Sunday November 27, 2022

Lawmakers approve Big Tech antitrust overhaul, but with strings attached

After hours of long debate, Congress is now one step closer to implementing transformative antitrust reforms for the tech industry. The Senate Judiciary Committee approved Thursday’s American Innovation and Choice Online Act with a 16-6 vote. The bill, sponsored by a bipartisan group including tech hawks such as Sen. Amy Klobuchar (D–MN) or Josh Hawley(R-MO), would prohibit dominant tech platforms and companies from favoring their services and products over their competitors.
After a week of antitrust actions by the federal government, which has spooked tech industry and sent lobbyists into a frenzy, the committee’s successful vote was a welcome result. The bill prohibits self-preferencing (such as Amazon placing its own brand products above better-rated competitors), but it also requires platforms to apply their terms and conditions equally to all users.
Despite the committee’s success, the bill will face a difficult fight in the months ahead. Apple and Google made a number of criticisms of the bill in the days before the vote. This was followed by an industry-led attack against the bill. Tim Powderly, Apple’s senior Director of Government Affairs, warned that the bill could compromise consumer privacy and security. Kent Walker, Google’s President of Global Affairs and Chief Legal Officer, claimed that the bill would make Google’s search engine less useful for consumers.
Apple’s security concerns are specifically related to language in the bill that Apple fears will allow iPad and iPhone users to download apps beyond the App Store. Powderly claimed that this provision could cause harm to users who might download unscreened, potentially harmful software to their devices. The bill, if passed, would make it difficult to collect the 30% commissions Apple sometimes receives from developers for App Store purchases.
NetChoice, an industry group supported by tech, expressed similar concerns. They said that the vote was too fast and didn’t allow lawmakers enough time to fully comprehend the bill’s language.
“Lawmakers need to stop backroom wheeling and dealing and instead seek the input of economists and experts to better understand the impacts of this rushed legislation,” Carl Szabo (NetChoice’s vice-president and general counsel) said in a statement following Thursday’s vote.
The bill’s sponsors attempted to calm concerns from the industry and their coworkers about the legislation. Senator Chuck Grassley (Republican from Iowa) stated in his opening remarks that “this bill is not intended to break up Big Tech nor destroy the products or services they offer.” He said, “Rather, it is meant to prevent conduct that stifles innovation and ensure that pro-consumer offerings and innovations are still available.”
Senators from both sides of the aisle presented amendments to address additional concerns about privacy, censorship and national security. Sen. Ted Cruz (R.TX) stated that he had several amendments that would allow users the ability to sue platforms that they believe are causing them harm.
Cruz stated during Thursday’s markup, “The abuses by Big Tech are such that it is so that I am happy unleashing the trial lawyers.”
Cruz didn’t offer any of the amendments. He stated that Klobuchar, the bill’s sponsors, and he are working together to include this language into the final bill text.
Free Press and other progressive groups raised concerns about the provision. They suggested that it could make it more difficult for platforms like Facebook or Google to deplatform hateful or racist users or publications like Daily Stormer, which is a white supremacist website.
Free Press released a statement on Thursday saying that this provision could make it illegal for platforms to host hate speech or other harmful content targeting Black and Brown peoples, the LGBTQIA+ community and women, as well as other targeted populations. “It opens the door to arguments that covered platforms are unlawfully discriminating against hate-and-disinformation purveyors by taking them down.”
The Senate approved a similar bill last summer, but the House Judiciary Committee passed it. The bill has not yet been voted on the House floor. It must be approved by both houses of Congress before it can go to President Biden’s desk.
Although the White House has not made any statements supporting the legislation, administration officials met with representatives from companies that have previously criticized Big Tech, such as Yelp and Sonos, on Wednesday.
“Participants discussed the challenges their businesses face operating through third-party platform to reach large number of customers,” reads the report from the meeting. “A lot of participants expressed difficulty paying both the fees platforms charge and the indirect costs of advertising or supplemental services to maintain their business’s ranking on platforms.

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