The events of a just-begun 2021 have greatly changed the prospects for progressive proposals to rein in the power of Big Tech. If there was any doubt that Amazon, Google, Twitter and Facebook are facing treacherous waters, the January 6 riot at the U.S. Capitol made it quite clear that these giants have not done enough to moderate harmful speech. Post-insurrection decisions by Twitter, Google and Facebook to shut down speech that helped incite violence were insufficient and too late, critics say. “They bear major responsibility for ignoring repeated red flags and demands for fixes,” charged Sen. Richard Blumenthal (D-Conn.).
The January 5 Georgia Senate election gave Democrats control of the House, Senate and White House. Those two events are putting Democratic leaders in the driver’s seat at a time when public wariness of the tech giants has never been higher.
That may smooth the path for progressives worried about tech’s size and influence. Nevertheless, they will be confronting enormous corporate power:
Amazon is the nation’s largest online seller, with 70% of the online market. The $1.5 trillion company, which is the dominant bookseller in the country, is now also a movie producer, a grocer through its acquisition of Whole Foods, and offers cloud computing services.
Critics say that Facebook has often failed to curb hate speech or misinformation, distorting the public’s perception of the difference between fact and fiction. The company, which reported revenues of $70 billion in 2019, mostly from ads, also has the habit of buying social media rivals, including Instagram and WhatsApp, as a way to eliminate competition and consumer choice.
Google is the world’s dominant search engine, making it nearly impossible for any competitor to gain a foothold in the marketplace, and raising questions about how Google algorithms determine which content comes up first in searches, often jeopardizing local news sites, which often aren’t displayed prominently in searches. (Google is a subsidiary of Alphabet, which also owns YouTube.)
All these mega-companies gather enormous amounts of personal information about consumers, jeopardizing their privacy rights.
Google and Facebook are the targets of multiple lawsuits filed by state attorneys general, the FTC and the Trump Department of Justice.
Antitrust, privacy and Section 230
But litigation alone won’t address everything, says Georgetown University Law Professor David Vladeck, former head of the Federal Trade Commission’s Bureau of Consumer Protection. Vladeck put Big Tech’s problems into three silos: “privacy, Section 230 of the Communications Decency Act, and whether we need to modernize our antitrust laws … Those are the big questions, questions Congress has ducked for the last many years,” he says. “And at some point, we need to get them resolved.”
Section 230 largely grants internet companies immunity from liability for materials that third-party users post, with just a few exceptions, including violations of intellectual property law and federal sex trafficking law. But it also permits these companies to make “good faith” efforts to moderate objectionable content that is posted on their sites. “As a regulator, I was very frustrated by it,” Vladeck says. He adds that as “someone who cares about democracy,” Section 230 has “real problems. … I’m not suggesting that it needs to be abolished, but I do think some fine-tuning would be helpful.”
Privacy protections are another area of concern, he says. “The FTC has done what it can in trying to rein in companies like Facebook,” Vladeck says. “But there are limits to what the FTC can actually do.” He points out that the FTC “doesn’t have privacy jurisdiction; it has deception jurisdiction.”
Nor were antitrust laws designed to address “an economy in which personal data is the coin of the realm, not cash,” he adds.
Section 230 and racial justice
Spencer Overton, president of the Joint Center for Political and Economic Studies, is concerned that Section 230 has given social media companies a free pass when it comes to the way they employ their algorithms and user data to target ads. Facebook has “claimed to be immune from complying with federal civil rights laws” through its algorithms, its data collection and “its assessment of who is interested,” when directing employment and housing ads to white Facebook users and away from people of color, he says. That claim of immunity has also made it possible for ads specifically designed to suppress the vote to target Black and Latino voters. When such ads are “delivered along racial lines, and there’s this racial skew … Facebook is making a material contribution to the discrimination,” and should be held accountable, he says.
“Congress should clarify the law and explicitly state that Section 230 doesn’t protect that kind of activity.”
On the other hand, Overton makes clear that efforts by the Trump administration to gut or eliminate Section 230 were harmful. Making it much more difficult for internet platforms to moderate content on their sites without fear of liability would prevent social media companies from taking down “hate speech against people of color” and “ads or deceptive practices in terms of voting.” The ability of social media companies to moderate content also is “incredibly important” to preventing disinformation, he says.
Many Democrats will be active in the Big Tech scrum
To address these questions, many Democrats in both chambers will have roles to play. Sen. Amy Klobuchar (Minn.), who likely will chair the Senate Judiciary Committee’s subcommittee on antitrust, competition and consumer rights, made opposition to Big Tech and protecting the privacy of user data an important part of her presidential campaign. Her Honest Ads Act, co-sponsored by Sens. Mark Warner (Va.) and Lindsey Graham (R-S.C.) would require the same disclosures on internet political ads that are required for broadcast ads. It did not pass in 2020, but has better prospects this year. Warner, who made his fortune in tech, is a Senator who actually understands the internet and the threats posed by foreign interference in elections. He’s “very sensible” on these issues, Overton says.
Sen. Brian Schatz (Hawaii) will likely chair the Senate Commerce Committee’s Subcommittee on Communications, Technology, Innovation and the Internet. In 2020, he teamed up with Sen. John Thune (R-S.D.) on legislation to require social media companies to disclose what constitutes acceptable content on their platforms and permit users to challenge moderation decisions.
Blumenthal has sponsored bipartisan legislation with Graham imposing new restrictions on social media companies in an effort to protect children from exploitation.
Reps. Frank Pallone, (N.J.) chair of the House Energy and Commerce Committee, and Yvette Clarke (N.Y.) committee vice chair, have been engaged on these issues, and have a powerful perch to hold more hearings on them.
On the privacy front, Public Citizen’s digital rights advocate Emily Peterson-Cassin cited House progressive stalwart Rep. Jan Schakowsky (Ill.) as well as Sen. Ed Markey (Mass.). He has been “a longtime leader on children’s privacy,” she responded in an email. Markey, a key figure in the passage of major telecom bills in the 1990s, has also pushed for greater access to broadband, proven to be a necessity in a Zoom-focused, pandemic-ridden world.
The big five
Nevertheless, it may be five Democrats, either by virtue of their power in the Senate or their visibility on this cluster of issues, who may be best poised to influence the progressive debate on curbing Big Tech:
Rep. David Cicilline (R.I.), chair of the House Judiciary Committee’s Subcommittee on Antitrust, Commercial and Administrative Law
Beginning in 2019, Cicilline helmed an intensive 16-month bipartisan investigation of the business practices of Amazon, Apple, Facebook and Google, conducted hearings, and came up with reforms. Not only did committee Democrats recommend more aggressive enforcement of current antitrust laws, they urged that laws be strengthened to prevent, for example, the practice of buying new companies to quash their growing popularity, and major structural changes that would curb the companies’ monopoly power in the marketplace.
While the committee’s work had been bipartisan, committee Republicans demurred from signing on to the final report, complaining that it did not address their concerns about the suppression of conservative views on social media platforms, and that some of its restrictions on Big Tech would hurt business and the economy.
Sen. Maria Cantwell (Wash.), expected chair, Senate Committee on Commerce, Science and Transportation
Last year, as ranking member of the Senate Commerce Committee, Cantwell proposed a strong and comprehensive consumer privacy bill. Now expected to chair the panel, Cantwell will be able to push for passage of the Consumer Online Privacy Reform Act, which was also supported by Democratic colleagues Markey, Schatz and Klobuchar. In a press release from Cantwell’s office, Vladeck praised the bill for giving consumers control of their personal information and providing the FTC “real tools” to hold tech companies accountable. Cantwell also blames Facebook and Google for using their monopoly power to take content from local news outlets without giving them adequate compensation, and likely will push for solutions to the problem.
Sen. Elizabeth Warren (Mass.)
Warren speaks for the “left flank” when it comes to Big Tech, says Jeff Hauser, director of the Revolving Door Project. Indeed, in 2019, the Warren campaign paid for a huge billboard near major San Francisco tech companies proclaiming “Break Up Big Tech.” She’s proposed that the government reverse previously approved acquisitions of Whole Foods by Amazon, and WhatsApp and Instagram by Facebook. Hauser adds that “one of Warren’s proteges,” former aide Rohit Chopra, now serves as a commissioner on the five-member FTC. (On January 18, Biden tapped Chopra to head the Consumer Financial Protection Bureau.)
Sen. Ron Wyden (Ore.)
Wyden is the author of Section 230. At a time when the public desire to regulate Big Tech has never been greater, Wyden can be expected to temper those efforts. He opposed Trump’s effort to repeal Section 230 and Blumenthal’s restrictions amending it. “[W]ithout 230, the people without power—people leading movements like #MeToo and Black Lives Matter—would find it far harder to challenge the big corporations and powerful institutions,” Wyden wrote in 2020. “Without 230, I believe that not a single #MeToo post would have been allowed on moderated sites.”
Sen. Majority Leader Chuck Schumer (NY)
Schumer has “significant input” on the personnel decisions the Biden administration makes, and will also be “channeling and representing the broader Senate caucus views” on tech and other issues, Hauser says. Schumer can also help steer badly needed federal dollars to key agencies. He adds that he had been “disappointed” when Democrats agreed to a spending bill with Senate Republicans lasting until September, when they didn’t know the outcome of the Georgia elections. Nevertheless, at some point, “the Department of Justice antitrust division, the FTC and the courts are going to need more money so they can hire more lawyers, economists and technologists,” Hauser says. “There’s a real risk they might lose litigation because they’re going up against the richest companies in the world.”
Schumer’s former Chief Counsel Rebecca Slaughter is now an FTC commissioner, Vladeck points out, and may likely be FTC chair this year. “Her connection with Schumer is going to be an important piece of the puzzle,” he says. (President Joe Biden named Slaughter Acting FTC chair January 21.)
Congress must face a fundamental question
Overton says that one question drives the debate over Big Tech: “What is the role of government, and what is the role of the private sector in both protecting consumers and facilitating innovation?” He contends that tech companies “have been particularly clumsy on issues of race, and are often politically tone-deaf, generally. At the same time, many in Washington lack a basic understanding of technology. As a result, expertise and leadership on tech policy is particularly important and will shape the future of the nation.”
Real reform is challenging, he observes. “It’s not as simple as a complete government takeover” or letting “the markets take care of everything. … Law definitely has a role to play moving forward. This can’t just be an unregulated space.” But determining the proper role of government will continue “for at least the next decade. That’s the issue. That’s the tension. That’s the debate.”
