By Alex Petros and Charlotte Slaiman
May 27, 2022
Trying to keep up with criticism of the two bipartisan Big Tech competition bills — the US Online Choice and Innovation Act (AICO) and the Open Application Markets Act (OAMA)—can be dizzying. Recently, we’ve seen arguments both that they’re increasing “censorship” of Big Tech and that they would give Big Tech an excuse not do the necessary content moderation to protect marginalized voices on their platforms. Fortunately, these bills would do none of those things. The bills don’t address content moderation, but they’re critically important in the broader drive to hold Big Tech accountable.
US Online Innovation and Choice Act would ban Big Tech self-preference and establish common sense rules for Big Tech platforms so small businesses get a fair chance and consumers have more of choice. The Open App Markets Act would open app stores by allowing alternative payment systems; ending self-preference; and terminating the link with a mobile operating system. Both bills represent a once-in-a-generation chance to reform increasingly critical tech markets that have had competition and innovation nixed by Big Tech gatekeepers for too long.
Freedom of expression is an integral part of Public Knowledge’s mission. We also want to ensure that users can have a moderate experience online. If you don’t follow content moderation debates closely, you might think that “moderation” and “free expression” are at odds, but you’d be wrong. As the well-known concept of the “rowdy veto” indicates, or the lived experience of many women and people of color who voice their opinions online and get yelled at or harassed off the platform, for many, freedom of speech depend on content moderation.
Public Knowledge’s work focuses on public policy solutions rather than pressuring companies to change their policies, but we’ve partnered with like-minded organizations to push Big Tech to do better, and we have praised them when they do the right thing. But these efforts to exert public pressure are limited in what they can accomplish because the structure of these markets, coupled with the inaction of public policies, means that Big Tech platforms face little or no competition today. today. This means that the normal mechanism for pressuring companies to do better (users leave and choose an alternative) is broken.. In this way, opening Big Tech platforms to competition could actually to help content moderation.
Admittedly, competition is not the only solution to content moderation issues. This is why Public Knowledge has extensively discussed issues such as algorithmic liability and regulation; exempt advertising from the protection of Section 230; and a new digital regulator. Congress will have to continue to work on these important issues if we are to build a better internet for all of us. Nevertheless, we believe that competition is an important part of the solution. That’s why Public Knowledge has also fought hard for the US Innovation and Choice Online Act and the Open App Markets Act. We believe they will revitalize competition with the most powerful platforms and return some control to platform users.
Still, some fear the bills could be misused to force platforms to host otherwise objectionable content. Could the platforms be responsible for their content moderation decisions because of this bill? We do not think so. Here’s why:
First, any concerns about the law on open application markets are quickly eliminated. The bill does not address – and leaves unchanged – the ability of platforms to moderate content. More importantly, it does not include any requirement to carry apps. An app store company can always exclude an app from its app store for any reason. There is no cause of action for an app that was launched from the App Store to sue to return. It’s just not part of the bill.
The US Innovation and Online Choice Act does not address – and leaves unchanged – the platforms’ ability to moderate content. More importantly, the provision people are concerned about, Section 3(a)(3), specifically requires the government to discriminate “in a way that is likely to materially harm competition” in order to prove a violation. This clearly shows that the clause concerns anti-competitive discrimination, not point of view discrimination. Second, there is no private right of action in the bill. Only federal and state antitrust authorities, which means the Federal Trade Commission, Department of Justice and state attorneys general can bring suits under the new law. We think these protections mean that the risk of this law encouraging a lawsuit that actually involves content moderation is extremely low.
And the section in question, 3(a)(3), is really important to the competition objectives of the bill. We have two goals for platform competition: fair competition on platform, and fair competition versus the platform. Self-preference prohibitions in rest of bill are key to fair competition on the platform, but 3(a)(3) is the key to fair competition versus the platform. We want to make sure that these platforms really face competition that could dislodge them from their gatekeeper status. This kind of competition strength come from a company they directly compete with on their own platform, or maybe not. It’s the Amazon seller that’s been so successful on Amazon that it’s building the cachet with its customers to weed out the Big Tech middleman or the flight search provider that’s expanding into different travel search verticals after excelling in flights.
A few examples may be illustrative. Yelp filed a complaint anti-competitive behavior by Google for at least a decade. These complaints started before Google bought Zagat, a restaurant review publication that helped them enter the market to directly compete with Yelp. It’s possible that Google recognized Yelp as a potential competitive threat and used several tools to try to prevent Yelp from becoming a real competitive threat. One such tool was entering the reviews market, but if Google discriminated before it entered the market, enforcers should probably use 3(a)(3) to stop the giant Big Tech.
Currently, Google is not in direct competition with a ride-sharing company like Uber. However, Google has invested a significant amount of money and technological talent in Waymo, self-driving cars. Right now, Waymos is mostly a novelty with pilot programs in a few cities and more of a tourist attraction than a daily competitor to a ride-sharing app like Uber. However, tech markets are notorious for how quickly they can change, and perhaps self-driving cars will become a viable alternative to Uber. Absent 3(a)(3), Google would be free to discriminate against Uber and other ride-sharing companies through both its general search service and its Android operating system. Google could shave the market off of viable competitors about to launch their own competitor service in an effort to secure its entry into a profitable new market.
Apple does not have a general search engine that competes with DuckDuckGo. However, Apple has a stake in the success and dominance of DuckDuckGo’s main competitor, Google. Apple receives more than 15 billion dollars per year from Google in payment for keeping Google Search the default search engine on iPhones and Safari. Less well-capitalized rivals like DuckDuckGo simply don’t have the funds for the massive outlays Google can make on default contracts like these that rob rivals of the scale needed to succeed. Section 3(a)(3) prevents Apple from discriminating in the application and enforcement of the Terms of Service to favor its lucrative business partner – Google – over its upstart rival – DuckDuckGo.
There are so many benefits to competition for consumers: lower prices, higher quality products and more innovation, to name a few. One of the main benefits is consumer choice, the ability of consumers to choose from different options. There probably won’t be a one-size-fits-all solution, as your experience on the “just right” Goldilocks platform may be different from ours. We need to give users meaningful choices and the ability to vote with their feet/eyeballs. And we can’t do that until we’ve walked through the doors of Big Tech and have meaningful competition against these dominant companies. It’s time to pass the American Innovation and Choice Online Act and the Open App Markets Act.