Senators Urge Sen. Klobuchar to Close Hate-and-Disinformation Loophole in Fast-Moving Antitrust Legislation

WASHINGTON — Four U.S. senators have sent a letter to Sen. Amy Klobuchar (D–Minnesota) urging her to address a loophole in a provision of the American Innovation and Choice Online Act (S.2992) that could interfere with online platforms’ ability to combat hate and disinformation. 

The legislation would ban conduct that allows the most dominant technology platforms — Alphabet, Amazon, Apple and Meta — to favor their own sites and services over others. But, as Sens. Tammy Baldwin (D–Wisconsin), Ben Ray Luján (D–New Mexico), Brian Schatz (D–Hawaii) and Ron Wyden (D–Oregon) note, the bill contains language that “would also hinder content moderation practices.” 

In the letter, they urge Sen. Klobuchar to clarify Section (3)(a)(3) of the legislation so that it isn’t misused to help “supercharge harmful content online and make it more difficult to combat.”

Free Press Action has repeatedly raised concerns about this exact provision of the legislation, beginning a year ago when language like this first appeared in a House version of this same bill. Free Press Action warns that Section (3)(a)(3) prohibits these massive platforms from “discriminating” against what the bill describes as “similarly situated business users,” even if the platform itself does not compete with those businesses. As a result, the legislation could prevent top tech platforms from moderating and removing some of the most toxic sites and services on the internet without being sued for supposed discrimination against those businesses.

Free Press Action Vice President of Policy and General Counsel Matt Wood said: 

“We’re encouraged that Senators Baldwin, Luján, Schatz and Wyden are taking a stand against a major loophole in the American Innovation and Choice Online Act. Right now there’s a rush to bring the bill to the floor before that problem is fixed. But the details matter here, and fixing this provision would ensure that a bill designed to counteract big tech platforms’ self-preferencing doesn’t hand people like Texas Attorney General Ken Paxton a new tool to keep vile hate and violent disinformation online. 

“The problem with the current draft of Senator Klobuchar’s bill is that it wouldn’t just ban conduct that preferences these platforms’ own sites and services. It could subject these companies to litigation for deplatforming any business that traffics in hateful, racist, violent or otherwise harmful content. 

“The latest version of the legislation potentially subjects the largest platforms to lawsuits for removing and reducing the reach of hate speech and other dangerous content. With this powerful statute in hand, future federal regulators or state attorneys general could very easily argue that removing apps like Parler and Omnichan or content from Infowars is unlawful. They could claim that what tech companies rightly define as hate speech, incitements to violence or vaccine disinformation is really just competing political or health information that must stay up.

“The proposed fix suggested by Senators Baldwin, Luján, Schatz and Wyden could address these concerns and significantly strengthen the American Innovation and Choice Online Act. Free Press Action urges Senator Klobuchar to work with her colleagues to amend the bill and close this loophole.”