Provision in Senate Antitrust Bill Would Undermine the Fight Against Online Hate and Disinformation

WASHINGTON — On Thursday, the Senate Judiciary Committee will mark up a much-discussed antitrust bill predominantly intended to prevent self-preferencing by a handful of the world’s largest tech firms.

The American Innovation and Choice Online Act, S.2992, is described as antitrust reform, but applies to only a few companies — online entities above high-user thresholds or with annual revenues of more than half a trillion dollars. That means Amazon, Apple, Facebook and Google, possibly other U.S. companies like Microsoft and Walmart, and potentially large Chinese firms like Tencent and TikTok too.

But in addition to banning conduct that favors these platforms’ own sites and services, such as Apple favoring its own mapping application over those created by rivals, Section 3(a)(3) of the amended version of the bill in today’s markup also prohibits covered platforms from “discriminating” against any of what the bill describes as “similarly situated business users,” even if the platform itself does not compete with those businesses.

That provision would make it difficult or impossible for covered companies to deplatform and remove from their sites any business that traffics in hateful, racist, violent or otherwise harmful content. Free Press Action raised the same concerns about a version of this bill that came out of the House Judiciary Committee last June.

Free Press Action Associate Legal Director and Senior Counsel Carmen Scurato said:

“Free Press Action is committed to reinvigorating antitrust law and reining in tech-company abuses. But we have major concerns with a provision in the American Innovation and Choice Online Act on tap for the Senate Judiciary Committee at this morning’s markup.

“The nondiscrimination language in Section 3(a)(3) differs from other provisions of this bill, because it isn’t merely a ban on big platforms giving their own products an advantage over those of companies that want to compete with the likes of Google, Facebook and Apple.

“This provision could require platforms to host hate speech and other harmful content targeting Black and Brown people, the LGBTQIA+ community, women, immigrants, Indigenous people and other targeted populations. It opens the door to arguments that covered platforms are unlawfully discriminating against hate-and-disinformation purveyors by taking them down. State AGs and future FTC officials charged with enforcing this bill could easily but falsely paint apps like Parler or businesses like Infowars as ‘similarly situated’ to other apps and sites that remain available on the covered platforms.

“While the Senate co-sponsors have made some changes to the version that emerged from the House — presumably to address the concerns we raised last summer — the language released yesterday still doesn’t resolve them. Free Press Action cannot support this bill unless this problematic provision is removed or is dramatically scaled back.

“The bill’s defenders argue that S.2992 doesn’t interfere with content-moderation policies because carve-outs in the bill text allow covered platforms to enforce their terms of service however they see fit as long as they don’t discriminate. But that’s the whole point and problem: this bill opens the door to suits by federal and state officials arguing that those terms of service themselves discriminate against certain viewpoints, claiming 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.

“Free Press Action has made the case for new laws and regulations to be applied to big platforms. We’ve also argued that promoting quality local journalism, protecting privacy, defending people’s civil rights, prohibiting data abuses and combating hateful and violent disinformation all require many more tools than antitrust alone. 

“Promoting competition is one way to hold Big Tech more accountable to the people, but it doesn’t solve all of the problems we’re facing. It doesn’t necessarily start a race to the top to protect people’s data, instead of a race to find new ways to extract and exploit that data. Nor does competition for attention online necessarily start a race to produce more truthful information, instead of more sensationalized clickbait, and more outright vile racist or misogynistic content. 

“This provision in the American Innovation and Choice Online Act takes a big step in the wrong direction when it comes to that last category of ills by potentially outlawing the tools the largest platforms use for removing and reducing the reach of hate speech and other harmful content.”