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Culture War Comes to Silicon Valley as Sen. Josh Hawley Introduces Bill to Strip Section 230 Immunity from Social Media

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WASHINGTON, June 20, 2019 — Legislation authored by Sen. Joshua Hawley could signal the start of a new chapter of the culture war: Conservatives directly targeting Silicon Valley tech companies.

On Wednesday, Hawley, R-Mo., announced that he’d introduced the “Ending Support for Internet Censorship Act” (PDF), which would repeal a provision of the 1996 Telecommunications Act that granted online service providers immunity from liability for user-generated content posted on their websites.

The law, known as Section 230 of the Communications Decency Act, has increasingly come to be seen as generous – and perhaps overly generous – in encouraging robust online discussion. Many of the law’s most public beneficiaries – Facebook, Google, Twitter – are now the technology platforms that are America’s largest companies.

As a result, a growing group of tech critics are saying that Section 230 is no longer in the national interest. (See our story last week, “With Google and Facebook Under Fire, Section 230 is at a Tipping Point as More Push for Changes.”)

Section 230 was included in the Telecom Act as a way of incentivizing websites concerned that they would be held liable for the comments of others. It was intended to reverse court rulings holding an online service provider liable for defamatory content posted by users when the tech company employed moderators to enforce terms of service rules.

Hawley’s mission against Facebook

Only six months into his first term, Hawley has garnered attention in conservative media circles by taking up the cause of conservative-identifying social media users. They claim that social media companies who ban or suspend the social networks’ rules against hate speech, threats, and harassment amounts to political censorship, even if done by a private sector actor.

(See our story last month, “Sen. Josh Hawley Accuses Facebook of Addiction and Calls Social Media Worth-Less,” which also touched upon Sen. Hawley’s views about Section 230.)

Now, Hawley says he wants condition providers’ immunity on their ability to convince four of five members of the Federal Trade Commission that they have not discriminated against conservatives when applying their terms of service.

The bill would only apply to platforms with more than 30 million active monthly users in the U.S., more than 300 million active monthly users worldwide, or more than $500 million in global annual revenue.

It would require these giant tech platforms to biannually provide the FTC with “clear and convincing evidence” that “their algorithms and content-removal practices are politically neutral.”

“With Section 230, tech companies get a sweetheart deal that no other industry enjoys: complete exemption from traditional publisher liability in exchange for providing a forum free of political censorship,” Hawley said in a statement.

“This legislation simply states that if the tech giants want to keep their government-granted immunity, they must bring transparency and accountability to their editorial processes and prove that they don’t discriminate.”

Tech industry lobbyists wonder whether they should take it seriously

But industry and legal experts savaged Hawley’s proposal as antithetical to the First Amendment and a throwback to policies long rejected by conservatives, including the Fairness Doctrine that required broadcasters using the nation’s radiofrequency spectrum to grant airtime to opposing views.

Computer & Communications Industry Association President Ed Black deplored the “ludicrousness” of Hawley’s proposal, which he called “an unbelievable disregard for the essence of the First Amendment and attempt to overlay a lens of partisan politics over the communications of millions of Americans.”

“If Congress is serious about tech companies doing more to remove hate speech and illegal content online, putting new restrictions on the legal protection that allows them to do that would be ill-advised,” Black said.

In a statement, TechFreedom President Berin Szoka said that the measure would effectively require internet companies to obtain a license from the FTC in order to operate. It would make them depend on the goodwill of FTC commissioners and the presidents who nominate them.

Szoka, who testified last year at a House Judiciary Committee hearing on conservatives’ allegations of political censorship, predicted that the biannual vote Hawley’s bill requires would turn into a “partisan bloodmatch” in which companies would be presumed guilty and have to prove their innocence.

“The bill would give politicians a gigantic regulatory hammer to use against big tech and transform the FTC overnight into the most politicized regulatory body in Washington,” he said. “Sadly, that seems to be the point.”

Szoka noted that Hawley’s bill would deter companies from making social networks “usable for normal people” by moderating content and combatting abusive behavior, extreme content and disinformation, and suggested such deterrence is meant to benefit Republicans.

“If, as social science research suggests, such harmful content seems to help Republicans energize their base more than it helps Democrats, even truly ‘neutral’ enforcement of terms of service will, on net, hurt the Right,” he said. “That which would explain why Republicans insist on framing content moderation as ‘censorship’ of their views.”

(Photo of Hawley by Drew Clark; Reporter Emily McPhie contributed to this article.)

Antitrust

Republican FTC Commissioner Criticizes Biden Economic Officials as Detrimental to Agency

Commissioner Christine Wilson attributes poor results of FTC staff satisfaction surveys to the officials’ leadership.

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Photo of Christine Wilson, Randolph May, Noah Phillips and Maureen Ohlhausen

WASHINGTON, May 9, 2022 – On Friday Republican commissioner of the Federal Trade Commission Christine Wilson expanded upon released remarks criticizing the leadership of economic officials chosen by President Joe Biden as detrimental to the functioning of her agency and staff.

Wilson pointed to recently administered surveys of FTC staff on satisfaction in their jobs which showed historically poor results for the commission, saying attitudes towards the commission and its work peddled by its Chair Lina Khan, former commissioner and current director of the Consumer Financial Protection Bureau Rohit Chopra and Biden’s special assistant for technology and competition policy Tim Wu are largely to blame for low staff morale.

“We saw Chair Khan’s arrival and a complete disregard for the rule of law and due process, not to mention complete disregard for staff,” said Wilson.

“We saw Commissioner Rohit Chopra arrive at the FTC and begin excoriating the agency and the commission and the staff as being lax and feckless for the last 40 years.”

Speaking at the Free State Foundation’s Annual Policy Conference with fellow Republican Commissioner Noah Phillips and former Republican chairwoman of the commission Maureen Ohlhausen, Wilson cast the commission as an entity in disarray.

She revealed a workplace where commissioners have often been given very little notice on items they will be considering on the agenda of the commission.

Ohlhausen noted a decrease in bipartisan activity from the commission that she felt was present as a long-lasting legacy of commissions past during her tenure as chair, and Wilson described “disdain and marginalization of staff by current leadership” as harmful to the environment at the commission.

Drawing on her recent remarks, Wilson hypothesized that new leadership’s economic worldview draws heavily on concepts from academic Marxism and critical legal studies, a school of thought of which the Republican-maligned critical race theory is an offshoot.

She states that these theories largely play into the view of new leadership that the FTC in the past has not brought nearly enough action to protect consumers.

Also on Friday, Wilson emphasized the need for federal privacy legislation and said she has heard of a “concerted push” in Congress for such legislation to pass soon.

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FTC

Biden Looks to Bedoya to Replace Rohit Chopra on FTC, Report Says

Staunch privacy advocate Alvaro Bedoya appears to be Joe Biden’s pick for the FTC, Axios reports.

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Staunch privacy advocate Alvaro Bedoya appears to be Joe Biden's pick for the FTC

WASHINGTON, September 13, 2021—President Joe Biden is expected to bring on privacy stalwart Alvaro Bedoya for the open seat on the Federal Trade Commission, according to reporting from Axios.

Born in Peru and raised in New York, Bedoya attended Harvard University where he received his B.A. in Social Studies. He also holds a J.D. from Yale.

A longtime supporter of consumer privacy rights, Bedoya is the founding director of the Center on Privacy and Technology at Georgetown Law. Previously, he served as chief counsel of the Senate Judiciary Subcommittee on Privacy, Technology, and the Law. While working in the Senate, much of his work centered on location and biometric privacy with regard to consumer protections.

As it stands now, there are three Democrats and two Republicans on the commission. In January of 2021, Biden tapped Rohit Chopra to serve as the Director of the Consumer Protection Bureau. Though Chopra’s term on the FTC expired in 2019, the commission allows incumbent members to sit until a replacement is appointed—in this case, Bedoya.

The Washington Post quoted Republican FTC commissioner Noah Phillips speaking fondly of Bedoya. “I don’t think of him as a person who just gets up and rants about entities he doesn’t like,” and described him as “without fail as bright and thoughtful a person as you could find.”

Phillips has been broadly critical of the direction he feels the FTC is going and has historically criticized political firebrands on both sides of the aisle.

As Big Tech faces mounting criticism from both Republicans and Democrats with regard to privacy, misinformation, and alleged censorship, Bedoya will be entering a tumultuous era for the FTC.

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Antitrust

FTC Commissioner Phillips Warns About Shifting Direction of Agency

Noah Phillips voiced concern about the scope and practices of the Biden administration’s FTC.

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FTC Commissioner Noah Phillips

WASHINGTON, September 2, 2021 — Federal Trade Commissioner Noah Phillips said at a Hudson Institute webinar on Monday that he’s concerned about the direction the competition watchdog is moving toward considering recent events.

Phillips said the left-leaning voices in Washington and the appointment of Lina Khan to chair the agency has left him wondering about the legacy of the last 40 years of competition regulation in America – which have been hallmarked by the Hart-Scott-Rodino Antitrust Improvements Act of 1976. That legislation effectively gave the FTC the ability to review mergers and acquisitions before they were finalized, rather than afterward, which governed pre-legislation.

Under Biden-appointee Lina Khan, Phillips described how the FTC has done away with the process of early termination. In the past, this process made it unnecessary for every single company to provide advanced notice and advanced approval for mergers. “Historically, parties have been able to come to the agencies and say, ‘You’re not interested in this, can we just go ahead and finish our deal,’ and the agencies have said ‘yes.’”

He said this is no longer the case, and that every single merger must provide advanced notice and approval. “What we’re introducing is an inefficiency in the market for transactions that we have no interest in pursuing, just for the sake of it. I think that’s a problem,” he continued. “My concern is that it is making merger enforcement less effective, less efficient, and less fair.”

Phillips pointed to left-of-center and leftist voices in Congress, such as Rep. David Cicilline, D-New York, Sen. Elizabeth Warren, D-Massachusetts, and Rep. Alexandria Ocasio-Cortez, D-New York, who, at the outset of the pandemic, wanted to ban all acquisitions and mergers—regardless of their merit. He described this view as falling outside of mainstream perspectives, but noteworthy nonetheless.

“I don’t think that is what most people believe,” Phillips remarked. “I don’t think that is what Hart-Scott-Rodino envisions.”

This webinar took place only a couple of weeks after Phillips spoke at the Technology Policy Institute’s 2021 Aspen Forum, where he voiced similar concerns, stating that he feared that this new direction would make it more difficult for the FTC to hear cases that it should, and defended the commission’s record against critics who said it was lax under the Trump Administration.

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