moderation falls into that category. So I think ensuring that you have competitive markets through antitrust law is necessary but insufficient to ensure that people and societies feel safe with the media ecosystem that we're living in and dependent upon. And to some degree, the Europeans are really sort of leading the arguments here, not in the sense that they are correct, but in the sense that is where they're putting their time and effort. They are first to market. But GDPR, obviously, set the groundwork for global discussion on privacy. I think they have a Digital Services Act and another recently released proposal around managing platforms and content moderation, as well as competition. So these are all debates that we're going to be having in the transatlantic space and then obviously as it relates to China for years to come.

Phillip: [00:22:46] There's something that we've talked a lot about on this show in the last six months or so around, not just the data privacy discussion, but sort of data portability and the access and owning of your data and how in some not too distant future the expectation should be that we have access to and have greater control over our data. And not just visibility, because that I believe, to your point, Danny, that that's something that I think CCPA and GDPR are making us all more aware of every day by the number of pop ups we have to click in order to see any website or any screen real estate anymore. {laughter} There was a piece in The New York Times of Sir Tim Berners-Lee who, aside from Al Gore, the other inventor of the Internet, who talked about The Data Transfer Project, a collaboration of organizations that give consumers more control over portability, their data more of a spec and a mission statement than it is an actual effort that is actually doing anything of any note right now. I'm curious what you think. You've already said that not everybody is a policy wonk who understands what Section 230 is, but these are things that are front page now. Do you think that there's consumer demand or even awareness of data privacy rights, and is there demand on the consumer side or is there an understanding that constituency from a government level or even at the state level that somebody would have to be able to champion this kind of an effort? Or is this, again, looking at corporate leadership as corporations are going to lead the way here, as they seem to be doing with a vacuum of leadership at the public policy level?

Danny: [00:24:59] So there's a lot of questions in there.

Phillip: [00:25:02] Yeah. Sorry, I like quadruple barreled you. I'm learning from Brian. Brian is teaching me how to ask questions that are unanswerable.

Brian: [00:25:11] Yes. {laughter}

Danny: [00:25:11] They're not unanswerable. They'll just takes some time. I mean, Tim Berners-Lee is a genius. And I think that what his ideas are rooted in is the first idea is that power over communications should lie at the edges of the network. That it shouldn't be the pipes that control what is distributed, how it's distributed, and who talks to whom. And so he's taken that from in its initial premise being that the service providers and the services on the Internet at the edge of the network would be the ones that drive and be free from control by the pipes that connect them to humans and has extended it out to the human. So again it's at the edge of the true final edge of the network is my voice and my data as an individual. And then the question becomes, can you create a mechanism by which I can have greater control over that asset? Because that is a monetizable asset, in much the same way I have control for my money. The challenge becomes one, we've become entrenched in the way that the Internet is. Like the kinds of market actors that exist today, trillion dollar companies, have probably achieved escape velocity. So it's highly unlikely you're going to see I mean, but you never know. But it's highly unlikely that you're going to see any new company catch an Amazon, Apple, Facebook any time soon. Even Twitter, by comparison, is not an Apple, Amazon, Facebook.

Phillip: [00:26:43] Sure.

Danny: [00:26:44] Neither is snap. Neither is TikTok. Like they're all great big companies and they do a lot of cool stuff, but they're not trillion dollar companies. So we have to deal with the world as it is. And that creates a requirement for us to think about regulating the behavior of market actors and trying to constrain or ensure that the potential for abuse is as limited as possible. And so, again, those are negotiated out conversations. I think, coming into this next Congress, you have David Cicilline, who is the Chairman of the House Judiciary Committee, with the authority and is thinking very creatively about what to do in this space. The governor of Rhode Island, who's now going to be Secretary of Commerce, and he are close. President-elect Biden is really putting together some of the most talented people I've ever seen. And it's not people who are new to the space. It's people who have been working on this stuff their whole adult lives. A lot of Obama administration alumni. And the Congress, I think that the President and his administration recognizes that they are in a coequal branch of government system. It's not for them to dictate to the Congress how to update law, but to work with the Congress to update that law. And I think it's going to take working with both sides, particularly given that it's a 50/50 Senate.

Brian: [00:28:22] So thinking about the private side of things, there's a lot of really smart and really, like, people that want to get this right at some of these companies.

Danny: [00:28:36] Most people and all of these companies want to get it right.

Brian: [00:28:39] Yeah, exactly. Exactly.

Danny: [00:28:40] And most people are actually pretty decent human beings.

Phillip: [00:28:45] That's so funny because it doesn't feel like that if I watch the news. OK, I'll take your word for it.

Danny: [00:28:54] You know people at these companies. I know people at these companies. They're people. And a lot of them are really, really good people. And it's some of the most intelligent and talented people I've ever met in my life.

Brian: [00:29:04] Right.

Phillip: [00:29:05] Yeah.

Brian: [00:29:06] Exactly. Yeah. And so we're looking at these companies and we're thinking, OK, we do want to get this right. We want to be able to create a system that enables small voices. We want to be able to have government intervention when necessary. I think we want to build a system that makes sense and ultimately is beneficial for the general population and for tech in the future because none of us want to get stagnant. And so, from your perspective, what are some steps that private corporations could take right now that would help march towards a goal of having an Internet that does give voice to the right people. And also... Well, we'll stop there. I'm not going to ask a second question. {laughter}

Phillip: [00:29:57] Brian's learning because of my failures.

Brian: [00:30:00] I'm flip flopping.

Danny: [00:30:00]  [00:30:03]I think going back to the question of what causes institutions, organizations to do good things and usually it's creating the right incentives. It's most often like there's a fundamental myth and a misunderstanding among people when they look at politics. They say if these guys would just be good people and come into a room and talk it out, they could get to a solution. Now, that is true. The challenge is can they get to a solution that can survive politically? And as long as the incentives exist not to get to a solution, even good people won't get to a solution. [00:30:44] I would argue that before the California law passed on privacy, there was really very little incentive for industry to work on a national law. The lack of a law was a better... There was more market incentive in having no law than in having a national law. Now that you have a California law, there's a market incentive to create something that works better, but has to leap over the political hurdle of being embraced by consumers, citizens and politicians. That I think creates the right environment for cooperative problem solving. I think that the space we're in now where content moderation decisions are made on a company by company basis without any guidance from society as a whole as to where to draw the lines or even what the floor should be and that you can move above that is a problem. You know, like Twitter, like all these platforms, yeah, they de-platformed Donald Trump and I personally agree with that. I think a large number of people agree with that. I think it's also an immense amount of power for a company, and really what we're talking about are individuals, to have and they were pressured to do it by a society that was really disturbed by what was going on. Now, let's say our society had been Pakistan, and instead of Donald Trump it was the Prime Minister of Pakistan, and he, using the platforms, incited a mob to storm the Parliament. Now, would the platforms have felt the same pressure to de-platforms that gentlemen? Because they're based in San Francisco, I don't think so. And if this is going to be a global Internet where global services are accessing use and have dramatic societal effects that are well outside what anything that economics or markets can capture, we need to start having a global discussion about this space. And we've been having one, but we need to elevate it.

Brian: [00:32:54] That's a really good point. It's tricky right now because we can institute whatever laws we want, but then the Internet is global. And so I think it's still very easy for the general public to browse and get lost and maybe companies that are based in other places. Data privacy and other issues and censorship or whatever you want to call it, like private censorship, these are all things that I think we're seeing in China done differently and Russia done differently and the UK now done differently than the rest of Europe.

Phillip: [00:33:44] Brian... Yes, but there have been... You could make the argument that at least in China, there are Chinese corporations who have risen to meet the demand that are native to that people and serve that people, it's of and for that people.

Brian: [00:34:06] That's a fair point. Yes.

Phillip: [00:34:07] So yes and no. One thing I wanted to say, Danny, you used Pakistan in the example, I believe.

Danny: [00:34:19] Yeah.

Phillip: [00:34:20] Yeah. And if you're looking back to when Twitter really emerged from a niche platform that very few people use and entered the world stage, it was really used as a platform to mobilize a rebellion in Arab nations and an uprising. And in the Arab Spring, we saw and sort of witnessed the power of Twitter then. It's sort of fitting that that has been a tool of the people and then also been used as a tool to mobilize as a voice piece for world leaders on the world stage. I'm curious if that has some striking parallels or if you see any parallels there and sort of its emergence on the world stage. And it's centered in our minds and our subconscious as a tool that has been tied for a very long time, for nearly a decade, to civil unrest.

Danny: [00:35:26] Hmm. That's a super interesting question. [00:35:28] I would argue that almost all forms of media and communications start out as a tool. So if you think of the printing press and then you think of television or broadcast or radio in his first days as being highly, highly diffused and then becomes concentrated. And any tool that can be used for the exercise of power is going to be used by the powerful. It's almost like it's just I think, just something that can happen.  [00:35:58]So going to this particular question, I think that the big challenge, the meta challenge, that we're dealing with right now is that the Internet has created an immense amount of wealth and opportunity and an immense amount of access to tools and information that can help a person enable their potential. But those benefits and that access is not evenly distributed. It's not even close to evenly distributed. It's highly, highly concentrated. And its challenges are as a small D democrat it challenges your sense of justice to have that much power concentrated in that few hands are subject to very little or no oversight. It's just not tenable over an extended period of time. And at the end of the day, these media and communications and these companies, like every private activity that has come before them, will have to be subject to communal oversight and communal regulation or acceptance in order to gain acceptance. Right now, we're all scared because we don't understand it. We're all scared because we don't really have any faith in the idea that a large corporation is going to act in the public interest. They may. They may act in the public interest, but it's totally inherently up to them to do so or not. And they will probably mostly subject to market demand as opposed to right and wrong. And in that situation, it's a part of why we have governments and a part of why we organize as human beings into societies. And I think that these things are so hard and so complex that, well, by the same token, the Internet's not that old.

Phillip: [00:38:00] Yeah.

Danny: [00:38:00] And people who work in the, you know, the people who are true policy leaders, the generalists of the world, people who become Secretary of State or Senator or Chief Justice or President, they're not technologists. They're not even commercial actors. There are people who go into the space in order to pursue what they believe are the ideas and the principles that generate the public good, and so bringing up to speed both leaders as generalists and citizens, as non-technical people, to come to a position of understanding of where we are with what the vulnerabilities are and what the potential solutions are for ameliorating those vulnerabilities is super important, A). And then B) constructing the mechanisms by which to ensure that the benefits of this revolution aren't concentrated in the hands of a few people and that you're going to see tax law have to deal with that. You're going to see labor will have to deal with that. You're going to... A whole host of areas of law that were designed for the industrial era have to be updated to ensure that it isn't just a 30 square mile area in California that reaps a disproportionate amount of the benefits of the wealth that we're all creating through our interactions.

Phillip: [00:39:24] I heard that all of that was moving to Miami.

Danny: [00:39:27] You know what's funny about that? I have been to Miami many times and I've also been to Palo Alto many times. And those two places should never meet.

Brian: [00:39:38] {laughter}

Phillip: [00:39:38] {laughter} They are very different. They're very different places. It's funny, all these people from Silicon Valley, they're being courted by Mayor Francis Suarez, who, you know, they're making these grandiose announcements that they're moving Silicon Valley to Miami. They're coming in January. It's beautiful right now. I can't wait. I can't wait for it to be April or May.

Danny: [00:39:59] When it's blistering.

Phillip: [00:39:59] Yeah, it'll be miserable.

Danny: [00:40:01] And in July like you literally can't go outside.

Phillip: [00:40:04] No, you can't. {laughter}

Brian: [00:40:07] Oh, my goodness.

Phillip: [00:40:08] What a time, Danny, any final thoughts. I'd love to invite you to come back on the show when the world is a little more certain than it has been. But any final thoughts and where can we find...

Danny: [00:40:23] Yeah a final thought that I wanted... Two final thoughts. One is I'm extremely hopeful for the next four years. I'm biased because of where I sit in the political system and because of who I know. Like, I know all of these people. I know Tony Blinken and I know Jake Sullivan. I know all of these people that Biden is bringing in. And they are the most talented, most capable, most honorable people I've ever worked with my life. And I'm very hopeful for the next four years. Set that aside. Going back to what we were talking about, I think that there's a realm of the questions around privacy that are leading to power shifting to entities that have large first party relationships. And in your space, those retail companies, those retail organizations that have very strong first party relationships with our consumers and also own media platforms... Because you go there to shop on an eCommerce site, whether Walmart or whatever, they are also going to become platforms for advertising in a way that we are just now seeing Amazon rise and that Facebook and Google have historically been. But beyond them, I think Telcos also have very strong first party relationships and large pools. I think that you're seeing a migration.  [00:41:39]We're at a very interesting point in the development of the relationship between marketers and media and what kind of media is financed and how and subject to what rules and where it will provide the greatest return on investment. And those are all huge developments that are being driven, that people are reacting to, but are visible. And it's super interesting, I think. [00:42:05]

Brian: [00:42:06] That is interesting. Danny, thank you so much for your thoughts. I have so many more questions. And so I agree with Phillip that we need to have you back. I'm sad we're out of time.

Danny: [00:42:18] Well I'm always happy to do it, so any time.

Brian: [00:42:22] We'll have to have you back soon. But thank you so much for your time. Where where can people find you to hear your continued thoughts and find more about it MediaMath as well?

Danny: [00:42:37] Well, you can go to MediaMath.com, I write regularly on the blog there. Actually I have a blog coming out about what happened last week and what the role is of both content moderation and the financing of media. These are things that I've spent a lot of time thinking about. We're working on them pretty hard. There is a place for the private sector to step up and try to bring some degree of order to chaos here. And we're a small part of that. There are much larger actors. But what we're trying to contribute our ideas to that challenge.

Phillip: [00:43:10] Amazing. Danny Sepulveda, thank you for coming to Future Commerce.

Danny: [00:43:14] Thank you very much. Thank you for having me. Take care. Happy New Year.