Big Tech Competition Bills Don’t Address Content Moderation, and That’s A Good Thing
Big Tech Competition Bills Don’t Address Content Moderation, and That’s A Good Thing
Big Tech Competition Bills Don’t Address Content Moderation, and That’s A Good Thing

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    Trying to follow the criticisms of the two bipartisan Big Tech competition bills—the American Innovation and Choice Online Act (AICO) and the Open App Markets Act (OAMA)—can be dizzying. Recently we’ve seen arguments both that they would increase Big Tech’s “censorship” and that they would give Big Tech an excuse not to do needed content moderation to protect marginalized voices on their platforms. Luckily, these bills would do neither of those things. The bills do not address content moderation, yet they are crucially important in the broader push to hold Big Tech accountable. 

    The American Innovation and Choice Online Act would ban Big Tech self-preferencing and establish common-sense rules of the road for Big Tech platforms so small businesses get a fair shot and consumers get more choice. The Open App Markets Act would open up app stores by allowing alternative payment systems; ending self-preferencing; and halting tying with a mobile operating system. Both bills represent a once-in-a-generation chance to reform increasingly critical technology markets that have had competitors and innovation quashed by Big Tech gatekeepers for far too long. 

    Free expression is built into Public Knowledge’s mission. We also want to make sure that users can have a moderated experience online. If you don’t follow content moderation debates closely, you might think that “moderation” and “free expression” are at odds, but you’d be wrong. As the well-known concept of the “heckler’s veto,” or the lived experience of many women and people of color who voice their opinions online and get shouted down or harassed off the platform indicates, for many, free expression depends on content moderation.

    Public Knowledge’s work focuses on public policy solutions rather than pressuring companies to change their policies, but we have joined with like-minded organizations to push Big Tech to do better, and we have praised them when they do the right thing. But those efforts to exert public pressure are limited in what they can accomplish because the structure of these markets, coupled with public policy inaction, means Big Tech platforms face little to no competition today. This means the normal mechanism for pressuring companies to do better—users leaving and choosing an alternative—is broken. In this way, opening up competition against Big Tech platforms may actually help content moderation. 

    Certainly, competition is not the only solution to content moderation problems. That’s why Public Knowledge has discussed at length issues like algorithmic accountability and regulation; exempting advertising from Section 230 protection; and a new digital regulator. Congress will need to keep working on these important issues if we want to build a better internet for all of us. Still, we believe competition is an important part of the solution. That’s why Public Knowledge has also been fighting hard for the American Innovation and Choice Online Act and the Open App Markets Act. We believe they will revitalize competition against the most powerful platforms and give back some control to platform users.

    Yet some have raised concerns that the bills might be misused to force platforms to host otherwise objectionable content. Could platforms be liable for their content moderation decisions because of this bill? We don’t think so. Here’s why:

    First, possible concerns about the Open App Markets Act are quickly disposed of. The bill does not address—and leaves unchanged—platforms’ ability to moderate content. Most importantly, it does not include any requirement to carry apps. An app store company can still exclude an app from their app store for any reason. There is no cause of action for an app that has been kicked off the app store to sue to get back on. It’s simply not part of the bill.

    The American Innovation and Choice Online Act does not address—and leaves unchanged— platforms’ ability to moderate content. Most importantly, the provision folks are concerned about, Section 3(a)(3), specifically requires the government show discrimination “in a manner that may materially harm competition” in order to prove a violation. This makes clear that the clause is about anticompetitive discrimination, not viewpoint discrimination. Second, there is no private right of action in the bill. Only federal and state antitrust enforcers, which means the Federal Trade Commission, Department of Justice, and State Attorneys General can bring cases under the new law. We believe these protections mean the risk that this law encourages a lawsuit that’s actually about content moderation is extremely low.

    And the section that’s in question, 3(a)(3), is really important for the competition goals of the bill. We have two goals for platform competition: fair competition on the platform, and fair competition against the platform. The bans on self-preferencing in the rest of the bill are key to fair competition on the platform, but 3(a)(3) is key to fair competition against the platform. We want to make sure that these platforms actually face competition that could unseat them from their gatekeeper status. That kind of competition might come from a company that they compete directly against on their own platform, or it might not. It’s the Amazon seller that does so well on Amazon that it builds up the cachet with its customers to cut out the Big Tech middleman or the flight search provider that expands into different travel search verticals after excelling at flights. 

    A few examples may be illustrative. Yelp has complained of anticompetitive behavior by Google for at least a decade. These complaints began before Google bought Zagat, a restaurant reviews publication that helped them enter the market to compete directly against Yelp. It’s possible that Google recognized Yelp as a potential competitive threat and used multiple tools to try to prevent Yelp from becoming an actual competitive threat. One of those tools was entering the reviews market, but if Google discriminated before it entered the market, enforcers would likely need to use 3(a)(3) to stop the Big Tech giant.

    Right now, Google does not directly compete with a ride-hailing company like Uber. However, Google has invested a significant amount of money and tech talent into Waymo—self-driving cars. Right now, Waymos are mostly a novelty with pilot programs in a few cities and more of a tourist attraction than an everyday competitor to a ride-hailing app like Uber. However, technology markets are notorious for how quickly they can change, and perhaps self-driving cars become a viable alternative to Uber. Absent 3(a)(3), Google would be free to discriminate against Uber and other ride-hailing companies both via its general search service and its Android OS. Google could raze the marketplace of viable competitors right on the cusp of launching their own competing service in an effort to assure its conquest of a new profitable market. 

    Apple does not have a general search engine that competes with DuckDuckGo. However, Apple does have an interest in the success and dominance of DuckDuckGo’s main competitor—Google. Apple receives upwards of $15 billion per year from Google as payment for keeping Google Search the default search provider on iPhones and Safari. Less well-capitalized rivals like DuckDuckGo simply do not have the funds for the massive outlays Google can make for default contracts like these that deny their rivals the scale to succeed. Section 3(a)(3) prevents Apple from discriminating in its terms of service application and enforcement to favor its lucrative business partner—Google—over the upstart rival—DuckDuckGo. 

    There are so many consumer benefits to competition: lower prices, higher quality products, and more innovation, just to name a few. One key benefit is consumer choice, the ability of consumers to choose from among differing options. There probably won’t be a one-size-fits-all solution as your Goldilocks “just right” platform experience might be different than ours. We need to give users meaningful choices and the ability to vote with their feet/eyeballs. And we can’t do that until we break down the gates of Big Tech and have meaningful competition against these dominant firms. It’s time to pass the American Innovation and Choice Online Act and the Open App Markets Act.