Archive for September, 2019

The Two Challenges Facing Big Tech Are Inextricably Intertwined, And the Outcome Of One May Determine The Outcome of The Other

By Sarah Lee

It turns out two issues almost guaranteed to establish themselves as part of the platforms of both Democrat and Republican 2020 presidential candidates — abortion and free speech on the internet — are interconnected in such a way that how voters feel about one is likely to heavily influence how they feel about the other.

And pro-life activists are already — whether they want to or not — playing a starring role in framing a debate that will have implications for two huge challenges facing Big Tech: allegations of anti-trust behavior and viewpoint discrimination.

Pro-life activists, admittedly long-time critics of what they believe are censorship tactics by tech platforms like Facebook and Twitter, are growing louder in their condemnation of viewpoint discrimination in recent weeks because a.) they believe attempts to silence their side of the abortion debate has grown more egregious as medical science and voter preferences shift away from abortion, and b.) they recognize the abortion industry itself has become more vulnerable and is making desperate moves motivated by fear for loss of livelihood.

At the same time, some of the Big Tech companies — a term used as a catchall to describe five or six tech companies that include Facebook, Twitter, Amazon, Google, and Apple — are being looked at by federal regulators for allegations of monopolistic behavior, which many believe could ultimately lead to anti-trust lawsuits in the near future.

Facebook, specifically, is the target of an investigation by a bipartisan group of state attorneys general to examine their “dominance in the industry and the potential anticompetitive conduct stemming from that dominance,” according to a statement from New York State Attorney General Letitia James, who is leading the charge.

And in the background of these larger, more bottom-line related allegations, are continued allegations from pro-life groups like Live Action, who say Facebook has an arguably even more serious problem: viewpoint discrimination.

Live Action — founded in 2003 by a then 15-year-old Lila Rose, who later went on to partner with James O’Keefe in producing game-changing undercover videos of Planned Parenthood clinics — has recently, she says, been punished by Facebook via a notice to followers of the Live Action account that she and the organization were “spreading false news.”

“My understanding of the process is that Facebook employs third-part fact-checkers, that are not working exclusively for Facebook, but are generally attempting to help people understand what is true and not true online,” Rose says. 

Two of the authors of the fact-check — who turned out to be well-known to Rose as actual abortionists (i.e. they make their living pushing abortion; one was even a NARAL board member) — penned an article saying Live Action’s shared posts asserting abortion was “never medically necessary” were inaccurate. 

“These abortionists who Facebook mistakenly held up as ‘fact checkers’ wrote the piece and, literally within hours, they had put a strike against my account, punished the Live Action account and sent an alert to thousands of our followers saying we were spreading false news,” Rose says.

Rose has also recently ramped up her fight against what she believes are attempts to silence pro-life voices on tech platforms by hiring a well-known free speech lawyer to send cease and desist notices to both YouTube (owned by Google) and Pinterest for behavior Rose says is similar to the actions of Facebook.

In early September, Live Action’s attorneys sent cease and desist letters to YouTube and Pinterest. These letters accused them of suppressing content and breaching contracts, which resulted in money loss and damaged reputations.

Free speech lawyer Harmeet Dhillon and Dhillon Law Group drafted two cease and desist letters to YouTube and Pinterest respectively for what appears to be viewpoint discrimination on their platforms. And “monetary damages and injunctive relief are available pursuant to these causes of action, and will be sought in court if this matter cannot be promptly resolved.”

This is the crux of what users are going to have to grapple with as Facebook and other tech giants begin to negotiate allegations that they not only stifle speech on their platforms, but that they may also be running afoul of anti-trust laws and acting as monopolies, employing business practices that stifle both competition and free expression.

Whether or not Rose is correct that some tech companies are actively keeping pro-life voices from being heard remains to be seen, but there are legislators in Washington, DC who appear to empathize with concerns that tech companies aren’t operating completely above board. Four Republican Senators — Ted Cruz, Josh Hawley, Kevin Cramer, and Mike Braun — sent a letter to Facebook and requested they rethink their “fact-check” of Live Action’s posts. Facebook complied and took it down.

Conservatives such as Texas Republican Sen. Ted Cruz have come out in favor of repealing what he believes is a safe harbor that give platforms the ability to play both sides by claiming public forum (and therefore protected) status sometimes, and publisher status at others depending on the circumstances. 

That safe harbor is what’s known as Section 230 protections under the 1996 Communications Decency Act. The goal of the law was to protect “websites and social networks from being sued for what third-party users (i.e., you) say or do on those sites.”

The idea of the law is to give Facebook editorial control over its content: the ability to monitor, edit, and even delete content (and users) it considers offensive or unwelcome according to its terms of service. These rights theoretically existed before Section 230 (thanks to the First Amendment), but Section 230 clarified it:

No provider or user of an interactive computer service shall be held liable on account of—(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected …

Legal scholars and courts have interpreted this to mean that Section 230 gives social media companies the power to moderate not just content but users. 

So while tech companies are battling the perception they are silencing some viewpoints, they are simultaneously, often in the same interviews, being asked if they are engaging in business practices (creating anti-competitive advertising schemes or selling products pre-loaded with their own applications, for example) that are monopolistic in practice.

Facebook Head of Global Policy Management Monika Bickert told Yahoo Finance recently that she disavows any notion that Facebook has a bias against conservative ideas or users, and specifically said any perceived bias against pro-life groups had to do with disturbing images related to ads.

When asked whether the company has an anti-conservative bias, Facebook Head of Global Policy Management Monika Bickert explicitly told Yahoo Finance in a recent interview, “We do not.”

“This policy we’ve had on ads for a long time,” Bickert said. “We don’t allow people to share images in an ad that shows somebody with medical tubes in their body. And that’s because if somebody’s seen an ad on Facebook, we don’t want them to be surprised or unnecessarily upset.” It seems she’s talking about two different things here. Facebook’s policies regarding ads/promoted content vs. organic content are different. It sounds like she got fact-checked on a video I’m assuming she shared to her own page and the Live Action page. If she had an ad get shut down that shared the same message, that’s a different issue. 

While Rose’s alleged censure came from a video series she says conveys a message supported by doctors around the world (“If you can help people see why abortion is not medically necessary it undermines [abortionists’] entire practice and it hurts their entire ideology,” Rose said), the issue of free speech on these platforms is being framed and influenced by a larger effort to determine if they are violating anti-trust laws.

Rose herself sees the connection between the two, and says that they both represent what she believes are violations of these companies’ own terms of service when they insist to users that they don’t pick winners in policy or political debates.

“It’s a clear double standard,” she says. “Pro-abortion groups are allowed to advertise on Facebook, Twitter, and Pinterest….It’s not that they’re saying they don’t want to talk about abortion. It’s that they’re saying they only want one point of view; and in fact they’re going to punish those with a different viewpoint.” 

These two issues — anti-trust violations and the monitoring of speech — are separate in theory. But in practice, it may turn out that whatever the federal and state attorneys general investigations discover regarding monopolistic business practices could play a huge role in convincing these tech companies to tighten up on the perception they engage in viewpoint discrimination. If for no other reason, to stay off the federal radar. 


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