If David Cicilline Gets His Way; It Would Destroy Content Moderation

Last week we looked at the various antitrust bills written by House Democrats (though with Republicans co-sponsors conjured up at the last minute with an assist from Rupert Murdoch), and noted that none of them seemed likely to really solve the problems of internet consolidation. The crown jewel bill comes from Rep. David Cicilline, who is spearheading this entire antitrust effort. We discussed some of the problems with his bill last week, but a closer reading suggests that it would also create a disaster for content moderation. The bill reads:

It shall be unlawful for a person operating a covered platform, in or affecting commerce, to engage in any conduct in connection with the operation of the covered platform that-

(1) advantages the covered platform operator's own products, services, or lines of business over those of another business user;
(2) excludes or disadvantages the products, services, or lines of business of another business user relative to the covered platform operator's own products, services, or lines of business; or
(3) discriminates among similarly situated business users.

This language is clearly designed to target things like Google offering its own local reviews and listings rather than Yelp's or TripAdvisor's. And there are reasonable arguments to be made that a company like Google maybe should just use its own search ranking algorithm to see whether or not users prefer those 3rd party listings to its own.

But... the overly broad language in the Cicilline bill seems likely to have massive unintended consequences regarding content moderation in ways I don't think Cicilline would support. Indeed, for unclear reasons, an early draft of Cicilline's bill had more limiting language on part (3) above, such that it only covered "material" discrimination over services involving "the sale or provision of products or services." But the final language is much more broad and says it's an antitrust violation if there's "discrimination among similarly situated business users."

But here's the thing that people who have no experience with content moderation never seem to realize: everyone who is on the receiving end of a moderation decision they disagree with, insists that they are being treated unfairly compared to some other "similarly situated" user, even if the reality (and context) suggest otherwise. But by saying that it's an antitrust violation to discriminate between "similarly situated" business users, that's going to make those claims become particularly legally fraught.

That's going to open up a massive loophole regarding content moderation. Let's take a few examples, starting with Parler. As you may recall, Parler was kicked off AWS for hosting, and also kicked out of both the Google Play Store and the Apple iOS App Store (though it has since returned to the App Store).

Parler sued Amazon, claiming it was an antitrust violation, which got laughed out of court. But, if Cicilline's bill becomes law, suddenly this becomes an open question again. Parler could easily argue that the removal was discrimination under the definition of the bill. After all, a key point in Parler's lawsuit was that Amazon treated Twitter differently than it treated Parler.

And, under the definition in (3), Parler could say that Amazon discriminated against it as compared to the "similarly situation business user" Twitter.

This might not impact Parler's lawsuit specifically, since enforcement of Cicilline's bill falls on government entities rather than private parties, but it opens it up to "any Attorney General of a state," and I can pretty much guarantee that there are a bunch of state AGs who would happily step in and claim that these moderation efforts against Parler violated the law.

But it goes even further than that. Suddenly Twitter banning Project Veritas or Facebook shutting down events created by Infowars would raise the same questions. And all they'd need to do is find a friendly state AG to take them on.

In short, this antitrust bill would open up a huge loophole for propaganda or garbage fire websites that were banned (or even just diminished) to claim it was an antitrust violation, because they were treated differently than "similarly situated business users."

Just think of how the PragerU lawsuits against YouTube would appear very different under this bill as well.

It seems odd that a Democrat like David Cicilline would want to put in place an antitrust bill that would make it open season for Republican propaganda outfits, and their supportive AGs, to force social media companies to not just host, but to promote, their content (not doing so might be seen as "discrimination" compared to similarly situated websites), but it seems like that's what he's done. Perhaps that's the compromise that it took to get a Republican co-sponsor on board, but it's hard to see how this is a worthwhile trade-off.