The New Antitrust Bill Contains a Hate and Disinformation Loophole

Carmen Scurato is the associate legal director and senior counsel at Free Press and Free Press Action.

In a rare show of bipartisanship, Sen. Ted Cruz (R-TX) has joined forces with Sen. Amy Klobuchar (D-MN) in support of legislation that they claim will rein in powerful technology companies.

But the American Innovation and Choice Online Act, which they and 14 other senators voted for during a Senate Judiciary Committee markup in late January, would make it harder for companies like Apple, Facebook and Google to protect people targeted with hate and disinformation online.

The bill would use antitrust tools to ban self-preferencing conduct by online platforms with massive numbers of users or annual revenues of more than half a trillion dollars.

In other words, it would prevent these platform giants from using their gatekeeper powers to favor their own products. In the view of its proponents, the legislation gives smaller companies a competitive chance in the online marketplace.

But lurking in the bill is an antidiscrimination provision that goes far beyond this more typical antitrust concern. Specifically, Section 3(a)(3) would prohibit discrimination by these platforms among any “similarly situated business users” — even if the platform doesn’t compete with those other businesses itself.

Why is that a problem? Because this provision opens a massive loophole that would undermine a tech platform’s ability to remove entities that traffic in hateful, racist, violent or otherwise dangerous content. This section should be removed before the bill reaches the Senate floor.

“This provision could be a gift to bad actors,” California Sen. Alex Padilla said during the committee markup. As an example, Padilla cited the platform Parler, which routinely spreads lies about the results of the 2020 vote and amplifies calls to political violence against supporters of the movement for Black lives. Apple’s 2021 decision to suspend Parler for violating the terms of its App Store could be challenged under the provision.

The bill’s defenders argue that the text in question still allows covered platforms to enforce their terms of service however they see fit against such content, as long as they don’t discriminate. Unfortunately, that argument folds in on itself. The bill opens the door to suits by federal and state officials arguing that those terms of service themselves discriminate against certain viewpoints — and that businesses purveying hate or COVID disinformation are in fact “similarly situated” to other sites receiving different treatment. These inevitable suits will claim 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.

It’s understandable that an antitrust approach to regulating Big Tech has gained so much traction. Even this provision sounds like a fair solution — one that deters platforms from picking winners and losers online. Unfortunately, when it comes to social-media platforms, that isn’t how things work at all.

These platforms host other businesses’ content, but they reserve the right to moderate, curate and maintain terms of service forbidding certain kinds of information, comments and communities.

Addressing the anticompetitive practices of these few giant platforms may be a way to hold Big Tech more accountable in some respects. But it wouldn’t solve all of the problems companies like Facebook and Google pose, especially when it comes to the spread of election and vaccine disinformation, the incitement of violence and the amplification of hate speech. In fact, the misguided nondiscrimination provision in this bill would make those problems worse.

Competition also doesn’t necessarily start a race to the top to protect people’s privacy. Instead, it may start a race to the bottom for companies intent on finding new ways to extract and exploit personal and behavioral data. Nor does competition among ad-driven business models that rely on capturing people’s attention automatically start a race to produce more truthful information.

We need more than antitrust tools to create an open, competitive and equitable marketplace. And if we want to move toward repair and reconciliation for generations of systemic racism and weaponized narratives targeting people of color, this particular provision goes in the wrong direction.

We need to resist the urge to arrive at solutions too quickly, and without fully considering consequences like these. While we applaud Congress for its determination to address Big Tech’s dangerous practices, it must look at a broader array of policy options. Promoting quality local journalism, protecting privacy, defending people’s civil rights, prohibiting data abuses and combating hateful and violent disinformation all require more tools than antitrust alone.