For a while now, as Democrats have insisted that the two main antitrust bills that have been able to scrape together bipartisan support won’t have any impact on content moderation, we keep pointing out that the only reason they have Republican support is because Republicans want it to impact content moderation. After all, Ted Cruz was practically gleeful when he talked about using this bill to “unleash the trial lawyers” to sue over moderation.
Earlier this week, we cheered on a proposal from four Democratic Senators, led by Brian Schatz, to add a tiny amendment to the AICOA bill to say that it can’t be used to create liability for content moderation. If, as Senator Amy Klobuchar and others supporting this bill (including my friends at EFF and Fight for the Future) are correct that this bill already cannot be abused to enable litigation over content moderation, this amendment shouldn’t be a problem. All it would be doing is clarifying that the bill doesn’t do exactly what those supporters say it shouldn’t be read to do.
Except… the Republicans can’t help themselves but to give up the game. The Federalist, not generally the most trustworthy of news sources — but generally a reliable mouthpiece for Trumpist Republicans — ran an article about the Schatz proposal, saying flat out that Republicans would pull their support for AICOA if the minor amendment Schatz suggested is included.
First, lets remind everyone how simple the proposed amendment is:
Protection for Content Moderation Practices.—Nothing in section 3(a)(3) may be construed to impose liability on a covered platform operator for moderating content on the platform or otherwise inhibit the authority of a covered platform operator to moderate content on the platform, including such authority under the First Amendment to the Constitution of the United States, section 230(c) of the Communications Act of 1934 (47 U.S.C. 230(c)), or any other provision of law.
That’s it. If you don’t think this bill can or should be used to sue over content moderation, then this shouldn’t be a problem. But if you do think websites should be sued for their editorial discretion, well… then it’s a problem. And according to the Federalist, it’s a real problem. It notes that this Amendment would kill the only “conservative or populist ideas along for the ride” on the bill.
In other words, it’s flat out admitting that, as we’ve been saying all along, the only reason Republicans support the bill is that they see it as a Trojan Horse to sue over content moderation decisions.
And thus, the Federalist notes that nearly all Republicans supporting the bill would walk if this tiny Amendment is included:
Sen. Chuck Grassley, the lead Senate sponsor of the bill, has reportedly already promised Republicans will walk if the changes are made, and he’s right: Populists and conservatives like Sens. Josh Hawley, Sen. Ted Cruz, and Rep. Matt Gaetz would flee.
As if to confirm that Republicans will bail if the law is explicit that it doesn’t do what supporters of the bill insist it doesn’t do, Rep. Ken Buck (who is the lead Republican sponsor of the companion bill in the House) tweeted out the Federalist article, implying that he, too, would bail if the bill is clarified to say it has no impact on content moderation:
So, there you have it. Supporters of the bill can deny all they want that the bill can be used to sue over content moderation decisions, but the Republicans are flat out telling them that the only reason they support the bill is because they believe it can be used to sue over content moderation decisions.
Honestly, that should make supporters of the bill think hard about what it is they’re actually supporting here.
As the big push is on to approve two internet-focused antitrust bills, the American Innovation and Choice Online Act (AICOA) and the Open App Markets Act, we’ve been calling out that while the overall intentions of both may be good, there are real concerns with the language of both and how it could impact content moderation debates. Indeed, it seems pretty clear that the only reason these bills have strong support from Republicans is because they know the bills can be abused to attack editorial discretion.
There have been some other claims made about problems with these bills, though some of them seem overblown to me (for example, the claims that the Open App Markets bill would magically undermine security on mobile phones). However, Bruce Schneier now points out another potential issue with both bills that seems like a legitimate concern. They both could be backdoors to pressuring companies into blocking encryption apps. He starts by highlighting how it might work with AICOA:
Let’s start with S. 2992. Sec. 3(c)(7)(A)(iii) would allow a company to deny access to apps installed by users, where those app makers “have been identified [by the Federal Government] as national security, intelligence, or law enforcement risks.” That language is far too broad. It would allow Apple to deny access to an encryption service provider that provides encrypted cloud backups to the cloud (which Apple does not currently offer). All Apple would need to do is point to any number of FBI materials decrying the security risks with “warrant proof encryption.”
Sec. 3(c)(7)(A)(vi) states that there shall be no liability for a platform “solely” because it offers “end-to-end encryption.” This language is too narrow. The word “solely” suggests that offering end-to-end encryption could be a factor in determining liability, provided that it is not the only reason. This is very similar to one of the problems with the encryption carve-out in the EARN IT Act. The section also doesn’t mention any other important privacy-protective features and policies, which also shouldn’t be the basis for creating liability for a covered platform under Sec. 3(a).
It gets worse:
In Sec. 2(a)(2), the definition of business user excludes any person who “is a clear national security risk.” This term is undefined, and as such far too broad. It can easily be interpreted to cover any company that offers an end-to-end encrypted alternative, or a service offered in a country whose privacy laws forbid disclosing data in response to US court-ordered surveillance. Again, the FBI’s repeated statements about end-to-end encryption could serve as support.
Finally, under Sec. 3(b)(2)(B), platforms have an affirmative defense for conduct that would otherwise violate the Act if they do so in order to “protect safety, user privacy, the security of nonpublic data, or the security of the covered platform.” This language is too vague, and could be used to deny users the ability to use competing services that offer better security/privacy than the incumbent platform—particularly where the platform offers subpar security in the name of “public safety.” For example, today Apple only offers unencrypted iCloud backups, which it can then turn over governments who claim this is necessary for “public safety.” Apple can raise this defense to justify its blocking third-party services from offering competing, end-to-end encrypted backups of iMessage and other sensitive data stored on an iPhone.
And the Open App Markets bill has similar issues:
S. 2710 has similar problems. Sec 7. (6)(B) contains language specifying that the bill does not “require a covered company to interoperate or share data with persons or business users that…have been identified by the Federal Government as national security, intelligence, or law enforcement risks.” This would mean that Apple could ignore the prohibition against private APIs, and deny access to otherwise private APIs, for developers of encryption products that have been publicly identified by the FBI. That is, end-to-end encryption products.
Some might push back on this by pointing out that Apple has strongly supported encryption over the years, but these bills open up some potential problems, and, at the very least, might allow companies like Apple to block third party encryption apps — even as the stated purpose of the bill is the opposite.
As Schneier notes, he likes both bills in general, but this sloppy drafting is a problem.
The same is true of the language that could impact content moderation. In both cases, it seems that this is messy drafting (though in the content moderation case, it seems that Republicans have jumped on it and have now made it the main reason they support these bills, beyond general anger towards “big tech” for populist reasons).
Once again, the underlying thinking behind both bills seems mostly sound, but these problems again suggest that these bills are, at best, half-baked, and could do with some careful revisions. Unfortunately, the only revisions we’ve seen so far are those that carved out a few powerful industries.
We’ve been pointing out for a long time now that the main antitrust bill making its way through the Senate has a hidden content moderation trojan horse in it. Indeed, it seems likely the main reason the bill has significant Republican support is that they know the bill will be abused to file vexatious lawsuits over content moderation decisions, attempting to get around Section 230 by claiming the decisions were actually anti-competitive. Senator Ted Cruz has admitted he supports the bill because it will “unleash the trial lawyers” to file lawsuits about content moderation against internet companies.
The Democrats supporting the bill more or less know this. The bill’s author in the Senate, Amy Klobuchar, had a chance to fix these issues, but instead chose to pander even more to Republicans by carving out the finance and telco sectors from the bill’s impact, while leaving in the problematic language that will be abused for content moderation purposes.
As the drumbeat about this problem has gotten louder, it’s good to see four Democratic Senators step up and say that this issue needs to be fixed. Senator Brian Schatz, along with Senators Ron Wyden, Ben Ray Lujan, and Tammy Baldwin, have written a letter to Klobuchar, just asking her to fix this one thing in the bill.
As they note, since (the non-disingenuous…) supporters of the bill keep insisting that it’s not meant to impact content moderation at all, there shouldn’t be any problem with amending the bill to make that absolutely clear.
Our understanding is that you do not intend for the bill to limit content moderation in this way, and we want to work with you to fix this issue. We certainly acknowledge that reasonable minds may disagree about the meaning of this provision, and that is precisely why adding the suggested clarification below to the bill makes sense. We believe that adding the following text to the of
Rule of Construction (Section 5) will resolve the issue by simply spelling out what we understand is our shared intent:
Protection for Content Moderation Practices.—Nothing in section 3(a)(3) may be construed to impose liability on a covered platform operator for moderating content on the platform or otherwise inhibit the authority of a covered platform operator to moderate content on the platform, including such authority under the First Amendment to the Constitution of the United States, section 230(c) of the Communications Act of 1934 (47 U.S.C. 230(c)), or any other provision of law.
That language would be a big improvement. And while it won’t fully stop frivolous lawsuits, it would help get most of them dismissed earlier.
So, now the question remains: will Klobuchar accept this fairly straightforward suggestion? Because if she doesn’t, she seems to be acknowledging the open secret: that many of the Republicans are supporting this bill because they want it to be abused in a manner around content moderation.
Either way, kudos to these four Senators for standing up and asking Klobuchar to do the right thing.
Here on Techdirt, we’ve written about a bunch of John Oliver’sLast Week Tonight shows that are quite frequently directly in agreement with what we write about on Techdirt. We’re often impressed at the level of detail and nuance he’s able to approach complex issues with, while (of course) keeping things quite funny. I know that he has a large, very smart team, that often digs in deep with experts in order to get a complete picture. That’s why his reports on SLAPP suits, voting machines, grandstanding state AGs, police accountability, encryption and much much more have been featured here as worth watching on important topics we’ve covered for decades.
However, I’m quite disappointed in his most recent show about antitrust reform and tech monopolies. I do think it’s worth watching, but it’s missing some important context that I would have normally expected from him and his team.
I think that the video does do a good job addressing some of the actual problems of giant tech companies and their power. Though, I do wonder about using a quote from Jonathan Taplin as support for anything, considering he’s an extremist copyright maximalist, whose screeds against Google and the internet are so full of wrongness that they’ve inspired a whole genre of NY Times corrections.
But, the problem with Oliver’s segment is that while it spends most of the episode laying out legitimate concerns about tech power concentration, it then simply accepts that the two popular bills making their way through Congress will actually help and won’t cause problems. Oliver embraces and supports the American Innovation and Choice Online Act (AICOA) and the Open App Markets bill. However, as we’ve explained, while both bills have some good parts, the only reason Republicans are supporting them is that they know that the bills will be massively abused to litigate content moderation decisions.
Oliver doesn’t mention this or explore the issues. He only mentions Republican support in noting that both Bernie Sanders and Josh Hawley support the bills, suggesting that the only reason the bills have bipartisan support is because they’re “too narrow.” But that ignores that the actual reason they have Republican support is because Republicans see this as a tool to punish and intimidate “big tech” into leaving their lies and propaganda online. Ted Cruz has repeatedly noted he supports these bills because they will “unleash the trial lawyers” on these companies.
And, just after Oliver’s segment aired, Hawley again bragged about using them to attack “woke” corporations:
And, at the very least, I’d expect Oliver and his team, with their willingness to explore nuances, to at least maybe explore why support for these bills are coming from copyright maximalist extremists and populist propagandist politicians.
But… he doesn’t.
Instead, he implies falsely that the only criticism of these bills is coming from big tech “shills.” And while it is true that some of the pushback on these bills is coming from disingenuous sources, using disingenuous arguments, some of the concerns are legit. And to wipe them away and assume that just because he’s accurately laid out the problem, that these bills are automatically a solution is the type of facile, but wrong, exploration of complex solutions I’m used to it from much of the rest of the media, but had come to expect better of from Oliver.
I mean, just as one example, four years ago, Oliver himself did a wonderful piece about how state Attorneys General abuse their positions for political means, often doing the will of certain industries, to attack other industries. And, I should note clearly here that these bills enable state AGs to go after the tech companies. So, if Oliver and his team are well aware of that, why are they downplaying the possibility that these bills might be abused and dangerous, political ways?
As we’ve discussed at length over the last few months, there are fairly easy ways that these bills could be amended to limit the possibility of abuse. But the Democrats sponsoring the bills have refused to do so, because they know they’d lose that critical “bipartisan support.” But, really, that should be the story here. The only reason these bills have bipartisan support is because Republicans know they’ll be abused, and WANT them to be abused. The only amendments we’ve seen have simply been to carve out certain industries after lobbyists complained.
Again, that seems like the kind of story I’d expect to see from Oliver, rather than full throated support for these bills.
We’ve pointed this out a few times over the past year. The main antitrust bills that are floating around both the House and the Senate only have Republican support because they have a trojan horse hidden in them that will make it much more difficult for the biggest websites to do any moderation on Republican culture war propaganda campaigns. The two major bills, the American Innovation and Choice Online Act (AICOA) and the Open App Markets bill, both have clauses against anti-competitive “preferencing.”
However, as we keep pointing out, this would allow Parler to argue that Amazon, Google, and Apple treated it differently than, say, Twitter, when those three companies chose not to do business with Parler. Parler even made some of these arguments in its lawsuit against Amazon, and while that lawsuit flopped, if these laws passed, it would reopen the issue and allow companies to sue.
A number of Democrat supporters of these bills, and various civil society organizations, including many that we’ve worked with and usually support, keep trying to brush aside this issue, and keep insisting that it won’t really matter. Some are even willing to align with outright bigots who are only supporting these bills for this very reason, because they think getting something passed on antitrust is the bigger issue.
However, the Washington Post has a great op-ed from two academics who understand this issue better than just about anyone else: Jane Bambauer from University of Arizona and Anupam Chander from Georgetown. I highly encourage everyone supporting these bills to read their analysis of how these bills could create a real mess for disinformation online.
They also point to the Parler example, but they also, thankfully, take on the main argument I’ve heard back from friends supporting these bills: that courts would throw out such lawsuits. This, to me, has always been an odd take, since they know how damaging even frivolous lawsuits can be, and how much of a chilling effect even the threat of extensive litigation can cause. And as Bambauer and Chander make clear, here the chilling effects can be significant.
But the bills would hand the makers of services and apps that give free rein to hate speech and disinformation a powerful weapon to use in court: If Apple or Google kicked them out of app stores, or downgraded them in search results, these companies could argue that the decisions weren’t about content moderation at all, but rather market domination.
At the least, such claims would have to be litigated — a costly proposition, with no guarantee of victory. Alternatively, Apple, Google and other companies might become less vigilant about screening out hate speech and disinformation. You can be wary of Big Tech’s market power and still think the implication of these bills for the speech that is spread online is extremely bad.
And as the article makes clear, the idea that these cases would quickly be thrown out is hardly a given, especially after seeing how courts around the country are willing to view issues around content moderation through partisan lenses.
Suppose Truth Social — President Donald Trump’s Twitter rival — becomes a hotbed of election disinformation, vaccine misinformation and racist speech, and Apple decides that it is violating its App Store guidelines, which require app-makers to filter objectionable content. Would Truth Social or an ideological ally sue, arguing that Apple was preferencing its own News app, or its business partner Twitter’s app? Some judges, and possibly a Supreme Court majority, would be sympathetic to such claims. After all, this would represent a difference in treatment between similar apps (though Apple could of course argue that all apps that permit disinformation are treated alike). Sen. Ted Cruz (R-Tex.) is among those who have noticed that these bills could lead to results similar to those of the recently eviscerated Texas content-moderation law. The bill targeting app stores would “make some positive improvement on the problem of censorship,” he said during markup for the bill.
Also, the bills’ authors could make it clear that these laws can’t be used to stop lawsuits related to content moderation choices, but they have deliberately chosen not to (because they know they’d lose the Republican support if they do).
The Klobuchar-Grassley bill does allow companies to defend against lawsuits by demonstrating that their actions were taken to protect safety, user privacy or the security of the platform, but this defense would likely prove inadequate. Apple or Google would carry the burden of proving that its actions were “reasonably necessary” to protect those specific interests. And even showing that the removed app or speech was sexist, racist, antisemitic or Islamophobic would not be enough. The other bill’s safeguards against abuse are even weaker.
The article also notes that while some supporters of the bill insist that Section 230 would protect these bills from being abused to stop moderation choices, that also seems unlikely for two reasons. Under the Malwarebytes case, companies can get around the 230 issue by claiming that the moderation decision was anticompetitive, rather than for legitimate content moderation needs, and then 230 gets taken off the table. Also, that depends on no more changes being made to either Section 230 itself, or how the courts interpret 230 — both of which seems like dubious propositions (unfortunately).
But, really, the 5th Circuit’s decision in the case highlights the fact that it’s not at all likely that courts would toss out these cases. And, importantly, given the size of the penalties under at least one of the laws, it would be risky for companies to not act accordingly.
Note that if the Internet platform loses, the Klobuchar-Grassley bill would subject it to a penalty of up to 15 percent of its U.S. revenue (not just profits), a risk that few companies would be willing to take.
Perhaps some companies are willing to risk 15% of their revenue on judges understanding bad faith litigation, but that’s a huge bet.
And, again, the article notes that the bills’ authors could fix this, and make it clear that these scenarios don’t apply to the bill, but it appears Democratic Senators have deliberately chosen not to, because they know they’d lose GOP support for the bill.
The Klobuchar-Grassley bill authors recognize that it could affect moderating activity by platforms. The bill, therefore, explicitly excludes from its definition of unlawful activity any reasonable actions the platforms take to protect the copyrights and trademarks of others. Unfortunately, actions motivated by corporate responsibility and designed to protect against hate speech, harassment or misinformation don’t receive similar protection.
What’s most frustrating to me in all of this is how supporters of these bills refuse to actually engage on this point beyond insisting that the courts will dump these lawsuits. That’s far from certain. And even if it were true, these are the same groups that often point out the chilling effects of even frivolous, vexatious litigation.
If those groups, and the politicians pushing these bills, really believe in the underlying concepts in the bill there’s a solution: amend the bills to make it clear they can’t be used in these kinds of content moderation situations. If they’re unwilling to do that, it just feels like they’re carrying water for disinformation peddlers and trollish bigots who are eagerly looking forward to using these laws to litigate.
Look: there are very real issues with the state of the internet today, including the amount of power a few companies have. But that doesn’t mean any solution is a good solution. Unfortunately, Senator Amy Klobuchar, whenever given the option, seems to put forth the worst possible plan. It’s mind boggling.
For a while now, Klobuchar, along with Senator Chuck Grassley, have been pushing their American Innovation and Choice Online Act (AICOA). It’s got a fair bit of support, including from companies and organizations I often agree with on the issues. But, this bill has serious problems. Many of us raised concerns about those problems, and even made suggestions on how to fix the problems. There are ways to create a bill that would target the actual bad practices of internet companies. But this isn’t it.
For a few months, Klobuchar has apparently been working on a new and improved version of the bill, which was revealed last night. Somewhat incredibly, it fixes none of the problems people raised. The major change: making sure it doesn’t apply to telcosand financial companies.
I only wish I were joking. Of course, this is the same Klobuchar who, on a different antitrust bill, made sure to carve out her state’s largest employer, Target. So, we get it. Klobuchar cares more about making the lobbyists and specific industries happy than tackling the real problems of her bill. It’s pathetic.
The main “focus” of the bill is that it’s supposed to bar certain large companies from preferencing their own products. So, for example, Yelp has spent over a decade whining that Google showed people the results of its own Local search, crowding Yelp results out of search. The bill is designed to say that companies can’t do that any more. Of course, there are legitimate concerns that this will mean certain companies sending people to very useful products that people actually like will violate this bill. The quintessential example of this: when doing a search on a location, Google can point you to Google Maps. But, under this bill, that would be problematic.
discriminate in the application or enforcement of the terms of service of the covered platform among similarly situated business users in a manner that would materially harm competition;
So, Amazon telling Parler that it violates AWS’ terms of service and booting it off the service? That would not be allowed under this bill. Remember, Parler sued Amazon, and a key part of their initial claims was that because Amazon treated Twitter differently than Parler (which wasn’t true at the time, as Twitter had only just signed a deal to use AWS but wasn’t on it yet), that it was anticompetitive for Amazon to remove Parler. The judge in that case was not impressed, but if AICOA becomes law, suddenly we’re going to see a ton of claims like this in response to moderation choices.
Tons of companies already love to claim that moderation decisions are about harm to competition. Hell, for many years, the main company going after Google for antitrust was a really, really spammy tool called Foundem, that was upset that Google had realized that users hated getting sent to Foundem, and downranked the site. Foundem (apparently funded by Microsoft) spent years insisting this was “anticompetitive” rather than “making search work better by not sending users to spammy sites they don’t want.” But, again, under AICOA, arguments like that are going to have to be considered by judges.
Downranking spammy sites and services, or removing sites that ignores terms of service like Parler, now become competition law minefields.
It’s difficult to see how that’s good for anyone, other than the operators of sketchy sites.
As we’ve noted, everyone in the Senate actually knows this. Because the main reason that Klobuchar keeps this nonsense in the bill and doesn’t fix the language, is because she knows that this is the only way to keep Republicans on the bill. Republicans see this content moderation trojan horse in the bill, and are thrilled with it. Because they think it’s going to allow lawsuits to protect Parler, Truth Social, and their other also ran websites.
Remember, Ted Cruz was so excited about this bill because it would, in his words, “unleash the trial lawyers” to sue Google, Facebook and others for content moderation decisions.
Republicans are supporting this bill because they know it will be used to hit internet companies with all sorts of lawsuits over their moderation decisions.
Of course, it appears that some Republicans worried (or, rather, some telco lobbyists told Republicans) that the law might ALSO result in broadband providers facing the same sorts of nonsense lawsuits. Indeed, part of the original bill could have been read as a kind of net neutrality bill in disguise, because larger ISPs would be barred from similarly “favoring” services over others in a way deemed anticompetitive. And you can bet that some telcos that rely on things like zero rating were worried.
So, that brings us to the major change in this new version of Klobuchar’s bill: she carved out the telcos to make sure the bill doesn’t apply to them. Even though telcos are way more of a competition problem than any online service. Here’s some new language in the bill excluding telcos. It explicitly says that the definition of an “online platform”:
does not include a service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service.
Got it? So, no preferencing. Unless you’re the only broadband player in town. Then, go hog-wild, according to Senator Klobuchar.
Nice work there. That won’t make people cynical at all about the political process.
Of course, once again, this is almost certainly appeasement to Republicans, who, for clear political reasons, want to continue to pretend that telcos are no big deal, and that it’s only the big internet providers who are evil.
It makes no sense at all that Democrats like Amy Klobuchar are playing right into their hands, and giving them everything that they want. But, of course, Klobuchuar has decided for political reasons that she wants to be seen as the senator who took on big tech for her next presidential campaign. And, if that means handing Republicans all the tools they need to file a ton of vexatious lawsuits to try to force companies to enable more hate speech and propaganda, so be it.
It’s pure cynical opportunism.
Oh, and also, it looks like financial firms got a little carve out as well. The original bill said the term online platforms would apply to websites that “facilitates the offering, advertising, sale, purchase, payment, or shipping of products or services…” The new version of the bill covers those that “enables the offering, advertising, sale, purchase, or shipping of products or services…”
So, the same list minus payments.
That’s two giant industries — telcos and banks — that were able to secure their carveouts. But, no effort to fix any of the actual problems of the bill.
With the original bill, NERA Economic Consulting had written up an analysis of companies that would be considered covered platforms in the bill, noting that it directly would hit just six: Google, Apple, Facebook, Amazon, Microsoft, and likely TikTok. However, it also noted that there were 13 other companies that were below the size thresholds in the bill, but close enough that they would likely “take measure to avoid significant risk incumbent upon exceeding the thresholds.” Notably, many of those included broadband companies and financial companies. By my count, the new carve outs in the bill likely cut that list of 13 by at least 7.
It’s possible that some of the others might be excluded as well, though I’m not as sure. Still, it seems pretty clear that these new carveouts were directly because of lobbying by these firms that didn’t want to be included, despite the fact that all are arguably much more problematic, and have much less readily available competition than the companies targeted by the bill.
It’s enough to make one think that senators like Klobuchar don’t really care about doing the right thing at all. They just want to be seen as doing something.
For more than forty years, the GOP (and to a more sporadic degree the DNC) mindlessly supported giant corporations, consolidation, and monopolization. The evidence is everywhere (banking, insurance, health, air travel, energy), but particularly obvious in telecom. The GOP has endlessly, ceaselessly, cheered on telecom monopolization, and all it usually entails (high prices, poor service, privacy issues).
Yet over the last five years, the GOP has attempted to reframe itself as a party of “antitrust reform,” dedicated to cracking down on “big corporations” — despite the lack of any evidence whatsoever that’s actually true. It’s a big dumb performance designed to mask something else: namely party anger at a handful of tech companies that have belatedly and sloppily been reining in a few types of extreme disinformation that has resulted in real world harms.
The GOP, facing unfavorable shifting demographics and an aging electorate, has come to heavily rely on culture war bullshit as its primary avenue for party recruitment and base support, especially among younger white men. Often there are no underlying policies; it’s just grievance, outrage, and propaganda all the way down to the bone marrow level.
Now the GOP can’t just come out and say that its whole assault on “big tech” and Section 230 is simply because it wants to ensure it can keep spewing nonsense political propaganda online at impressionable white dudebros, so they’ve dressed up the effort as something far more noble and intellectual: “antitrust reform,” “free speech protection,” and an “assault on unchecked corporate power.”
And the mainstream U.S. press seems comically desperate to help them despite absolutely none of it being true.
Case in point: the Washington Post last week penned a bizarre piece documenting the GOP’s incoherent policy shift from the net neutrality era (government is always bad and completely lacks the authority or cause to meddle in the affairs of telecom monopolies) to the “big tech” era (government should absolutely meddle in the affairs of social media giants even in cases where it has no authority to do so).
We’ve already talked about how FCC Commissioner Brendan Carr is the poster child of this new disingenuous GOP movement. Carr was a cornerstone of Ajit Pai and Trump’s efforts to effectively lobotomize all U.S. telecom consumer protection. Any effort to rein in Comcast or AT&T was deemed an absolute outrage and a clear sign of government running amok, if not a “government takeover of the internet.”
But Twitter kicks a few white supremacists offline for being hateful assholes, and Carr, like so many other modern Trump acolytes, pulled a complete 180 to demand even more extreme government interventions in the business practices of Silicon Valley tech giants. He then engaged in contortions and calisthenics to pretend this shift made any legal or policy sense whatsoever.
Note that guys like Carr aren’t actually interested in the genuine problems presented by big tech or the many solutions being floated to address them. They don’t care about privacy abuses at scale, or the catch and kill acquisitions that stifle competition. And the solutions presented aren’t actual solutions for the problems in “big tech,” like, say, forcing tech giants to pay telecom giants a new tax for no reason.
That’s again because this is a performance — with a side helping of “owning the libs,” — not real policy.
The Washington Post could clearly point out the blistering inconsistencies here. Instead they quote Carr’s bad faith arguments without really challenging them at all. Like here, where Carr claims that rules preventing telecom monopolies from abusing their market power (net neutrality) are irrelevant and unnecessary, but nondiscrimination rules for big tech are needed due to “censorship”:
Carr argued the dynamics between the two industries are distinct because the “abusive practices that we’re seeing with Big Tech” in barring some speech necessitate nondiscrimination rules, unlike with ISPs.
This has basically been the GOP’s mantra all along. That monopolies or bad actors literally don’t exist in markets like telecom or banking or energy. The only industry that’s problematic enough to trigger government intervention is big tech. And not because of any of the real abuses the sector engages in, but because they’re allegedly mean to right wingers.
Functional news outlets should clearly point out that the GOP’s ongoing claims of “censorship” are bullshit. That’s not an opinion. Data routinely shows that if content moderation at sites like Twitter is biased, it’s biased toward misinformation. The Trump GOP is getting moderated more often because it has adopted culture war bullshit and hateful, trolling propaganda as its primary output.
Getting the GOP to accept this creates painful cognitive dissonance, so they… don’t.
The pretense that the increasingly authoritarian GOP is somehow being “censored” is itself propaganda designed to prevent anybody from doing anything about propaganda. That’s too heady a concept for mainstream press outlets to grasp, so they tap dance around it.
This has allowed the GOP to wage a fairly successful campaign that portrays any attempt at all to rein in political propaganda and bigotry online as an assault on “free speech” and an act of absolute tyranny. The goal: completely unfettered ability for the authoritarian GOP to bullshit the public across its traditional media and online propaganda empire built over the last 40 years.
It’s a functional news organization’s responsibility to highlight the hollowness of these arguments clearly. Not only does the Post not do that, at all, it allows Carr to again push the claim that the GOP is now a party that really cares about reining in corporate power:
[Carr] said the embrace of common carrier-style regulation for Silicon Valley companies reflects a bigger shift within the GOP on attitudes toward big businesses.
Carr said there’s a “broader realignment that we’re seeing within the conservative movement, where there is a moving away from the view that if a large corporation wants to do it, who am I as a conservative to get in the way? That has changed.”
But the GOP hasn’t changed. The GOP talks a LOT about a sudden renewed interest in “antitrust reform” and “corporate power,” but they’ve done little to address any real problems. The interest in “antitrust reform” is a big dumb performance masking the fact that the GOP’s real interest is in gaining leverage over big tech to force the mandated carriage of race-baiting party propaganda.
The GOP has engaged in a lot of pseudo-intellectual, legally incoherent theatrics to try and make this all sound like real, adult policy. But it’s all as hollow as a cheap dollar store chocolate Easter bunny.
The Post could clearly point this out, but instead they embrace the old “he said, she said” framing adored by major outlets. A format where unfettered bullshit by the GOP is presented largely unchallenged. A few dissenting opinions by folks on the left are presented for counterbalance, with both given equal weight. It’s then left up to the reader to vaguely infer where the truth actually resides.
As authoritarianism continues to take root in the U.S., that kind of feckless inability to call a duck a duck when necessary will ultimately prove fatal.
While the press and some policy circles have made a large stink the last few years about massive new “bipartisan support for antitrust reform,” we’ve noted that the push isn’t quite what’s being advertised. While some of the bills being proposed might help correct some competitive imbalances online, the push in general is bizarrely narrow and only targets some tech companies under some circumstances.
As a party that’s coddled monopolies (see: telecom, banking, airlines, insurance) for literally 40 years, the GOP support for “antitrust reform” has always been performative. The GOP largely sees “antitrust reform” as a way to gain leverage over social media giants so they can mandate the carriage of race-baiting propaganda, a cornerstone of GOP power in the face of shifting demographics and an aging electorate.
Democratic activists and lawmakers, hoping to push some of these antitrust bills across the finish line, have been debating whether crushing ethics underfoot is worth it. Case in point: some Democrats have chosen to partner with The American Principles Project on antitrust reform, despite the fact the group is jam-packed with no shortage of obvious bigotry:
“Consolidated corporate power is the biggest problem that we’re facing right now in our politics,” said Matt Stoller, research director at the anti-monopoly group American Economic Liberties Project, who regularly works with populist figures on the right, including APP. He said divisions within both parties about antitrust changes mean that supporters “have to cobble together a majority.”
There’s productively working with people you disagree with across the aisle, and then there’s… this. Authoritarians aren’t your friends. It doesn’t usually end well. And, as some other activists note in the piece, allying with bigots who literally want to destroy your constituents and everything they stand for just to pass some very limited reform laws (several of which have very concrete problems) isn’t worth it:
“It doesn’t make sense to work with someone that doesn’t share our values and doesn’t share our goal,” said Jeremie Greer, co-founder and executive director of economic rights group Liberation in a Generation. “I don’t think we’re fighting for the same thing.” Greer argued that the push for antitrust reform is essentially about increasing equality and strengthening democracy — and a group fighting against LGBTQ and minority rights is fundamentally opposed to that work.
Again, having some slightly more fair app stores or more competitive Amazon product listings isn’t going to mean a whole hell of a lot should authoritarians gain power and begin dismantling the law and numerous societal systems in a bid for complete and total domination of their political enemies. And make no mistake, while groups like this dress up far right authoritarianism and bigotry as a rosy-cheeked concern for family values, authoritarianism is very much what we’re talking about.
At the same time, if you’re a large U.S. company in any of a dozen heavily monopolized U.S. industries terrified of antitrust reform of any kind, highlighting these kind of issues in a bid to fracture delicate alliances is something you’d most certainly have your K Street policy and PR shops engaged in right now.
That said, if we’re going to tackle antitrust reform, let’s tackle antitrust reform. Instead, what we’ve wound up with is a bunch of extremely narrow bills that only meaningfully target a handful of companies that the GOP is mad at for belatedly policing political propaganda. And even then, this being the rabidly obstructionist GOP, there’s no guarantee they’ll show up to vote for a bill that actually does anything.
The entire recent “antitrust reform” effort literally pretends that sectors packed with natural monopolies (see: telecom) don’t exist. And while, yeah, I get the argument that some fairly minor progress in one industry is better than no progress at all, that’s not actually true if making that progress involves throwing your entire belief apparatus in the toilet and putting democracy and civility at risk.
We’ve already noted how U.S. broadband maps aren’t just terrible, they’ve laid the foundation for terrible policy. When your maps falsely overstate competition and broadband coverage, it makes it easy to downplay or ignore the primary reason U.S. broadband stinks: regional monopolization and the state and federal corruption that protects and enables it.
But the problem with broadband maps goes far beyond the obvious (bad maps = bad policy). Incumbent monopolies consistently use the maps to block competitors or local towns or cities from improving broadband access–even if Comcast, AT&T, Verizon or some other dominant incumbent refuses to. Usually by falsely claiming areas demanding better service are already served.
It’s a bipartisan affair for state politicians easily swayed by telecom campaign contributions. Illinois, New York, and Missouri are all pushing new bills that would block local cooperatives, governments, utilities, and other grass roots broadband efforts from obtaining and using the billions in unprecedented federal broadband funding in the pipeline courtesy of Covid relief and the infrastructure bill.
For example, in Illinois, new legislation crafted by state Democrats with the “help” of Comcast, Verizon and others attempts to prohibit local governments from using federal funds to deploy competition to areas that incumbent ISPs already claim to serve:
…according to the bill summary, the state’s Department of Commerce and Economic Opportunity would be tasked with implementing a statewide broadband grant program that proposes the state “shall use money from the grant program only for the exclusive purpose of awarding grants to applicants for projects that are limited to the construction and deployment of broadband service into unserved areas” and that the state “shall not award grant money to a governmental entity or educational institution.”
A bill recently introduced by Missouri Republicans, Missouri SB 1074, does effectively the same thing. Even in purportedly “progressive” New York, Democratic state lawmakers have introduced language into the budget bill that would hamstring the use of federal funds to keep it away from public community broadband efforts. Our love affair with shitty telecom monopolies is truly bipartisan.
Some of the bills don’t just block local governments from getting funds, they block any organization that has been working with state or local governments from getting funding.
Big telecom couldn’t block funding from going to local community broadband alternatives on the federal level, so they’re now exploiting corrupt state leaders to pass restrictions on the state level. They don’t want to deploy broadband to many of these areas due to low ROI, but they don’t want locals to do it either lest they change their mind someday down the road. They want to have their cake and eat it too.
But community broadband isn’t some monolithic thing. Sometimes it’s a local cooperative. Sometimes it’s a regional utility that expanded its electricity fiber for residential and enterprise use. Sometimes it’s a local government that partnered with a private company. ISPs and some lawmakers like to frame it as all “government socialism” because that riles up simplistic partisans and sows dissent in a bid to protect the monopolistic status quo.
So there’s a transparent reason they want to restrict funding to anywhere other than “unserved” areas. We aren’t accurately measuring what areas we define as “served.” Our definition of broadband (25 Mbps down, 3 Mbps up) is also crap, which erodes the definition of “served” even further. Big telecom monopolies have lobbied against efforts to improve both, because it helps obscure a lack of competition and market failure.
Not only are big telecom lobbyists looking to block competitive alternatives from getting federal funding by lying about who can and can’t get broadband, they’re also leaning on our inaccurate broadband maps to file baseless challenges against local communities when they apply for grants at the NTIA, claiming (again using bad data) that such efforts are “duplicative” and unnecessary.
So local states and communities not only have to waste money mapping broadband themselves (since ISP data provided by the FCC isn’t accurate), they have to spend money fighting telecom lawyer challenges. If they beat that process, local communities often face industry lawsuits, and additional protectionist state laws greatly restricting where they can expand and how projects can be funded.
After drowning such efforts in added costs, telecom lobbyists (and their armies of consultants, think tankers, and paid academics) will then falsely try to frame all community broadband efforts as wasteful government boondoggles. It’s a miserable gantlet all in serve of protecting a handful of regional monopolies (AT&T, Verizon, Charter, Comcast, Lumen, and Frontier) from disruption.
Given the Infrastructure Investment and Jobs Act (IIJA) specifically forbids states from blocking cooperatives, municipalities, and utilities from funding (a rare federal nod to these efforts’ benefits), states that pass these kinds of restrictions could find themselves in violation of federal law, potentially risking the entirety of their broadband funding.
Because this isn’t about Elon Musk or crypto, these sleazy efforts won’t get much attention from a gadget and hype obsessed press. But it’s gross, harmful, and important all the same, and could meaningfully imperil a once-in-a-generation funding opportunity for local communities looking to finally climb out from underneath telecom monopolization thirty years in the making.
Again, local towns and cities aren’t getting into the broadband business because it’s fun, they’re doing so because of market failure, spotty service, and slow monopoly speeds. Monopolies could counter this surging grass roots movement by offering better, cheaper, faster broadband, but they’d rather spend much of that money attempting to rig the game in their favor.
We’ve noted for a while that DC, and particularly the GOP’s, interest in “antitrust reform” is somewhat hollow. For one, while the United States is rife with heavily monopolized business sectors (insurance, health care, telecom, banking, airlines), this recent batch of “reform” only specifically targets large technology companies. It’s as if these other sectors (most notably telecom) simply… don’t exist.
Even then, the bills we’ve seen so far are often clumsily written, and include weird limitations on which companies should fall under scrutiny. For example, several of the heavily hyped bills being promoted over the last year set an arbitrary market cap of $600 billion. Amusingly when Facebook scared investors away with its lame Meta pivot, it fell below that scrutiny threshold.
The GOP side of “antitrust reform” has been particularly hollow. Even Ken Buck, who has been the cheerleader for narrow antitrust reform on the GOP side, generally likes to ignore that telecom monopolies like AT&T and Comcast exist. Buck has literally supported every consolidation and deregulatory pipe dream of AT&T and Comcast for decades. You’re apparently supposed to ignore that.
And like much of the GOP, Buck’s head has been filled with pudding thanks to divisive culture war bullshit being used to agitate low information voters. For example, over the weekend in a since deleted Twitter thread (screenshotted text below), Buck threatened to utilize the government’s antitrust enforcement power to “smash woke capital” — specifically Apple — to punish the company for its opposition to anti-LGBTQ bills in Florida and elsewhere:
If you can’t read the screenshot, it says:
THREAD: Antitrust is the best way to smash woke capital and protect our kids.
Companies that grow to colossal size, monopoly size, use their power to change politics to make more profit.
This power is a function of their wealth and control over the economy.
At some point, they start to control the information flow in our democracy.
We end up being governed by the CEOs of monopolies and their hard-left employee base.
Simple solution: restore competition by ending the monopoly.
Again, while Buck is routinely held up as a Republican who “gets” the need for antitrust reform, he doesn’t, really. Buck, (like most of the GOP) will be first in line to oppose antitrust reform should it be applied to genuinely monopolized sectors like telecom. Yet here he’s suggesting that U.S. antitrust enforcement should be leveraged against Apple simply because it wants to engage in some light lobbying opposition to bills that would harm Apple LGBTQ employees and customers.
He’s since deleted the tweet, suggested he understood the stupidity of it, or at least understood that threatening to punish a company for its lobbying activity would violate the First Amendment. But the dumb tirade was also notable given that Rep. David Cicilline, one of Buck’s key allies in the “bipartisan antitrust reform” effort, is openly gay:
Rep. Ken Buck says Apple lobbying against anti-LGBTQ state bills is reason to pass antitrust legislation & "smash woke capital"
His top ally in that antitrust push, Rep. David Cicilline, was the first openly gay mayor of a state capital & co-chairs the LGBTQ+ Equality Caucus https://t.co/tzIL57hSYA
For years, experts pointed out that U.S. antitrust reform had grown toothless and frail, our competition laws need updating in the Amazon era, and “are consumers happy?” (the traditional consumer welfare standard) doesn’t actually measure all aspects of potential harm in complex markets. Like so many issues, this shouldn’t be a bipartisan fight for better policy and law. Yet it’s often framed as a partisan issue to sow division.
What we should have gotten was a serious examination of all industries and proposals that fairly targeted very clear monopolization, market failure, and anti-competitive behavior across the board. Instead we got a bunch of weird, hollow promises and performances. Specifically by the GOP, whose 40 year track record of coddling monopolies at nearly every turn (again, just look at telecom) is undeniable.
Beyond that, threatening to use the government’s antitrust authority to attack a company for taking an ethical position on ignorant and backward policies in states teetering toward authoritarianism is ignorant policy malpractice itself.
For the GOP, extremism, victimization porn, and culture war performances have utterly displaced serious policymaking. Yet somehow much of the mainstream press and policy punditry haven’t gotten the memo, and continue to help the GOP pretend their interest in “antitrust reform” is genuine. It’s not. It never was.
As we’ve noted previously, much of the GOP’s assault on “big tech censorship” (including the fracas over Section 230) is an attempt to force tech companies to carry race-baiting propaganda, a cornerstone of modern GOP power in the face of unfavorable demographics and a sagging electorate.
And while surely there are a few GOP representatives (like Buck) who care a tiny bit about monopoly power, the Trump GOP’s clear goal at the moment isn’t meaningful policy, healthier markets, or consumer protection, it’s in further filling the heads of targeted voters with pebbles and hate. Which, if you hadn’t been paying attention (see: Fox News) is working extremely well.
