Too many Democrats, unfortunately, fail to see that two bills aimed at reducing the market power of certain companies – bills co-sponsored by Democratic senators – could produce similar unfortunate results. The proposed legislation would ban “self-preferences” of various kinds, preventing tech companies from favoring their own services, or apps, over similar ones offered by other companies. This seems reasonable at first glance. But the bills would give creators of services and apps that give free rein to hate speech and misinformation a potent weapon to use in court: if Apple or Google kicked them out of app stores or downgraded them into search results, these companies could argue that the decisions weren’t about content moderation at all, but rather about market dominance.
At the very least, such claims would have to be litigated – an expensive proposition, with no guarantee of victory. Alternatively, Apple, Google and other companies could become less vigilant about filtering out hate speech and misinformation. You may be wary of Big Tech’s market power and think that the implication of these bills for speech streamed online is extremely bad.
The first bill, sponsored by the senses. Amy Klobuchar (D-Minn.) and Charles E. Grassley (R-Iowa), is called the American Innovation and Choice Online Act, and it targets multiple types of activity by major Internet platforms. Platforms could not favor their own “products, services or industries” over those of any other company on the platform. They also could not “discriminate in the application of the application of the terms of service…among business users in a similar situation”. A second bill, sponsored by Klobuchar, Sen. Richard Blumenthal (D-Conn.) and Sen. Marsha Blackburn (R-Tenn.) is similar, but only focuses on app stores like the Apple App Store and the Google Play Store. It would ban companies from promoting their own products, or those of their business partners, above others and would require users to be allowed to download apps from alternative sites.
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To get an idea of the possible unintended consequences of these bills, consider what happened after the January 6, 2021, uprising. Amazon, Apple, and Google banned the social media site Talk from their app stores. and their hosting services, arguing that the company allowed speech inciting hatred and violence on its site. Under current law, these companies were and are well within their legal rights to harbor or evict whomever they choose. But if those bills pass, Parler — or sympathetic attorneys general like Ken Paxton (R) of Texas — could sue, arguing that the app has received worse treatment than other similar apps.
This is not just a hypothesis posed by two law professors. Parler has made these sorts of antitrust arguments in court before. After Amazon stopped hosting Parler through Amazon Web Services, for example, Parler argued in a legal complaint that Amazon was abusing its market power to “destroy a booming tech company.” Parler argued that Amazon’s business partner Twitter, and even Amazon itself, were hosting material inciting violence, and that Amazon’s platform was in fact “designed to crush one economic competitor at a time.” ‘itself and a major client’. Speaking lostbut the new bills would provide a much stronger basis for such claims in the future.
Suppose Truth Social – President Donald Trump’s Twitter rival – becomes a hotbed of election misinformation, vaccine misinformation and racist rhetoric, and Apple decides it’s breaching its App Store. guidelines, which require app makers to filter out objectionable content. Would Truth Social or an ideological ally sue, arguing that Apple preferred its own News app, or its business partner’s Twitter app? Some justices, and perhaps a majority of the Supreme Court, would support such claims. After all, that would have represent differential treatment between similar apps (although of course Apple can argue that all apps that enable misinformation are treated the same). Sen. Ted Cruz (R-Tex.) is among those who have noticed that these bills could lead to results similar to those of Texas’ recently gutted content moderation law. The bill targeting app stores “would make a positive improvement to the problem of censorship”, he said. said when marking up the invoice.
The Klobuchar-Grassley bill allows companies to defend themselves against lawsuits by showing that their actions were taken to protect security, user privacy, or platform security, but that defense would likely prove insufficient. . Apple or Google would bear the burden of proving that their actions were “reasonably necessary” to protect those specific interests. And even showing that the removed app or speech was sexist, racist, anti-Semitic or Islamophobic wouldn’t be enough. The other bill’s safeguards against abuse are even weaker.
Some supporters of the bill have suggested that Section 230 of the Telecommunications Act – the law that immunizes Google and Facebook from lawsuits based on their decision to host or remove content created by end users – will protect against the abuse of such bills by potential defendants. But we’ve studied the long and evolving Section 230 case law, and we can’t predict with certainty that every court will see the decision not to provide hosting, app store access, or other services covered by this law. Litigants, after all, will say that disputes are precisely not on user content, but rather on market dominance.
The First Amendment could also potentially protect Amazon, Apple, Google and Facebook if they are sued for refusing to host racist, insurgent or otherwise harmful content, as this could constitute an unconstitutional burden. theirs expressive interests. But there is little consensus within the federal judiciary on this issue; after all, the Fifth Circuit upheld the Texas law before the Supreme Court (temporarily) blocked it — and the appeals court is still evaluating that law.
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Note that if the internet platform loses, the Klobuchar-Grassley bill would subject it to a penalty of up to 15% of its US revenue (not just profits), a risk few companies would be willing to take. Blumenthal’s bill would be less severe, assessing only triple the damages.
The authors of the Klobuchar-Grassley bill acknowledge that this could affect the platforms’ moderation of activity. The bill therefore explicitly excludes from its definition of illegal activity any reasonable action that 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 do not receive similar protection.
Reasonable minds may disagree on how companies like Apple should handle what they believe to be misinformation or hate speech. But federal law shouldn’t actually Obligate private companies to host applications they would prefer to remove for reasons that have little to do with eliminating competitors. Yet these bills would do just that, in the name of fighting monopoly power.