The Weak Argument That Endangers the US Innovation and Choice Online Act

opponents of the antitrust pushes targeting Big Tech have advanced all sorts of arguments to try to weaken support for new legislation. Maybe they’ve finally found one that sticks.

This week, a group of four Democratic senators led by Brian Schatz, of Hawaii, sent a letter to Amy Klobuchar asking them to pump the breaks on the US Innovation and Choice Online Act. The bill, which Klobuchar co-sponsored with bipartisan support, would prohibit the largest tech companies from abusing their power to disadvantage companies operating on their platforms. But Schatz’s group argues that there is a terrible side effect buried in the legislation. The bill, they argue, would prevent dominant platforms from enforcing their content policies, which in turn would “strengthen harmful content online and make it harder to fight.”

Here’s what the bill says about content moderation: nothing. The relevant section says that a “covered platform” – such as Google, Amazon, Apple, Meta or Microsoft – cannot “discriminate in the application or enforcement of the covered platform’s terms of service between comparable business users in a way that would materially affect competition.” harm.” This does not appear to prohibit or restrict the content policy. Rather, it suggests that platforms can continue to enforce their terms of service –just not in a discriminatory way† On the face of it, this means that a dominant platform cannot apply its rules unfairly against a company that relies on it to reach customers. For example, if a new video-sharing app were to hurt YouTube’s market share, this provision would prevent Google from selectively invoking a little-used policy to ban it from its app store.

If the bill doesn’t address content moderation, where did some people get the idea that it would have consequences anyway? In part, it’s a talking point for an industry that isn’t shy about coming up with creative arguments to overturn proposed regulations. But tech insiders aren’t the only ones making this claim. Last week, law professors Jane Bambauer and Anupam Chander published an opinion piece in the Washington Post give pretty much the same warning. On Wednesday, Chander, who teaches in Georgetown, walked me through the argument. Take what happened to Parler, the conservative-friendly “free speech” Twitter alternative. Last year, after the January 6 riots, Apple and Google banned Parler from their app stores and Amazon canceled AWS hosting contract. Parler filed a lawsuit, but did not have a legal leg to stand on. (It eventually implemented a content policy and was allowed back into app stores.) Under the new bill, a conservative attorney general, such as Texas’s Ken Paxton, could sue the platforms, claiming they discriminate against Parler because of his conservative affiliation. .

Okay, but couldn’t the companies just say, “But this? was not discrimination: here’s the policy they’ve broken, and here’s the evidence that they’ve broken it”? Not so fast, Chander says. It doesn’t really matter what Google or Amazon says; it’s about what a federal judge, and ultimately the Supreme Court, decides. And many Republican-appointed federal judges may agree that tech companies mistreat conservatives.

“Content moderation decisions are not clear up and down decisions,” Chander says. “It’s easy to label those rulings as discriminatory, especially when you have judges who feel their side is the one being discriminated against.” He adds: “Son, give the conservative judges on these courts a loaded weapon, knowing they’re going to be backed by all conservative Supreme Court justices.”

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