Big Tech in the Capitol's Crosshairs

Some of America’s largest and most powerful companies have found themselves under fire in recent months as Washington, DC targets Silicon Valley. These companies have done the impossible in 2020 – given progressives and conservatives a common enemy.

“Big Tech” companies like Facebook, Twitter, Google, Apple, and Amazon have drawn bipartisan outrage from Republican and Democrats in Congress, as well as the Trump administration. These firms now face questions over their adherence to two pieces of legislation which you may not be familiar with: Section 230 of the Communications Decency Act of 1996, and the Sherman Antitrust Act of 1890, a landmark piece of legislation outlawing monopolies and anti-competitive behavior.

Section 230 of the CDA has two key provisions that some accuse social media companies of exploiting. Subsection C states that internet companies are not legally liable as publishers for the content that someone else might post on them. This means that, if I post a lie about you online, you can sue me but not Twitter. Put another way, if someone spreads dangerous disinformation on Facebook, Facebook is legally protected from bearing responsibility.

The same subsection also says the companies are not liable for “any action voluntarily taken in good faith to restrict access to or availability of material” that they deem objectionable. If Facebook or Twitter removes your content “in good faith” for violating their rules, that is legally protected.

Section 230 is often referred to as “the law that created the internet” because it allowed users to flood the web en masse and generate endless amounts of content without the hosting companies being forced to review every item for their own protection. However, platforms like Twitter and Facebook have been accused of not doing enough to remove violent content, hate speech, and massive amounts of disinformation related to American politics and even the COVID-19 pandemic.

YouTube (now owned by Google) has been one of the most prolific platforms for the spread of baseless and dangerous conspiracy theories, including QAnon and Pizzagate. Twitter has struggled to moderate banned content, including revenge porn. Perhaps most infamously, Russian disinformation was put in front of 126 million in the run-up to the 2016 election via Facebook.

Conservatives have accused the Big Tech companies of liberal bias and allege that they are “censoring” conservative content. Those allegations became supercharged in recent weeks when Twitter froze the conservative New York Post’s account and blocked a link to a story about alleged wrongdoings by Hunter Biden, son of former Vice President and Democratic presidential nominee Joe Biden, on the grounds that it may have been illegally obtained.

Speech on Big Tech platforms is not the only legal issue facing these companies, however. The platforms and their structures themselves have drawn legal attention, most notably in a US Justice Department lawsuit filed against Google in October that referred to the company as “an unlawful monopolist.” Showing Big Tech’s penchant for drawing bipartisan offense, progressive icon Senator Elizabeth Warren (D-MA) praised DOJ’s move and called for them to be more aggressive. Separately in Congress, the House Judiciary Democrats released a report citing illegal monopolistic behavior by Amazon, Apple, Google, and Facebook and comparing the Big Tech firms to “the kinds of monopolies we last saw in the era of oil barons and railroad tycoons.”

Amazon, Apple, and Google all face potential violations of the Sherman Act by unfairly promoting their own content on their marketplaces and suppressing third party options for consumers. Amazon controls 40% of online retail, which is seven times larger than its nearest competitor, Walmart. Amazon charges ever-increasing fees for third party sellers, promotes its own brand (Amazon Basics), and is not transparent about how items get placed in its “Buy Box” - which some estimates suggest lead to 80% of sales on the platform.

Apple only permits the Apple App Store on its devices and does not allow for any other mechanism for users to install applications. Apple subsequently charges a 30% commission on third-party operated apps, including subscription services, on top of a $99 fee for developers to gain access to the App Store. This notably led to a legal battle between Apple and the parent company of the popular game Fortnite, which tried to circumvent Apple for in-app purchases and ultimately removed the game from the Apple App Store.

Google’s actions earned it the honor of being the first technology antitrust suit brought by the Justice Department since the landmark Microsoft case in the 1990s. Google has gradually begun to prioritize its own products in search results (Google Maps over Yelp, Google Flights over Expedia, etc.) and has drawn ire for how many of its top results are paid ads.

However, smartphones are where Google has really run into questions of monopolistic tendencies. Between owning the default apps and search function on Android phones (about 75% of the global mobile market) and being the default search engine on Apple’s Safari app, Google is now the default search provider for 99% of the cell phones on Earth.

Facebook’s Mark Zuckerberg, Google’s Sundar Pichai, and Twitter’s Jack Dorsey were summoned before the US Senate Commerce Committee on October 28th and grilled for hours over their moderation practices and monopolistic practices. US Senator Ted Cruz (R-TX) may have landed the most memorable (and inaccurate) line of the day by hollering, "Mr. Dorsey, who the hell elected you and put you in charge of what the media are allowed to report and what the American people are allowed to hear?"

It should be pointed out to Senator Cruz that the New York Post story was accessible to anyone visiting the Post’s website and in the print edition. Of course, anyone opting to use Twitter does so by agreeing to their terms of service, which clearly state, “We reserve the right to remove Content that violates the User Agreement….” Any and all Americans are free to not use Twitter, or sign up for alternatives. In various ways, these issues represent information literacy problems in America that we shouldn’t be asking social media companies to fix for us.

There have been a slew of proposals limiting companies’ protections under Section 230 from both sides of the aisle. Conservative firebrands such as Rep. Louie Gohmert (R-TX) and Senator Josh Hawley (R-MO) have proposed legislation requiring further examination of companies’ content algorithms or moderation practices by the federal government in order to receive liability protections. 

Senator Warren also wants to take a look at social media companies’ algorithms, with the focus on how they might promote disinformation and radicalization. She called to “break up” the companies during her presidential campaign. The Trump Administration has also jumped into the fray, using the Federal Communications Commission (FCC) to announce that it intends to “clarify” how companies are protected under Section 230.

Time - and the results of the 2020 election for control of the White House and Congress - will tell how these companies end up faring in their fights with lawmakers and regulators. Joe Biden has also called for “revoking” Section 230 and is expected to be sympathetic to Congressional antitrust efforts.

Any American with a smartphone must interact with these giants, and when the President frequently announces major US news, including foreign policy, from his social media accounts, questions about how these companies operate and provide the information we use to shop, connect, organize, and decide how to vote are incredibly important.

These questions may also impact decisions like what to do about TikTok, a Chinese-owned social media service which vacuums up user data and has US officials concerned about national security.

Most Americans believe that the gigantic tech megafirms have too much control over their lives and that reforms are needed. One can only hope that Congress steps up its game and becomes more fluent on these gravely important issues. Particularly embarrassing moments include representatives grilling the CEO of the wrong company about a smartphone question, and one congressman asking Google CEO Sundar Pichai why his campaign emails were going to his father’s spam folder.

Facing an industry that evolves as rapidly as this one, and one that reaches into Americans’ daily movements, personal and professional lives, and ultimately our democracy and national security, our leadership must be prepared to protect Americans while not strangling American ingenuity and technology primacy.

Kevin Heaney

​Kevin Heaney is a first-year Master's of Public Policy candidate from Sayreville, New Jersey. He earned his bachelor's degree in Homeland Security from St. John's University in 2016. His experience includes four years in state government managing programs on counterterrorism, cybersecurity, and emergency preparedness.

The views expressed above are solely the author's and are not endorsed by the Virginia Policy Review, The Frank Batten School of Leadership and Public Policy, or the University of Virginia. Although this organization has members who are University of Virginia students and may have University employees associated or engaged in its activities and affairs, the organization is not a part of or an agency of the University. It is a separate and independent organization which is responsible for and manages its own activities and affairs. The University does not direct, supervise or control the organization and is not responsible for the organization’s contracts, acts, or omissions.