For the last few months we’ve been writing a lot about AICOA, the American Innovation and Choice Online Act, being pushed for by Senator Amy Klobuchar. It’s an antitrust bill, but not an antitrust bill designed to fix the whole host of problems we have today with industrial consolidation and anticompetitive practices. No, it’s just a bill to target a few specific practices of a narrow slice of the tech industry. And, it only has bipartisan support (barely) for one reason, and one reason only: because Republicans believe that the vaguely worded law will be a tool they can use to batter companies for content moderation decisions they disagree with. This isn’t some conspiracy theory. This is literally what the Republicans themselves are saying. Out loud. Over and over again.
Klobuchar has had multiple chances to clarify the language in her bill to prevent this abuse. But she chose not to. The only changes she included were to make sure the bill really only targeted tech, by explicitly carving telcos and financial companies out of the bill.
For the last few months, cringe-inducingly called “hot antitrust summer” by supporters of this bill, we were told the bill needed to get a vote this summer. Chuck Schumer apparently promised a vote this summer. And, even John Oliver was coaxed into an unfortunately confused piece about the law encouraging his fans to urge Schumer to bring the law to a vote.
But, as Schumer himself has been explaining to party insiders, the bill doesn’t have the votes to pass. It appears that there are enough Senators who are reasonably concerned about the vague language of the bill being open to abuse that they won’t vote for it. And fixing that language would lose votes on the Republican side.
All summer long, Klobuchar has been insisting, without proof, that they did have the votes to pass it, and urging Schumer to bring it to the floor. However, she’s finally admitted that’s not going to happen, and that there will be no vote before the recess. She still appears hopeful that it will happen in the fall, but that may be an even harder lift with the midterms rapidly approaching.
There are plenty of good reasons to be concerned about the power of some of the largest tech companies. But this is not the bill to fix it. Just the fact that Republicans are openly and eagerly explaining how they’ll abuse this law should have made that clear to everyone who has good faith reasons for supporting this bill. It’s been frustrating how quickly some folks have decided they can bend on their overall principles just because they believe this bill has a chance of passing. There are some good things in this bill, but the bill has serious problems and not just the potential for abuse — rather it has a bunch of supporters gleefully telling you how they’re going to abuse it.
If the law won’t pass without the ability to abuse it, the law shouldn’t pass. Go back and write a better bill.
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.
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.
