by James C. Sherlock
“You don’t need a Weatherman To know which way the wind blows.” — Bob Dylan, Subterranean Homesick Blues.
“Facebook was hit with twin lawsuits by the Federal Trade Commission and attorneys general from dozens of states on Wednesday, in one of the most serious challenges ever to the Silicon Valley giant. The cases could potentially result in Facebook being broken up.
Here’s what you need to know.
The FTC and the states accuse Facebook of abusing its dominance in the digital marketplace and engaging in anti-competitive behavior.
“Facebook’s actions to entrench and maintain its monopoly deny consumers the benefits of competition,” Ian Conner, Director of the FTC’s Bureau of Competition, said in a statement. “Our aim is to roll back Facebook’s anticompetitive conduct and restore competition so that innovation and free competition can thrive.”
And that story was dated Dec. 11, 2020.
Maybe last week was not the best time for Facebook to kick that hornets’ nest with another potential antitrust violation.
Kerry Dougherty raised this issue this morning.
Crisply put, the lords of Silicon Valley declared a national emergency this weekend and took coordinated action to address it.
I checked my Constitution and the laws of the United State and can’t find that provision anywhere.
Twitter, Facebook, Google, Apple and Amazon and a host of others acted simultaneously, with the stated intent of suppressing speech that incites violence, to:
- shut down Parler, a fast growing rival to Facebook. Parler depended on Google and Apple to distribute its apps and upon Amazon AWS to host its platform. All those rugs were pulled out simultaneously. The description of Parler on both Apple app store and Google apps before both were was pulled was:
“Parler is a non-biased, free speech social media focused on protecting user’s rights. Create your own community and enjoy content and news in in real time. Apply moderation tools to filter content.” Who curates that content for Apple and Google?
- remove “bots,” by which they refer to self-replicating internet robot malware that infects computers, not the good bots that let us order pizza online; and
- deny certain individuals access to the internet because their very presence was considered to threaten public safety.
Private tech companies including Facebook that acted this weekend broadly and simultaneously against Parler in the name of “preventing violence” are going to need excellent attorneys, better ones than they had before they did it.
They had options:
- They could have left Parler alone and acted against material and bots that offended them.
- They could have brought evidence of the threat and sought an emergency court order from a federal judge in California or elsewhere to shut down Parler, a growing rival of Facebook and to some degree Twitter. One can get a federal court order in California for nearly anything. Yet they apparently failed to do so.
Section 230 of the Communications Decency Act
I have already this morning heard on various media things like “Section 230 will keep them from getting sued.” Really?
Facebook, as we read above, is already being sued by federal and state governments for antitrust violations. Parler has already filed a suit against Amazon for shutting it down.
Section 230 of the Communications Decency Act passed in 1996 and is commonly referred to as the safe harbor provision. Section 230 absolves U.S. website operators from liability if third-parties use their platforms to post defamatory statements. Parler was protected by Section 230 from civil action in the courts against the activities the tech titans charged it with.
So they took a more direct route.
The statute further provides “Good Samaritan” protection from civil liability for operators of interactive computer services in the removal or moderation of third-party material they deem obscene or offensive, even of constitutionally protected speech, as long as it is done in good faith.
Parler is not “material,” it is a platform.
The Ayatollah (60,000 likes), Chairman Xi (178 likes) and Vladimir Putin (3 million likes) are still up on Facebook and Twitter, as are the crazies on the American left that used Twitter and Facebook to initiate and coordinate last summer’s deadly and destructive riots.
So “good faith” is not likely to work. But who can predict what will happen in court?
We have no idea of the provisions in the contract between Parler and Amazon, but I suspect we will soon find out. That may be the subject of Parler’s initial suit that has already been filed.
Both the federal and state governments have antitrust laws “aimed at preserving free and unfettered competition as the rule of trade” (Sherman Act). All such laws are subject to criminal and civil enforcement. Civil suits can be brought by governments or private entities harmed by unlawful activity.
The simultaneous actions suggest the possibility of a conspiracy. Filing criminal charges depends upon the evidence and is up to the discretion of state and federal prosecutors. It requires a prosecutor who thinks he or she can prove a case beyond a reasonable doubt. We’ll have to wait to see how that develops.
The actions of Twitter and Facebook, even absent a conspiracy, represent actions by dominant players in restraint of a growing competitor. Do you suppose there were ever discussions at Facebook headquarters about the threat posed by Parler as a rival before the ugly events of last week? Me too.
There is undoubtedly considerable documentation tracking the growth of Parler and its effects on Facebook’s user base. That is somebody’s job at Facebook.
On the government side, the Antitrust Division of the Justice Department may file a criminal or new civil suit or the FTC and state governments may try to add this as evidence in their existing Facebook suits or both.
And Amazon has a new headquarters close to the federal D.C. Circuit Court.
Non-Government Civil Antitrust Actions
Money and lawyers, perhaps including the ACLU, will rush in to support Parler in civil antitrust actions.
Even in non-government civil actions, plaintiffs can request and courts can take actions beyond monetary damages to mitigate the potential for future anticompetitive actions. Breaking up some of these dominant companies is in the realm of possibility.
It doesn’t take an attorney to conclude that these companies face grueling years of court dates that will wind up in the Supreme Court. Good. They earned it.
But this is not just a legal issue.
The Silicon Valley crowd thought they could earn some credits with the Biden Administration with this move in an attempt to prevent any further antitrust damage. I hope it has the opposite effect.
But worse, with the left already occupying the heights of the culture in Hollywood, music, the universities and the press, this attempt to forge a social media monopoly on the left under cover of “preventing violence” will itself incite additional anger on the right.
Just what the nation needed.