The antitrust subcommittee of the House Judiciary Committee recently released five highly anticipated bills aimed at curbing the power of the Big Tech companies. The House is currently under the control of the Democrats, but these bills have been pitched as a bipartisan effort, led by subcommittee chairman Rep. David Cicilline (D-RI) and ranking member Rep. Ken Buck (R-CO).
Republicans have developed an unfortunate habit of backing “anti-Big Tech” bills without looking too closely at the details. Recently, this has resulted in several members signing on to a particularly disastrous bill called the Journalism Competition and Preservation Act, which aims to “fix” Big Tech by empowering Big Media — the very force that pressured Big Tech into censoring its platforms in the first place. With opposition from GOP leader Kevin McCarthy, Jim Jordan, and other prominent Republicans, the bill has stalled — but no Republican should have signed on to it in the first place.
So what about these new antitrust bills? There are no fewer than five of them, including a funding bill that appropriates hundreds of millions in taxpayer dollars to the FTC and Department of Justice.
Rep. Buck, a Republican who is leading the charge to make these bills a bipartisan effort. However, Minority Leader Rep. McCarthy and Judiciary Committee ranking member Rep. Jordan oppose the bills — are they right?
Buck claims the bills will address perhaps the biggest concern for conservatives: censorship. This is not true — none of the bills address the problem of censorship directly, or reform Section 230, the law that gives Big Tech wide legal immunity to censor. Buck has also claimed that the legislation “breaks up” Big Tech, which is also not really true — one of the bills makes future acquisitions more difficult for the tech companies, but it does not separate their existing businesses.
It’s hard to believe that any bills with Rep. Cicilline behind them would address censorship, given that he was demanding Twitter censor Donald Trump less than a week after election day 2020.
Instagram was a competitor to Facebook. Then Facebook purchased them to eliminate competition.
My antitrust bills address this problem. https://t.co/c9C4KAzkSJ
— Rep. Ken Buck (@RepKenBuck) June 17, 2021
If you look only at what the bills say they will do, you might come away thinking they’re quite good, or at least have some good things in them. One of them, the Ending Platform Monopolies Act, declares the largest of tech companies (those with a market cap higher than $600bn) may not “exclude from, or disadvantage, the products, services, or lines of business on the covered platform of a competing business or a business that constitutes nascent or potential competition to the covered platform operator.” Another, the ACCESS Act, mandates that those companies keep their platforms interoperable with competitors.
That seems like good news for competition, including free speech alternatives to Google-owned YouTube like Rumble and Bitchute. So what’s the catch?
Well, one big catch is enforcement. Every single one of the bills (apart from the funding bill) gives enforcement power to the Federal Trade Commission (FTC) and the Department of Justice (DoJ). That is by no means necessary — there are plenty of other enforcement mechanisms, including enforcement via state attorneys general, and enforcement via a private right of action for injured parties. Lawmakers chose to hand enforcement power to the Biden administration instead.
The amount of enforcement power is quite extraordinary. Under the bills’ provisions, the tech giants could face fines of 15 percent of their total U.S. revenue in a calendar year, as well as 30 percent of the revenue of any injured party during the period in which they were discriminated against. These amount to colossal sums of money, far beyond even the multi-billion dollar fines levied against the tech giants by EU regulators.
That is a massive sledgehammer that Congress wants to give the Biden administration. More specifically, they want to give it to the FTC, the new chairwoman of which, Lina Khan, has made it quite clear that she considers “disinformation” on tech platforms to be a major problem. Here’s what she said in an interview with the Los Angeles Review of Books last year:
Concentrated control, coupled with a business model that incentivizes the dissemination of disinformation and inflammatory content (in the case of Facebook and Google), or that strategically treats books as a loss-leader in order to sell a much broader panoply of consumer goods and Prime memberships (in the case of Amazon), has proven a highly damaging combination. [emphasis ours]
Khan also played a leading role in an antitrust investigation led by the same congressional committee that produced these bills. The investigation was led by the chairman of the Judiciary Committee, Democrat congressmen Jerry Nadler (D-NY) and David Cicilline (D-RI), the chairman of the antitrust subcommittee and the leading Democrat congressman pushing these bills.
Here is what that report had to say:
Indirectly, the atomization of news may increase the likelihood that people are exposed to disinformation or untrustworthy sources of news online. When online news is disintermediated from its source, people generally have more difficulty discerning the credibility of reporting online. This process may also “foster ambivalence about the quality and nature of content that garners users’ attention,” particularly among young people. [emphasis ours]
Heaven forbid that young people start to think that CNN and the New York Times aren’t the high-quality news sources they claim to be!
But that’s not all. Here’s the next paragraph:
For example, during the Subcommittee’s sixth hearing, Subcommittee Chairman David N. Cicilline presented Facebook CEO Mark Zuckerberg with evidence of a Breitbart video that claimed that “you don’t need a mask and hydroxychloroquine is a cure for COVID.” As he noted, within the first five hours of this video being posted, it had nearly “20 million views and over 100,000 comments before Facebook acted to remove it.” Mr. Zuckerberg responded that “a lot of people shared that, and we did take it down because it violate[d] our policies.” In response, Chairman Cicilline asked if “20 million people saw it over the period of five hours . . . doesn’t that suggest, Mr. Zuckerberg, that your platform is so big that, even with the right policies in place, you can’t contain deadly content?” Mr. Zuckerberg responded by claiming that Facebook has a “relatively good track record of finding and taking down lots of false content.” [emphasis ours]
Breitbart News did not, in fact, claim that — it was a livestreamed press conference of medical professionals who claimed that.
Not that it matters. The goal of the Democrats (and, it seems, Lina Khan) is as clear as ever — to use antitrust, and other regulatory sledgehammers, to get tech companies to censor dissenting viewpoints — including impartial reporting from Breitbart News. Even as new information emerges revealing that many of the coronavirus stories denounced and censored as “misinformation” were, in fact, probably true, they remain committed to this authoritarian objective.
The fact that Biden pulled a bait-and-switch on Republican senators, by breaking with precedent and naming the 32-year old Khan, well known as an antitrust radical, to the position of FTC chairwoman right after she was confirmed as a commissioner, should be a big red flag. The Biden administration is sending a signal to Silicon Valley that it is fully prepared to use the power of the federal government to inflict pain on tech companies.
When the Democrats were out of power, their allies in the media whipped up massive advertiser boycotts against tech platforms like YouTube and Facebook as punishment for not censoring enough “misinformation” and “hate speech.” To that already-formidable weapon, these bills would allow the Democrats to add the threat of huge FTC and DoJ penalties for platforms that don’t play ball.
Speaking of which, one name that should be top of mind for every Republican supporting these bills is Associate Attorney General Vanita Gupta, the third-ranking official at the DoJ.
Gupta was confirmed to her position by the Senate in April, against the opposition of every Republican Senator. And there’s a reason they all opposed her — she is a rabid, frothing-at-the-mouth partisan who wants nothing more than to see conservatives banned from every major tech platform.
Here is just a small selection of the material she published prior to becoming Associate Attorney General:
In a 2019 article for Politico, she attacked Facebook for refusing to censor politicians:
With its new policy, Facebook will automatically presume speech from politicians to be newsworthy. Simply put: While major news organizations are strengthening fact-checking and accountability, Facebook is saying: If you are a politician who wishes to peddle in lies, distortion and not-so-subtle racial appeals, welcome to our platform… This is extraordinarily reckless. In effect, Facebook is providing politicians free rein to spread misinformation and racially divisive content with no accountability. [emphasis ours]
We need expanded vote by mail with things like prepaid postage stamps. You’ve seen and heard about the attacks on the US Postal Service that are causing delays. Therefore, it’s really important that states change the rules to allow ballots that are postmarked on or before Election Day to be counted. It’s really important also that people apply for their absentee ballots and vote early so as not to overwhelm the system… In 2018 one in four voters voted by mail. You need massive voter education around the country. That’s also going to cost money. And we need to be fighting disinformation on platforms like Facebook and others. [emphasis ours]
And in a press release a month before the election, Gupta praised Facebook for its interference in the process:
We are seeing unprecedented attacks on legitimate, reliable, and secure voting methods designed to delegitimize the election. These are important steps for Facebook to take to combat disinformation and the premature calling of election results before every vote is counted.
Perhaps Gupta isn’t going to be involved in antitrust enforcement? Nope. In her Senate confirmation hearing, she specifically promised to take a leading role in antitrust enforcement, telling Sen. Chuck Grassley (R-IA) that she would “bring the full force of our country’s antitrust laws to bear.”
The antitrust laws proposed by Reps. Cicilline and Buck amount to a massive regulatory sledgehammer against Big Tech. And the person who has promised to wield that sledgehammer is… Vanita Gupta!
It didn’t have to be this way. As I said earlier in the piece, enforcement could be handled exclusively via state AGs, or via private rights of action. If that were so, these bills could have sailed through Congress with minimal opposition from Republicans. But the Democrats want to give power to the likes of Vanita Gupta, so that is now unlikely to be the case.
One way these bills could possibly work is if a sixth bill were included, one which directly addressed the problem of censorship and deplatforming — a bill with a common carrier provision or something similar. That would be a truly bipartisan agenda, and would alleviate concerns that Biden officials would use their new enforcement power to demand yet more censorship from Silicon Valley. As it stands, the bills fail to directly address the number one issue that conservatives have with Big Tech, which is censorship.
With proper enforcement, the bills could indeed solve many egregious problems with Big Tech — but with the amount of power they grant to Gupta, Khan, and other Democrat cronies in the federal government, the overwhelming risk to Republicans interested in supporting these bills is that it will make the problem worse, not better.
There is a lot to unpack and no Republicans should just jump on board reflexively, and risk repeating the mistake made with the terrible JCPA.
Allum Bokhari is the senior technology correspondent at Breitbart News. He is the author of #DELETED: Big Tech’s Battle to Erase the Trump Movement and Steal The Election.