KATE THOMPSON DAVY: Break ’em open: the EU takes aim at big tech

Legislators in Europe announced last week they had finalised the formulation of new rules aimed at limiting market dominance by big technology companies operating in the region. This comes in the form of the Digital Markets Act, which the legislators hope will break open the “walled gardens” enjoyed by a handful of giant companies, giving consumers more choice and smaller competitors more chance to thrive and grow.

The EU has been debating and tabling various proposals lately that take aim at Google, Meta and Apple — companies the new act calls “large gatekeeper platforms”. Though the legislation is not intended to be explicitly anti-American, few European technology platforms would meet the threshold of a market cap of at least €75bn, annual turnover of €7.5bn or more than 45-million monthly active users in the EU.

The act has been hailed as the biggest regulatory move to curb big tech to date, and “landmark legislation”. A spokesperson for the Electronic Frontier Foundation told CNN the act is the “first strong, comprehensive set of regulations that’s specific to market power in internet platforms”.

It took the legislators just 16 months to reach this milestone, which sounds like ages if you’re going by tech development cycles but is remarkably swift in legal terms. It is also hoped that this act will reduce the need to try each anticompetitive claim via the courts.

Under the umbrella of the act the so-called gatekeeper platforms will be opened up rather than broken up. The latter has also been a major talking point in recent years, with outspoken champions of the idea including US politician Elizabeth Warren.

The act provides for strong penalties for the European Commission to wield in policing this, including fines of up to 10% of worldwide turnover of the wayward company — or more for repeat and systematic offenders.

“Opening up” under the act will mean considerable change in the user experience — in subtle and fundamental ways. The one that has grabbed the most headlines is that Apple iPhone users will be able to install apps from other app marketplaces onto their Apple devices — without the need to “jail break” the device, a warranty-voiding and tricky process.

Apple has long lauded the safety of its single and official App Store, arguing that developers must meet stringent security and privacy criteria to offer their apps to iPhone users, but critics say it keeps competition locked out.

Another key principle of the act is interoperability, such as between messaging apps such as WhatsApp and Telegram. Regular readers of this column will know I am not overflowing with sympathy for the tech behemoths. They give us incredible products and services but they have incredible power and profit — and a track record of neglecting various responsibilities to their users in favour of more. They are Goliaths to the consumer/users David, and that apocryphal battle doesn’t play out quite the same way in real life.

Actually, that analogy should be abandoned. Competitors are not just dwarfed in their presence, they’re eclipsed. Legislators aren’t just facing a formidable foe, they’re typically outmanned and outgunned. And for many of the big tech platforms, consumers are the fuel they run on. Still, there is at least one point on which big tech’s objections seem valid: the threat of significant security compromises if interoperability is to work.

When you text using WhatsApp, Signal, iMessage — or on various other platforms — those messages and calls are typically protected with end-to-end encryption. Cross-pollinating the platforms would mean disrobing messages of that encryption armour. As Wired’s Matt Burgess explains: “[I]t’s not possible to send a message from one encrypted app to another. If you use Signal and your friends only use WhatsApp, someone has to compromise.”

Vague hope

Interoperability’s promise sounds great. You could send messages or make calls across the apps. For a start, it would cut down on app clutter. However, Wired says cryptography experts fear that “the proposals will not be technically possible without compromising end-to-end encryption”. Cryptographer Steve Bellovin, for example, tweeted: “Interoperable E2EE [end-to-end encryption] is somewhere between extraordinarily difficult and impossible.”

We can hope that this legislation prompts innovation that cracks this particular nut, but for now it seems that’s just vague hope. We’ve not yet had sight of the full set of proposals and technical details of the act, but the policy boffins behind it have written in scope for changes as the technologies evolve, and allowed for relatively long implementation timelines — months in some cases, years in others. Additionally, we have a few months before the act comes into effect. October is the likely date.

But while these important questions and fuzzy timelines hang in the air we can still marvel that the act has come to be at all. Yes, this is European legislation, but the implications and ramifications are likely to be felt worldwide. Now there is a kind of template for other regional and national legislators to at least consider implementing similar measures — one that’s arguably done much of the groundwork for everyone else.

And then there’s the conceptual breakthrough, the one that says to these immense private kings: we can and will challenge you and, simply, we expect more of you.

• Thompson Davy, a freelance journalist, is an impactAFRICA fellow and WanaData member.