Constructing the Digital Regulatory Ecosystem: Agency Collaboration

Abstract

The U.S. is embarking on a new era of digital regulation. For decades, digital companies operated free from targeted laws. This is poised to change. In particular, there is a bipartisan enthusiasm for regulation of the digital giants that deliver online search, advertising, social media services and applications.

This essay argues that the most pressing challenge at the frontier of this digital regulation is collaboration among federal agencies. The online world suffers from systemic, interconnected problems of competition, privacy, labor, speech, health, corporate power and more, often all at once. Yet proposals for digital regulation have often focused on isolated federal agencies and related areas of legal doctrine.

This siloed thinking misses the fundamental nature of harms in the digital economy, which often transcend the jurisdiction of any single agency. Digital problems demand a regulatory ecosystem: administrative structures that emphasize not just the delegation of power from Congress to isolated agencies, but also the power of collaboration between agencies themselves.

The essay finds that the most prevalent mode of such agency cooperation — the ad hoc memorandum of understanding — lacks the durability and consistency necessary to meet the challenges of digital regulation. It calls for Congress to construct a more robust digital regulatory ecosystem, by imposing systematic, statutory obligations on federal agencies to collaborate in their digital work.

Keywords: regulation, digital, administrative, agency, enforcer, privacy, competition, antitrust, collaboration, cooperation, memoranda of understanding, memorandum of understanding, big tech, digital giants, regulatory