Hello, and welcome to Protocol Policy! Today, we set the record straight on the Joe Rogan-Spotify affair, which has been framed as a free-speech issue but really comes down to antitrust. We also highlight a disclosure in Tesla’s 10-K that shows the SEC is still on Elon’s case. And finally, scroll to the bottom to watch a painful rap video from the alleged billionaire bitcoin embezzler.
The Rogan Rorschach test
I don’t blame you if you’re tired of hearing about Joe Rogan and Spotify — I am, too. It’s exhausting, it’s boring and if you say the wrong thing, you’ll be shoved in the virtual pillory and spat on by an angry mob (i.e., ratio’d on Twitter). It’s like having to listen to a screaming match between two of the most obnoxious Little League parents — except the game ended two weeks ago, and they’re still going at it.
As it so happens, the Spotify-Joe Rogan affair also perfectly encapsulates the debate over free speech and tech platforms. Which is to say, a debate that isn’t really about free speech at all, but the consolidation of market power. Both sides see only what they want to see: We’re living through a nightmare Rorschach test conducted on the front pages of every media outlet and social network. So even if you couldn’t care less about the fate of a podcaster with a penchant for DMT and elk meat, you should be paying attention — at least this once.
First: This has basically nothing to do with Section 230. Spotify gave Rogan over $100 million for exclusive rights to his podcast. It is his distributor, and no amount of shouting about supposed distinctions between “platforms” and “publishers” matters.
- Spotify CEO Daniel Ek dismissed the characterization of Spotify as a publisher during a town hall last week, claiming Rogan's podcast counts as “licensed content” since Spotify has no creative control. That said, Spotify could still terminate Rogan’s contract if it doesn't like what he produces.
- Anyhow, Sec. 230 applies to internet services that can host third-party content, and grants them legal immunity to host almost any content.
- But neither Spotify nor Rogan are in legal trouble. There are no pending lawsuits. It’s far more simple: Rogan has said ugly things, including racial slurs, and several of his guests expressed views on COVID-19 outside the scientific consensus. Critics are upset at Rogan for giving those guests a platform and for entertaining their ideas, but that’s a matter of values, not law.
This also has nothing to do with the First Amendment. People use the First Amendment as shorthand for protecting open discourse, but that’s not what it actually says. “Censorship” means a lot of things to a lot of people, but only government entities are blocked by the Constitution from doing it. Spotify is a private company and can kick anyone off its platform for any reason.
So the Spotify-Rogan debate isn’t about policy on its face — but zoom out, and that changes. The discourse has wrongly centered on free speech, but the problem really boils down to competition, consolidation and antitrust.
- Here’s a wild thought: Apple and Google could, if they wanted, pull Spotify from their app stores for failing to adequately enforce platform standards. The optics would be absolutely terrible in terms of antitrust. But Apple and Google removed Parler for similar reasons, suspending the app until Parler removed content that threatened people’s safety and provided a content moderation plan.
- The fact that Apple and Google have that power is significant from Spotify’s perspective. In last week’s town hall, Ek told Spotify employees that the company pursued podcast exclusives because it had been “locked out of deals with some critical hardware partners like Amazon, Google and even Tesla.”
- Speaking of Amazon: Neil Young directed his fans toward an Amazon Music promotion just a few days after pulling his music from Spotify. The Washington Post, owned by Jeff Bezos, has also been promoting articles that instruct readers on how to leave Spotify without losing music, advising them that “leaving the popular music platform can be easier than you might think.”
- It should be clear by now that what started as a discussion over “acceptable” content has also become a business opportunity for competitors.
But Spotify has enormous market power too. Users want to stay where their playlists and friends are, to say nothing of Spotify’s still-comprehensive catalog. Most artists are unlikely to follow in the footsteps of Neil Young or Joni Mitchell, if only because they rely on Spotify to access millions of potential listeners.
Ultimately, these debates are about social norms. Those norms, as they evolve, serve as the basis for policy change. The Spotify debate may feel trivial, but I have a feeling it will become a significant rallying point for midterms on both sides of the debate.
In Washington
The Heritage Foundation is out with a series of recommendations designed to punish Big Tech, including antitrust reform and reining in online ads. The conservative think tank was long a powerhouse of business-friendly policies, but has turned on social media companies over allegations they censor right-wing speech and voices.
Tesla admitted the SEC had subpoenaed information about Elon Musk’s compliance with a prior settlement. After his allegedly fraudulent tweet in 2018 about taking the company private, Musk paid millions of dollars, gave up his role as chairman and agreed to have a lawyer vet his posts. The SEC’s demand came soon after Musk’s tweets asking if he should sell off stock.
Nvidia is officially walking away from its deal for Arm after scrutiny in the U.S., U.K. and EU about the acquisition’s potential effect on competition. SoftBank said that it’s planning to take Arm public instead with an IPO, expected by the end of next March.
The FCC is launching a task force to combat the practice known as digital redlining. The agency aims to come up with rules and policies by next November that will ensure “equal access to broadband across the country, regardless of ZIP code, income level, ethnicity, race, religion, or national origin.”
Meanwhile, Biden’s nominee for the fifth FCC seat, Gigi Sohn, testified at a second Senate hearingto address what she called “unrelenting, unfair and outright false” attacks against her. Sohn’s nomination is in limbo because Democrats are down a vote following Sen. Ben Ray Luján’s stroke, and Republicans have zeroed on an additional ethics recusal she has agreed to. Sohn suggested telecom companies would like to see the FCC remain in its current 2-2 political deadlock.
Four Democratic lawmakers want federal agencies to end their contracts with Clearview AI. The letters, led by Sen. Ed Markey, went to the Departments of Defense, Justice, Homeland Security, Interior and Health and Human Services.
The head of the Office of Science and Technology Policy resigned after POLITICO revealed that an administration investigation found he engaged in extensive bullying.
What’s in a name? The Senate’s USICA, formerly known as the Endless Frontier Act, is now apparently being rebranded as “Make It in America.” Meanwhile, over in the House, a version of the domestic manufacturing and American competitiveness legislation just passed as the America Competes Act.
On Protocol
Google is offering online training to help election workers protect themselves during the midterms. The company is partnering with a number of political groups to carry out the trainings.
More on the revised Algorithmic Accountability Act: Its approach to accountability and transparency mirrors what key advisers inside the FTC are already promoting.
Around the world
The U.K.’s Online Safety Bill will now force porn websites to do age checks. The measure has been steadily expanding to include online threats and sites that host revenge porn, drug content and more.
A MESSAGE FROM CHAMBER OF PROGRESS
Autonomous vehicles can help the United States address issues of mobility, traffic safety, and climate change. Read the latest analysis on how AVs stand to benefit communities across the country.
In the media, culture and metaverse
Faith leaders are the latest to ask Zuckerberg to abandon plans for Instagram Kids. More than 75 religious figures — from Christianity, Islam, Hinduism, Judaism and more — signed a letter to Meta organized by kids’ advocacy group Fairplay. State attorneys general, members of Congress and health advocates have previously slammed the potential product. Instagram paused its plans last year, but didn’t rule out restarting them.
TikTok is testing age-appropriate content filters, modeled after Hollywood’s G, PG and PG-13 ratings. The company also said it removed 12 million suspected underage accounts in Q3 2021, a number that is dramatically larger than figures that Facebook has shared in the past.
Meta’s Oversight Board recommended the removal of a policy that allows doxxing when home addresses are considered publicly available. The board also suggested upgrading punishments for revealing users’ private residences when it’s “clearly related to malicious action that created a risk of harm.”
Wikipedia founder Jimmy Wales apparently tried to give Section 230 guru Jeff Kosseff concert tickets to celebrate the law’s 26th birthday. (Kosseff’s history of the provision is called "The Twenty-Six Words That Created the Internet.") But due to ethics regulations, Kosseff, a professor at the U.S. Naval Academy, seemingly had to decline the Elton John tickets. The seats were in — you guessed it — Section 230.
In the C-suite
Peter Thiel is leaving Meta’s board, and reportedly it’s so he can concentrate on advancing Trump-allied political candidates. Some of them, like Blake Masters, have been particularly hard on Big Tech and social media.
A MESSAGE FROM CHAMBER OF PROGRESS
The numbers are in. Voters want new regulations harnessing the power of America’s tech sector, but there’s a wide gap between where they stand and the tech legislation in Congress.
When asked about their top priorities for tech regulation:
- Top Choice: Cybersecurity (35%)
- Second Choice: Protecting data privacy (12%)
Cursed video
We watched this, and now you have to, too.
I deeply, deeply regret to inform you that this is the rap video of the woman who was just arrested as part of an alleged husband-wife scheme that laundered some $3.6 billion in crypto.https://t.co/F6jSC4U4bY
— Kevin Collier (@kevincollier) February 8, 2022
Thanks for reading — see you Friday!