Durbin Mulls Hearing for Bipartisan Senate Antitrust Bill

Senate Judiciary Committee Chairman Dick Durbin, D-Ill., is looking to advance the discussion on a measure that would prohibit online platforms from self-preferencing their own products (see 2110140068). He told us he’s in discussions with ranking member Chuck Grassley, R-Iowa, and Senate Antitrust Subcommittee Chair Amy Klobuchar, D-Minn., about a legislative hearing for the American Innovation and Choice Online Act. “I’m discussing it with both of them,” said Durbin. “We haven’t made a final decision.”

Sen. Marsha Blackburn, R-Tenn., one of the bill's Republican holdouts, said she’s contemplating some amendments for when the measure advances. She noted work that started last year on Judiciary’s tech task force (see 1911130028), which she said is a way to collaborate with Commerce Committee members.

Grassley told us he’s “optimistic” about advancing the bill, given its bipartisan support, but “we’re up against powerful interests.” The bill would direct the FTC or DOJ to designate covered platforms. The House version would create a bureau overseeing digital markets.

Missouri's Josh Hawley, one of four Senate GOP co-sponsors, called the proposal a “good first step.” Hawley would prefer to see “brighter lines” for violations: “I’m a big fan of Congress actually prescribing particular rules. Those are more enforceable. I don’t really like the idea of giving general guidance to the agency. I think it could be more prescriptive, but this is a compromise, so it’s a step forward.”

All Congress has done for the past five years on tech is hold hearings and issue news releases, said Louisiana's John Kennedy, another Republican sponsor: “I hope this time is different, but I got to see it to believe it. My experience has been that all anyone wants to do is talk about it.”

Two key Republicans expressed interest in holding platforms accountable when their algorithms cause harm. Legislation House Democrats announced last week (see 2110140065) would remove Communications Decency Act Section 230 immunity when a platform “knowingly or recklessly uses an algorithm or other technology to recommend content that materially contributes to physical or severe emotional injury.” Sen. Ben Ray Lujan, D-N.M., introduced legislation Wednesday on holding social media companies accountable “for using computer algorithms that promote harmful and dangerous content that leads to offline violence.” The Protecting Americans from Dangerous Algorithms Act is a companion to a bill introduced in the House by Reps. Tom Malinowski, D-N.J., and Anna Eshoo, D-Calif. Eshoo raised the issue at a hearing Wednesday (see 2110200035).

Asked about potential liability for algorithms, Sen. Lindsey Graham, R-S.C., told us “this unregulated and can’t-be-sued model has got to come to an end.” Big Tech has “too much power” and is “making decisions about everything,” he said. There’s increasing interest in “that very issue,” said Senate Commerce Committee ranking member Roger Wicker, R-Miss. “It’s a matter that deserves serious discussion.” There should be a way to hold tech companies accountable when their algorithms “cause harm,” said Sen. Richard Blumenthal, D-Conn. Blumenthal urged Facebook CEO Mark Zuckerberg to testify before his subcommittee about Instagram’s impact on children's mental health. The company didn’t comment.

Sens. Ted Cruz, R-Texas; John Cornyn, R-Texas; Thom Tillis , R-N.C.; and Dianne Feinstein, D-Calif., told us they haven’t closely reviewed the self-preferencing legislation from Grassley and Klobuchar.

The bill would cause “irreparable harm to small businesses and startups and put U.S. companies at a competitive disadvantage against China,” said CTA CEO Gary Shapiro. “The bill allocates vast new powers to the FTC, allowing the commission to ignore the consumer welfare standard, while imposing massive fines with minimal due process.” The type of “government industrial intervention proposed is what we’d expect to see from China, Russia, and other countries,” said Computer & Communications Industry Association Vice President Arthur Sidney. “These policies would actually hold back U.S. companies as they compete with China and other countries.”