Regulating at Scale
To tame the, sometimes, harmful power of enormous platforms, we need to reconsider the mathematics of regulation. The law tends to treat the growth of a company linearly, while the power and harm of online activity increases at a much faster rate. We need to scale up the mathematics of regulation to deal with many of the problems of massive digital platforms.
Most laws either treat all regulated actors the same or assume that twice as large means only twice as powerful and twice as harmful. For example, penalties for causing harm often multiply the number of individuals harmed by a set dollar figure, assessing $10,000 for each victim wiretapped or around $40,000 for each child monitored without parental consent.
Linearly bound regulation fails to reflect how the power and harm of some digital actors increase at much more than a linear, proportional rate.
Professor of Law, Georgetown University Law Center. Thank you to Bill Buzbee, Anupam Chander, Julie Cohen, Brian Galle, and David Hyman for comments. This work is supported by the AXA Award on Big Data, Privacy, and Discrimination, from the AXA Research Fund.