Ted Cruz loves the antitrust bills. Why aren’t Democrats worried?

“Once you’ve obtained this bipartisan support, you want to be careful about changes you’re making.”

Ted Cruz

The Open App Markets Act and the American Innovation and Choice Online Act have supporters and detractors on both sides of the aisle.

Photo: Kent Nishimura/Los Angeles Times via Getty Images

In the beginning, there were progressives and conservatives. Progressives wanted social media platforms to get rid of all of the bad stuff they could find — hate speech, misinformation, harassment, you name it. And conservatives wanted, well, the opposite.

Then, along came a couple of antitrust bills aimed at preventing Meta, Google, Apple, Amazon and others from using their vast power to thwart or exploit their competitors. That’s where things get complicated.

Progressive groups and most Democrats cheered the two bills, the Open App Markets Act and the American Innovation and Choice Online Act. But then again, so did Republican Sen. Ted Cruz and others on the right, who seemed to like that the same provisions that would prevent tech giants from discriminating against competitors under these bills might also prevent them from punishing companies like Parler when they break platforms’ rules.

So, what did the people who have been quick to condemn platforms for lax content moderation say about all that? Not much.

The usual suspects who want tech to do more to stop harmful content from spreading online have been unusually quiet about the possibility that the antitrust bills now headed to the Senate floor might actually undermine that work. That’s partly to do with a fundamental disagreement about how the bills will be interpreted. But another big part of it — the part mostly being whispered behind closed doors — is that progressives are wary of jeopardizing Democrats’ best shot at sticking it to tech.

Free Press is one of the few progressive groups that has publicly criticized the bills, alongside the pro-industry group TechFreedom and the Center for Democracy and Technology, which receives financial support from tech giants. Matt Wood, Free Press’ general counsel and vice president of Policy, said the group has been talking with other digital rights, civil rights and civil liberties groups about the flaws they see in the bills, and has “good audiences for our concerns here, and lots of acknowledgement of the potential problem.” But, Wood said, Free Press has yet to see those groups speak out publicly about those problems.

One of those groups is Accountable Tech, a frequent critic of the tech industry that has joined other public interest groups including Public Knowledge, Color of Change and the Center for American Progress to champion the bills. “We've been having ongoing conversations about this internally, and with friends like [Free Press], trying to figure out if there's a way to navigate this that can address their legitimate concerns without pushing [Republicans] off the bill,” said Jesse Lehrich, co-founder of Accountable Tech.

Those “legitimate concerns” center around what the bills will mean for tech platforms’ ability to moderate content without being accused of anticompetitive behavior. As Protocol has reported, both Free Press and TechFreedom have previously argued that the American Innovation and Choice Online Act, which bars platforms from discriminating against “similarly situated businesses,” could make it easier for a company like, say, Infowars to claim it’s being discriminated against when it gets down-ranked or deplatformed.

The argument against a provision in the Open App Markets Act, which aims to check Google and Apple’s power over app developers, is similar. That provision prohibits app stores from providing “unequal treatment of apps” in a way that might harm competition. In a letter to the chair of the Senate Judiciary Committee last week, Free Press and others argued that provision, and the particular way it’s worded, effectively creates a “Parler Bill of Rights.”

In the case of the app bill, Free Press and TechFreedom have advocated for a narrow amendment that clearly specifies what, exactly, constitutes unequal treatment. But the bill passed the Judiciary Committee last week without that language. “There is simply no reason why any Democrat on the committee shouldn’t welcome our concerns and shouldn’t support our amendment,” said Berin Szóka, TechFreedom’s founder. “The only people who have any reason to object to our amendment are Republicans who want to abuse the bill as a weapon against content moderation.”

For the tech industry, it’s a perfect wedge issue. Democrats are the ones who have been pushing platforms to do more to police themselves. Industry groups have asked if a Big Tech breakup is really worth the risk of backsliding on misinformation and hate speech, knowing their audience.

Supporters of the bills aren’t naive to these concerns. The issues came up before, when the antitrust package passed the House and changes were made to address these concerns before it reached the Senate. At this point in the process, “It is tricky to make changes,” said one member of a group that has supported the bills, who asked to speak anonymously in order to discuss private conversations. “Once you’ve obtained this bipartisan support, you want to be careful about changes you’re making.”

At the same time, this person argued that some of the fears voiced by Free Press and the tech industry are overblown. “This is a concern about lawsuits that aren’t going to actually be successful,” they said. A spokesperson for Sen. Amy Klobuchar, who co-sponsored both bills, told Protocol much the same thing last month, noting that companies that violate a platform’s terms of service would be hard-pressed to mount a legitimate claim around competition.

Of course, even the possibility of lawsuits can spook companies into different behavior, which, in this case, could mean less forceful content moderation. But the supporter who spoke to Protocol said that the benefits of the bills outweigh the risks. “We’re weighing this potential risk of the changing calculus and that [companies] might have to pay their lawyers a little more versus an important competitive benefit,” this person said.

They also noted that even if these bills pass, that wouldn’t make Section 230 go away, meaning tech platforms would still have an important legal shield to rely on for content moderation. (Although, as it happens, the Senate is currently considering a controversial bill called the EARN It Act that would chip away at Sec. 230, a change many progressive groups have come out against.)

Cruz did float an amendment to the app bill that would have doubled down on language that prohibits app stores from discriminating on the basis of political belief. But the Judiciary Committee rejected it. “This bill is not about political speech. It's not about discrimination. It's really about protecting consumers,” Sen. Richard Blumenthal, one of the bill’s authors, said at the time.

His co-author, Sen. Marsha Blackburn, however, called Cruz’s proposal regarding political censorship a “really good amendment” and said, “These are things we want to continue to work on.”

If the bills’ naysayers are to be believed, that work is already done.

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