DOJ supports legislation that would ban online platforms’ “discriminatory conduct,” acting Assistant Attorney General Peter Hyun wrote this week to House Judiciary Committee members. The rise of dominant platforms is a threat to open markets and competition, he wrote. The American Innovation and Choice Online Act S. 2992/HR-3816 (see 2202090066) “would emphasize causes of action prohibiting the largest digital platforms from discriminating in favor of their own products or services, or among third parties,” he said: The legislation would supplement existing antitrust laws “in preventing the largest digital companies from abusing and exploiting their dominant positions.” Software & Information Industry Association Senior Vice President-Global Public Policy Paul Lekas disagreed, saying the bills are a “solution in search of a problem.” It isn’t “at all clear that there is a need, let alone a pressing one, for Congress to augment or clarify existing antitrust law or for the government to try to influence how digital markets work in the manner these bills propose,” said Lekas in a statement.

Government regulation “along viewpoint lines” is “generally impermissible” under the First Amendment, Supreme Court nominee Ketanji Brown Jackson told the Senate Judiciary Committee on Tuesday (see 2203210067). Sen. Mike Lee, R-Utah, asked Jackson if it’s within Congress’ authority to condition Communications Decency Act Section 230 immunity on online public forums not discriminating against certain viewpoints. “I can’t comment on a particular issue” about whether it’s constitutional, she said. The criteria depend on whether the government is seeking to regulate along viewpoint lines, which is “generally impermissible” under the First Amendment, she said. Concerning antitrust law, there’s a lot of precedent for the Supreme Court to consider, Jackson told Sen. Amy Klobuchar, D-Minn. Antitrust laws protect competition, consumers, competitors and the economy, and the Sherman and Clayton acts have broad protections, said Jackson. If confirmed, she said, she would look at precedent to ensure legislation is interpreted to reflect Congress’ intent. The text of the statute is what the court uses to interpret, Jackson said. Tech and telecom issues largely didn’t come up during Jackson’s second confirmation hearing of the week.

CTIA Senior Vice President-Regulatory Affairs Scott Bergmann and Jayne Stancavage, Intel global executive officer-product and digital infrastructure policy, are among those set to testify at a Wednesday House Communications Subcommittee hearing on 5G and spectrum management (see 2203090074), the House Commerce Committee said Friday. Also on the witness list: Cisco Senior Director-Government Affairs Mary Brown, Public Knowledge Government Affairs Director Greg Guice and HTC Chief Executive-Corporate Strategy and Analytics Von Todd, a member of the Competitive Carriers Association’s board. The partly virtual hearing will begin at 10:30 a.m. in 2123 Rayburn.

Facebook needs to provide answers about allegedly promoting inaccurate anti-abortion ads and censoring accurate medical information about abortion services, House Judiciary Committee Chairman Jerry Nadler, D-N.Y., wrote Meta CEO Mark Zuckerberg Friday. Nadler cited reports about Facebook circulating “anti-abortion advertisements promoting medical misinformation while simultaneously blocking medically accurate information about abortion services.” There’s bad information on the platform about false treatments like “reverse abortion” pills, wrote Nadler. He requested a response from Zuckerberg by Feb. 25. The company didn’t comment.

The Senate Judiciary Committee should oppose the Earn It Act because it will result in censorship and jeopardize encryption, more than 60 groups wrote the committee Wednesday. The legislation is to be voted on Thursday (see 2202040052). Signers included Center for Democracy & Technology, Public Knowledge, Access Now, American Civil Liberties Union, Electronic Frontier Foundation, Fight for the Future, Free Press Action, Internet Society, Media Alliance and TechFreedom. The increased liability envisioned in the bill “will threaten our ability to speak freely and securely online, and threaten the very prosecutions the bill seeks to enable,” they wrote. Eleven industry groups also wrote in opposition to the bill. S.3538 would “impair lawful speech and conduct, threaten the privacy of law-abiding citizens, hinder law enforcement’s efforts against online child exploitation, and limit innovation,” they wrote. CTA, the Computer & Communications Industry Association, ACT | The App Association, Engine, NetChoice and the Software & Information Industry Association signed.

The Senate Judiciary Committee should hold a legislative hearing before marking up a bill that would ban Big Tech platforms from self-preferencing, TechNet wrote the committee Monday. The American Innovation and Choice Online Act (S-2992) is set for markup Thursday, after being held over one week (see 2201140049). Now isn’t the time for lawmakers to “rush through a bill that would raise costs on hardworking Americans and small businesses across the country,” said Senior Vice President Carl Holshouser: The bill “would fundamentally alter our economy and would negatively impact conveniences that individuals and businesses rely on.” The Software & Information Industry Association is “particularly troubled” that the committee scheduled markup of the bill “without holding even a single hearing,” said Paul Lekas, senior vice president-global public policy. “This is too important a matter to rush and requires a thoughtful approach that creates policy designed to further consumer protection, U.S. innovation, and healthy competition,” said Lekas Wednesday.

The Senate Judiciary Committee advanced the nomination of Katherine Vidal to lead the Patent and Trademark Office on a 17-5 vote Thursday. Voting no: Jon Ossoff, D-Ga.; Josh Hawley, R-Mo.; John Kennedy, R-La.; Ted Cruz, R-Texas; and Mike Lee, R-Utah. Kennedy, the only opposing voter to speak on the nomination, said Vidal gave nonanswers to his questions about Big Tech’s influence over the PTO. He voted against prior nominees because they’re “in the pockets” of Big Tech, he said. Kennedy said Big Tech “doesn’t like” patents because they interfere with market dominance. Chairman Dick Durbin, D-Ill., told Kennedy: “I don’t want to step on any news that will be issued after this meeting, but buckle your seatbelt. This committee is going to be taking some forays into the field you just mentioned.” Durbin is a co-sponsor of S-2992, the American Innovation and Choice Online Act, which the committee held over Thursday, as expected (see 2201110053). Durbin called Vidal a “well-qualified” nominee with a deep understanding of the PTO. Sen. Thom Tillis, R-N.C., voiced his support for Vidal, saying she will continue the “reforms” started by former Director Andrei Iancu (see 2201050046) for the Patent Trial and Appeal Board and Big Tech. He credited Iancu for “going after” Big Tech, which is making it difficult for small innovators to protect intellectual property. Sen. Patrick Leahy, D-Vt., agreed with Tillis.

U.S. allegations of forced labor in Xinjiang are the “lie of the century,” perpetuated by the Congressional Executive Commission on China (CECC), a group that's “biased” against Beijing and has “no political credibility at all,” said a Chinese Foreign Affairs Ministry spokesperson Thursday, according to an official English translation. Sen. Jeff Merkley, D-Ore., and Reps. Jim McGovern, D-Mass., and Chris Smith, R-N.J., all members of the CECC, wrote International Olympic Committee President Thomas Bach Wednesday seeking “assurances” the cotton that Chinese sportswear companies Anta Sports and Hengyuanxiang Group source from Xinjiang was produced free of human rights violations. Since cotton made in Xinjiang is “synonymous with forced labor and the systematic repression that takes place there,” there exists the “worrisome possibility that IOC personnel or others attending the 2022 Olympic Games will be wearing clothing contaminated by forced labor,” they said. The IOC didn’t respond to emailed requests for comment.

The Senate Judiciary Committee scheduled an antitrust bill for markup Thursday morning (see 2110210003). The American Innovation and Choice Online Act would prohibit online platforms from self-preferencing their products. This is the first time S-2992 has appeared on the agenda, meaning the committee expects to hold it over a week. Sens. Chuck Grassley, R-Iowa, and Amy Klobuchar, D-Minn., introduced the measure. Klobuchar said she looks forward to voting the bill out of committee. The proposal would “bring greater fairness for small businesses and more transparency for consumers to these dominant online platforms,” said Grassley. “Gerrymandering regulations around a handful of leading businesses will skew competition and leave consumers worse off,” said Computer and Communications Industry Association President Matt Schruers. “By hamstringing successful U.S. tech companies without even imposing corresponding obligations on foreign rivals, this shortsighted legislation will put the data and security of U.S. users at risk.” NetChoice criticized the committee for not holding a legislative hearing on the bill. “A bill that threatens to remove choice, increase prices, and expose our personal information to foreign actors should, at a minimum, start with a hearing and transparent debate,” said Vice President Carl Szabo. The markup is set for 9 a.m. in 216 Hart.

Google should abandon efforts to “bully” DOJ Antitrust Chief Jonathan Kanter into recusing himself from antitrust matters with the company, wrote Sen. Elizabeth Warren, D-Mass., and Rep. Pramila Jayapal, D-Wash., to CEO Sundar Pichai Wednesday. The lawmakers cited a letter from Google arguing that Kanter's “extensive experience opposing Google in past antitrust matters should, paradoxically, disqualify him from representing the federal government on such matters.” None of the U.S. ethics standards would require Kanter to recuse himself, the lawmakers wrote: “Google should focus on complying with antitrust law rather than attempting to rig the system with these unseemly tactics.” A Google spokesperson cited a previous statement, arguing Kanter’s “past statements and work representing competitors who have advocated for the cases brought by the Department raise serious concerns about his ability to be impartial.” DOJ didn’t comment.