Letting the public decide is key to Big Tech regulation

Article by Rana Foroohar: “Complexity is often used to obfuscate. Industries like finance, pharmaceuticals and particularly technology are rife with examples. Just as programmers can encrypt code or strip out metadata to protect the workings of their intellectual property, so insiders — from technologists to economists to lawyers — can defend their business models by using industry jargon and Byzantine explanations of simple concepts in order to obscure things they may not want the public to understand.

That’s why it’s so important that in its second major antitrust case filed against Google, the US Department of Justice last month asked not only that the company break up its advertising business, but that a jury of the people decide whether it must do so. This is extremely unusual for antitrust cases, which are usually decided by a judge.

It is a risky move, since it means that the DoJ’s antitrust division head, Jonathan Kanter, will have to deconstruct the online advertising auction business for lay people. But it’s also quite smart. The federal judges who hear such complex antitrust cases tend to be older, conservative types who are historically more likely to align themselves with large corporations.

As one legal scholar pointed out to me, such judges are reluctant to be seen as people who don’t understand complexity, even when it’s in a realm far outside their own. This may make them more likely to agree with the arguments put forward by expert witnesses — the Nobel laureates who construct auction models, for example — than average people who are willing to admit they simply don’t get it…

There are, of course, risks to policy by populism. Look at Britain’s departure from the EU after the 2016 referendum, which has left the country poorer. But that’s how democracy works. Allowing important decisions over key issues like corporate power and the rules of surveillance capitalism to be made by technocrats behind closed doors also carries dangers. The justice department is quite right that ordinary people should be able to hear the arguments…(More)”.