To be clear: despite a lot of media coverage claiming otherwise, the GOP (and much of the DNC) was never actually serious about antitrust reform. The GOP in particular has a forty year track record of supporting unchecked monopolization and consolidation with no meaningful government oversight across virtually every industry (telecom, banking, energy, and transportation in particular).
Yet somehow, during the debate over Section 230 and whether or not social media should moderate political propaganda and hate speech, the party positioned itself as being “serious about antitrust reform.” This was, of course, a ruse: the GOP was largely just seeking leverage to frighten Silicon Valley away from moderating race-baiting propaganda, a cornerstone of modern GOP power.
The House Judiciary Committee on Friday announced Kentucky Republican Thomas Massie, a rigid libertarian, will serve as the head of the antitrust subcommittee. The appointment was a snub to Colorado Republican Ken Buck, one of the main House GOP critics of big tech companies, who was the panel’s ranking member in the last Congress.
To be clear, despite the press narrative to the contrary, I don’t think either party is particularly serious about antitrust reform. Congress is simply too grotesquely corrupt, and the combined cross-industry lobbying opposition to meaningful reform too great, to currently be overcome without some sort of major policy and cultural trajectory shift and a massive upheaval in Congress.
Thanks to Congressional corruption, the biggest push we’ve seen for meaningful antitrust reform in years came in the form of a small number of extremely narrow and problematic bills that myopically fixated only on Big Tech, and even then only specifically massive companies with huge market caps. And even that failed to gain passage, seeing uniformly broad opposition from the same GOP that spent the last three years pretending to care so much about antitrust reform.
The GOP’s pretense that it was “serious about antitrust reform now” was parroted repeatedly and often by the press over the last few years, garnering unearned praise from everyone from Glenn Greenwald and Matt Stoller to mainstream political coverage across Axios, Politico, and Semafor.
It was always bullshit. The GOP was simply angry that a handful of California companies had begun belatedly and sloppily moderating right wing propaganda and hate speech on the Internet, cornerstones of modern GOP party power in the face of unfavorably shifting demographics. The antitrust reform push was a hollow gambit to scare them away from such behaviors, and it served its purpose.
The GOP, of course, won’t stop whining ceaselessly about being “censored” (read: not being able to spread bigotry, hate, and propaganda unchecked across the Internet), but the use of “antitrust reform” as flimsy cover is apparently going away, supplanted by more generic whining about how you can’t make fun of minorities any more like you used to be able to on the Internet:
The appointment of Massie, a Massachusetts Institute of Technology-trained inventor who has filed dozens of patents, signals that the Judiciary Committee under Chair Jim Jordan of Ohio will shift its focus away from legislation aimed at curbing the power of the largest tech companies. Jordan has been more focused on free-speech issues, including big tech’s perceived liberal bias.
“We’re all united in wanting to stop the censorship of conservatives and the suppression of free speech,” Jordan said in an interview. “That’s going to be a focus of the full committee work.”
As a reporter who watched the GOP coddle telecom monopolies for the last twenty-three years, pretending that a party specifically dedicated to unchecked corporate power and consolidation was going to “rein in unchecked corporate power” and “protect consumers from Big Tech” was always the pinnacle of willful delusion.
The press, as they often do, portrayed the GOP as being “serious about antitrust reform” because they’re fecklessly terrified of offending sources, advertisers, and event sponsors. They’ll continue to let the GOP pretend it’s being unfairly censored on the Internet (something completely deflated by science and factual data) for the exact same reason.
A new Congress has begun, but in the waning days of the last one, we got one final bipartisan bill to “amend” Section 230. It officially died with the last Congress, but it sure is a sign of what to expect from this new one (introducing it at the very end of the session with no chance to go anywhere is known as a “messaging” bill, alerting others in Congress about legislation these troublemakers are interested in pushing). In this case, the bill is bipartisan, coming from Reps. David Cicilline and Ken Buck, who teamed up in their seething, unmoored-from-reality, moral-panic hatred of “tech” multiple times in the last Congress.
However, the description of the bill in Cicilline’s press release is pretty clear (and, not for the first time, suggests that Cicilline and Buck both need remedial education on how the 1st Amendment actually works).
The Platform Integrity Act would:
Offer a simple and common-sense clarification of the scope of 47 U.S.C. 230(c)(1) by removing a bar to recovery for victims who have suffered harm from acts of terrorism, hate, or extremism enabled by online platforms’ content suggestions.
Reject the judicial misinterpretation of 47 U.S.C. 230(c)(1) whereby courts have concluded, for example, that the statute bars victims of terrorist attacks from seeking relief from a social-media company for its proactive role connecting the perpetrators through friend- and content-suggestion algorithms.
Adopt the correct interpretation of the statute reflected in the separate opinion of the late Honorable Robert Katzmann in Force v. Facebook, Inc., 934 F.3d 53 (2d Cir. 2019), wherein he concluded that “it strains the English language” to construe 47 U.S.C. 230(c)(1) “to say that in targeting and recommending [extremist] writings to users,” “thereby forging connections” and “developing new social networks,” online platforms are protected from liability by the statute.
Apply only to content that the platform actively promotes, leaving in place Section 230(c)(2)’s protection of platforms’ good-faith application of terms of service and community guidelines.
We’ve heard suggestions like this before from others, and it shows a profound lack of understanding about how any of this actually works.
Let’s go through each of the bullet points to explain what the confusion is (though, honestly, in an ideal world, I shouldn’t be explaining how the 1st Amendment works to two sitting Congressional Reps.).
Offer a simple and common-sense clarification of the scope of 47 U.S.C. 230(c)(1) by removing a bar to recovery for victims who have suffered harm from acts of terrorism, hate, or extremism enabled by online platforms’ content suggestions.
This won’t help in the way that Cicilline and Buck think, and will only lead to serious problems. As we’ve discussed about other Section 230 “reform” bills, the 1st Amendment requires actual knowledge by a distributor of the illegality of the content in question (not just the existence of the content itself). As the Supreme Court noted in Smith v. California, if you start blaming distributors for issues without their direct knowledge, then massive speech suppression is the likely result:
There is no specific constitutional inhibition against making the distributors of good the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of the press stand in the way of imposing a similar requirement on the bookseller. By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public’s access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. It has been well observed of a statute construed as dispensing with any requirement of scienter that: ‘Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience.’ The King v. Ewart, 25 N.Z.L.R. 709, 729 (C.A.). And the bookseller’s burden would become the public’s burden, for by restricting him the public’s access to reading matter would be restricted. If the contents of bookshops and periodical stands were restricted to material of which their proprietors had made an inspection, they might be depleted indeed. The bookseller’s limitation in the amount of reading material with which he could familiarize himself, and his timidity in the face of his absolute criminal liability, thus would tend to restrict the public’s access to forms of the printed word which the State could not constitutionally suppress directly. The bookseller’s self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it, the distribution of all books, both obscene and not obscene, would be impeded.
So, even if this bill removes Section 230 (c)(1) protections for platforms sued over “harm from acts of terrorism, hate, or extremism,” the platforms are not going to be held liable anyway, because they’ll be protected under the 1st Amendment, unless the victims can show that they knew they were promoting content that was somehow illegal.
And that takes us to the second 1st Amendment issue with this bill: “hate” and “extremism” still remain legal under the 1st Amendment. Terrorism, somewhat obviously, is not protected speech, but this bill isn’t actually about “terrorism” because you don’t commit terrorism via social media. What they’re talking about are a bunch of bogus ambulance-chaser nonsense lawsuits in which big internet companies were sued because terrorists used social media.
But even in those cases, the nexus between “social media” and “act of terrorism” are so disconnected that they’d never survive a lawsuit anyway.
These are frivolous nuisance cases that are designed for one purpose only: to try to get the companies to cough up settlements as they’ll be cheaper than going through a full court case. And, of course, this bill only serves to increase the likelihood of such things, because Section 230’s main benefit is to get these kinds of cases kicked out at the earliest possible moment. That is, with 230, the companies can file a motion to dismiss at the beginning of a lawsuit, and usually get it dismissed without having to go through the more expensive parts of a lawsuit.
Without Section 230, and having to rely on a full 1st Amendment argument, the cases go on much longer, and are way more costly. This means it will encourage companies to (1) just pay up or (2) suppress any content that might lead to such a lawsuit even if that content is legally protected.
So this bill serves no legitimate interests, is on very shaky constitutional grounds, and seems to only encourage nuisance lawsuits against internet companies and settlements in response to those lawsuits. It’s difficult to see how that benefits anyone other than some ambulance-chasing tort lawyers.
Reject the judicial misinterpretation of 47 U.S.C. 230(c)(1) whereby courts have concluded, for example, that the statute bars victims of terrorist attacks from seeking relief from a social-media company for its proactive role connecting the perpetrators through friend- and content-suggestion algorithms.
Again, there is no underlying cause of action here. Recommending someone be a friend or recommending content is, in itself, protected 1st Amendment activity, because recommendations are opinions and opinions are protected speech. The idea that an internet company would magically know that recommended content or a recommended friend might somehow be connected to a terrorist organization is nonsense, and without that underlying knowledge, no lawsuit could possibly succeed in the first place.
But, as with the first bullet, it will encourage more frivolous nuisance lawsuits, and corresponding settlements (potentially along with greater speech suppression to avoid them).
Adopt the correct interpretation of the statute reflected in the separate opinion of the late Honorable Robert Katzmann in Force v. Facebook, Inc., 934 F.3d 53 (2d Cir. 2019), wherein he concluded that “it strains the English language” to construe 47 U.S.C. 230(c)(1) “to say that in targeting and recommending [extremist] writings to users,” “thereby forging connections” and “developing new social networks,” online platforms are protected from liability by the statute.
This one kinda gives away the game. As we’ve noted, Force v. Facebook is one of the most obvious and extreme examples of a frivolous lawsuit designed solely to try to shakedown social media for money. Section 230 helped get the case tossed out quickly rather than having to go through a huge, long, expensive process… which absolutely would have ended in a loss for Force also. Just after a lot more money and time got wasted.
So, one needs to ask: why do Reps. Cicilline and Buck want to enable frivolous ambulance chaser lawsuits that can’t win under the 1st Amendment, but only serve to cost tech companies a lot more money in wasteful legal fees?
Apply only to content that the platform actively promotes, leaving in place Section 230(c)(2)’s protection of platforms’ good-faith application of terms of service and community guidelines.
This last point is kind of silly and is there to appease some supporters of Section 230, because there were other bills that looked to weaken (c)(2) in Section 230, the part of Section 230 that gets lots of attention from people who don’t understand it, regarding “good faith” efforts to moderate content. As we’ve discussed, most cases around moderation actually rely on (c)(1)’s prohibition on holding a website liable for speech from users, but people who don’t follow the law assume (incorrectly) that (c)(2) is what enables websites to moderate (they’re wrong: the 1st Amendment is key there).
All in all this is a silly bill that doesn’t help anyone other than lawyers who file frivolous lawsuits. So why do Cicilline and Buck think this is necessary? And why did they release it as the last Congress closed out?
It’s kinda weird how the GOP’s pure hatred and spite towards tech companies, and their desire to exact maximum punishment rather than make good policy, keeps blowing up bills that might otherwise pass. We’ve talked plenty about how Republicans have effectively torpedoed the big tech antitrust bill by insisting that it must include provisions that will be used to sue tech companies over antitrust for… suppressing disinformation. And then there was Ted Cruz (at least temporarily) blowing up a (terrible) journalism antitrust bill by bringing content moderation into it.
And now it appears that Rep. Ken Buck may have destroyed an otherwise perfectly sensible antitrust bill. Back when it was introduced in a package of a bunch of (mostly bad) antitrust bills, we noted that Rep. Joe Neguse’s Merger Filing Fee Modernization Act seemed perfectly fine. It would adjust the fees companies pay when larger mergers happen, greatly increasing the really, really big merger fees (and actually slightly decreasing fees paid for mergers under $500 million). It’s expected that this would provide a lot more funds to the FTC and DOJ to do more antitrust work, and that seems reasonable as well.
The bill had gained some momentum of late, with the White House stumping for it. But… yesterday a bunch of Democrats noticed that Rep. Ken Buck snuck in a “modified version” of the bill, tacking on one of his own spiteful antitrust bills that wasn’t really moving. It’s the State Antitrust Enforcement Venue Act, which at the last minute was bundled with the fee modernization plan.
As it stands now, when big antitrust lawsuits are filed, the courts are able to consolidate them and make sure they’re dealt with in the court that is most convenient for all parties in the litigation. This makes sense for a bunch of reasons. However, under Buck’s SAEVA, that will be prevented, and politically-minded Attorneys General (i.e. grandstanding politicians who want their names in headlines) can effectively jurisdiction-shop their antitrust lawsuits and multiple such lawsuits can happen all over the country, without the ability for them to be consolidated. The Administrative Office of the Courts actually wrote a letter protesting the bill, noting that the whole thing would create a huge mess for the courts:
Excepting State antitrust actions from centralization can only increase the number
of actions (and, hence, the number of independent parties and courts) outside the ambit of
the MDL. Related actions that cannot be centralized can introduce case management
difficulties into the MDL. Parties and courts in actions pending outside the MDL may
(either actively or inadvertently) undermine attempts to coordinate and streamline
discovery and pretrial practice in the litigation. For instance, such actions may be subject
to different pretrial schedules, parties and witnesses might by subject to duplicative
discovery, and the courts might issue inconsistent pretrial rulings pertaining to the same
parties. It also is possible that substantively inconsistent rulings could issue — such as
with respect to market definition or which standard of review (per se or rule of reason)
applies to a given case. Given the nationwide scope of these antitrust litigations, such
inconsistent rulings may complicate proceedings and sow confusion not only among the
courts and parties, but also in the marketplace.
So, now, because Buck was able to piggyback his own bad bill, which he sees as a tool to punish big tech by having every AG sue them in their home state, leading to the companies dealing with tons of competing antitrust claims, many who previously supported the Neguse bill are urging their colleagues to back off their support.
Reps. Zoe Lofgren, Eric Swalwell, Lou Correa, Scott Peters, and Jimmy Paneta sent around a letter to their colleagues calling this nonsense out, and urging them to vote no on this bill (which, again, was basically fine without Buck’s nonsense):
The Title III provisions would undermine a component of our judicial system that has functioned fairly, justly, and efficiently for more than 50 years. Under current law, antitrust cases that are pending in different federal courts, and that involve common questions of fact, may be transferred to a single court district for coordinated or consolidated trial proceedings. Congress deliberately crafted this system (in the Hart-Scott-Rodino Act in 1976) whereby senior federal judges – not some of our nation’s politically-motivated State Attorneys General – determine which cases should be most efficiently and justly resolved through centralized litigation. Title III would exempt antitrust cases brought by State Attorneys General in federal court from this deliberative system.
Title III would allow multiple states to simultaneously pursue their own separate actions against the same antitrust defendants in numerous different federal courts. Businesses, inevitably, would find themselves facing multiple lawsuits, in courtrooms across the country, burdening an already-overloaded court system. Additionally, unlike cases brought by private plaintiffs, the businesses would have no way to consolidate the cases into a single fair proceeding. That significantly increases the risk of conflicting judgements, and those judicial conflicts are exactly what Congress sought to avoid when it originally passed Hart-Scott-Rodino Act in 1976.
It’s kind of amazing. Basically, the GOP is just so obsessed about punishing big tech that it’s destroying any chance to craft useful policy.
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.
I feel like I keep needing to write this, but once again, no matter who does it and no matter which company they’re targeting, it’s wrong for politicians to promise to punish companies for their speech. For some reason, many people’s position on this point changes based on whether or not they like or dislike the politician, and whether or not they like or dislike the company. But it’s wrong.
All of this is grandstanding nonsense, but it’s designed to suppress speech. It’s designed to punish companies for speech that these elected officials dislike. And that’s even if the companies have said something stupid or acted in a way that deserves a regulatory response. By positioning any response as retaliation for speech, these politicians are fundamentally going against the 1st Amendment.
Some have argued that these retaliatory threats don’t amount to an actual 1st Amendment violation because a single politician can’t pass legislation by themselves. But you don’t need to pass legislation to violate the 1st Amendment. Indeed, in Bantam Books v. Sullivan the Supreme Court noted that merely informing someone of “objectionable” speech could violate the 1st Amendment.
While not an exact match, in that case book distributors were informed by a Commission of books that the Commission felt were “objectionable”, with the vague threat that if the distribution went ahead, then some sort of legal punishment might follow. The Court not only found that this violated the 1st Amendment, but that in some ways, the mere threat was worse than if an actual censorial regulation had been put in place. Because when it’s just more vague statements there is less definition in how to appeal, and much greater likelihood of simply over-censoring.
Unfortunately, this now seems to have become the norm on both sides of the political aisle. Browbeat companies for their speech, and threaten to pass regulations (even if those regulations might make sense absent the question of retaliation) in response to the speech. This only serves to put pressure on companies to be silent — which appears to be what these politicians want.
And it is that wish for silence, and the implicit threat in response to speech, that is so problematic.
Even in the cases where you might agree with the underlying regulatory proposal, you should be against these threats because they actually make the regulatory proposals that much less likely to be effective, because companies will be able to challenge them in court as violating the 1st Amendment due to the stated threats of these grandstanding politicians.
If you believe that certain regulations are necessary to deal with certain companies, then make that case. But if you claim that companies need to be punished because of their speech or political activity, then you are a part of the problem.
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
— Cristiano Lima-Strong (@viaCristiano) April 3, 2022
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.
It’s kind of crazy how many regulatory proposals we see appear to be based on myths and moral panics. The latest, just introduced is the House version of the Filter Bubble Transparency Act, which is the companion bill to the Senate bill of the same name. Both bills are “bipartisan,” which makes it worse, not better. The Senate version was introduced by Senator John Thune, and co-sponsored by a bevy of anti-tech grandstanding Senators: Richard Blumenthal, Jerry Moran, Marsha Blackburn, Brian Schatz, and Mark Warner. The House version was introduced by Ken Buck, and co-sponsored by David Cicilline, Lori Trahan, and Burgess Owens.
While some of the reporting on this suggests that the bill “targets” algorithms, it only does so in the stupidest, most ridiculous ways. The bill is poorly drafted, poorly thought out, and exposes an incredible amount of ignorance about how any of this works. It doesn’t target all algorithms — and explicitly exempts search based on direct keywords, or algorithms that try to “protect the children.” Instead, it has a weird attack on what it calls “opaque algorithms.” The definition itself is a bit opaque:
The term “opaque algorithm” means an algorithmic ranking system that determines the order or manner that information is furnished to a user on a covered internet platform based, in whole or part, on user-specific data that was no expressly provided by the user to the platform for such purpose.
The fact that it then immediately includes an exemption for “age-appropriate content filters” only hints at some of the problems with this bill — which starts with the fact that there are all sorts of reasons why algorithms recommending things to you based on more information than you provide directly might be kinda useful. For example, a straightforward reading of this bill would mean that no site can automatically determine you’re visiting with a mobile device and format the page accordingly. After all, that’s an algorithmic system that uses information not expressly provided by the user in order to present information to you ranked in a different way (for example, moving ads to a different spot). What’s more, “inferences about the user’s connected device” are explicitly excluded from being used even if they are based on data expressly provided by the user — so even allowing a user to set a preference for their device type, and serve optimized pages based on that preference, would appear to still count as an “opaque algorithm” under the bill’s definitions. You could argue that a mobile-optimized page is not necessarily a “ranking” system, except the bill defines “algorithmic ranking system” as “a computational process … used to determine the order or manner that a set of information is provided to a user.” At the very least, there are enough arguments either way that someone will sue over it.
Similarly, lots of media websites offer you a certain number of free articles before you hit their register or paywall — and again, that’s based on information not expressly provided by the user — meaning that such a practice might be in trouble (which will be fun to watch when media orgs who use those kinds of paywall tricks but are cheering this on as an “anti-big-tech” measure discover what they’re really supporting).
The point here is that lots of algorithm/ranking systems that work based on information not expressly provided by the user are actually doing important things that would be missed if they suddenly couldn’t be done any more.
And, even if the bill were clarified in a bill-of-attainder fashion to make it clear it only applies to social media news feeds, it still won’t do much good. Both Facebook and Twitter already let you set up a chronological feed if you want it. But, more to the point, the very rationale behind this bill makes no sense and is not based in reality.
Cicilline’s quote about the bill demonstrates just how ignorant he is of how all of this stuff actually works:
“Facebook and other dominant platforms manipulate their users through opaque algorithms that prioritize growth and profit over everything else. And due to these platforms? monopoly power and dominance, users are stuck with few alternatives to this exploitative business model, whether it is in their social media feed, on paid advertisements, or in their search results.”
Except… as already noted, you can already turn off the algorithmic feed in Facebook, and as the Facebook Papers just showed, when Facebook experimented with turning off the algorithmic rankings in its newsfeed it actually made the company more money, not less.
Also, the name of the bill is based on the idea of “filter bubbles” and many of the co-sponsors of the bill claim that these websites are purposefully driving people deeper into these “filter bubbles.” However, as we again just recently discussed, new research shows that social media tends to expose people to a wider set of ideas and viewpoints, rather than more narrowly constraining them. In fact, they’re much more likely to face a “filter bubble” in their local community than by being exposed to the wider world through the internet and social media.
So, in the end, we have a well-hyped bill based on the (false) idea of filter bubbles and the (false) idea of algorithms only serving corporate profit, which would require websites to give users a chance to turn off an algorithm — which they already allow, and which would effectively kill off other useful tools like mobile optimization. It seems like the only purpose this legislation actually serves to accomplish is to let these politicians stand up in front of the news media and claim they’re “taking on big tech!” and smile disingenuously.
How was your Wednesday? I spent 5 and a half hours of mine watching the most inane and stupid hearing put on by Rep. David Cicilline, and the House Judiciary Committee’s Subcommittee on Antitrust, Commercial & Administrative Law. The hearing was billed as a big antitrust showdown, in which the CEOs of Google, Facebook, Apple and Amazon would all answer questions regarding an antitrust investigation into those four companies. If you are also a glutton for punishment, you can now watch the whole thing yourself too (though, at least you can watch it at 2x speed). I’ll save you a bit of time though: there was very little discussion of actual antitrust. There was plenty of airing of grievances, however, frequently with little to no basis in reality.
If you want to read my realtime reactions to the nonsense, there’s a fairly long Twitter thread. If you want a short summary, it’s this: everyone who spoke is angry about some aspect of these companies but (and this is kind of important) there is no consensus about why and the reasons for their anger is often contradictory. The most obvious example of this played out in regards to discussions that were raised about the decision earlier this week by YouTube and Facebook (and Twitter) to take down an incredibly ridiculous Breitbart video showing a group of “doctors” spewing dangerous nonsense regarding COVID-19 and how to treat it (and how not to treat it). The video went viral, and a whole bunch of people were sharing it, even though one of the main stars apparently believes in Alien DNA and Demon Sperm. Also, when Facebook took down the video, she suggested that God would punish Facebook by crashing its servers.
However, during the hearing, there were multiple Republican lawmakers who were furious at Facebook and YouTube for removing such content, and tried to extract promises that the platforms would no longer “interfere.” Amusingly (or, not really), at one point, Jim Sensenbrenner even demanded that Mark Zuckerberg answer why Donald Trump Jr.’s account had been suspended for sharing such a video — which is kind of embarrassing since it was Twitter, not Facebook, that temporarily suspended Junior’s account (and it was for spreading disinfo about COVID, which that video absolutely was). Meanwhile, on the other side of the aisle, Rep. Cicilline was positively livid that 20 million people still saw that video, and couldn’t believe that it took Facebook five full hours to decide to delete the video.
So, you had Republicans demanding these companies keep those videos up, and Democrats demanding they take the videos down faster. What exactly are these companies supposed to do?
Similarly, Rep. Jim Jordan made some conspiracy theory claims saying that Google tried to help Hillary Clinton win in 2016 (the fact that she did not might raise questions about how Jordan could then argue they have too much power, but…) and demanded that they promise not to “help Biden.” On the other side of the aisle, Rep. Jamie Raskin complained about how Facebook allowed Russians and others to swing the election to Trump, and demanded to know how Facebook would prevent that in the future.
So… basically both sides were saying that if their tools are used to influence elections, bad things might happen. It just depends on which side wins to see which side will want to do the punishing.
Nearly all of the Representatives spent most of their time grandstanding — rarely about issues related to antitrust — and frequently demonstrating their own technological incompetence. Rep. Greg Steube whined that his campaign emails were being filtered to spam, and argued that it was Gmail unfairly handicapping conservatives. His “evidence” for this was that it didn’t happen before he joined Congress last year, and that he’d never heard of it happening to Democrats (a few Democrats noted later that it does happen to them). Also, he said his own father found his campaign ads in spam, and so clearly it wasn’t because his father marked them as spam. Sundar Pichai had to explain to Rep. Steube that (1) they don’t spy on emails so they have no way of knowing that emails were between a father and son, and (2) that emails go to spam based on a variety of factors, including how other users rate them. In other words, Steube’s own campaign is (1) bad at email and (2) his constituents are probably trashing the emails. It’s not anti-conservative bias.
Rep. Ken Buck went on an unhinged rant, claiming that Google was in cahoots with communist China and against the US government.
On that front, Rep. Jim Jordan put on quite a show, repeatedly misrepresenting various content moderation decisions as “proof” of anti-conservative bias. Nearly every one of those examples he misrepresented. And then when a few other Reps. pointed out that he was resorting to fringe conspiracy theories he started shouting and had to be told repeatedly to stop interrupting (and to put on his mask). Later, at the end of the hearing, he went on a bizarre rant about “cancel culture” and demanded each of the four CEOs to state whether or not they thought cancel culture was good or bad. What that has to do with their companies, I do not know. What that has to do with antitrust, I have even less of an idea.
A general pattern, on both sides of the aisle was that a Representative would describe a news story or scenario regarding one of the platforms in a way that misrepresented what actually happened, and painted the companies in the worst possible light, and then would ask a “and have you stopped beating your wife?” type of question. Each of the four CEOs, when put on the spot like that, would say something along the lines of “I must respectfully disagree with the premise…” or “I don’t think that’s an accurate representation…” at which point (like clockwork) they were cut off by the Representative, with a stern look, and something along the lines of “so you won’t answer the question?!?” or “I don’t want to hear about that — I just want a yes or no!”
It was… ridiculous — in a totally bipartisan manner. Cicilline was just as bad as Jordan in completely misrepresenting things and pretending he’d “caught” these companies in some bad behavior that was not even remotely accurate. This is not to say the companies haven’t done questionable things, but neither Cicilline nor Jordan demonstrated any knowledge of what those things were, preferring to push out fringe conspiracy theories. Others pushing fringe wacko theories included Rep. Matt Gaetz on the Republican side (who was all over the map with just wrong things, including demanding that the platforms would support law enforcement) and Rep. Lucy McBath on the Democratic side, who seemed very, very confused about the nature of cookies on the internet. She also completely misrepresented a situation regarding how Apple handled a privacy situation, suggesting that protecting user’s privacy by blocking certain apps that had privacy issues was anti-competitive.
There were a few Representatives who weren’t totally crazy. On the Republican side, Rep. Kelly Armstrong asked some thoughtful questions about reverse warrants (not an antitrust issue, but an important 4th Amendment one) and about Amazon’s use of competitive data (but… he also used the debunked claim that Google tried to “defund” The Federalist, and used the story about bunches of DMCA notices going to Twitch to say that Twitch should be forced to pre-license all music, a la the EU Copyright Directive — which, of course, would harm competition, since only a few companies could actually afford to do that). On the Democratic side, Rep. Raskin rightly pointed out the hypocrisy of Republicans who support Citizens United, but were mad that companies might politically support candidates they don’t like (what that has to do with antitrust is beyond me, but it was a worthwhile point). Rep. Joe Neguse asked some good questions that were actually about competition, but for which there weren’t very clear answers.
All in all, some will say it was just another typical Congressional hearing in which Congress displays its technological ignorance. And that may be true. But it is disappointing. What could have been a useful and productive discussion with these four important CEOs was anything but. What could have been an actual exploration of questions around market power and consumer welfare… was not. It was all just a big performance. And that’s disappointing on multiple levels. It was a waste of time, and will be used to reinforce various narratives.
But, from this end, the only narrative it reinforced was that Congress is woefully ignorant about technology and how these companies operate. And they showed few signs of actually being curious in understanding the truth.
Last Friday, the internet exploded with the news that Amazon was banning its employees from installing TikTok, the hugely popular social media app by Chinese company ByteDance. An entire day’s news cycle was dedicated to Amazon’s decision, with an ocean of press reports implying that the Chinese social networking platform was a privacy nightmare directly tethered to the Chinese government. The story came on the heels of months of allegations by the Trump administration that the app was doing things so vile and atrocious that the only solution was to ban the popular app from the United States entirely.
But then, at the end of the day, something odd happened. Amazon suddenly backtracked, stating that its announcement to employees urging them to uninstall TikTok was a mistake. An entire day’s news cycle, filled with allegations that TikTok was a privacy nightmare, was based on little more than an administrative brain fart.
It was just the latest example of how, upon closer inspection, much of the hysteria surrounding TikTok isn’t based on much of anything… substantive. There’s been no limit of pearl clutching from the Trump administration and its allies about the app, but when it comes to actual supporting evidence to justify an outright ban, there’s just not much of it beyond “it’s from China.” Case in point: Senator Ken Buck penned one of a flood of editorials over at Newsweek, declaring that TikTok was aggressively nefarious and a diabolical threat to US consumers:
“As evidence, TikTok’s privacy policy for U.S. residents is upfront about the vast quantity of user data it collects and shares with the CCP. “We automatically collect certain information from you when you use the Platform, including internet or other network activity information such as your IP address, geolocation-related data…, unique device identifiers, browser and search history (including content you have viewed in the Platform) and Cookies,” the policy reads.”
There are a few problems there.
One, an “up front” privacy policy is a good thing. Two, there’s no evidence that TikTok actually shares that data with the CCP yet, and while it’s certainly possible it still does and may in the future, having actual evidence of this connection is kind of important if you’re going to blacklist a company based entirely on said allegation. While it’s true you might want to avoid installing Chinese-made apps on security-sensitive devices, that’s true for a laundry list of apps, services, and hardware made all over the world that sees nowhere near the same level of hyperventilation.
Three, numerous security experts have taken a very close look at the app and found absolutely nothing out of the ordinary. Four, the data Buck hyperventilates over is collected and shared by an absolute universe of companies and services thanks in large part to lax US privacy oversight and sloppy security practices. Given the endless security hacks, leaks, and data just left stupidly unsecured in the cloud, it’s not hard for Chinese intelligence — or anybody else with unlimited time and resources — to get a hold of this kind of data if it wants access to it. Banning TikTok without addressing a myriad of other issues doesn’t thwart that.
As such, if you’re genuinely concerned about US consumer privacy, banning TikTok isn’t going to do you much good. Chinese hardware is in literally everything, from your shitty router and “smart” fridge, to the millions of crappy internet of broken things devices Americans attach to their home and business networks with reckless abandon. Like the NSA, Chinese intelligence really doesn’t need TikTok to spy on Americans. There’s a million other attack vectors to choose from, most of which (like the IOT) we’re not actually doing much about, yet likely provide the Chinese government with far more data than TikTok ever could:
If you dropped a penny from the top of our list of legitimate cybersecurity concerns, it would hit TikTok sometime around 2023. Anyone making noise about this is telling you they?re a clown. https://t.co/ardPIuKY1h
The reality is that most of these lawmakers making such a heated stink about TikTok couldn’t give any less of a shit about US consumer privacy, rampant data collection, or ensuring US integrity from foreign operators with malicious intent (see: Mr. Putin). In fact, most have gone well out of their way to ensure privacy regulators like the FTC lack the resources or authority to police privacy. Most have worked tirelessly to kill any and every attempt at even the most modest of privacy laws, oppose improving election security, and were utterly absent during the biggest scandals of the era (see: wireless industry’s location data fracas).
Either you care about consumer privacy or you don’t, and the majority of those making the biggest noise about TikTok have made it clear, repeatedly, that they don’t. If we actually cared about US consumer privacy, we’d pass some baseline privacy protections, craft holistic strategies to tackle the IOT dumpster fire, heavily fund election security reform, stop tearing down and defunding our privacy regulators, and actually impose more than theatrical wrist slaps against companies–foreign and domestic–that are provably incompetent or downright malicious when it comes to data privacy and security.
Many of these lawmakers had nothing to say when it was revealed that US wireless carriers were selling access to sensitive location information to every nitwit with a nickel, including stalkers and those pretending to be law enforcement. Many (like Pompeo) cry endlessly about China’s hacking efforts, but do nothing to help fund election security. Many refuse to condone our failures to secure SS7 wireless network vulnerabilities likely exploited by most foreign intelligence agencies for the better part of the last decade.
DC’s hysteria over TikTok is oddly disconnected from our broader privacy and security failures, and intellectual consistency is utterly lacking. It’s also hard to imagine that DC in its current state is capable of separating our obvious domestic financial and competitive motivations from genuine national security concerns.
Yes, the Chinese government is a brutal authoritarian mess, and its treatment of Uighurs Muslims is utterly repugnant. But the idea that you can somehow fix Chinese authoritarianism or US privacy issues just by banning an app rife with dancing teens is laughable to the extreme.
There’s no shortage of existing laws protecting law enforcement officers. So, of course, there’s no shortage of new legislation being introduced to further protect a well-protected subset of government employees. Using a nonexistent “War on Cops” as impetus, legislators all over the nation are submitting bills designed to make harming a cop more of a crime than harming anyone else.
This isn’t just happening at the state level. Last year, Colorado representative Ken Buck introduced a federal “Blue Lives Matter” law, which would have turned attacks on cops into “hate crimes.” The bill is a ridiculous extension of protection to officers who aren’t in any more danger than they were a decade ago, histrionic statements by various federal officials notwithstanding.
Buck’s bill has gone nowhere in the last year. It’s been sitting in a House subcommittee since April of last year. But one bill’s failure doesn’t predict the future performance of similar legislation. As Reason’s C.J. Ciaramella reports, a similar bill — Florida rep Vern Buchanan’s “Thin Blue Line Act” — has cleared the House Judiciary Committee.
The House Judiciary Committee advanced a bill Thursday, the Thin Blue Line Act, by a 19-12 vote that would make the killing of a state or local law enforcement officer during the commission of a federal crime an aggravating factor for juries to consider when weighing a death penalty sentence.
All well and good, I suppose, although the bill is pretty much a carbon copy of Florida rep David Jolly’s 2015 proposal, right down to the bill’s name. Like Rep. Buck’s bill, Jolly’s made it as far as a committee referral before stalling out. Buchanan’s bill, however, now has a greatly increased chance of being pushed towards the President’s desk.
But to what end, asks Ciaramella? The law apparently does nothing more than signal supporters’ cop-supporting virtue.
The legislation would be largely symbolic. Federal death penalty cases are exceedingly rare, and executions at the federal level are even rarer. The last federal execution took place in 2001, when Timothy McVeigh was executed for the Oklahoma City bombing. Most homicide cases are prosecuted by states.
Congressman Bob Goodlatte seems to feel the bill will be most useful when deployed in terrorism cases, but otherwise admits practical applications will be few and far between. The bill has support from police unions but, more importantly, it certainly has the support of the DOJ and the President. This bill caters to Trump’s “law and order” push and does a fair amount of sucking up to Attorney General Sessions himself.
Attorney General Jeff Sessions introduced similar legislation in 2015, when he was a U.S. senator, saying “the alarming spike in violence directed against the men and women entrusted with ensuring the safety and order of our society must be stopped…”
The “alarming spike in violence” Sessions was apparently referring to was the increase of police killed in the line of duty by one over 2014’s total of 122… which itself was below the average for the preceding ten years (~150 per year).
The bill’s being tossed into a pretty receptive Congress. It won’t really need the support of powerful police unions, though — not when the head of the DOJ has previously expressed his legislative desire to give cops even more protection.
