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To regulate social media in the twenty-first century, we should focus on its political economy: the nature of digital capitalism and how we pay for the digital public sphere we have. Our digital public sphere is premised on a grand bargain: free communications services in exchange for pervasive data collection and analysis. This allows companies to sell access to end users to the companies’ advertisers and other businesses.
The political economy of digital capitalism creates perverse incentives for social media companies. It encourages companies to surveil, addict, and manipulate their end users and to strike deals with third parties who will further manipulate them.
Treating social media companies as public forums or public utilities is not the proper cure. It may actually make things worse. Even so, social media companies, whether they like it or not, have public obligations. They play important roles in organizing and curating public discussion and they have moral and professional responsibilities both to their end users and to the general public.
A reinvigorated competition law is one important way of dealing with the problems of social media, as I will describe later on. This essay, however, focuses on another approach: new fiduciary obligations that protect end-user privacy and counteract social media companies’ bad incentives.