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What’s Happening Inside The Fight To Break Up Big Tech

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The results of a Facebook audit unveiled last month united conservatives and liberals once again in their crusade against big tech, with conservatives charging that the audit was far from thorough and liberals claiming that the study provided thin evidence for unsubstantiated claims of significant anti-conservative bias.

The eight-page report, written by former U.S. Sen. Jon Kyl (R-Ariz.) with Covington law firm at Facebook’s request, revealed that the social media giant has “significant work” to do to satisfy the rights concerns about the platform’s political neutrality. Immediately after it was released, however, U.S. Sen. Josh Hawley (R-Mo.) slammed the report as “smokescreen disguised as a solution,” noting that it was essentially a compilation of interviews inadequate to determine whether the corporation was genuinely fair in its treatment of conservatives.

“Merely asking somebody to listen to conservatives’ concerns isn’t an audit,” Hawley said in a statement.

The left also blasted the report, but for opposite reason, arguing that the report gave credence to conservative claims of political bias that are nowhere to be found.

“Facebook made a grave mistake in allowing external political actors to direct assessment of company policy and practices,” Henry Fernandez, a senior fellow at the Center for American Progress, told Politico.

The episode showcases another example of where, in an era of historic levels of polarization since the Civil War, liberals and conservatives have become unlikely allies in the effort to regulate big tech, although they are often motivated by different reasons and disagree on both the problems and the solutions.

The movement to rein in big tech has grown in recent years with the growth of giant corporations in Silicon Valley, specifically Facebook, Google, Amazon and Apple. Lawmakers in Washington D.C. and Europe have taken notice of the power wielded by tech giants as stories surface of companies violating user privacy laws, possibly participating in unfair trade practices, stifling free speech, and playing growing roles in elections.

“What we’re seeing now is a broad bipartisan consensus where the era of self-regulation has come to an end for Silicon Valley,” said Clara Hendrickson, a tech-policy research analyst at the left-leaning Brookings Institute. “There’s certainly political appetite for greater action.”

2020 Democratic White House hopeful Rep. Tulsi Gabbard (D-Hawaii) has made her case against big tech one of free speech, suing Google for $50 million in damages, alleging inappropriate election interference following the first Democratic primary debate.

“Google’s discriminatory actions against my campaign are reflective of how dangerous their complete dominance over internet search is,” Gabbard told the New York Times when announcing the lawsuit. “This is a threat to free speech, fair elections and to our democracy, and I intend to fight back on behalf of all Americans.”

Free Speech

For years conservatives have cried foul about tech companies rigging algorithms to silence them. Earlier this year, President Donald Trump cited a study claiming that Google “manipulated” millions of votes for Hillary Clinton in 2016 in an effort to engineer the election in the Democrat’s favor.

The study Trump is referring to was published in 2017 by prominent psychologist Robert Epstein, who has called the president’s characterization deeply misleading.

“I’ve never said Google manipulated the 2016 elections,” Epstein told The New York Times. “The range of numbers he listed in the tweet is also incorrect.”

The paper was also not peer-reviewed and relied on only a sample-size of 95 people.

There is no proof that Google attempted to rig the 2016 election in Clinton’s favor. A study from The Economist on the subject concluded that their own “statistical study revealed no evidence of ideological bias in the search engine’s news tab.”

Conservatives have still however, cited numerous instances of high-profile censorship on all platforms, most prominently on Facebook and Twitter. The White House even launched a tool this year where users could report online platforms for censorship, although the page is now closed.

Just last week, Facebook doubled-down on its censorship of the pro-life group Live Action’s page for its president sharing videos Facebook labeled as “false” for claiming that abortion was not medically necessary. The fact-check came from two activists with formal roles in pro-abortion organizations. Facebook has promised a review.

In April, the Senate held hearings on “Stifling Free Speech: Technological Censorship and the Public Discourse.”

There is a significant shortage of statistical evidence to support claims of broad, anti-conservative bias across digital platforms. That doesn’t mean no bias exists, however, and conservatives have no shortage of examples to cite, from this week’s censorship of pro-life activists on Facebook to the suspension of Twitter users who simply type “learn to code.”

Hawley has been one of the leading Republicans in the Senate criticizing big tech on free speech, even introducing legislation stripping companies of their liability protections granted under federal law unless organizations submit to an external audit to ensure political neutrality. Some believe “tech neutrality” is too vague to determine.

“There’s no such thing,” said American Enterprise Institute visiting fellow Jim Harper on political neutrality on tech platforms during an institute event on section 230 earlier this month. “You can’t administer a neutrality rule. So don’t even try… Electric wires are neutral. Platforms are not.”

The Fight Over Section 230

At the center of the debate over what to do about the rise of big tech is section 230 of the Communications Decency Act of 1996, the lone pillar still standing of the legislation that was struck down as unconstitutional by the U.S. Supreme Court.

Section 230 is a 26-word law credited for creating the internet as we know it today, which states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Simply put, the law generally protects internet platforms from legal liability for what its users post.

The fear at the time of the law’s creation was that internet companies would be held responsible for every post on their websites just because they hosted the content. The law has kept social media sites free from liability for users’ posts and incentivizes websites to monitor for illegal content rather than engaging in strict censorship to avoid a lawsuit.

Now, many in Congress and advisers in the White House are considering changes to the law, and some candidates on the presidential campaign trail have endorsed repealing the measure. In June, Hawley proposed legislation that would do just that. Hawley’s bill, titled, “Ending Support for Internet Censorship Act” would strip protections granted under the law unless big tech companies submitted to an external audit to prove political neutrality of their algorithms.

Some Republicans and Democrats in the Senate argue, however, that political neutrality is an impossible mandate to enforce.

“Sen. Hawley’s bill – I think the concern about that is, well who’s going to be able to judge whether a company is or isn’t showing bias?” fellow Republican Sen. Ron Johnson of Wisconsin told WIRED Magazine.

Sen. Mark Warner (D-Va.) said he opposed the legislation because there is no widespread anti-conservative bias among tech companies. “I have to say, I have not seen evidence of political bias,” Warner said to WIRED. “I think the bias they [tech companies] have is they want to make as much money as possible.”

Even so, Warner says he is not against amending Section 230. Given its lack of support in the Senate, Hawley’s bill is unlikely to pass but showcases a growing desire from powerful leaders to take aim at big tech.

Privacy

This year, the Federal Trade Commission (FTC) handed down a $5 billion fine on Facebook for mishandling consumer data, the largest fine ever on a tech company from a federal agency. Additionally, the Securities and Exchange Commission slapped the social media companies with a $100 million fine earlier this year for misleading investors on the risks of misusing users’ data.

Recent privacy breaches have outraged many Americans, with a majority of consumers believing the online privacy has reached “crisis” proportions. According to a Axios-Survey Monkey poll conducted in March, 58 percent of U.S. adults say the online privacy threat is a crisis and support forcing companies to change to better protect their data.

Privacy lapses that have exposed sensitive information for millions of people have dominated headlines, with 2019 on track to be a landmark year for data breaches. According to an August report from Risk Based Security, data breaches have gone up 54 percent from last year, and comprised more than 4.1 billion records. The report also notes that 2019 has seen three of the largest breaches in online history.

Will Rinehart is the director of technology and innovation policy at the American Action Forum, a center-right think tank in Washington D.C. Rinehart said that while big tech is facing headwinds from liability and competition issues, everyone agrees that something must be done to strengthen user privacy: “I think basically everyone agrees on that pretty robustly.”

Antitrust Cases Threaten Big Tech

While Congress could pass a law on privacy, Rinehart made clear that the biggest wedge driven into big tech would likely come from the FTC and the Department of Justice (DOJ) pursuing antitrust cases, although it is unclear what the result will look like.

“What’s going to be the most impactful thing in the future is going to be the competition investigations,” Rinehart said. “The fact that it’s a competition question and not necessarily just a consumer protection question, the fact that that’s happening is actually hugely important.”

The FTC and the DOJ have launched antitrust probes into the four big tech giants. The results of the investigations are likely to take months or likely even years to conclude, however, as the 2020 presidential election nears.

States have also investigated big tech, with 50 state and territory attorneys general having now announced their own antitrust probe aimed at Google. In targeting big tech giants, the DOJ’s assistant attorney general for antitrust pointed to the Microsoft case in the 1990s that found the tech company guilty of illegally monopolizing to illustrate that federal regulators have the tools necessary to enforce current law.

Some experts believe that even if the probes wrapped up soon, regulations to follow would likely be tied up in extensive litigation, prolonging the process while yielding enormous consequences.

Hendrickson noted that federal agencies are also re-examining prior mergers, using their “look-back authority” to evaluate previously approved mergers to determine whether the acquisitions were either benefiting or harming consumers. Hendrickson said if ample evidence shows some mergers were indeed harming consumers, they could be reversed.

On whether new regulations are likely to come down on Silicon Valley’s tech giants, Hendrickson said it depends on the political climate, arguing that while all sides of the political spectrum seem to agree on the need to do something, there is widespread disagreement on precisely what and why.

Hendrickson also stressed that breaking up big tech is “just one possible remedy to the tech sector.” There are other things, Hendrickson said, that federal antitrust agencies could pursue — such as cracking down on platform privilege, creating data portability, and enhancing data privacy for consumers.





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