Monthly Archives: January 2021

In the frenzied days after Democrats won control of Congress and the presidency, and rioters invaded the Capitol,Big Tech, relying on section 230 of the Communications Decency Act, for immunity from civil suit, launched a surprise attack on web content they deemed objectionable.Twitterpermanently banned President TrumpDonald TrumpBlinken holds first calls as Biden's secretary of State Senators discussing Trump censure resolution Dobbs: Republicans lost in 2020 because they 'forgot who was the true leader' MOREs account, wiping out his contact with 88 million followers, andbannedthousands of conservative social media accounts.Google and Appleblocked Parlers App from their stores, andAmazon Web Services(AWS) denied Parler access to its cloud network. Parler was shut down. A swath of conservatives lost the ability to speak on the internet, the nations new public square, the place where political ideas are exchanged and commerce flows.

Two questions must be answered:

Congress spectacularly muddled section 230, and the U.S. Supreme Court has not addressed it. Fortunately, decades-old Supreme Court cases involving the tech giants of yesteryear (i.e. coal companies, railroads and company towns) provide guidance on the limits of Big Techs power to regulate the public square.

What does section 230 do?

Section 230 has two primary provisions. The first exempts internet providers from civil liability for publishing any information from another content provider that is objectionable. The second provision exempts Big Tech from liability when it takes voluntary, good faith actions to restrict objectionable materials or provides the technical means to restrict them.

Private parties cannot deprive unpopular citizens of constitutional rights when governing the public square:

By granting Big Tech immunity from civil liability when restricting material from the internet it deemed objectionable, Congress encouraged and indirectly authorized private parties to regulate speech. Congress has no constitutional power to authorize private parties to deprive even unpopular citizens of their constitutional rights. Moreover, when private parties control the new public square they function as a government and must provide constitutional rights for all.

These principles are set out inMarsh v. Alabama (1946). Marsh, a privately-owned town, made it illegal for persons to distribute religious literature on its sidewalks. Since the town functioned like any other community having speech and commerce, citizens in the town had the same rights as if in a municipal town. When private parties wield great power over the publics use of town services, the powers of the private parties are circumscribed by the statutory and constitutional rights of those using the town. Private property rights are not sufficient to justify restricting fundamental liberties.

Since the First Amendment severely limits governments power to regulate political speech, the government cannot grant private parties, functioning as a government, more power than it has. If Congress desires to impose speech limitations on the internet, it must do so directly, by government regulation that protects the constitutional rights of citizens.

Congress cannot grant private parties the right to regulate competitors:

By refusing to sell Parlers app, and by denying Parlers access to cloud storage, Google, Apple and AWS, private parties, relying on a congressional grant of civil immunity, took, in essence, regulatory actions to put another private company out of business. Congress has no constitutional authority to authorize or foster conduct by private parties that allows them to regulate other businesses. This has been the law since the U.S. Supreme Courts decidedCarter v. Carter Coal (1936).

InCarter,Congress delegated to coal producers and miners the power to impose standards on other producers and miners. Carterheld that a private entity may not be entrusted with the power to regulate the business of another, and especially a competitor. Any statute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property. The delegation is so clearly arbitrary, and a denial ofdue process

By granting immunity from liability to Big Tech for restricting materials Big Tech deems objectionable, Congress is sanctioning the regulation of private parties by other private parties, an action it has no constitutional authority to authorize. Regulating competition is the responsibility of the government.

The principles inCarterwere upheld by the D.C. Circuit as recently as 2013 inAmerican Assn of Railroads v.US DOT(reversed on other grounds).

Section 230 immunity from suit encourages Big Tech to assume the regulatory functions of government by regulating the rights of other businesses to speak and compete in the public square. The Constitution does not give Congress or private parties this power.

William L.Kovacs is authorof Reform the Kakistocracy: Rule by the Least Able or Least Principled Citizensand a former senior vice president at the U.S. Chamber of Commerce. The author has no financial or lobbying interest in this issue.

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Section 230's unconstitutional delegation of power to Big Tech | TheHill - The Hill

As President Joe Bidens term begins, hes widely expected to continue a crackdown on Americas tech giants and experts say his pick for attorney general, Judge Merrick Garland, will be a fair yet tough opponent if hes confirmed.

Garland, a judge on the U.S. Court of Appeals for the DC Circuit, while not regarded as an antitrust expert, would bring significant antitrust experience to the job that his predecessor didnt have. Hes written about antitrust law, briefly taught the subject at Harvard Law School, and as a judge, he had an opportunity to weigh in on a number of antitrust cases.

I think Merrick Garland is a very unique take for this job, from an antitrust perspective, Carl Hittinger, antitrust lawyer and partner with BakerHostetler, told Yahoo Finance, speaking generally about Garlands likely antitrust approach but not about particular defendants.

Garland, whose nomination for the Supreme Court was famously thwarted in 2016, has a reputation for being moderate. His perspective as a judge will likely spur him to tailor any antitrust claims to those that he thinks the Justice Department can win, Hittinger predicted. And because the U.S. appeals court judge and former federal prosecutor spent most of his career working for the government, Hittinger said he will be largely free of conflicts that would prevent him from involvement in the cases.

He's not going to bring cases as attorney general, in whatever area, unless the case has a basis of law, and in fact, Hittinger said. I think he will question with all the divisions whether the prosecution they're bringing is the right one...and his antitrust background is going to come to bear in those decisions.

Garlands wealth of experience working for the government could also influence his approach to Big Tech, Global Antitrust Institute and George Mason University law professor Abbott Lipsky, Jr. said.

He is probably an individual very sympathetic to the law enforcement view of the world, and particularly to the federal law enforcement institutions, Lipsky said of Garland. So he will be tough not tough in the sense of wanting to beat up on anybody, but in the sense of wanting to apply the law fairly and wanting to do it in a practical and thoroughly considered way.

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Harry First, New York University School of Law professor, said even more so than Garland, the departments yet-to-be-appointed deputy attorney general for the antitrust division will heavily influence cases against Big Tech. The usual run of antitrust enforcement is controlled by the assistant AG in charge of the antitrust division, First said.

One exception to that rule was a high-profile antitrust lawsuit the Justice Department and 11 states filed against Google (GOOG, GOOGL) in October, accusing it of engaging in anticompetitive behavior in its search and search advertising businesses. Then-Attorney General William Barr reportedly pushed hard to speed up the case against the search giant while the assistant attorney general in charge of antitrust matters was not involved at all due to a conflict of interest.

Then-Assistant AG Makan Delrahim recused himself based on his involvement as a lobbyist in Googles controversial effort to acquire advertising platform DoubleClick, an acquisition woven inseparably into the governments antitrust claims.

Lipsky said while an AGs close involvement in a departments cases is rare, the relationship with each deputy varies from administration to administration.

As for the assistant attorneys general, there are different patterns, Lipsky said. Barr seems to have taken a tremendous amount of responsibility in the investigation of the technology firms, and in bringing the complaint against Google.

A review of Garlands involvement in antitrust cases, the experts said, showed no viewpoint favoring antitrust plaintiffs or defendants. In antitrust cases where Garland participated as a judge for the D.C. Circuit, he joined the majority, but did not author any of the opinions. Reuters Practical Law Antitrust publication noted in a 2016 analysis that Garlands participation in the majority showed a slight pro-enforcement tendency.

One pro-enforcement decision involved a proposed merger of Heinz and the baby foods maker Beech-Nut. After the FTC challenged the merger of Heinz and Beech-Nut back in 2000, Garland signed onto an opinion ruling in favor of the commission and ordering a court to pause the deal while the FTC challenged it in court. Heinz abandoned the $185 million merger after the appeals courts ruling, which found the FTC had raised serious and substantial questions about the deal.

Still, Hittinger said, There are mergers that hes blocked when he was on the court, mergers hes upheld. I don't see any deference, one way or the other.

If hes confirmed by the Senate, Garland will be entering the Justice Department amid a broader movement to rein in Big Tech. In addition to the lawsuit in October, Google was hit with two additional antitrust lawsuits in December one from 10 states focused on ad tech and another from 38 attorneys general focused on exclusionary contracts.

Facebook (FB) is also facing two antitrust lawsuits: one brought by the Federal Trade Commission (FTC) seeking to break it up, and another brought by 48 U.S. attorneys general claiming it violates antitrust law by buying up competitors. The competitive practices of Apple (AAPL) and Amazon (AMZN) remain part of ongoing investigations by federal and state officials.

Will the case against Google continue under a Biden administration? While there are instances where the Justice Department under a new administration has dropped or settled charges pending against a defendant, those instances are rare.

Its not unheard of and its not impossible, First said, pointing out that the Reagan administrations Justice Department dropped and settled major antitrust cases it inherited from prior administrations.

One dropped case was filed on the last day of the Johnson administration, more than a decade before Reagan took office, and sought to break up IBM. Another, inherited from the Carter administration, sought to curtail suspected price fixing between oil companies. Reagans DOJ also settled one of the departments largest and most notable cases, brought against AT&T under Ford.

With the Google case, First said, he would expect the new administration may want to change the direction of the case or broaden it, though not drop claims entirely.

One major concern is the timeframe set for proceedings against Google, which is not expected to go to trial until September 2023.

He and other experts acknowledged the complexity involved in the case but compared it to one of the departments most famous antitrust suits the case against Microsoft, alleging it engaged in a series of anticompetitive activities such as using exclusionary agreements to protect its Windows operating system, which ended up hurting competition in the software industry.

In the Microsoft case, the complaint was filed in May and they went to trial in September, First said. I was actually a little shocked at what looks to be a very deliberate pace of the [Google] litigation. That strikes me to be not a very good idea.

Lipsky agreed that the Google case schedule poses a risk, especially when dealing with technology and disputes that could become obsolete during the course of the litigation.

In addition, Lipsky said the DOJ and the FTC have long been mindful of the string of aggressive antitrust actions brought between the late 1960s and 1970s against IBM, oil companies, and cereal manufacturers, that failed, in part due the governments decisions to expand charges that lengthened the time for resolution.

All of those cases fell flat on their faces, Lipsky said.

Alexis Keenan is a legal reporter for Yahoo Finance and former litigation attorney.

Follow Alexis Keenan on Twitter @alexiskweed.

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Big Tech faces a 'tough' opponent in Merrick Garland as attorney general - Yahoo Tech

Delivering his first remarks on the steps of the Capitol overrun by an angry mob two weeks ago, President Joe Biden called for an end to Americas uncivil war.

Politics doesn't have to be a raging fire, destroying everything in its path. Every disagreement doesn't have to be a cause for total war, he said. And we must reject the culture in which facts themselves are manipulated and even manufactured.

Even as he spoke, a conspiracy theory was spreading on social media, that federal troops were not in Washington to safeguard the proceedings but to intimidate conservatives.

News outlet Axios reported that the theory began with Fox News Tucker Carlson and Sean Hannity, building on right-wing anger over the perception that the major platforms, Facebook, Twitter and Googles YouTube censor opposition voices.

"Look for this to be a unifying argument of the right as the Biden era begins," wrote Mike Allen, co-founder of Axios, wrote in his morning newsletter.

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New administration. Same problems.

Under intensifying siege from the political right and left since the attack on the Capitol, the nations leading tech companies can expect the scrutiny that began under Donald Trump to continue under Joe Biden and a Congress narrowly controlled by Democrats.

Bipartisan support to restrain the vast power held bya handful of large corporations grew during the Trump administration and shows no signs of ebbing as Democrats retake the White House.

While the Biden administration is expected to take on privacy and antitrust,the Democracy-shuddering wave of misinformation and disinformation during and after theelection is also expected to get close inspection.

Since losing Novembers election, Trump used the platforms to delegitimize the election results. On Jan. 6, a mob stormed the Capitol after Trump urged supporters to help stopthe certification of Electoral College votes.

Whats top of the agenda for tech companies right now is to sit down and rebuild their policies from the ground up, said Daniel Kreiss, professor of political communication at the Hussman School of Journalism and Media at the University of North Carolina.

The position that theyve been in has simply been untenable. You saw that over the last year, dozens of reversals of policy, inconsistent enforcement action, unclear and shifting rationales for how platforms are going to approach content moderation," Kreiss said. "It seems to me that they really need to lay out their principles about how they are going to act in political societies, have a very clear and consistent framework and apply those policies fairly and equally to all of their users.

US President-elect Joe Biden arrives for his inauguration as the 46th US President.(Photo: OLIVIER DOULIERY, AFP via Getty Images)

Social media platforms have been judged harshly by both parties for how they policed content over the past year, from the COVID-19 pandemic to election-related misinformation and disinformation.

Democrats, including Biden who was sworn in as the 46th president Wednesday, say the social media platforms dont restrict or remove enough harmful content, particularly hate speech, extremism, hoaxes and falsehoods. They have called on companies to play a bigger and more responsible role in curating public debate.

Those on the right say these platformshave too much latitude to restrict and remove content and target conservatives based on their political beliefs. Those grievances boiled over when Facebook, Twitter and YouTube suspended Trumps accounts, citing the risk that he would use his social media megaphone to incite more violence before the end of his term.

In a farewell video from the White House on Tuesday, Trump spoke out against shutting down free and open debate. Only if we forget who we are, and how we got here, could we ever allow political censorship and blacklisting to take place in America, he said.

Throughout his administration, Trump crusaded against Big Tech which fact-checked, restricted and, in some cases, blocked his messages.

The target of that crusade: Narrowing or rescinding Section 230, which shields social media companies from legal liability for what their users post and gives platforms immunity when moderating objectionable content.

The key part of the provision sometimes called the "26 words that created the internet" reads, 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.

Those protections have been crucial to the growth of tech companies but have now become a proxy for anger on both sides of the aisle.

Those positions have only hardened since Jan. 6 and a subsequent purge of QAnon-linked accounts, making it even more challenging to reach consensus on Section 230 reform, said Jeff Kosseff, a cybersecurity law professor at the U.S. Naval Academy and the author The Twenty-Six Words That Created the Internet, a book about Section 230.

A number of bills that would hold Facebook, Twitter and Google legally accountable for how they moderate content are circulating in Congress, including the EARN IT Act and the PACT Act.Biden has called for Section 230 to be revoked.

You have half of D.C. that thinks there should be much less moderation and the other half thinking there should be more moderation. Its hard to find the solution when you don't have people agreeing on the problem, Kosseff said. Overall, I think its going to continue to be a big issue of debate.

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Biden and Section 230: New administration, same problems for Facebook, Google and Twitter as under Trump - USA TODAY

The call for abandoning ideological prejudice in the West, that sounds like, "But out of our affairs, we can do whatever we want to Uyghurs when there are a million in concentration and reeducation camps in our country." And we'll shut down journalists for even mentioning that if they try to operate inside China for that. The idea that the strong should not bully the weak sounds like, "Don't blame the United States. US, you better behave yourself." But what about the way the Chinese are treating Australia right now, or a host of other smaller countries that cross China's political, economic or national security interests? I mean, the willingness of Beijing to really make you pay when you engage in behaviors they don't like, is growing very quickly along with their international capacity to muscle flex.

And then on the pandemic, I mean, China is calling for greater global cooperation, but that also means that they need to cooperate in terms of transparency in what happened with coronavirus. And let's remember that there were, from my perspective, two big obscenities in terms of the world, in terms of coronavirus itself and the pandemic. One is the United States leaving the WHO in the middle of the pandemic, just an extraordinary antithesis of what a country should be doing, a country like the United States. But even more foundational was China lying to the World Health Organization about the lack of human-to-human spread for a month when we could have stopped this thing so much earlier, could have contained it, especially given the capacity we now see that China has to engage in contact tracing, quarantine and lockdown. And they chose not to. And that's a serious problem. For all of those reasons, this speech was not an enormously well-received speech by those watching.

Why did the Italian Prime Minister resign?

Well, I mean, largely it is over disagreement on how money should be spent in terms of massive coronavirus stimulus, sort of like the disagreement, the big disagreement, between Democrats and Republicans on the $1.9 trillion right now. I mean, how green, how sustainable should it be? How much money goes to healthcare? How much money goes to new technologies? How much to the workers? Former Prime Minister Renzi basically pulled out of the governing coalition over disagreements on that. And they weren't able to get a solid majority in a vote of confidence. That makes it much more difficult to governance done. And that's why Conte resigned. He is the 29th Prime Minister since World War II. If he doesn't get elected back in, if they can't put a new coalition together, they will have the 30th in Italy. Italy's kind of like the Doritos of G20 governments. Crunch all you want, they'll make more. That's kind of what we're looking at in Italy. The good news is it's not all that exciting.

Where is the international outrage for what's happening in Ethiopia's Tigray region?

And no question, there's a lot of violence. There are obvious human rights breaches across the board. There's danger of famine. There are tens of thousands of refugees. And this at the hands of a Prime Minister of Ethiopia that had won the Nobel Peace Prize, and some saying he should return the prize, just as they were saying that about Aung San Suu Kyi for some of her nationalist calls to help support minority repression in Myanmar after doing so much to stand up to the authoritarian government. A couple of points here. One is that Ethiopia, talking about this level of conflict at a time when everyone's focusing on coronavirus, everything small and local gets lost in the scrum. But also, Prime Minister Abiy in Ethiopia has led the charge in trying to move away from an ethnic-led federal government, where sort of different groups control political power, to one where it's much more of a traditional political party system, or I should say a modern political party system. And the Tigray in Ethiopia were the group that stood to lose the most party, a minority group that wielded effectively a majority of patronage and power. And so, the willingness to blame Abiy for the violence that we're seeing right now, even though he has the Ethiopian army, there's Eritrean military that's involved. It's an ally of his. I mean, clearly he has more power. But some of the initial violence clearly came at the hands of local Tigray as well who refused to recognize the Ethiopian election process and the suspension because of the pandemic, and instead held their own election, became a breakaway province. And so in these situations, there is so much conflicted narrative in terms of history, and it's very hard to lay responsibility and blame firmly at the hands of one side in this conflict. Those two things together get you why we're not paying as much attention as we perhaps should to a country with over 100 million people in Sub-Saharan Africa, and one of the strongest growth trajectories economically in the entire world.

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How can the Biden administration rein in Big Tech? - GZERO Media