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Lina Khan Pitches Ideas For Regulating Big Tech In Nomination Hearing

Senate Commerce Committee considers nominations for Lina Khan, Bill Nelson and Leslie Kiernan.

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Screenshot of Lina Khan at Senate hearing

April 21, 2021 – The Senate Commerce, Science and Transportation Committee held a hearing Wednesday to consider the nominations of Lina Khan as a commissioner at the Federal Trade Commission, former Sen. Bill Nelson for administrator of NASA and Leslie Kiernan as general counsel for the Department of Commerce.

Khan’s nomination signals a strong stance on antitrust, especially in the tech industry, for the Biden administration, as Khan has been a vocal critic of the concentration of market power for companies like Google, Facebook and Amazon. Previous to her current position as a professor at Columbia Law School, she worked on the House antitrust subcommittee in publishing a report against anti-competitive behavior in big tech, and authored the article “Amazon’s Antitrust Paradox.”

“Given the interest of this committee, from left to right, from liberal to conservative, in taking on antitrust and privacy issues, I can’t think of a more qualified person to be considered for the FTC,” said Sen. Amy Klobuchar, D-Minnesota, in introducing Khan to the committee hearing.

“Lina Khan is, in short, an out-of-the-box thinker, a pioneer in competition in policy, who is already a noted expert in her field. Her deep understanding of how markets influence our lives, and how the law should function, is exactly what we need at the FTC.”

In response to various questions from senators on the committee, Khan spoke on her experience as a journalist and other work that allowed her to document competition and abusive business practices, she said.

“This work taught me the importance of fair competition and the critical role that the antitrust laws play in encouraging business dynamism and promoting widespread prosperity,” she said.

In response to a question about regulating social media companies, Khan identified two options. “One is, enforcing competition laws and ensuring that these markets are competitive,” she said. “The other is, if we instead recognize that perhaps there are certain economies of scale, network externalities, that instead are going to lead these markets to stay dominated by a very few number of companies, then we need to apply a different set of rules.”

Agencies need to be on same information wavelength

She also spoke on what she called “asymmetries” of information and market power between tech companies and federal agencies and regulators. The FTC needs to use their information collection capacity to mitigate some of these information gaps, she said. Social media has black boxes and proprietary algorithms that can sometimes make it difficult to know what is going on, she said.

Khan responded to a question about what she would have done differently to handle the tech mergers during the Obama administration. Evidence has come to light since those mergers happened that suggest missed opportunities the FTC could have taken, she said. The decisions made then was partly due to information asymmetries, and also because of the assumption that digital markets move really quickly, so the market would regulate itself with new entrants and technology, she said.

But we now know these markets have significant network externalities and other reinforcing advantages of data in ways that make them more “sticky,” and we know now to be more vigilant, she said.

On conflicts of interest

She also responded to a question about possible conflicts of interest as a FTC commissioner given her previous work on antitrust in the tech industry, saying that “I would be approaching these issues with an eye to the underlying facts and empirics and following the evidence where it goes.”

On a specific question for recusing herself, she said there are “a set of recusals required in federal ethics laws where you are making categorical determinations before taking office. With regards to prejudgment, those are really resolved on a case-by-case basis.”

For Nelson’s nomination as the NASA administrator, who was a former senator that served on that committee, he received universal applause across both political aisles. “Everybody here knows Senator Nelson, you know his character, you know his integrity, you served alongside him, so that is not a question that needs to be answered at all,” said Sen. Marco Rubio, R-Florida. “I think this is an inspired choice, I can’t think of a better American alive to serve in this role.”

The committee did not vote on the nominations, setting that action for a later date.

Free Speech

Panel Hears Opposing Views on Content Moderation Debate

Some agreed there is egregious information that should be downranked on search platforms.

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Screenshot of Renee DiResta, research manager at Stanford Internet Observatory.

WASHINGTON, September 14, 2022 – Panelists wrangled over how technology platforms should handle content moderation at an event hosted by the Lincoln Network Friday, with one arguing that search engines should neutralize misinformation that cause direct, “tangible” harms and another advocating an online content moderation standard that doesn’t discriminate on viewpoints.

Debate about what to do with certain content on technology platforms has picked up steam since former President Donald Trump was removed last year from platforms including Facebook and Twitter for allegedly inciting the January 6, 2021, storming of the Capitol.

Search engines generally moderate content algorithmically, prioritizing certain results over others. Most engines, like Google, prioritize results from institutions generally considered to be credible, such as universities and government agencies.

That can be a good thing, said Renee DiResta, research manager at Stanford Internet Observatory. If search engines allow scams or medical misinformation to headline search results, she argued, “tangible” material or physical harms will result.

The internet pioneered communications from “one-to-many” broadcast media – e.g., television and radio – to a “many-to-many” model, said DiResta. She argued that “many-to-many” interactions create social frictions and make possible the formation of social media mobs.

At the beginning of the year, Georgia Republic representative Marjorie Taylor Greene was permanently removed from Twitter for allegedly spreading Covid-19 misinformation, the same reason Kentucky Senator Rand Paul was removed from Alphabet Inc.’s YouTube.

Lincoln Network senior fellow Antonio Martinez endorsed a more permissive content moderation strategy that – excluding content that incites imminent, lawless action – is tolerant of heterodox speech. “To think that we can epistemologically or even technically go in and establish capital-T Truth at scale is impossible,” he said.

Trump has said to be committed to a platform of open speech with the creation of his social media website Truth Social. Other platforms, such as social media site Parler and video-sharing website Rumble, have purported to allow more speech than the incumbents. SpaceX CEO Elon Musk previously committed to buying Twitter because of its policies prohibiting certain speech, though he now wants out of that commitment.

Alex Feerst, CEO of digital content curator Murmuration Labs, said that free-speech aphorisms – such as, “The cure for bad speech is more speech” – may no longer hold true given the volume of speech enabled by the internet.

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Big Tech

Twitter Whistleblower Says Company Needs to Work to Permanently Delete User Data

Meanwhile, Twitter shareholders approved a deal to sell the company to Elon Musk, who wants out.

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Photo of Peiter Zatko at Tuesday's Senate Judiciary hearing

WASHINGTON, September 14, 2022 – Twitter’s former head of security and now company whistleblower told a Senate Judiciary committee Tuesday that Twitter must put more resources into trying to permanently delete user data upon the elimination of accounts to preserve the security and privacy of users.

Peiter Zatko, who was fired from Twitter in January due to performance issues, blew the whistle on the company last month by alleging Twitter’s lack of sufficient security and privacy safeguards poses a national security risk. He alleged that the company does not delete user data when accounts are deleted.

On Tuesday, Zatko told the Senate Judiciary committee that the company needs to take the step of ensuring that the personal information of users are deleted when they destroy their accounts.

He alleged company engineers can access any user data on Twitter, including home addresses, phone numbers and contact lists, and sell the data without company executives knowing.

“I continued to believe in the mission of the company and root for its success, but that success can only happen if the privacy and security of Twitter users and the public are protected,” Zatko said.

The Wall Street Journal reported Tuesday that Twitter investors approved SpaceX CEO Elon Musk’s takeover of the company, despite the billionaire trying to back out of the deal allegedly over a lack of information about the number of fake accounts on the platform. The company and Musk are currently in court battling over whether he must follow through on the deal.

Musk’s lawyer has asked the court to delay the trial — scheduled for mid-October — to allow his client to investigate the whistleblower’s claims, according to reporting from Reuters.

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Big Tech

A White House Event, Biden Administration Seeks Regulation of Big Tech

Participants voiced concerns over alleged abuses by big tech companies.

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Photo of President Joe Biden

WASHINGTON, September 9, 2022 – President Joe Biden on Thursday called for a federal privacy standard, Section 230 reform, and increased antitrust scrutiny against big tech.

“Although tech platforms can help keep us connected, create a vibrant marketplace of ideas, and open up new opportunities for bringing products and services to market, they can also divide us and wreak serious real-world harms,” according to a White House readout from the administration’s listening session on Thursday.

Participants at the White House event voiced concerns over alleged abuses by big tech companies.

A new data privacy regime?

The Biden administration called for “clear limits on the ability to collect, use, transfer, and maintain our personal data.” It also endorsed bipartisan congressional efforts to establish a national privacy standard.

Last June, Rep. Frank Pallone Jr., D-N.J., introduced the American Data Privacy and Protection Act. The bill gained substantial bipartisan support and was advanced by the House Energy and Commerce Committee in July.

In the absence of federal privacy laws, several states drafted privacy laws of their own. The Golden State, for instance, implemented the California Consumer Privacy Act in 2018. The CCPA’s protections were extended by the California Privacy Rights Act of 2020, which goes into effect in January 2023.

Biden maintains his position seeking changes to Section 23o

“Tech platforms currently have special legal protections under Section 230 of the Communications Decency Act that broadly shield them from liability even when they host or disseminate illegal, violent conduct or materials,” argued the White House document.

Biden’s hostility towards Section 230 is not new. Section 230 protects internet platforms from most legal liability that might otherwise result from third party–generated content. For example, although an online publication may be guilty of libel for a news story it publishes, it cannot be held liable for slanderous reader posts in its comments section.

Critics of Section 230 say that it unfairly shields rogue social media companies from accountability for their misdeeds. And in addition to Biden and other Democrats, many Republicans are dislike the provision. Sens. Ted Cruz, R-Texas, and Josh Hawley, R-Missouri, argue that platforms such as Twitter, Facebook, and YouTube discriminate against conservative speech and therefore should not benefit from such federal legal protections.

Section 230’s proponents say that it is the foundation of online free speech.

Ramping up antitrust

“Today…a small number of dominant Internet platforms use their power to exclude market entrants,” Thursday’s press release said. This sentiment is consonant with the administration’s antitrust policies to date. Indeed, Lina Khan, chair of the Federal Trade Commission, was a vocal antitruster in the academy and has greatly expanded the scope of the agency’s antitrust efforts since her appointment in 2021.

In the Senate, Sen. Amy Klobuchar, D-Minnesota, is sponsoring the American Innovation and Choice Online Act, a bill that bans large online platforms from engaging in putatively “anticompetitive” business practices. The measure was approved by the Judiciary Committee earlier this year, and, though it was stalled over the summer to make way for other Democratic legislative priorities, it may come for a vote this fall.

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