A Weak Argument That Threatens Technology Antitrust Laws

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Opponents Antitrust pressure targeting big tech has made all sorts of arguments to try and dampen support for the new legislation. Maybe they finally found one that sticks.

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This week, a group of four Democratic senators led by Brian Schatz of Hawaii sent a letter to Amy Klobuchar asking them to pump up breaks on American Internet Innovation and Choice Act. The bill, co-sponsored by Klobuchar with bipartisan support, would ban major tech companies from abusing their power to the detriment of businesses running on their platforms. But Schatz’s group argues that there is a terrible side effect hidden in the legislation. The bill, they argue, would prevent dominant platforms from enforcing their content policies, which in turn would “increase the amount of malicious content on the Internet and make it harder to fight against it.”

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Here’s what the content moderation bill says: nothing. The relevant section states that a “covered platform”—for example, Google, Amazon, Apple, Meta, or Microsoft—may not “discriminate in the use of or compliance with the covered platform’s terms of service among similarly positioned business users.” this would be materially damaging to competition.” It doesn’t appear to prohibit or restrict the content policy. On the contrary, it assumes that the platforms can continue to enforce their terms of service.only without discrimination. On the face of it, this means that a dominant platform cannot unfairly enforce its rules against a company that relies on it to attract customers. For example, if a new video-sharing app were to gobble up YouTube’s market share, that provision would prevent Google from selectively using some little-used policy to ban it from its app store.

If the bill does not discuss content moderation, then where did some get the idea that it would affect it anyway? This is partly a topic of discussion in the industry, which does not hesitate to do creative arguments cancel the proposed regulation. But tech insiders aren’t the only ones making this claim. Last week, law professors Jane Bambauer and Anupam Chander published article in Washington Post giving almost the same warning. On Wednesday, Chander, who teaches at Georgetown, walked me through the argument. Take, for example, what happened to Parler, a conservative-friendly, “free speech” alternative to Twitter. Last year, after the January 6 riots, Apple and Google prohibited Parler from their app stores, and Amazon AWS has terminated their hosting contract. Parler sued, but he had no legal backing. (The company eventually implemented a content policy and was allowed to return to app stores.) However, under the new bill, a conservative state attorney general like Ken Paxton of Texas will be able to sue the platforms alleging they discriminate against Parler, because of his conservative affiliation.

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Okay, but couldn’t companies then just say, “But this did not have discrimination: here is the policy they violated, and here is the evidence that they violated it”? Not so fast, Chander counters. It doesn’t really matter what Google or Amazon say; what matters is what the federal judge and ultimately the Supreme Court decides. And many Republican-appointed federal judges can agree that tech companies are mistreating conservatives.

“Decisions about content moderation are not clear-cut decisions about upvoting and downgrading,” says Chander. “It’s easy to call these court calls discriminatory, especially when there are judges who feel their side is being discriminated against.” He adds, “Boy, you give the conservative judges in these courts a loaded gun knowing they’re going to have the support of all the conservative justices of the Supreme Court.”

Chander is clearly right. Republican officials have recently demonstrated their willingness to use the law to punish corporations for ideological differences. This trend is most vividly illustrated by Ron DeSantis’ feud with Disney in Florida. The judicial system is indeed politicized. However, most federal judges don’t pull unreasonable rulings out of thin air, especially when those rulings could destroy a major industry. Recall that the bill states that the platform cannot discriminate against businesses in a similar position. In other words, an enforcer like Paxton will have to prove that another company gets away with the same thing that the conservative company was punished for. But even in this case, the bill raises several more barriers. Paxton will have to show that his punishment will “materially damage competition,” which means harming the competitive process itself, not just one company. This is a high bar for antitrust compliance. What’s more, the bill includes a list of “positive defenses” that the platform can use. Thus, even if the court agrees that there was discrimination that caused material damage to competition, the company can still avoid liability by proving that the enforcement was necessary to ensure security or to “maintain or significantly improve the essential functions of a secure platform.”

However, according to Chander, this is somewhat missing the point. “The bill will not be challenged,” he says. The penalty for violating the law is 10 percent of the company’s total U.S. revenue for the period of the violation. Because of this, Chander argues, no company will want to risk, even if small, being sued. Instead of going to court and believing that the facts are on their side, companies like Facebook and Google will stop enforcing their content policies early.

But will they? Let’s play this. The antitrust law defines how the platform refers to “business users”, which in this case basically means advertisers. According to Chander’s logic, Facebook, Instagram, and YouTube will stop imposing their content rules on advertisers on their platforms so that no one claims anti-conservative bias. But that would be a disaster…for technology platforms. These companies have a dubious track record of controlling the ads they run, but it’s hard to imagine them claiming everything is allowed. Racism, violence, medical misinformation – it’s simply not in the best interests of companies to let pure trash take over people’s feeds, especially since advertisers have the ability to target users at micro-targets. At some point, the risk of losing users and reputable advertisers outweighs the risk of the Supreme Court going rogue. YouTube is not going to accept Nazi ads. AWS will not feel obligated to host Stormfront. And the judiciary is unlikely to make them.

What seems far more plausible is that the law will encourage companies to finally make sure their content policies are clear and consistently enforced. This will require invest more in these systems and offering much more transparency in how they work. Which sounds… quite nice!

“It’s good to guarantee non-discrimination,” says Erin Simpson, director of technology policy for the Center for American Progress and co-author of the detailed study. analysis bill. “There is a huge gap between what the rules say on paper and what they do in the real world. The gap in law enforcement is huge. If this bill helps solve this problem, that’s good.”

The four Democrats who sent the letter don’t think so. (In addition to Schatz, these are Ron Wyden from Oregon, Tammy Baldwin from Minnesota and Ben Ray Lujan from New Mexico). on the operator’s covered platform for content moderation.” Simply put, this would mean that no one could sue the platform for discriminatory application of content policies, even if the discrimination was real. This seems like a strong position, so I asked Schatz’s office if that was a fair description of the offer. The senator really thinks that the dominant platforms must have the right to discriminate against businesses in a similar position when they enforce a content policy? His representative pointed me to the letter and noted that Schatz had submitted separate legislation was about content moderation policy, but didn’t answer the question directly.

(There is also reason to believe that the law already does what the senators are asking for. response to their letter, David Cichillin, the top Democrat on the House Antitrust Subcommittee, pointed out that Section 230 of the Communications Decency Act already gives companies legal immunity to content moderation decisions. The new bill does not change this law.)

Part of the story here is that the two sides have sharply polarized on the issue of content moderation. Klobuchar and other supporters of the antitrust bill know that if they explicitly exclude content moderation from its scope, they risk losing the Republican votes needed to make it law. That’s because for Republicans, content moderation is the single most important reason for passing a non-discrimination law. As for the political right, it is common and even banal to believe that these companies unfairly discriminate against conservative views. Not to mention Facebook was incredible good right-wing publishers and political movements; for conservatives, episodes like Hunter Biden deal with laptop and the deplatforming of Donald Trump prove that the solution to the problem has been found. Meanwhile, the opinion of most of the Left has shifted in the opposite direction. Because many claims of “censorship” or “shadowbanning” are exaggerated and even absurd, many Democrats seem to have stopped caring about the real power that companies like Meta and Google have over Internet speech and information. They are more likely rally to protect the constitutional right of these corporations to remove content at will.

It is true that any new law (and any existing one) can be abused. No piece of legislation is safe. But to refuse to regulate the tech giants on this basis is, to some extent, to abandon the prospect of democratic governance. This is tantamount to trusting platforms that regulate themselves better than the government could. That’s how we got into this mess in the first place.


Credit: www.wired.com /

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