We often talk about ~regulating technology~ as if it’s something we *might* do in the future. In reality we regulate digital technologies all the time. The real question is: are we any good at it?
After the wave of platform self-regulation in response to the Capitol Hill attack, calls for governments to do more to rein in companies like Facebook and Google have become a cacophony (see also: Australia). The potential for national governments to reliably intervene in this space is as exciting as it is fragile; they may not quite have the power(s) they need to enforce the new guidelines they aspire to introduce. To quote RuPaul, “don’t fuck it up.”
As a point of pseudo precedent, I think it’s worth glancing back at recent efforts to regulate ticket bots. Ticket bots are automated software used by scalpers* to buy concert tickets in bulk—basically RIGHT when they go on sale—and then resell them at inflated prices. As you may recall, in the “Before Time,” we sometimes purchased tickets online to sporting events, theatre shows, and these things called “concerts.” Too often those tickets were scooped up by [digital] resellers and then re-sold to us, and it totally sucked.
*Side note: “scalping” is a VERY problematic term, so let’s use “reselling” interchangeably.
In Canada, the problem of these bots was most widely covered around the time of the Tragically Hip tickets going on sale in 2016. The Hip can teach us a few things about regulating digital platform companies:
An agitating inciting incident can spur rapid policy action;
In Canada, a couple of provinces tend to lead the way with new regulatory regimes;
These provinces are able to pass new/novel legislation;
Without consistent, reliable enforcement, the policy is a pantomime;
Even *with* these new legislative efforts, we still place a really high burden on the individual.
The province of Ontario introduced corresponding legislation in 2017, which came into full force in 2018. But part of the law that would have capped ticket resale prices at 50% above original face value was eventually dropped because it was unenforceable. Womp womp.
So now Ontario has the Ticket Sales Act, which bans the use and sale of ticket-buying software (AKA ticket bots) and stipulates that when making a ticket available for sale or facilitating the sale of a ticket, ticket businesses are required to disclose:
The face value and total price of the ticket, including a separately itemized list of any applicable fees, service charges and taxes;
The currency in which all prices are listed, if it is not Canadian currency;
The seat location of the ticket.
A violation of the bots prohibition, as with other provisions of the Ticket Sales Act, is a provincial offence, with a maximum penalty of $50,000 and/or imprisonment for a term of two years less a day for individuals, and a fine of $250,000 for corporations.
But peep this: enforcement of this provincial legislation is up to local police.
This might have made sense when the ticket re-selling was more commonly done by an individual PERSON, locally, but sort of falls down when it’s an international technology company.
British Columbia also “cracked down” on ticket-buying bots in the spring of 2019. BC’s legislation similarly requires clear ticket price disclosure.
Do other jurisdictions [try to] regulate ticket bots? Absolutely.
I guess 2019 was the pilot year for this new regime, though 2020 was a write-off.
Why should you care about whether the province can *reliably* intervene with resale bots?
While the legislation doesn’t regulate platform content, it does seek to regulate the online activity of ticket reselling that happens both on platforms and via bots. But companies that are subject to the legislation may not be based, or have a physical presence, in the jurisdiction that is trying to regulate it. Sound familiar?
The legislative intervention to both ban reselling and stipulate advertising conditions for companies selling tickets is bold. It’s also mostly a mirage.
When I called Ontario Consumer Protection to ask about the enforcement of the legislation to date, they punted me to the police. The police told me to call Consumer Protection, and other forces suggested I file an FOI. It’s sort of insane to think that municipal police forces would be called on to regulate big tech. Protections for fraud already existed, and taking on the issue on a case-by-case does little or nothing to address the issues faced by regulation. This matters because it colours our picture of the state’s ability to moderate digital technology.
One wonders if a primary motivator of the legislation was simply the deterrent effect. It’s also unclear what the opposition to the new law was (if any, because bots don’t lobby). Did the companies that specialize in resale defend it, or claim that they are merely platforms? Unsurprisingly, bot bans were supported by Ticketmaster and Vivid Seats.
The US has similar legislation, albeit with a *much* better acronym—BOTS, the Better Online Ticket Sales Act—which was signed into federal law in December 2016. It is enforced by the Federal Trade Commission (FTC), not local police, and doesn’t combat overseas operations. Fun fact: This 2016 NYT Opinion piece from Lin-Manuel Miranda “Stop the Bots from Killing Broadway” is often cited as a catalyst for the regulatory effort.
More deficiencies: lawmakers do not regulate ticket sellers setting aside tickets for promoters, fan club members or, say, American Express cardholders—another practice that constrains access to tickets. Legislators could ban industry hold-back practices, and it does not seem viable to mandate non-transferrable tickets.
Traditional ticketers are in an interesting position as they may be best situated to spot a bot and know that it is being used as it’s also in their business interest. Companies themselves invest in technology to circumvent and block bots. To what extent should Ticketmaster engage in the reporting and enforcement (banning, referrals) of bot resellers alongside public investment in prosecuting this computer-based crime? What is the ticket-seller’s role in moderating resale markets? And is technology the solution here, coupled with public policy?
You could consider this case study as an argument in favour of new tools and new regulatory bodies dedicated to regulating online industries.
While bots aren’t inciting violence or skewing elections, they are re-selling tickets to see your favourite band. Rather than asking local police to enforce this legislation, we could try pulling other policy levers like taxation and competition policy, which may prove to have more teeth than consumer protection or new pretend policies that don’t work.
In the meantime, the ticket reselling bot ban is a pretty much a pantomime. 🤡
It’s almost like something was sold to us for a higher price than it’s worth, you know?
🏛️ regs to riches 💰
This regulations feel like a farce and seems to have done very little to curb ticket reselling;
The ticket companies seem well-positioned to create sanctioned resale markets and are moving ahead in that regard;
The ticket companies may also have the most sophisticated approaches to detecting bots;
Asking the police(!) to enforce this new-ish legislation is irrational.
🙋 questions I still have
Is Ticketmaster [still] experimenting with facial recognition technology (“Blink technology”?)
What are the *actual* enforcement results in Ontario?
To figure it out you need to ask police force by police force! e.g. Hamilton told me to ask the province, the province told me to ask different Police Forces, and Toronto told me to file a FOI.
Has Stubhub *actually* kicked anyone off the platform for using bots?
*Stubhub has a Global Head of Public Affairs - Laura Dooley. Not sure if any of the other platforms do.
Vass Bednar is the Executive Director of McMaster University’s new Master of Public Policy in Digital Society Program.