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Big Tech Weekly Wrap-Up

A weekly newsletter from EPPC's Big Tech Project
highlighting the latest news and key issues in Big Tech 
Senator Wicker Introduces PRO-SPEECH Act
Yesterday, Senator Roger Wicker (R-MS), Ranking Member of the Senate Commerce Committee, introduced the PRO-SPEECH Act. The bill would establish baseline protections to prohibit Big Tech from engaging in unfair, deceptive, or anti-competitive practices that limit or control consumers’ speech. 

The PRO-SPEECH Act would:
  • Preserve consumers’ ability to access lawful content, applications, services, or devices that do not interfere with an internet platform’s functionality or pose a data privacy or data security risk to a user;
  • Prohibit internet platforms from taking any actions against users based on racial, sexual, religious, partisan, or ethnic grounds;
  • Prohibit large internet platforms from blocking or discriminating against competing internet platforms by declaring such actions presumptively anti-competitive;
  • Require an internet platform to disclose to the public accurate information regarding the platform management practices, performance characteristics, and commercial terms of service of any app store, cloud computing service, operating system, search engine, or social media network it owns; and
  • Authorize the Federal Trade Commission to enforce the Act under Section 5 of the FTC Act notwithstanding any other provision of law.
The bill puts forward a novel approach. It interestingly does not change the language of Section 230 but it does deal with it indirectly by essentially giving platforms a choice: they can either abide by the non-discrimination and transparency requirements in the bill and keep their 230 protections, or they can declare themselves a publisher and the bill would then not apply to them at all, but they would lose their 230 protections.
Ohio Attorney General Files Lawsuit to Declare Google a Public Utility
On Tuesday, Ohio’s Attorney General Dave Yost filed a lawsuit asking a judge to rule that Google is a public utility, which would subject the Silicon Valley giant to government regulation. Ohio said that it is the first state in the country to bring a lawsuit seeking a court declaration that Google is a common carrier subject under state law to government regulation. The lawsuit, which doesn’t seek monetary damages, says that Google has a duty to provide the same rights for advertisements and product placement for competitors as it provides for its own services. “When you own the railroad or the electric company or the cellphone tower, you have to treat everyone the same and give everybody access,” said Yost, a Republican. Yost’s complaint alleges Google has used its dominance as a search engine to prioritize its own products over “organic search results” in a way that “intentionally disadvantages competitors.” Yost argues Google’s practices prevent Ohioans from making informed choices by depriving them complete access to all available information. It will be interesting to watch how the court rules on this suit. 
FBI's Secret Phone Encryption Program, ANOM,  Led to Global Sting with 800 Arrests

Hundreds are facing charges after an elaborate, years-long sting in which the FBI ran a secret phone encryption program that officials say criminals unwittingly used to facilitate drug transactions worldwide. ANOM, the FBI's encrypted device company, was used by more than 300 criminal organizations in the United States, Canada, Australia, New Zealand and Europe that unknowingly communicated about narcotics shipments and exchanged incriminating pictures, according to the Justice Department.  Eight hundred have been arrested from around the world. Several tons of marijuana, cocaine and methamphetamine have been seized, officials said. This culmination of more than five years of innovative and complex investigative work strategically aimed to disrupt the encrypted communications space that caters to the criminal element.  Acting U.S. Attorney for the Southern District of California Randy Grossman said, “Hardened encrypted devices usually provide an impenetrable shield against law enforcement surveillance and detection. The supreme irony here is that the very devices that these criminals were using to hide from law enforcement were actually beacons for law enforcement. We aim to shatter any confidence in the hardened encrypted device industry with our indictment and announcement that this platform was run by the FBI.”

The subject of encryption has been a controversial issue for law enforcement officials, technology companies and privacy advocates.The Justice Department and Apple had been in a battle over whether the tech giant should help investigators by unlocking iPhones used by suspects in high-profile shootings. Last year, Apple refused to create a backdoor that would allow investigators to bypass the encryption features in the phones belonging to the shooter who killed three people at a Navy base in Pensacola, Florida.

Keep an Eye On
  • House Judiciary Committee is Poised to Introduce Five Antitrust Bills Soon: Drafts of bills about tech competition and antitrust are likely to be introduced by leaders of the House Judiciary antitrust subcommittee soon. Five draft bills obtained address interoperability, self-preferencing a company's own services and features, an update to merger fees and more money for the Federal Trade Commission and Department of Justice, limiting Big Tech acquisitions and separating platforms from sellers. The bills are discussion drafts and may be introduced by the committee when they are finalized, but the timing is still unclear. The draft text generally reflects ideas committee leaders have discussed in hearings and include areas where Democrats and Republicans on the committee have said they can find agreement.
  • Louisiana Social Media Censorship Bill Passed Senate but Failed to Pass House: A Louisiana bill to allow social media users to sue companies like Facebook and Twitter if they were blocked because of political or religious speech is dead after a House committee failed to reach a quorum under what a senator called dubious circumstances. Republican Monroe Sen. Jay Morris said the lack of a quorum to debate his Senate Bill 192 in the House Commerce Committee was "suspicious" since he'd had trouble getting a hearing for his bill after it cleared the Senate on a 37-0 vote two weeks ago. "I've never been to a hearing where there wasn't a quorum," Morris said. After the hearing, Morris said the lack of a quorum illustrates the power of the social media companies. "It’s very suspicious," he said. "But again, these are extremely powerful interests that do not want this bill to pass." With the session ending June 10, there won't be time for Morris to get another hearing, effectively killing his bill.
  • Antitrust Bill Passes New York State Senate: With only a week left in New York State's Senate and Assembly’s legislative session, advocates and lawmakers are pushing for the passage of a bill that would expand the state’s power to take Big Tech to court. The 21st Century Antitrust Act passed in the Senate Monday and is expected to pass in the Assembly at some point this week. The bill, introduced by Sen. Michael Gianaris, would make it easier for the state to sue companies like Google or Apple for engaging in monopolistic or anti-competitive practices if passed into law. 
THE LATEST IN BIG TECH CENSORSHIP
and other offenses
  • Facebook announced Friday that it is suspending former President Trump until Jan. 7, 2023, a full two years after he was first barred from the platform. After that date, Facebook will evaluate whether the "risk to public safety" of restoring Trump's account has abated. If the suspension is then lifted, Trump will be subject to a "strict" set of sanctions for future policy violations, Facebook said. Facebook’s penalty closes one of Trump's primary avenues for influencing the political discussion for an extended period. Facebook said it would revisit the suspension two years from the date of its initial move to suspend him on Jan. 7. But advocacy groups are already running ad campaigns targeted at Facebook's employees to make it a permanent ban. 
  • Internet Accountability Project founder Mike Davis and Former Treasury Official Will Upton were temporarily suspended from Twitter for comparing CNN anchor Brian Stelter to the character “Gimp” from the movie “Pulp Fiction.” Twitter first suspended Upton on Sunday night after he made a post that mocked the anchor. Upton’s suspension was lifted upon appeal after the former Treasury public affairs staffer examined the company’s rules and found that “comparing a public figure to a fictional movie character does not violate their terms of service.” Shortly after Upton was unsuspended, Davis was then temporarily suspended from Twitter for defending Upton’s post, citing that he had violated rules against “hateful conduct” on the site. Twitter subsequently lifted Davis's suspension as well.
  • Snapchat has given drug dealers an organic ecommerce platform, according to parents who protested at Snaps's headquarters last Friday over the role they feel Snapchat played in the deaths of their children. Their kids had used social media apps including Snapchat and TikTok to connect with drug dealers, from whom they sought to purchase prescription pills like Oxycontin and Percocet. Instead, they unknowingly received fentanyl, a highly potent synthetic opioid that killed them. Friday's rally is the latest step in a growing movement among parents to address what they view as a dangerous and tragic cocktail of an increasing supply of illicit drugs and social media platforms that make it easy for kids to access them. Access to dangerous substances like fentanyl is just one of several increasing threats to childrens' safety on social media platforms. 
What should be done about Big Tech and its increasing censorship of conservative voices and speech, along with other harms its business practices pose to American society? Join EPPC President Ryan T. Anderson and EPPC Policy Analyst Clare Morell as they host EPPC’s Big Tech Symposium, where four U.S. Senators will present their proposed legislative solutions, followed by panels of distinguished legal scholars and experts to discuss and debate those solutions as applied to Section 230, Antitrust Law, and Common Carrier Law.

Click here to view the agenda and to register for this virtual event. 
Stay up to date at www.eppc.org/programs/big-tech-project/

Follow Clare Morell, Policy Analyst for the Big Tech Project,
on Twitter:
 @ClareMorellEPPC
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