United States Supreme Court
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Tech's season finale is coming at the Supreme Court

Protocol Policy

Hello and welcome to Protocol Policy! Today, I’m talking about how, after a quiet-ish summer, an appeals court ruling means a bunch of tech policy questions are all coming to a head at the same moment. Plus, Eric Schmidt sends some love to Elon Musk (and Ukraine), and the FCC is stepping in after a phone company seized more than $120 million from incarcerated people.

Writers’ block

Texas’ law banning companies like Meta and Twitter from taking down any political content — which in practice overturns the entire, decades-long legal approach of social media to all content — is back on. Here’s what that means, what’ll happen next and just how binge-worthy it’ll all be.

Yes, this feels like déjà vu all over again.

  • The law was signed this time last year. A few months later, a federal trial court paused the measure, saying it was likely unconstitutional. Then three appeals court judges paused the pause, making the law go into effect.
  • Soon after, though, the Supreme Court said the appeals court shouldn’t have done what it did, and reinstated the pause — but the justices said little about whether the whole law was bad, or if the appeals court should have just let things play out a bit first.
  • The three-judge appellate panel on the 5th Circuit, arguably the most conservative court in the U.S., has now basically thrown its milk on the floor and said if it can’t have a pause, it’ll just cancel the lower court’s ruling entirely.
  • This is really how it’s done these days in the branch of the government that seems confused about why its reputation for non-partisan deliberation is plummeting.

Now we’re looking at another appeal from the tech trade groups that sued over the law in the first place, either back to the full set of judges on the 5th Circuit, or else straight to the Supreme Court, which will almost certainly have to hear the whole case eventually.

  • A different appeals court — the 11th Circuit — found a similar law in Florida to be unconstitutional. The split means the whole legal basis of modern communications is basically a big 🤷 and that’s the sort of thing the Supreme Court is supposed to get around to.

This is a case tech never wanted to happen, even if it thinks — and there’s a reasonable chance — that it’ll win.

  • Five justices, including three from the Supreme Court’s conservative wing, agreed in May to pause the law.
  • But those who care about civil liberties might now worry about what happens if any of the justices were just annoyed about the procedural shenanigans while actually liking the law just fine, and none of the other four justices switch back.

The justices could end up dealing with the notion of common carriage. The appeals court judges pooh-poohed free speech arguments, saying the government can force platforms to “carry” all viewpoints the way phone companies have to carry all callers.

  • Common carriage is a bit of a slippery term, but it’s mostly supposed to be for companies that use public-ish infrastructure to provide essential and highly regulated services. Such quasi-utilities, starting with railroads and now including phone companies, hold themselves out as being for all comers.
  • Sure, it’s arguable whether Facebook is a monopoly, but it’d be almost impossible to say social media platforms in general check all these boxes — especially when even broadband companies, including wireless ones, aren’t considered to fit the bill anymore.
  • For a sense of how hand-wavey the arguments to cram social media into this definition and let the government dictate speech as easily as electricity rates are: the judges simply asserted with no evidence whatsoever that Twitter is a monopoly, and then moved on.
  • Earlier, one of the judges hadn’t even known Twitter was a website.

But this is only the beginning of the thorny policy issues for the Supreme Court.

  • The high court may choose to debate head on the longstanding understanding of, and common sense about, what it means to have free speech and not let the government dictate what we can talk about.
  • Like the Texas law, the appeals court judges tried to draw a hazy line between the “viewpoints” the platforms must carry and everything else they’re supposedly allowed to moderate.
  • Then there’s Section 230, which is supposed to leave the laws about liability for content to the feds.

It will be months at least before the Supreme Court could get to arguments, let alone any answers.

  • In the meantime, barring some additional court action to institute whichever number pause this would be, Texas users can sue internet content companies for their routine moderation decisions, claiming that posts harassing other users or spreading COVID misinfo are their political viewpoint.
  • The companies will be scrambling to respond, insisting that their moderation decisions aren’t viewpoint based, and deciding if it’s worth the political and economic loss of operating like a spam-filled Parler in Texas for a few months.

Other conservative states could jump in, meanwhile, to pass their own laws under the banner of anti-censorship …

  • … even while some already are considering laws that would effectively censor any pro-abortion information.

So here we sit, with a bunch of tech policy questions coming to a head, all in the one case, as if we’re all about to watch a big season finale. Maybe the Supreme Court won’t pick it up, or rule on every issue. Maybe tech will win, and the status quo will just continue. But no matter what outcome we get, the industry is going to look at least a little bit different by the time all the arguing is done.

— Ben Brody (email | twitter)

In Washington

The U.S. military ordered a review of its own online influence operations, the Washington Post reports. The review comes in response to pressure from the Biden administration to account for these campaigns. Executives from Meta were also reportedly in direct communication with Pentagon officials over concerns about fake accounts with suspected U.S. military ties.

Eric Schmidt praised Elon Musk’s involvement in the Ukraine war effort. The former Google CEO called Musk “a real hero in the story” as Starlink satellites have shielded Ukrainians from the effects of Russian attacks on internet infrastructure. He also said that, once the war ends, Ukraine will have “one heck of a tech industry” since it’s “war-hardened” and “smart.”

The App Association attempts to downplay its ties to Apple, despite receiving more than half its funding from the company, according to a Bloomberg report. The group, which claims to represent 5,000 independent app developers, espouses many of the viewpoints held by Apple even though Apple isn’t a member. The current executive director of The App Association also previously served as a lobbyist for Apple.

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Coming Soon

The state of innovation: Join Protocol Policy on Sept. 27 at 10 a.m. PT/1 p.m. ET as we dive into the U.S.’s national strategy on innovation, what’s working, what isn’t and what policy changes we can expect from the year ahead. RSVP here.

On Protocol

The FCC is stepping in after a provider of telephone service to prisons seized more than $120 million from incarcerated people by declaring their accounts inactive. New rules would require companies like GTL to leave accounts active for at least six months and to refund customers rather than taking the money for themselves.

Adobe’s attempted acquisition of Figma is “almost certain to come under regulatory scrutiny,” Protocol’s Biz Carson writes in this week’s Pipeline. Henry Su, a law partner in Silicon Valley, said this is especially likely since Figma and Adobe are direct partners, which could prompt regulators to worry about a “killer acquisition” intended to diminish competition.

In the media, culture, and metaverse

After years of being in bed with law enforcement, Clearview AI gave access to attorneys representing a man hoping to identify the witness who could prove his innocence, according to a New York Times report. The move raises questions about whether the facial recognition database is trying to overcome the vast privacy and civil liberties concerns with a single high-PR good deed.

NewsGuard looked at how younger internet users head to TikTok to find the kinds of information most people get on Google — with troubling implications for the spread of misinformation.

In data

42%: That’s the estimated proportion of home sales that resulted in Zillow taking a loss in August, according to Bloomberg. Zillow’s competitor in the iBuying space, Opendoor, is believed to have recorded a loss on 76% of home sales in Phoenix. These losses highlight a suspected vulnerability in the iBuying model, where pricing algorithms can only do so much to account for the cyclical nature of the residential real estate market.

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Too fun for its own good?

Some business leaders are questioning the widespread use of Slack, wondering whether the messaging app and its GIF-mojis are too fun for their own good. Amal Dorai (who sold his startup to Microsoft) said the “charmless nature” of Teams makes it so that people don’t “go and hang out and talk about your weekend and stuff.” Personally, this all sounds a bit dreary — though I must admit, the party parrot has a hypnotic quality that doesn’t seem all that great for productivity.

Thanks for reading. See you Wednesday.

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