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

It’s not surprising that the announcement last week of an antitrust lawsuit against Facebook has gotten a lot of media attention. Not only is Facebook a company that virtually everyone uses or at least knows about, but mammoth cases like this one (which involves the Federal Trade Commission and 46 states) are extremely rare. There have only been half a dozen or so of this magnitude in the last 50 years, and only the Microsoft case from the late 1990s and possibly the AT&T breakup even come close to this one in size and impact. But once the fanfare of the announcement cools down, the history of such cases shows that what almost inevitably happens is not a swift victory for justice (however one might define that term) but rather a seemingly never-ending period — years, and in some cases decades — of protracted legal wrangling, a process that is almost mind-numbingly boring for most people, satisfying no one apart from the legions of corporate lawyers and academics for whom it provides something close to full employment. And the ending is likely to be a carefully negotiated settlement.

Even more than Microsoft, this case in particular is complicated by the fact that antitrust law was designed as a weapon to go after railroads and oil magnates who controlled access to physical goods with obvious market value, not a corporation whose product costs nothing and yet is used daily by billions of people. On top of that, the last several decades of antitrust court decisions have cemented the idea that the main target of antitrust law is consumer harm, which is traditionally defined as either high prices or the restriction of choice, or both. The former makes no sense in the context of Facebook, and even the latter is a stretch. The FTC’s argument is that harm should be broadly defined to mean a lack of privacy, the sharing of personal data, etc., but that is likely to be an uphill climb. Not that it isn’t true, but the concept has not been established yet in a legal sense, and courts may be skeptical of it (it was initially advanced by legal scholar Dina Srinivasan in a paper titled “The Antitrust Case Against Facebook”). And the question of whether Facebook has prevented users from exercising freedom of choice also requires the FTC and the states to jump through some large hoops in order to make that case.

The complaint argues that Facebook has a monopoly over a specific market, which it defines as “personal social networking,” i.e. the sharing of information with family and friends. But there is no consensus on whether that is even a discrete market, let alone whether Facebook controls enough of it to matter in a legal sense. A court could decide that TikTok is fundamentally in the same market, or Snapchat for that matter, and between them they have almost half a billion users and significant market strength. And if Facebook doesn’t control a monopoly on anything, then the anti-competitive behavior it has engaged in (of buying Instagram and WhatsApp for example) just becomes the normal kind of competitive behavior that all large technology companies engage in. We may all believe and understand that Facebook is huge and powerful, but that’s not enough to meet the antitrust test — the FTC has to show that it became that way illegally, and/or maintains that position through illegal means.

Continue reading “Facebook and antitrust: A slam-dunk case, or a decades-long fight in the making?”

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

Almost three years ago, Facebook chief executive Mark Zuckerberg floated what seemed like a bizarre idea: that the massive, multibillion-dollar corporation he co-founded might create a kind of Supreme Court, which would hear cases involving questionable moderation decisions made by the company. And despite much scoffing and skepticism from Facebook’s critics over the ensuing years, Zuckerberg has done exactly that, setting up a theoretically independent body known as the Facebook Oversight Board, with a charter that prevents the company from meddling in its decisions, and requires Zuckerberg and Facebook to implement any recommendations the board makes, provided they aren’t against the law. Even after the group was created, however, it took some time before it could actually hear cases, for a variety of technical reasons: for example, the company said the board needed specially-equipped laptops so that personal information about users didn’t get exposed to public view. This week, the board finally started doing its work, and the response shows that there is still a lot of skepticism out there about Facebook’s big idea.

Many of those who see the social network as contributing to the problems of political disinformation were hopeful the Oversight Board might be up and running in time for the US presidential election, so it could rule on things like Facebook’s decision not to remove voter-fraud allegations and other conspiracy theories posted by Donald Trump and his followers. Instead, the board’s first cases include:

• A screenshot of tweets by former Malaysian Prime Minister Mahathir Mohamad, in which he wrote that “Muslims have a right to be angry and kill millions of French people for the massacres of the past”
• Photos of a dead child, fully clothed, with text in Burmese asking why there was no retaliation against China for its treatment of Uighur Muslims
• Alleged historical photos of churches in Baku, Azerbaijan, with text saying that Baku had been built by Armenians and asking where the churches had gone
• Eight photographs on Instagram which included female breasts and nipples, with text in Portuguese about breast cancer symptoms
• An alleged quote by Nazi Germany’s propaganda chief Joseph Goebbels
• A video about France’s refusal to authorize hydroxychloroquine and azithromycin as treatments for COVID-19

The board said it got more than 20,000 suggestions for incidents that users wanted it to review since October 2020, which gives some indication of just how difficult the job of running Facebook’s Supreme Court will likely be, considering the vast quantities of content that are posted to the social network every day. The board has invited the public to comment on the cases (which have had any personal identifying information removed) over the next week. If it opts to overrule Facebook’s earlier decisions, the company must comply with that ruling, and must also publicly respond to the board. “Facebook has to follow our decision. And that means if they have taken content down, they have to put it back up. But they also have to use this as a guideline for other similar cases,” said Helle Thorning-Schmidt, former Prime Minister of Denmark and an Oversight Board member.

Continue reading “Facebook’s Supreme Court starts to hear its first cases”

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

While the president continues to rant and rave about conspiracies he believes have denied him the election, the Senate Judiciary Committee decided to spend its valuable time holding yet another hearing into the alleged misbehavior of Facebook and Twitter. This comes less than a month after the Senate Commerce Committee held a very similar hearing into the two social platforms, a hearing that consisted mostly of members like Senator Ted Cruz making a show of badgering Twitter CEO Jack Dorsey. The main topic of conversation was why Twitter chose to block users from posting links to a New York Post story that contained unsubstantiated claims about a secret laptop that may or may not have belonged to Hunter Biden (Twitter changed its policy before the hearing, allowing users to link to the story with a warning about its unverified status). This week’s hearing was equally shallow, and equally frustrating.

In part, that could be because the topic of the Senate Judiciary hearing was exactly the same as the Senate Commerce hearing—namely, the blocking and down-ranking of the New York Post story by Twitter and Facebook, and the fact that Section 230 of the Communications Decency Act protects the platforms from liability for those kinds of decisions. So a lot of the same arguments were trotted out by many of the same people, including Senator Cruz, who again made a show of badgering Jack Dorsey about whether he would put a warning on a tweet the senator planned to post about alleged election fraud. “I don’t think it’s useful to get into hypotheticals,” Dorsey said, before adding that a warning probably wouldn’t be applied. “Well I’m going to test that, because I’m going to tweet that and see what you put on it,” Cruz blustered.

The fact that Twitter changed its policy not long after it blocked the Post story seemed to take at least some of the wind out of the Judiciary Committee’s sails. It’s a lot easier to get worked up about censorship if you’re talking about actually blocking a link or deactivating someone’s account, as opposed to just adding a small warning. That’s not to say Cruz didn’t try: after asking the question about whether his tweet on alleged election fraud would get a warning, the senator tried to argue that adding a warning makes Twitter into a publisher rather than a platform, and thus renders it ineligible to be protected by Section 230. “You’re a publisher when you’re doing that,” he said. “You’re entitled to take a policy position, but you don’t get to pretend you’re not a publisher and get a special benefit under Section 230 as a result.”

Continue reading “Congress and the platforms: The circus is back in town”

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

As Trump and his supporters in the White House pursue a series of increasingly desperate rear-guard maneuvers aimed at overturning the election results, there are reports that the soon-to-be former president is planning to launch his own media venture. Mike Allen of Axios wrote in his newsletter on Thursday that Trump “has told friends he wants to start a digital media company to clobber Fox News and undermine the conservative-friendly network.” According to Allen, a source with detailed knowledge of Trump’s plans said that he “plans to wreck Fox, no doubt about it.” Trump was apparently livid that Fox News was the first major network to call the state of Arizona for Joe Biden on election night, and has been berating the network both privately and publicly ever since. Vanity Fair reported that Trump called News Corp. founder Rupert Murdoch to scream at him after the network said Biden won Arizona, and demanded the network retract its prediction, but Murdoch refused.

In a recent piece for the Los Angeles Times, writer Stephen Battaglio argued that the odds of Trump launching and being successful with a competitor for Fox News are extremely slim. Even with Trump behind it, introducing a new cable network right now “would be a difficult climb in the current TV landscape, where consumers have shifted away from pay TV subscriptions,” Battaglio wrote. “As the universe of traditional pay TV customers slowly but steadily diminishes, getting operators to pay a license fee to carry a new channel would be a major challenge.” However, Allen said that his sources say Trump is planning a digital-only channel that would stream online rather than being carried on cable networks. Trump would likely charge a monthly fee to his fans, those sources said, and would aim to either take away viewers from or replace Fox Nation, the $5.99-a-month streaming digital offering owned by Fox News.

Among the other details that Allen’s sources shared with the Axios writer were that Trump is planning to use the mailing and cellphone lists that he has accumulated (and paid for) during his election campaigns, which would theoretically provide a rich source of potential leads for marketing messages for this new digital offering. However, at least one legal expert says that doing this could actually be illegal, since it’s against campaign finance laws to take data that was originally generated and owned by a campaign and use it for personal purposes. “This is one of the few portions of the campaign finance laws that are routinely prosecuted criminally,” lawyer Marc Elias said. Of course, as more than one person noted in their responses to this observation, Trump has repeatedly breached these kinds of ethical rules already, both before and during his presidency, so it’s difficult to see why he would stop now.

Continue reading “Is Donald Trump planning his own Fox-style news channel?”

Legendary swordswoman, opera singer, bisexual icon — Julie D’Aubigny was all of these things, in 17th century France. She was born in 1673 to Gaston d’Aubigny, the secretary to Louis de Lorraine-Guise, the Comte d’Armagnac, the Master of the Horse for King Louis XIV. Because of her father’s position, she was taught to read, draw, and use a rapier. At the age of 14 she began an affair with her father’s employer Count d’Armagnac (or he began one with her) but in order to protect her reputation, she was married to Sieur de Maupin and thereafter was known as Le Maupin. She soon tired of the Count and ran off with one of her fencing teachers — they fled to Marseille, where they entertained crowds by fencing and singing. D’Aubigny performed while dressed as a man but was billed as a woman, and more than once when a heckler yelled that women couldn’t be that good with a sword, she tore open her blouse to shut him up.

After falling in love with a woman, the girl’s parents sent her off to a convent so that D’Aubigny couldn’t pursue her, but Le Maupin followed her to the convent in Avignon. She said she wanted to become a nun, and after taking her holy vows and being admitted to the nunnery, she found her lover and they two plotted their escape — when an elderly nun died, they took her body and put it in the girl’s bed and then set the convent on fire. D’Aubigny was sentenced to death in absentia, but after making her way to Paris, she approached the Count d’Armagnac and he agreed to ask King Louis XIV for a pardon, which was granted because the king was amused by her exploits.

D’Aubigny joined the Paris Opera, and took many lovers, both male and female. According to one story, she challenged a fellow actor to a duel after she rejected his advances and he called her a whore. Later that night she beat him senseless with a cane and took his watch and snuffbox — when he told the story about being mugged by thieves the next day, D’Aubigny produced the watch and snuffbox and he was humiliated. Later, she fell in love with the Marquise de Florensac, widely known as the most beautiful woman in France. They lived together for several years, until Florensac died from a fever. D’Aubigny was reportedly devastated — she retired from the opera, joined a convent and died at the age of 33.

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.

Continue reading “The Google case is a stew of technology, law, and politics”