Hot Rule Summer
Hot Rule Summer
You may have noticed Wild West gets a little focused on rules. Specifically, the few rules that exist today for tech giants and the slow, grinding process of creating some more. This inevitably means paying attention to obscure government agencies that make such rules. It also means tracking the way powerful corporations make it a priority to become way more enmeshed in all forms of government rule-making than average citizens (to the point of even manufacturing millions of fake citizen comments in support of their corporate agendas).
If you’re a person who’s riveted by this sort of government rule-making, or just someone who’s noticed the problematic lack of tech regulation in the United States, Friday was a major moment, a sort of kickoff to a Hot Rule Summer. President Joe Biden himself jumped to the front of the rule-making bandwagon and called for new federal guidelines and requirements for the nation’s tech giants, issuing a lengthy executive order that’s focused on promoting competition, decreasing corporate consolidation, and “giving the little guy a fighting chance.”
Biden’s list of 72 presidential directives covers a lot beyond tech. That’s because it’s not just the tech sector that’s exhibiting what his administration terms “competition problems.” Agriculture, banking, transportation, and even the hearing aid business are among the focuses of his wide-ranging executive order.
But the biggest focus of Biden’s decree does seem to be the tech world. He wants to bring back federal net neutrality rules. He wants “greater scrutiny of mergers, especially by dominant internet platforms.” (And his Federal Trade Commission is already on that case, reportedly opening an investigation into Amazon’s recent acquisition of MGM.) He’s embracing the “right to repair” movement. He wants to terminate “exclusivity” deals between landlords and internet service providers that limit the options renters have for getting online.
And in perhaps the clearest example of the White House trying to step in where Congress and many states have failed to act, Biden wants to do something about the digital data collection business that’s been powering explosive growth and stratospheric market capitalizations for America’s tech titans.
Big Tech is “gathering too much personal information,” the Biden administration says, and so the president is asking the FTC to “establish rules on surveillance and the accumulation of data.” If the agency does move to do this, Protocol writes, “that could be a big uh-oh for Google, Facebook, data brokers, health tech and a whole lot more.”
Companies with skin in this game will of course aim to get deeply involved in any new federal rule-making, in the same way they’ve already affixed themselves to the rule-makers and rule-making processes of one tiny agency in Washington State that regulates online political ads. Like the Biden administration, the tech giants seem to understand quite well that when the process of making actual laws is paralyzed—perhaps in part because of the involvement of well-financed tech lobbyists—the next place to turn is agencies with the power to unilaterally issue rules.
Biden’s order wasn’t the only news last week with vast potential for changing the way America’s online gatekeepers do business. In Ohio, the Republican attorney general filed a lawsuit asking a court to declare Google a public utility.
The argument, essentially, is that Google has become so dominant in the search business—“so ubiquitous that its name has become a verb,” as the lawsuit notes—that the search giant has become akin to railroads or electric companies that, for similar reasons, have been designated “common carriers.”
If a company is a “common carrier,” also known as a public utility, it has to “treat everyone the same and give everybody access,” Ohio AG Dave Yost explained in a statement. In Google’s case, that would mean, for example, no longer privileging the company’s own Google Flights information when someone searches for an airline reservation. That, Yost said, creates an unfair situation in which the Google searcher “doesn’t see offers from competitors such as Orbitz and Travelocity.”
If a state court in Ohio, at the request of Ohio’s Republican attorney general, ends up terming Google a “common carrier” it would set off a tech earthquake—and, likely, a rush by other states to achieve similar rulings. Naturally, Google is not supportive of this push and, in response to the Ohio AG’s lawsuit, has adopted a tone normally used by Republicans when bashing so-called government takeovers or supposed socialization of private industry.
“Ohioans simply don’t want the government to run Google like a gas or electric company,” the company said, according to the Associated Press. “This lawsuit has no basis in fact or law and we’ll defend ourselves against it in court.”
If you’re feeling like you’ve already heard something in the news about a powerful conservative legal voice saying “common carrier” law should be applied to tech giants, it’s probably because in April US Supreme Court Justice Clarence Thomas attracted attention for doing precisely that. Justice Thomas has been itching for a chance to set new precedents for how Big Tech can be regulated, and in an April decision about whether former President Trump was violating people’s First Amendment rights when he blocked them from his Twitter account (Trump wasn’t, the high court ruled), Justice Thomas took the opportunity to suggest major tech platforms could be considered common carriers, writing:
It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today’s digital platforms, nothing is.
If the analogy between common carriers and digital platforms is correct, then an answer may arise for dissatisfied platform users who would appreciate not being blocked: laws that restrict the platform’s right to exclude.
The Ohio AG’s lawsuit is centered on commercial issues rather than speech issues. It argues that “Google uses its dominance of internet search to steer Ohioans to Google’s own products” in a way that’s “discriminatory and anti-competitive.”
But the conservative arguments about speech restrictions on digital platforms also allege a discriminatory aspect (supposedly, discrimination against right-wing political views) and, as Justice Thomas’s opinion makes clear, a designation of Google as a “common carrier” could, from a conservative viewpoint, address both the speech and commerce concerns simultaneously.
There’s a long road before this suit could potentially reach the US Supreme Court, but if it presents the kind of legal opportunity Justice Thomas has been hoping for, and he’s still there if and when it arrives, it seems pretty clear what side he’ll be on.
On the theme of conservatives wanting more government control over private companies, it’s worth returning to the recent decision by a federal judge in Florida who blocked a new Florida law that aims to, in the words of Republican Florida Governor Ron DeSantis, “Stop the Censorship of Floridians by Big Tech.”
In particular, the Florida law sought to prevent digital platforms like Facebook from banning political leaders like former President Trump, now Florida’s most famous resident. As I flagged last week, there’s a lot to the decision in this case, written by Federal Judge Robert Hinkle. As Lawfare (and others) have noted, “The most interesting part of the opinion is the judge’s nuanced analysis situating social media platforms along the spectrum of speech platforms, from hands-on publishers to neutral conduits.”
What’s also interesting is that Florida’s legal bid to “stop the censorship,” just like the Ohio lawsuit against Google, sounds at first blush liberal. Traditionally it’s been people on the left who rail against corporations stifling free expression and praise the playfield-leveling value of public utilities. But the rise of powerful tech platforms has scrambled the normal political reflexes, largely because, as Judge Hinkle’s decision implies, the unique properties of these platforms make them an entirely new phenomenon that we haven’t yet figured out how to categorize, legally or otherwise. DeSanits says Florida will appeal Judge Hinkle’s ruling, meaning this suit, which like the Ohio suit offers judges an opportunity to categorize Big Tech in a new way, may also be headed for the desk of Justice Clarence Thomas (and his high-court colleagues).
Some of the things I’ve been reading this week:
• Another anti-trust lawsuit against Google — “Attorneys general from 36 states and one district are suing Google for alleged anti-competitive practices,” Recode reports, “this time, over its Google Play app store.”
• But the suit has one unusual victim — “In the latest monopoly lawsuit against Google,” Bloomberg notes, “U.S. enforcers are relying on an odd victim to make their case: Amazon, one of the few companies on the planet bigger than Google.”
• Meet the Minnesota man who’s devoted a decade to pushing online conspiracy theories — An interesting Washington Post investigation into Sean G. Turnbull, a “successful upper-middle-class family man” who also had a major online side-hustle promoting the idea of “dark forces in American politics.”
• YouTube Regrets — An investigation by the Mozilla Foundation, relying on a browser extension that allows people to flag YouTube videos they regret watching, found that “YouTube’s controversial algorithm is recommending videos considered disturbing and hateful that often violate the platform’s very own content policies,” and that “people in non-English speaking countries are far more likely to encounter videos they considered disturbing.” According to Mozilla, the regrettable videos include “everything from COVID fear-mongering to political misinformation to wildly inappropriate ‘children’s’ cartoons.”
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