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Josh Hawley Wants To Break Up Big Tech And Revisit How Antitrust Matters Are Considered

Senator Josh Hawley talks Section 230, antitrust reform, and the Capitol riots.

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Josh Hawley, right, via Flickr

May 5, 2021—Sen. Josh Hawley, R-Missouri, sat down Tuesday for a virtual interview with the Washington Post to discuss the common ground he hopes he can find with Democrats as well as his issues with Big Tech.

Though Hawley has since accepted Joe Biden as the legitimate president, he remains a longtime ally of former President Donald Trump and shared many of his criticisms of Big Tech. Hawley said during the interview that he believes Big Tech has too much power and needs to be dismantled. “To me the issue about [Big Tech] is an issue about ordinary Americans and the control [Big Tech has over] [them].”

On Wednesday, the Oversight Board, which reviews key decisions made by Facebook on its platform, upheld a ban on Trump from the website, but said the company’s management will need to review its decision within six months.

Hawley clarified Tuesday that the issues do not stop with free speech but carries to how they handle consumer data and information. He also implied that Big Tech may restrict consumers’ access to news and the sharing of information.

Criticism of Section 230

Hawley also maintained his longstanding criticisms of Section 230, arguing that its legal protections for companies from what their users post should not extend to any company that utilizes behavioral advertising—an advertising strategy that uses a consumer’s browser history to deliver targeted ads. Many companies argue this improves user experience, while many privacy and consumer rights advocates argue that it is an invasion of privacy and is manipulative.

“I think we ought to withdraw Section 230 immunity for any company that permits, engages, or sells behavioral advertising or engages in the sort of algorithmic amplification that is behind it, “Hawley said.

He was sharply critical of social media for these practices, arguing that consumers rarely provide meaningful consent for platforms, who then turn around and sell a consumer’s personal data to third parties. Hawley added that he hopes to receive bipartisan support in his effort to remove Section 230 protections from Big Tech companies that engage in these practices, arguing that they only encourage mass surveillance and mass tracking.

When pressed for specifics on the bipartisan effort, Hawley implied that support may be lacking due to Big Tech donating heavily to Democrats and the current administration. Google’s parent company Alphabet has donated approximately $21 million to congressional candidates since 2019, with 80 percent of that going to Democrats; the Biden Campaign alone received $3.66 million. Alphabet also donated $2.5 million to the Democrat super PAC, Future Forward USA, and $1.9 million to the DNC. Microsoft, Amazon, Facebook, and Apple also donated millions to the Biden Campaign and Democratic PACS.

“I just hope that my Democratic colleagues in Congress will remain vigilant on this and will not give these companies a pass or let up the pressure.”

Antitrust reform

In terms of antitrust policy, Hawley stated that he would advocate for a policy that banned mergers and acquisitions for corporations that have a market cap of 100 billion or more. He also advocated for abandoning the Consumer Welfare Standard, a metric that focuses the scope of an antitrust hearing on the effects that practices have on consumers. Hawley criticized the metric as too narrow and stated that he believed it was deferential to monopolies.

“We need to have a debate about how our courts have been enforcing the law. We need to have a debate about how we can cut these monopoly corporations down,” Hawley said.

On the Capitol riots

Hawley has become a polarizing figure during his short tenure on Capitol Hill. The former attorney general of Missouri joined the Senate in 2019 but became particularly well-known after his apparent show of solidarity with protestors outside of the U.S. Capitol on January 6, prior to the riots.

The interview focused on the role that Hawley played during the storming of the Capitol.

He equated the riot in D.C. to the riots that happened adjacent to Black Lives Matter protests around the country and stated that he condemned those who were anything but peaceful during the protests on January 6.

“Those who committed acts of crime on that day, January 6, they deserve to go to prison, and I don’t care what their justification is.”

Hawley currently sits on the Judiciary, Armed Services, Homeland Security and Governmental Affairs, and Small Business and Entrepreneurship Committee.

Social Media

Americans Should Look to Filtration Software to Block Harmful Content from View, Event Hears

One professor said it is the only way to solve the harmful content problem without encroaching on free speech rights.

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Photo of Adam Neufeld of Anti-Defamation League, Steve Delbianco of NetChoice, Barak Richman of Duke University, Shannon McGregor of University of North Carolina (left to right)

WASHINGTON, July 21, 2022 – Researchers at an Internet Governance Forum event Thursday recommended the use of third-party software that filters out harmful content on the internet, in an effort to combat what they say are social media algorithms that feed them content they don’t want to see.

Users of social media sites often don’t know what algorithms are filtering the information they consume, said Steve DelBianco, CEO of NetChoice, a trade association that represents the technology industry. Most algorithms function to maximize user engagement by manipulating their emotions, which is particularly worrisome, he said.

But third-party software, such as Sightengine and Amazon’s Rekognition – which moderate what users see by bypassing images and videos that the user selects as objectionable – could act in place of other solutions to tackle disinformation and hate speech, said Barak Richman, professor of law and business at Duke University.

Richman argued that this “middleware technology” is the only way to solve this universal problem without encroaching on free speech rights. He suggested Americans in these technologies – that would be supported by popular platforms including Facebook, Google, and TikTok – to create the buffer between harmful algorithms and the user.

Such technologies already exist in limited applications that offer less personalization and accuracy in filtering, said Richman. But the market demand needs to increase to support innovation and expansion in this area.

Americans across party lines believe that there is a problem with disinformation and hate speech, but disagree on the solution, added fellow panelist Shannon McGregor, senior researcher at the Center for Information, Technology, and Public Life at the University of North Carolina.

The conversation comes as debate continues regarding Section 230, a provision in the Communications Decency Act that protects technology platforms from being liable for content their users post. Some say Section 230 only protects “neutral platforms,” while others claim it allows powerful companies to ignore user harm. Experts in the space disagree on the responsibility of tech companies to moderate content on their platforms.

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Free Speech

Experts Reflect on Supreme Court Decision to Block Texas Social Media Bill

Observers on a Broadband Breakfast panel offered differing perspectives on the high court’s decision.

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Parler CPO Amy Peikoff

WASHINGTON, June 2, 2022 – Experts hosted by Broadband Breakfast Wednesday were split on what to make of  the Supreme Court’s 5-4 decision to reverse a lower court order lifting a ban on a Texas social media law that would have made it illegal for certain large platforms to crack down on speech they deem reprehensible.

The decision keeps the law from taking affect until a full determination is made by a lower court.

Parler CPO Amy Peikoff

During a Broadband Live Online event on Wednesday, Ari Cohn, free speech counsel for tech lobbyist TechFreedom, argued that the bill “undermines the First Amendment to protect the values of free speech.

“We have seen time and again over the course of history that when you give the government power to start encroaching on editorial decisions [it will] never go away, it will only grow stronger,” he cautioned. “It will inevitably be abused by whoever is in power.”

Nora Benavidez, senior counsel and director of digital justice and civil rights for advocate Free Press, agreed with Cohn. “This is a state effort to control what private entities do,” she said Wednesday. “That is unconstitutional.

“When government attempts to invade into private action that is deeply problematic,” Benavidez continued. “We can see hundreds and hundreds of years of examples of where various countries have inserted themselves into private actions – that leads to authoritarianism, that leads to censorship.”

Different perspectives

Principal at McCollough Law Firm Scott McCollough said Wednesday  that he believed the law should have been allowed to stand.

“I agree the government should not be picking and choosing who gets to speak and who does not,” he said. “The intent behind the Texas statute was to prevent anyone from being censored – regardless of viewpoint, no matter what [the viewpoint] is.”

McCollough argued that this case was about which free speech values supersede the other – “those of the platforms, or those of the people who feel that they are being shut out from what is today the public square.

“In the end it will be a court that acts, and the court is also the state,” McCollough added. “So, in that respect, the state would still be weighing in on who wins and who loses – who gets to speak and who does not.”

Chief policy officer of social media platform Parler Amy Peikoff said Wednesday that her primary concern was “viewpoint discrimination in favor of the ruling elite.”

Peikoff was particularly concerned about coordination between state agencies and social media platforms to “squelch certain viewpoints.”

Peikoff clarified that she did not believe that the Texas law was the best vehicle to address these concerns, however, stating instead that lawsuits – preferably private ones – be used to remove the “censorious cancer,” rather than entangling a government entity in the matter.

“This cancer grows out of a partnership between government and social media to squelch discussion about certain viewpoints and perspectives.”

Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. Watch the event on Broadband Breakfast, or REGISTER HERE to join the conversation.

Wednesday, June 1, 2022, 12 Noon ET – BREAKING NEWS EVENT! – The Supreme Court, Social Media and the Culture Wars

The Supreme Court on Tuesday blocked a Texas law that would ban large social media companies from removing posts based on the views they express. Join us for this breaking news event of Broadband Breakfast Live Online in which we discuss the Supreme Court, social media and the culture wars.

Panelists:

  • Scott McCollough, Attorney, McCollough Law Firm
  • Amy Peikoff, Chief Policy Officer, Parler
  • Ari Cohn, Free Speech Counsel, TechFreedom
  • Nora Benavidez, Senior Counsel and Director of Digital Justice and Civil Rights at Free Press
  • Drew Clark (presenter and host), Editor and Publisher, Broadband Breakfast

Panelist resources:

W. Scott McCollough has practiced communications and Internet law for 38 years, with a specialization in regulatory issues confronting the industry.  Clients include competitive communications companies, Internet service and application providers, public interest organizations and consumers.

Amy Peikoff is the Chief Policy Officer of Parler. After completing her Ph.D., she taught at universities (University of Texas, Austin, University of North Carolina, Chapel Hill, United States Air Force Academy) and law schools (Chapman, Southwestern), publishing frequently cited academic articles on privacy law, as well as op-eds in leading newspapers across the country on a range of issues. Just prior to joining Parler, she founded and was President of the Center for the Legalization of Privacy, which submitted an amicus brief in United States v. Facebook in 2019.

Ari Cohn is Free Speech Counsel at TechFreedom. A nationally recognized expert in First Amendment law, he was previously the Director of the Individual Rights Defense Program at the Foundation for Individual Rights in Education (FIRE), and has worked in private practice at Mayer Brown LLP and as a solo practitioner, and was an attorney with the U.S. Department of Education’s Office for Civil Rights. Ari graduated cum laude from Cornell Law School, and earned his Bachelor of Arts degree from the University of Illinois at Urbana-Champaign.

Nora Benavidez manages Free Press’s efforts around platform and media accountability to defend against digital threats to democracy. She previously served as the director of PEN America’s U.S. Free Expression Programs, where she guided the organization’s national advocacy agenda on First Amendment and free-expression issues, including press freedom, disinformation defense and protest rights. Nora launched and led PEN America’s media-literacy and disinformation-defense program. She also led the organization’s groundbreaking First Amendment lawsuit, PEN America v. Donald Trump, to hold the former president accountable for his retaliation against and censorship of journalists he disliked.

Drew Clark is the Editor and Publisher of BroadbandBreakfast.com and a nationally-respected telecommunications attorney. Drew brings experts and practitioners together to advance the benefits provided by broadband. Under the American Recovery and Reinvestment Act of 2009, he served as head of a State Broadband Initiative, the Partnership for a Connected Illinois. He is also the President of the Rural Telecommunications Congress.

Photo of the Supreme Court from September 2020 by Aiva.

WATCH HERE, or on YouTubeTwitter and Facebook.

As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.

SUBSCRIBE to the Broadband Breakfast YouTube channel. That way, you will be notified when events go live. Watch on YouTubeTwitter and Facebook

See a complete list of upcoming and past Broadband Breakfast Live Online events.

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Section 230

Narrow Majority of Supreme Court Blocks Texas Law Regulating Social Media Platforms

The decision resulted in an unusual court split. Justice Kagan sided with Justice Alito but refused to sign his dissent.

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Caricature of Samuel Alito by Donkey Hotey used with permission

WASHINGTON, May 31, 2022 – On a narrow 5-4 vote, the Supreme Court of the United States on Tuesday blocked a Texas law that Republicans had argued would address the “censorship” of conservative voices on social media platforms.

Texas H.B. 20 was written by Texas Republicans to combat perceived bias against conservative viewpoints voiced on Facebook, Twitter, and other social media platforms with at least 50 million active monthly users.

Watch Broadband Breakfast Live Online on Wednesday, June 1, 2022

Broadband Breakfast on June 1, 2022 — The Supreme Court, Social Media and the Culture Wars

The bill was drafted at least in part as a reaction to President Donald Trump’s ban from social media. Immediately following the January 6 riots at the United States Capitol, Trump was simultaneously banned on several platforms and online retailers, including Amazon, Facebook, Twitter, Reddit, and myriad other websites.

See also Explainer: With Florida Social Media Law, Section 230 Now Positioned In Legal Spotlight, Broadband Breakfast, May 25, 2021

Close decision on First Amendment principles

A brief six-page dissent on the matter was released on Tuesday. Conservative Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented, arguing that the law should have been allowed to stand. Justice Elena Kagan also agreed that the law should be allowed to stand, though she did not join Alito’s penned dissent and did not elaborate further.

The decision was on an emergency action to vacate a one-sentence decision of the Fifth Circuit Court of Appeals. The appeals court had reversed a prior stay by a federal district court. In other words, the, the law passed by the Texas legislature and signed by Gov. Greg Abbott is precluded from going into effect.

Tech lobbying group NetChoice – in addition to many entities in Silicon Valley – argued that the law would prevent social media platforms from moderating and addressing hateful and potentially inflammatory content.

In a statement, Computer & Communications Industry Association President Matt Schruers said, “We are encouraged that this attack on First Amendment rights has been halted until a court can fully evaluate the repercussions of Texas’s ill-conceived statute.”

“This ruling means that private American companies will have an opportunity to be heard in court before they are forced to disseminate vile, abusive or extremist content under this Texas law. We appreciate the Supreme Court ensuring First Amendment protections, including the right not to be compelled to speak, will be upheld during the legal challenge to Texas’s social media law.”

In a statement, Public Knowledge Legal Director John Bergmayer said, “It is good that the Supreme Court blocked HB 20, the Texas online speech regulation law. But it should have been unanimous. It is alarming that so many policymakers, and even Supreme Court justices, are willing to throw out basic principles of free speech to try to control the power of Big Tech for their own purposes, instead of trying to limit that power through antitrust and other competition policies. Reining in the power of tech giants does not require abandoning the First Amendment.”

In his dissent, Alito pointed out that the plaintiffs argued “HB 20 interferes with their exercise of ‘editorial discretion,’ and they maintain that this interference violates their right ‘not to disseminate speech generated by others.’”

“Under some circumstances, we have recognized the right of organizations to refuse to host the speech of others,” he said, referencing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.

“But we have rejected such claims in other circumstances,” he continued, pointing to PruneYard Shopping Center v. Robins.

Will Section 230 be revamped on a full hearing by the Supreme Court?

“It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies, but Texas argues that its law is permissible under our case law,” Alito said.

Alito argued that there is a distinction between compelling a platform to host a message and refraining from discriminating against a user’s speech “on the basis of viewpoint.” He said that H.B. 20 adopted the latter approach.

Alito went on, arguing that the bill only applied to “platforms that hold themselves out as ‘open to the public,’” and “neutral forums for the speech of others,” and thus, the targeting platforms are not spreading messages they endorse.

Alito added that because the bill only targets platforms with more than 50 million users, it only targets entities with “some measure of common carrier-like market power and that this power gives them an ‘opportunity to shut out [disfavored] speakers.’”

Justices John Roberts, Stephen Breyer, Sonya Sotomayor, Brett Kavanaugh, and Amy Coney Barrett all voted affirmatively – siding with NetChoice LLC’s emergency application – to block H.B. 20 from being enforced.

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