Congress should get moving on tech competition while it has the chance

The American Innovation and Choice Online Act will spur innovation while protecting companies’ rights to moderation, Yelp argues.

The exterior of the Capitol building dome

Yelp calls for Congress to pass the American Innovation and Choice Online Act to promote competition and create a fair digital playing field for new entrants.

Photo: PartTime Portraits via Unsplash

Aaron Schur is general counsel for Yelp.

We’ve seen a torrent of activity in the past two years as lawmakers try to advance vital tech reform to rein in Big Tech platforms that stifle competition. The American Innovation and Choice Online Act (AICO) would be a significant step forward on the road to solving this problem, without undermining the ability of companies to take action on harmful content on their platforms. But baseless concerns about this legislation risk undermining the prospect of tangible progress, and it’s critical that public officials, advocacy groups and the public not take the bait.

AICO, which would reinvigorate competition by prohibiting the biggest tech platforms from artificially favoring their own services over innovative competitors’, has passed committees in both the House and Senate. It is the best chance in recent history to reestablish a fair digital marketplace and spur entrepreneurship. As we hurtle toward the midterm elections, the window for passing major legislation is closing. Senate Majority Leader Chuck Schumer and House Speaker Nancy Pelosi should bring the Act to a vote as soon as possible.

The bill brings together an ideologically diverse group of supporters, including co-sponsors Senators Amy Klobuchar and Chuck Grassley, in a time when examples of consensus across party lines are few and far between. Why such bipartisanship here? Because the anticompetitive practices of Big Tech have gotten so out of control that combating them transcends even the current hyper-polarized political environment.

But in recent weeks, the Big Tech lobby has been working all angles to find cracks in this rare consensus. It claims this legislation would unintentionally undermine the industry’s ability to crack down on harmful content online that targets minorities, women and the LGBTQIA+ community, as well as disinformation that fuels violence and extremism. This critique is fundamentally wrong.

Critics point to a provision in AICO that prohibits platforms from discriminating in anticompetitive ways when enforcing their terms of service against their business users. For example: If a company runs a digital application platform, they can’t boost one app over a competing app just because they have a paid partnership with the app-maker. Big Tech contends this provision could be the basis for bad-faith lawsuits over content moderation — a company might get sued for “discriminating” between users if it, for example, removes vaccine disinformation from search results but keeps a credible news article on vaccine efficacy. This is a misinterpretation of AICO that simply doesn’t hold up, particularly in its revised form.

First, the language passed by the Senate Judiciary Committee in January drastically raises the bar for any lawsuit along the lines critics fear, requiring that any legal claim must be based on conduct that “would materially harm competition.” With this change, it is incredibly unlikely that a plaintiff could successfully attack a platform’s efforts to prevent hate speech or stop vaccine disinformation as “discriminatory” behavior. These are changes that some advocates had pushed for, and they should be celebrated. As Yelp’s general counsel, this change made me entirely comfortable recommending my company’s full-throated support of AICO.

Second, companies like Yelp, let alone behemoths such as Google and Meta that would be subject to heightened antitrust scrutiny, regularly face meritless lawsuits. And judges routinely throw out baseless cases — a dynamic that would not change if the bill is enacted. AICO would not expose companies to any significant new legal risk based on their content moderation practices. That’s particularly important because it means companies would not be disincentivized to prevent their platforms’ misuse as a tool to harm vulnerable communities.

Let's face reality: Companies that host popular platforms for user content are frequently targets of lawsuits that misuse existing laws in an attempt to remove speech. Yelp, as a platform for consumer reviews, is a frequent target of such claims. We were sued under the federal Fair Labor Standards Act by business owners claiming our Terms of Service were employment requirements, and seeking to have us pay Yelp users for every review or photo posted to our site in a misguided effort to break our business. We were sued under the federal Consumer Review Fairness Act — a law we supported because of the protections it gives to consumer reviewers — by a plaintiff upset that we enforced our Terms of Service against him. We were sued under California’s Right to Publicity statute by business owners claiming we had no right to list their businesses without permission. We have also been sued under a host of other laws, including federal statutes on discrimination, racketeering, extortion and, yes, antitrust. These lawsuits were all brought by different plaintiffs under different legal theories, but they all have two things in common: They all targeted Yelp’s publishing and editorial decisions about user content on our platform, and they all failed at the earliest stage because competent judges understood what was at play and could reasonably apply the laws.

As a company that regularly wrestles with thorny content moderation questions, we would never support legislation that could limit our ability to create the best experience for our users, which includes enforcing our Terms of Service and other robust efforts to mitigate hateful, fraudulent or abusive content.

But that’s not what AICO is about. Yelp has long supported pro-competition legislation because we have seen firsthand how companies like Google rig the market against everyday consumers, small businesses and competitors to boost their own profits. And there is broad agreement that this legislation will increase competitiveness in the online marketplace and promote an open and pluralistic internet for consumers.

The Big Tech companies know that, too, and that’s why they’ve been waging an all-out lobbying campaign to manufacture fear, uncertainty and doubt in an attempt to stop this bill in its tracks. They want us to believe that AICO means the end of Google Maps and Amazon Prime, when in fact competition would strengthen those products and others.

We have our work cut out for us fighting for a fair, competitive online marketplace. As Sen. Klobuchar said recently, this is the ultimate David-and-Goliath scenario. We have to work together to reject the false choice between the status quo of stifled competition and a fictitious online world where platforms’ hands are tied and hateful, unhelpful content thrives.

We need to focus on passing AICO to begin creating an even playing field, and then continue the mission to build a healthy online ecosystem for everyone — particularly those marginalized communities that disproportionately bear the brunt of harmful and hateful content online.

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