The Google case is a stew of technology, law, and politics

Note: This was originally written for the daily newsletter at the Columbia Journalism Review, where I am the chief digital writer

Two weeks ago, the House subcommittee on antitrust released a 400-plus page report detailing the anti-competitive practices of the four major digital platforms — Google, Amazon, Apple, and Facebook — and called for the Department of Justice (among others) to take action against them. And this week, the government did exactly that, filing a landmark antitrust case against Google, one the DoJ has reportedly been working on for some time. Depending on whom you ask, it is either a cravenly political gambit by Attorney General Bill Barr designed to make the Trump administration look tough, a legal quagmire that is significantly weaker than the 1998 Microsoft case and almost certain to fail, or a sign that the government is finally taking strong action to correct some of the blatant antitrust failures of the past two decades. It’s even possible that it may be all three of those things simultaneously.

What it is almost certain to be, if it survives the election (and there’s good reason to believe it will continue even if Joe Biden becomes president), is a full-employment program for antitrust lawyers both inside the DoJ and elsewhere. The Microsoft case generated work for thousands of lawyers for the more than five years it took to reach a conclusion. As a number of experts have pointed out since the Google case was filed, it also ended with a negotiated settlement and a series of fairly modest restrictions on Microsoft’s conduct, a deal the Justice Department was forced to reach after its proposed remedy — breaking of the company into two parts — was rejected by the courts. That said, however, some tech veterans believe the case was successful despite its weak conclusion, because it tied Microsoft up in legal knots, and made the company hyper-sensitive to criticism, and therefore leery of being too aggressive. This, ironically, helped the rise of a little company called Google.

Those who subscribe to the theory that the case was rushed out the door to make Trump look good point to reports before the indictment’s release that Barr was pressuring the DoJ to launch the case before the election, and some members of the staff there reportedly balked, saying it wasn’t ready. Barry Lynn, executive director of the Open Markets Institute, doesn’t buy this theory, however: he told CJR during a discussion on our Galley platform Wednesday that “it’s actually a very strong case, and a well-written case. So this was anything but a rush job”. Zephyr Teachout, a professor of law at Fordham University and a former Democratic candidate for governor of New York, said in a similar discussion that while she believes Barr “should be impeached, and I don’t trust him for a second”, the case is well-grounded, and should have been brought years ago. Both Lynn and Teachout said that despite the appearance of political divisions in the House report that preceded the Google case, there is more agreement than disagreement about the necessity for regulation.

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Facebook, Twitter and what news is fit to share

Note: This was originally written for the daily newsletter at the Columbia Journalism Review, where I am the chief digital writer

In an unprecedented move Wednesday, both Facebook and Twitter took steps to limit the distribution of a news story from a mainstream publication, on the grounds that it was a) based on hacked emails and b) of questionable accuracy. Twitter actually prevented users from posting a link to the story, and in some cases prevented users from clicking on existing links to it as well, showing them a warning instead with a message saying the story violated the company’s terms of service. Facebook didn’t stop anyone from posting a link to the story, but reduced its reach by tweaking the News Feed algorithm so fewer users would see it.

The story was a New York Post report alleging that Hunter Biden introduced his father Joe to the head of a natural gas company in the Ukraine. The source? Emails allegedly retrieved from the younger Biden’s laptop by a computer repair shop and given to Trump attorney Rudy Giuliani. In Twitter’s case, the company argued that the story breached its policy against distribution of content obtained through hacking, and said documents included with the story also contained an individual’s name and identifying information, which is against privacy rules. Facebook, meanwhile, said its position against “hack and leak” operations required it to reduce the distribution of the story while it was being fact-checked by third-party partners.

These moves, not surprisingly, triggered an avalanche of accusations of censorship from conservatives. Sen. Josh Hawley went so far as to argue in a letter to the Federal Election Commission that removing the story was a benefit to Biden, and therefore amounted to a campaign finance violation, and said the Judiciary Committee will vote on whether to subpoena Twitter CEO Jack Dorsey to explain his actions. Others, including Sen. Ted Cruz, argued that Facebook and Twitter had breached the First Amendment. Rep. Doug Collins said that the blocks were “a grave threat to our democracy.” These arguments, of course, ignore the fact Facebook and Twitter are protected by the First Amendment, and also by Section 230 of the CDA, which allows them to make content-moderation decisions without penalty.

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Yes, we’re doing it all over again

Note: This was originally written for the daily newsletter at the Columbia Journalism Review, where I am the chief digital writer

Since Donald Trump became president, there has been a seemingly never-ending series of articles and commentary about what went wrong, and in particular what the media did to enable his victory. Near the top of that list is the platform and free advertising ($2 billion worth, according to one estimate) given to him by TV networks like CNN, because they knew he would attract a crowd, in much the same way a car accident does. And also near the top of the list is the credulous reporting of stories about Hillary Clinton that were fed by hacked and leaked emails, creating the erroneous impression that both sides were equally guilty of political transgressions. Given the sheer volume of these “lessons learned” pieces, you might think it unlikely that something similar would happen this time around — but you would be wrong. A blizzard of news on Wednesday showed that the very same risks exist now, and some are not only failing to heed those warnings but failing hard.

Take NBC. In the wake of Trump’s refusal to attend a virtual presidential debate, the network not only offered the president his own town hall event, but scheduled it at the same time as Biden’s previously announced town hall. This is such a crass ratings-driven decision that it’s almost breath-taking — NBC is treating a debate between candidates for president as though it were the finale of a celebrity cooking show (Trump reportedly offered the network the opportunity to host his town hall but only if it was at the same time as Biden’s). More than one observer was reminded of what former CBS chief executive Les Moonves said about Trump’s presidency in 2016: “It may not be good for America, but it’s damn good for CBS.” New Yorker writer Sue Halpern called the NBC decision “stunning and shameful”, and Yashar Ali of HuffPost said more than a dozen NBC sources expressed “frustration and anger toward their employer.” As Washington Post media columnist Margaret Sullivan said: “the defining media story of this era is mainstream journalism’s refusal to deny Trump a giant megaphone.”

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House slams monopolistic tech giants for abusing their power

Note: This was originally written for the daily newsletter at the Columbia Journalism Review, where I am the chief digital writer

This week, a regulatory process that began in June of last year finally reached its conclusion: the House Subcommittee on Antitrust released a report on the monopolistic practices of four globe-spanning digital platforms: Facebook, Google, Amazon, and Apple. The investigation involved the collection of more than 1.2 million documents, including internal emails sent by company executives, as well as seven congressional hearings looking at the impact the digital giants have had on privacy, innovation, and the media. Some of these hearings amounted to little more than a crass show of grandstanding by legislators who seemed to barely understand the technology behind these companies, but others sparked some tough questions. The final hearing put the chief executives of all four companies on the hot seat as members of Congress pelted them with examples of blatantly anti-competitive behavior. All of that and more appears in the final report, which is 450 pages long.

The bottom line, the report states, is that by controlling access to certain technology markets, these giants can “pick winners and losers throughout our economy. They not only wield tremendous power, but they also abuse it by charging exorbitant fees, imposing oppressive contract terms, and extracting valuable data from the people and businesses that rely on them”. The tech giants also use their monopolistic positions to entrench their market power, it says. “By controlling the infrastructure of the digital age, they have surveilled other businesses to identify potential rivals, and have ultimately bought out, copied, or cut off their competitive threats”. In the end, the report states, “companies that once were scrappy, underdog startups that challenged the status quo have become the kinds of monopolies we last saw in the era of oil barons”.

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