A Stigler Center panel examines the influence of Big Five tech firms over political discourse and the marketplace of ideas.
At one point during Mark Zuckerberg’s Senate hearing in April, the Facebook CEO had the following peculiar exchange with Senator Lindsay Graham (R-SC):
Graham: But you, as a company, welcome regulation?
Zuckerberg: I think, if it’s the right regulation, then yes.
Graham: You think the Europeans had it right?
Zuckerberg: I think that they get things right.
Graham: …. So would you work with us in terms of what regulations you think are necessary in your industry?
Graham: Okay. Would you submit to us some proposed regulations?
Zuckerberg: Yes. And I’ll have my team follow up with you so, that way, we can have this discussion across the different categories where I think that this discussion needs to happen.
Graham: Look forward to it.
This telling bit of dialogue was part of an overall pattern: the hearing was meant to hold Facebook (and Zuckerberg himself, as the company’s founder, CEO, and de facto single ruler) accountable for the mishandling of millions of people’s private data. Yet one after another, the senators were asking an evasive Zuckerberg if he would be willing to endorse their bills and proposals to regulate Facebook. This mode of questioning repeated itself (to a somewhat lesser extent) during the House’s tougher questioning of Zuckerberg the following day.
Needless to say, most company CEOs grilled by Congress following a major scandal that impacts millions of people and possibly the very nature of American democracy are not usually treated in this way—as private regulators almost on equal footing with Congress.
Facebook, however, is not a typical company. As a recent Vox piece noted, with its vast reach of more than two billion users worldwide, Facebook is more akin to a government or a “powerful sovereign,” with Zuckerberg—due to his unusual level of control over it—being the “key lawgiver.” Zuckerberg acknowledged as much himself when he said, in a much-quoted moment of candor, that “in a lot of ways Facebook is more like a government than a traditional company.” More than other technology companies, he added, Facebook is “really setting policies.”
The notion that corporations can become so powerful that they are able to act as a “form of private government” (to quote Zephyr Teachout) has long been part of the antitrust literature. Indeed, as the Open Market Institute’s Barry Lynn and Matt Stoller recently noted during a panel at the Stigler Center’s Digital Platforms and Concentration antitrust conference, it is deeply rooted in the rich tradition of antimonopoly in America.
That digital platforms are major political players has also been well documented. Once disdainful of politics, in the past two years Google, Facebook, and Amazon have dramatically ramped up their lobbying efforts, as the public and media backlash against their social, economic, and political power intensified. Google, which enjoyed unprecedented access to the Obama White House, is now the biggest lobbyist in Washington, with other tech platforms not far behind.
Market power begetting political power is not new in itself. As the participants of the Stigler panel noted, it is the immense power that concentrated digital intermediaries like Google and Facebook wield over digital markets, human interaction and the marketplace of ideas, particularly when it comes to the distribution of political information, that presents a unique challenge. As Lina Khan (also of Open Markets) recently noted, the current landscape of Internet media is one in which a handful of companies “are basically acting as private regulators, as private governments, over the dissemination and organization of information in a way that is totally unchecked by the public.”
The latter part, at least, seems to be changing rapidly, as Americans (and millions more worldwide) grapple with ongoing revelations showing the profound impact that digital monopolies have on political opinions and outcomes, in the US and across the world. As Congressman John Sarbanes (D-MD) said during Zuckerberg’s House hearing in April: “Facebook is becoming a self-regulated superstructure for political discourse.”
The exact nature of tech platforms’ political power, its roots, and how to best deal with it—all questions debated during the Stigler Center panel—are complex and varied. But the key question seems rather simple. As Sarbanes put it during the same Congressional hearing: “Are we, the people, going to regulate our political dialogue, or are you, Mark Zuckerberg, going to end up regulating the political discourse?״
A Private Regulator of Speech
Facebook, said Rutgers Law School professor Ellen Goodman, operates as a private speech regulator. As such, much like public governments, it “privileges some [forms of] speech over others.” Unlike governments, however, which as regulators of speech purport to support public good, Facebook has adopted a “First Amendment-like radical libertarianism” through which it has so far refused to differentiate between “high- and low-quality information, truth or falsity, responsible and irresponsible press.”
Facebook, famously, argues that it is not a media company, but a technology company. “It’s not a player, it’s not a [referee], it’s just the engineer who made the field,” said Goodman, the co-director of the Rutgers Institute for Information Policy & Law. The purpose of Facebook’s “First Amendment rhetoric,” she noted, is “to maximize data flow on its platform,” but by doing so, “it implies, or even says explicitly, that it’s standing in the shoes of the government.”
Facebook and other platforms, said Goodman, have benefited from the process of deregulation and budget cuts to public media—a process that has predated the Internet, and led to Washington essentially “giving up” on media policy. The government effectively “exempted these platforms from the kind of ordinary regulation that other information intermediaries were subjected to.” With “platforms in the shoes of government, [and] government out of media policy,” the concentration of platform power over information flows was allowed to continue undisturbed.
The problem, however, is that much like fellow FAANGs Amazon and Google, Facebook is not just an impartial governor, but a market participant interested in “monopolizing the time of its users,” with a strong incentive to privilege its own products and business model that “eviscerates journalism.”
“It also tunes its algorithm to favor certain kinds of speech and certain speakers,” added Goodman. “There’s almost no transparency, save for what it selectively, elliptically, and sometimes misleadingly posts on its blog.”
“People Live in Fear”
In a seminal 1979 essay on what he termed the “political content” of antitrust, former FTC chairman Robert Pitofsky argued that “political values,” such as “the fear that excessive concentration of economic power will foster anti-democratic political pressures,” should be incorporated into antitrust enforcement. In recent years, this view has been echoed by a growing number of antitrust scholars, who argue that the way antitrust enforcement has been conducted in the US for the past 40 years—solely through the prism of “consumer welfare”—is ill equipped to deal with the new threats posed by digital platforms.
The Unites States, remarked Lynn during the panel, was born “out of rebellion against concentrated power, the British East India Company.” The original purpose of antimonopoly in America, said Lynn, was the protection of personal liberty from concentrated economic and political power: “to give everybody the ability to manage their own property in the ways that they see fit, manage their own lives in the way that they see fit. To be truly independent of everybody else. To not be anybody else’s puppet.” Liberty and democracy, he added, “are functions of antimonopoly.”
A state in which Facebook and Google wield enormous influence over the flow of information—where, to quote a recent piece by Wired’s Nicholas Thompson and Fred Vogelstein, “every publisher knows that, at best, they are sharecroppers on Facebook’s massive industrial farm”—is antithetical to this ethos, said Lynn, and is firmly rooted in the “absolute, complete failure” of antitrust in the United States. “Our country has allowed the concentration of power in giant intermediaries—Google, Facebook, and Amazon—vastly more powerful than the original intermediary which we fought, which was the British East India Company.” These digital intermediaries, he added, are “using their power in ways that are directly threatening our most fundamental liberties and our democracy.”
|“Our country has allowed the concentration of power in giant intermediaries—Google, Facebook, and Amazon—vastly more powerful than the original intermediary which we fought, which was the British East India Company.”|
The blame for the outsize influence that Facebook and other digital platforms have over the political discourse, said Lynn, rests squarely on the shoulders of the antitrust community: “For 200 years in this country, antimonopoly was designed to create freedom from masters. In 1981, when we got rid of our traditional antimonopoly and replaced it with consumer welfare, we created a system that has given freedom to master.”
In today’s concentrated media landscape, he contended, “people live in fear. We have reporters, editors, and publishers of our newspapers who live in fear every day. This is true of the people who publish our books and who write our books. They live in fear [that] Amazon is going to shut them down. Whose fault is that? It’s the people in the antitrust community.”
|“We have reporters, editors, and publishers of our newspapers who live in fear every day. This is true of the people who publish our books and who write our books. They live in fear [that] Amazon is going to shut them down. Whose fault is that? It’s the people in the antitrust community.”|
Lynn went on to quote from Thompson and Vogelstein’s Wired piece: “The social network is roughly 200 times more valuable than the Times. And journalists know that the man who owns the farm has the leverage. If Facebook wanted to, it could quietly turn any number of dials that would harm a publisher—by manipulating its traffic, its ad network, or its readers.”
“This was hidden in the middle of the article,” said Lynn. “[Thompson], as a journalist, felt obliged to put this out there … He was crying out to the people in this community, in the antitrust community. He’s saying ‘protect me, the publisher, the editor of this magazine. Protect me, the reporter. Please make sure that I have the independence to do my work.’”
The “Code of Silence” Has Been Broken
Recent changes to Facebook’s newsfeed have caused referral traffic from Facebook to media companies’ websites to sharply decline, once again raising concerns about the significant impact that the company has on the media industry. The satirical news site The Onion, for instance, has launched a public war against Facebook, calling it “an unwanted interloper between The Onion and our audience.” “We have 6,572,949 followers on Facebook who receive an ever-decreasing amount of the content we publish on the network,” the site’s editor-in-chief, Chad Nackers, told Business Insider.
The backlash by major news outlets and politicians across the political spectrum against the power of Facebook and other tech platforms as de facto regulators of speech on the Internet is a new phenomenon, said Guy Rolnik, a Clinical Associate Professor for Strategic Management at the University of Chicago Booth school of Business, during the panel. Until not too long ago, he said, Internet monopolies were the “darlings of the news media.” Less than a year ago, he noted, Zuckerberg was even touted by several media outlets as a viable presidential candidate. “The idea that a person who has unprecedented private control over personal data and the public discourse at large would also be the president of the United States was totally in the realm and perimeter of what is legitimate,” he said.
What has changed? “In many ways, what has changed is that many people associate Facebook today with the election of Donald Trump. This is why we see so much focus on those issues that were very salient and important for years,” Rolnik maintained. Trump’s election, and Facebook’s role in the lead-up to it, broke the “code of silence.”
Nevertheless, newsrooms today, he said, still do everything in their power “to make sure that everything is shareable on Facebook.” In the words of Thompson and Vogelstein, they are still “sharecroppers on Facebook’s massive industrial farm.”
Google has “Politically Hijacked the US Antitrust Enforcement Process”
Scott Cleland, president of the consultancy firm Precursor LLC and former deputy US coordinator for international communications and information policy in the George HW Bush administration, has long warned that concentration among digital platforms will negatively impact the US economy and society at large.
In 2007, Cleland testified before the Senate on the then-proposed Google-DoubleClick merger, calling upon antitrust enforcers to block the merger and warning that lax antitrust enforcement (of the kind that ultimately led the Google-DoubleClick merger to be approved) would allow Google to become the “ultimate Internet gatekeeper” and the “online-advertising bottleneck provider picking content winners and losers”—both of which came true. In 2011, he published the book Search & Destroy: Why You Can’t Trust Google Inc., in which he warned readers of Google’s surveillance-based business model and its “unprecedented centralization of power over the world’s information.”
During the conference, Cleland presented a new white paper entitled “Rejecting the Google School of No-Antitrust: Fake Consumer Welfare Standard” in which he argues that Alphabet/Google has “politically hijacked the US antitrust enforcement process from 2013 to 2018.”
US antitrust enforcers, he said, were initially “very tough” on Google during the first years of the George W. Bush administration. Between 2008 and 2012, both the Bush II and Obama administrations brought “strong and consistent antitrust scrutiny and enforcement to Google.” Then, in 2013, the Federal Trade Commission decided to drop its case against the company, despite the conclusion of its staff that Google had used anticompetitive tactics. Following Obama’s reelection, which Google at the time was credited with delivering, antitrust enforcement against Big Tech firms essentially ceased. “They shut down all those investigations and they did nothing for the last five years. DOJ went from very active—four or five major antitrust actions—to nothing. Crickets.”
Back then, Google and Facebook were still “fiercely competing,” he said. Google was going after Facebook’s territory with Google Plus, and Facebook countered by going after Google search with Yahoo and Bing. But then, in 2014, something happened: the large tech firms “mysteriously stopped competing.”
“Yahoo returned to working with Google. Apple dropped Bing for Siri and moved to Google search. Apple and Microsoft dropped their patent suits, and then Microsoft and Google made peace after scratching each other’s eyes out. Google went from 70 percent share of search and search advertising in the PC market to 95 percent of that in both of those markets today,” said Cleland.
What happened? Cleland points to the what he calls the “Google School of No-Antitrust,” a narrative with which according to him Google had been trying to “influence public opinion, the media, elected and government officials, and US and state antitrust enforcers, to make the public believe Google (and other Internet platforms) have no antitrust risk or liability, because they offer free innovative products and services, and to make conservatives believe that the Google School of No-Antitrust and the Chicago School’s consumer welfare standard and application are the same, when they are not.”
Google, he asserted, “not only vanquished competition. What it did is it vanquished the antitrust enforcers who are supposed to protect the process of competition.” It did so, he argued, by “politically hijacking the most important market, which is information.”
|“Google not only vanquished competition. What it did is it vanquished the antitrust enforcers who are supposed to protect the process of competition.”|
Cleland, who identifies as a free market conservative, argued that the current Internet is far from a free market. “Who thinks it’s a good idea that all of the world’s information goes through one bottleneck?” he asked, adding that “all the bad things that you’re seeing right now are the result of policy.”
One such policy is Section 230 of the Communications Decency Act of 1996, which provided Internet companies with legal immunity for the content their users generated or shared and is often credited with enabling the creation of the Internet as we know it today. Cleland sees Section 230 as “market structuring” and has compared it to the libertarian concept of creating artificial islands outside any governmental territory, known as “seasteading.”
“Section 230 says—I’m paraphrasing, but that’s what it says—that US policy recognizes that the Internet is a free market that should be unfettered by federal and state regulations,” said Cleland. “Basically, Section 230 was a libertarian’s dream. They got what they wanted. I am a limited government conservative. What they wanted was a no-government world.”
|“Basically, Section 230 was a libertarian’s dream. They got what they wanted. I am a limited government conservative. What they wanted was a no-government world.”|
Much of today’s problems regarding the conduct of digital platforms, he said, results from this policy. “Twenty-two years ago, we as a nation immunized all interactive computer services from any civil liability. We said, ‘It is OK. There is no accountability, no responsibility for you looking the other way, when your platform or things that are going on on your platform harm others.’”
Section 230, he maintained, “basically created 21st-century robber barons. Those guys know they have the full weight of the government. If they go to court, they’re going to win, and they have almost all the time.”
Antitrust Is “One Part of the Answer”
When it comes to addressing these threats to free speech and democratic discourse, said Goodman, antitrust is only “one part of the answer.” The other part, she asserted, is regulation.
“The First Amendment that we have, that we know and love today,” she said, “was not born in 1789 in Philadelphia. It developed in the latter part of the 20th century against a particular set of industrial and social practices that mitigated some of the costs of free speech and spread the benefits.”
Lawmakers and policymakers, she argued, should “retrieve and resuscitate the vocabulary of media policy,” focusing on three core values: “freedom of mind and autonomy; non-market values of diversity and localism/community; and a concept of the public interest and fiduciary responsibility.”
Whenever someone makes an argument for using antitrust or regulation as a way to structure markets of information, Stoller cautioned, there are those who will argue that this amounts to censorship. When asked how to avoid censorship when discussing the use government power over speech, Goodman was conflicted: “There is no way around that. There’s a real tension here between absolute liberty of speech and controls on speech,” she said. We cannot have this whole conference with us fantasizing about various regulatory possibilities that involve use restrictions—limits on the flow of data, limits on the collection of data—without acknowledging that under our First Amendment doctrine right now, probably none of that passes muster.”
However, Goodman pointed to the Northwest Ordinance as a possible roadmap. “Nobody would say, or maybe they did, that [the Northwest Ordinance ] was an anti-private property rule. It was structuring the market so that more people could own property. That’s what the history of media regulation in this country has been: structuring speech markets so that more people can speak.”
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