House Antitrust Chair Seeks to Further Define Big Tech Legislation

There won’t be legislative announcements from leadership at Thursday’s hearing on tech antitrust, House Antitrust Subcommittee Chair David Cicilline, D-R.I., told us Wednesday. But he expects the conversation to further define specific proposals. Legislative proposals could touch on interoperability, explicit prohibitions on favoring products and services, and nondiscrimination, he said. The hearing focus will be on the power of dominant firms to exclude competitors and favor products and services to make it difficult for entrants to compete, he added.

Antitrust investigations could be potentially strengthened if Congress amends existing law for enforcers, House Judiciary Committee ranking member Jim Jordan, R-Ohio, told us. Democrats seek updates to antitrust law (see 2102040053). Investigations like those of DOJ against Google might need to be “buttressed with some kind of statute change,” said Jordan. “It’s time to make a decision.”

It’s good Jordan might be open to updating antitrust laws, House Judiciary Committee Chairman Jerry Nadler, D-N.Y., told us: “I think there’s a lot of bipartisan potential. I can’t guarantee we’ll agree on everything, but I think there’s a lot of bipartisan consensus. The hearings last year certainly seemed to show that.”

The first issue Jordan cited was the need to “redo” Communications Decency Act Section 230. He noted the introduction of his legislation modifying tech industry immunity last session (HR-8517). “Overhaul the whole thing,” he said. “I don’t think Democrats are as concerned about the attacks on free speech as Republicans are. That is the focus. Bottom line is we know Big Tech is out to get conservatives.”

Section 230 is a “subject in itself,” said Rep. Hank Johnson, D-Ga. “There is adequate need to take a look at” Section 230, given how things have changed “over the last 20, 30 years.”

The committee should deploy two remedies to supplement antitrust enforcement with regulatory protections, Econ One Managing Director Hal Singer plans to tell the subcommittee in his testimony. His prepared remarks include two potential options: structural separation/line of business restrictions and a nondiscrimination “regime.” The first would mean a company could own a platform but not the content. A nondiscrimination regime would “allow platforms to have a toe in the content space, but would prevent them from leveraging their platform power into that content space.” Democratic staff considered both options in its Big Tech report last year (see 2010060062). The committee should draft two separate bills with these proposals, he says in his testimony.

American Economic Liberties Project Senior Adviser Morgan Harper will testify in favor of an approach she describes as “regulated competition.” Harper argues structural solutions and regulation are needed to address Big Tech harm, a spokesperson emailed.

Public Knowledge Competition Policy Director Charlotte Slaiman will “argue for new laws and rules, like interoperability, to combat the power of Big Tech,” PK said. “Pro-competition tools like interoperability requirements can wrest control from dominant digital platforms and put it back in the hands of the people,” she wrote. “Now is the time for Congress to break open these gates.”

MapBox CEO Eric Gundersen is also expected to testify. His company declined comment. Cicilline and Nadler told us there were no tech companies that declined to participate in the hearing.

Congress is wrongly focusing the antitrust discussion on the tech sector and losing sight of broader market dynamics, said Computer & Communications Industry Association President Matt Schruers. “Policymakers would produce greater results for the public by focusing on concentrated industries where barometers like prices, wages, and productivity are moving in the wrong direction, rather than technology sectors, which is outperforming most of the economy on these metrics.”

Facebook must provide answers on how the company “knowingly” allowed extremist content and groups to spread despite reports that internal reviews found the “platform’s own policies and recommendation tools were responsible for the rapid spread of extremism and disinformation,” House Commerce Committee Chairman Frank Pallone, D-N.J., wrote Tuesday with House Oversight Subcommittee Chair Diana DeGette, D-Colo.; Communications Subcommittee Chairman Mike Doyle, D-Pa.; and Consumer Protection Subcommittee Chair Jan Schakowsky, D-Ill. The committee wants to know about the platform’s “research on divisive content and user behavior, the reported presentations and recommendations made to Facebook executives and their actions in response, and the steps Facebook leadership has taken to reduce polarization on its platform.”

Facebook has "banned QAnon and militia groups from organizing on our apps, designated more than 250 white supremacist groups, removed billions of fake accounts – and we're the only platform to build a global network of over 80 fact-checking partners to address misinformation," a spokesperson emailed. "We make big decisions with input from people with different perspectives and areas of expertise and have used both external and internal research on the impact of polarization to change how we operate our platform.”