Received two out of two. The European Union has finally agreed on the terms of its Digital Services Act (DSA), the Digital Services Regulations, over the weekend, weeks after concluding the Digital Markets Act (DMA). Its major digital reform seems well and truly on track, for implementation by 2024.
The battle was far from won in advance. The DSA, in particular, was the subject of a particularly tough battle. The text is supposed to make the very large digital platforms, such as Facebook (Meta) or Amazon, responsible, by forcing them to remove illegal content and to cooperate with the authorities, under penalty of heavy fines, which can reach up to 6% of their global turnover.
Equally difficult for these giants to accept: the DSA wishes to set up an “algorithmic responsibility”. The European Commission as well as the Member States will have access to the algorithms of very large online platforms, according to the first elements of the agreement. Look under the hood of Gafam, many observers dreamed of it. The DSA promises it. Elements of analysis with Matthias Spielkamp, director of the German NGO AlgorithmWatch.
L’Express: “The European Commission as well as the Member States will have access to the algorithms of the very large online platforms”, writes the European Union (EU). How to understand this?
Matthias Spielkamp: I would like to start with a small caveat. The technology used by the platforms is extremely complex and involves hundreds, sometimes thousands of algorithms, which are themselves a series of operations and instructions. These complex rules, finally, interact with tons of data, and are also constantly updated. So do not believe that it will be so easy to access these algorithms and understand them.
What the European Union means rather is that it is in the process of establishing laws which allow a much better examination of these procedures, through audits and analyzes of data and institutions who supervise and enforce them. This is the only reasonable way to talk about “access to algorithms” and it can indeed be a huge step forward for democratic control of platforms.
Do you think you have a role to play in reviewing these algorithms? You or other NGOs?
We demanded that civil society organizations like us have access to platform data to see if they are doing things we think they shouldn’t be doing, like promoting racism, violence and lies. Data access provisions made it into the final compromise, so yes, it looks like we could play a role here, although it’s still unclear. Above all: we must not be alone in doing this work. Facing us are some of the largest companies in the world, with billions of dollars in revenue and tens of thousands of software developers. It would be unrealistic.
More broadly, do you think that the DSA can change the lives of European Internet users?
To be honest, I don’t know yet if this is the milestone we were hoping for and if it will change the lives of Europeans for the better. The reasons for this are both the complexity of the technology and the complexity of the law. Negotiations between the Commission, Parliament and member states have produced a number of cornerstones, but the final text will only be available after many weeks of working on the details. And these details are crucial.
For example, the compromise passed this weekend apparently provides that usage data about minors can no longer be used to track them and serve them personalized ads. This sounds like good news, but one of the main difficulties is that there is no reliable online age verification system. So it’s not clear how companies could abide by the rules, even if they wanted to – which I expect they’ll use to their advantage, arguing that they simply can’t enforce them .
Also, from what we can see, platforms will not be prohibited from using “upload filters” for content. If this is confirmed, there will remain the possibility of automating content filtering on a large scale. This is a bad idea, as automated systems are highly unreliable and have been proven to erase perfectly legal and legitimate content.
Finally, the platforms will apparently not be required to create contact persons in all the Member States of the Union. It would therefore still be very difficult for the inhabitants of these countries to bring complaints in their respective languages against the large companies concerned by the DSA, in the event of a violation of their rights. The list of negative examples is long.
The biggest social networks like Facebook will try to react. Are you expecting a tough battle?
We expect them to react differently to each other. Facebook is certainly the company that has most often betrayed the trust of its users. So we don’t expect Mark Zuckerberg and Sheryl Sandberg to do anything but keep lying until they’re forced to change their practices. Google and YouTube seem to be in better shape, but their strategy is not very clear. In general, we do not expect them to do more than what they are legally obliged to do.
On the other hand, nobody knows what Twitter will do, especially if we consider the scenario of a takeover of the company by someone as borderline as Elon Musk. And of course, they will continue to influence how governance structures are designed to suit their own purposes, which means they will try to dilute oversight and enforcement measures and institutions. Yes, we certainly expect an uphill battle.
Generally speaking, are you reassured by the tone of the text? Above all, do you think it can inspire other regulatory spaces, such as the United States? Barack Obama, a few days ago, made a rather surprising statement on this subject…
We often hear that the European Union is now the regulatory power of the world and that other countries, first and foremost the United States, must and will be obliged to follow suit. I remain very skeptical about this. Dozens of bills have been introduced in the United States in recent years to limit the power of platforms and none of them have passed.
As for Barack Obama, I can only underline the irony of history: as a presidential candidate and in view of his re-election, he accepted millions of dollars in donations from the tech industry, and he named then-Google CEO Eric Schmidt as one of his science and technology advisers. His conversion is therefore not very convincing. But we can still hope that it signals a reversal of the trend with regard to the power of technological monopolies.