Opponents of antitrust push against Big Tech has put forward all sorts of arguments for trying to weaken support for new legislation. They may have finally found one that holds.
This week, a group of four Democratic senators led by Brian Schatz of Hawaii sent a letter to Amy Klobuchar asking her to pump up the breaks on U.S. law on innovation and online elections. The bill, which Klobuchar co-sponsored with bipartisan support, would ban major technology companies from abusing their power to make companies operating on their platforms worse off. But Schatz’s group claims that a terrible side effect is buried in the legislation. The bill, they argue, would prevent dominant platforms from enforcing their content policies, which in turn “would leave malicious content online and make it harder to fight.”
Here’s what the bill says about content sharing: nothing. The relevant section states that a “covered platform” – such as Google, Amazon, Apple, Meta or Microsoft – can not “discriminate in the use or enforcement of the terms of service of the covered platform among similarly located business users in a way that would harm competition significantly. ” This does not appear to prohibit or restrict content policies. On the contrary, it suggests that platforms can continue to enforce their terms of service—just not in a discriminatory way. At first glance, this means that a dominant platform can not apply its rules unfairly to a company that relies on it to reach customers. If a new video-sharing app corroded YouTube’s market share, for example, that provision would prevent Google from selectively invoking some little-used policy to ban it from its app store.
If the bill does not discuss content moderation, then where have some gotten the idea that it would affect it anyway? In part, it’s a talk from an industry that is not pale in coming up with creative arguments to defeat the proposed regulation. But technical insiders are not the only ones making this claim. Last week, law professors Jane Bambauer and Anupam Chander published and op-ed i Washington Post emits pretty much the same warning. On Wednesday, Chander, who teaches in Georgetown, led me through the argument. Take what happened to Parler, the conservative-friendly “speechless” Twitter alternative. Last year, after the riot on January 6, Apple and Google banned Parler from their app stores, and Amazon AWS canceled its hosting contract. Parler sued, but had no legal leg to stand on. (It eventually implemented a content policy and was allowed back into the app stores.) Under the new bill, however, a conservative state’s attorney, like Texas’ Ken Paxton, would be able to sue the platforms, claiming that they discriminated against Parler because of its conservative affiliation.
Okay, but then the companies could not just say, “But this was not it discrimination: Here is the policy they violated and here is the proof that they violated it ”? Not so fast, Chander claims. It does not matter what Google or Amazon says; What matters is what a federal judge and ultimately the Supreme Court decides. And a lot of Republican-appointed federal judges might agree that technology companies are abusing conservatives.
“Content moderation decisions are not clear up and down decisions,” Chander says. “It’s easy to judge these convictions as discriminatory, especially when you have judges who feel that their side is the one being discriminated against.” He adds: “Boy, do you give the conservative judges on these courts a loaded weapon, knowing that they will be backed by all the conservative Supreme Court judges.”