The Washington Post
The effort to pass legislation regulating so-called Big Tech has involved a lot of talk and little action. Now the Justice Department is trying to give it a nudge.
Acting assistant attorney general Peter Hyun wrote a letter to the Senate Judiciary Committee last week expressing support for two pieces of legislation, led, respectively, by Sens. Amy Klobuchar (D-Minn.) and Charles E. Grassley (R-Iowa) and Reps. David N. Cicilline (D-R.I.) and Lance Gooden (R-Tex.). Both bills, which would restrict platforms’ ability to give favorable treatment to their own products and services over those of their competitors that also use their platforms, have cleared committee and await votes on the floor of the two chambers. Ms. Klobuchar has been pushing especially hard to get her legislation passed, which might mean making tweaks to bring on board some reluctant colleagues. Any work to assuage their concerns will be well worth the effort, but at its core, the bill is sound — and less extreme than opponents make it out to be.
Some skeptics point out that protecting competition can sometimes end up imperiling privacy. They worry, for example, that app developers might argue that the legitimate restrictions Apple imposes on them to protect users’ data violate the bill’s nondiscrimination provisions. The legislation gives platforms a get-out-of-jail-free card if they can prove these constraints are necessary to protect the privacy or security of consumers. But the legislation would benefit from more clarity establishing that protecting privacy is not a secondary interest to promoting competition.
Along the same lines, some advocates worry that nondiscrimination rules preventing platforms from treating similarly situated business users differently could make it more difficult to control harassment, hate speech and disinformation — because those who are disciplined, or given low priority by a ranking algorithm, could allege they’ve been treated unfairly. Content moderation is a complicated area, and resolving these concerns requires care.
More dramatic than these nuanced critiques are overwrought declarations from the technology industry that passing a law to limit a platform’s ability to give preference to its own goods or services would destroy the Internet. Certainly, some self-preferencing helps consumers: from Apple building a flashlight into the iPhone to Amazon putting in-house products that are cheaper than other options at the top of search results. (Amazon founder Jeff Bezos owns The Post.) But the legislation doesn’t bar that kind of behavior. It merely requires that companies offer the option to switch from the defaults they set, and that they not give special ranking privileges to their own offerings when they aren’t better than alternatives.
Antitrust doesn’t need an overhaul that treats the concept of competition as more important than the needs and desires of consumers — it needs revisions that prevent dominant companies from building barriers to a marketplace where those consumers will have both choice and protection. Legislators should view the bills before Congress as an opportunity to achieve this aim at last, even if some more negotiation is necessary first to make it happen.