On May 25, Senator Mark Warner (D-VA) introduced S. 4309, the Augmenting Compatibility and Competition by Enabling Service Switching (“ACCESS”) Act. Ostensibly, this legislation should make it easier for consumers to transfer their data among competitors. In reality the bill creates a number of questions, some of which should be cause for concern for the developer community and consumers.
To begin, the ACCESS Act requires platforms to maintain a set of third-party accessible interfaces for the transfer of user data to a user or competing platform. This, in effect, would force companies to create a backdoor on their platforms. This requirement is especially troubling as it would effectively make end-to-end encryption on things like messaging apps a thing of the past. Policymakers in Washington have rightly called on companies to store data in a safer manner. But at the same time they’ve wrongly called on these same companies to create a backdoor to access that data. Both things can’t be true, and developers are right to stand on the side of encryption and data security. There are no benefits to any backdoor. They only provide a way for bad actors to access user data, harming both consumers and the reputations of those companies that we entrust our data with.
The legislation also requires interoperability among competing companies based on non- discriminatory terms. This action would dilute innovation and competition in the marketplace, watering it down to the point where companies would be prohibited from using their savvy business practices to store and utilize data. Policies, no matter how well intended, that overzealously limit content data collection have an enormously negative effect on small businesses, software developers, and consumers. While platforms and the developers who power them would be forced to operate in this new vanilla ecosystem, consumers would see a drastic decline in the number and quality of apps in the marketplace since developers wouldn’t have the freedom to use their data the best way they know how. What’s more, ours is a fiercely independent industry and some collaboration among competitors can be beneficial, it can’t be mandated by a government policy that would weaken security and inhibit growth.
Finally, it may be the intention of the bill’s drafters that it only apply to large tech companies, but the reality is that our ecosystem is very interconnected. Targeting only the largest tech platforms will have a ripple effect among many of the small- and medium-sized innovators operating downstream on those platforms. Whether it’s a modern-day mom-and-pop app, a company depending on APIs of other intended targets, or a large multinational, consumers depend on our ecosystem to help make their lives healthier and more convenient. The ACCESS Act does neither. The bill is another shortsighted attack on our country’s most innovative industry.
The ACCESS Act is cosponsored by Senators Richard Blumenthal (D-CT), Lindsey Graham (R-SC), Josh Hawley (R-MO), and Amy Klobuchar (D-MN).
