The Senate Judiciary votes 16-6 to advance the American Innovation and Choice Online Act, which would stop platforms from favoring their products over rivals'

The Senate Judiciary Committee voted 16-6 Thursday to advance a major tech competition bill, which some experts consider lawmakers' best shot …

CNBC 2022-01-21 Lauren Feiner

Context & Ripple Effects

The committee vote advances a proposal first framed in bipartisan Senate legislation against self-preferencing the previous year, turning a draft restriction into a live Senate competition measure. Its importance is that the bill targets how large platforms treat their own services alongside rival businesses.

The measure sits within a wider congressional push to rebalance platform bargaining power, later echoed by the committee-backed news-publisher negotiation bill. The DOJ's subsequent endorsement of this same act reinforced its standing within that policy agenda.

First-order effects

The American Innovation and Choice Online Act moves beyond the Senate Judiciary Committee, placing covered platforms' treatment of their own products and services under a proposed federal restriction.
Businesses that compete with platform-owned offerings gain a legislative vehicle aimed at discriminatory placement or preferential treatment by the platforms they depend on.

Second-order effects

Platform operators would need to assess product ranking, placement, and service-integration practices against a rule designed to protect rival businesses, rather than treating those decisions solely as product design choices.
The vote gives other competition measures, including the publisher-negotiation approach in the related coverage, a clearer congressional template: intervening in platform conduct to improve counterparties' leverage.

Third-order effects

If this approach becomes law, US platform policy would shift toward interface-neutral competition rules that scrutinize a gatekeeper's conduct toward adjacent businesses, not only its size or acquisitions.
A durable self-preferencing prohibition would make service integration a recurring regulatory and compliance issue for large platforms, potentially reshaping how they launch and distribute first-party offerings.

The trend: US lawmakers are moving toward conduct-based platform regulation intended to curb gatekeepers' ability to advantage their own services over dependent rivals.

Discussion

@neilbradleydc Neil Bradley on x
The so called “American Innovation and Choice Online Act” being marked by the Senate Judiciary Committee is going to end up in the dictionary under “government picking winners and losers.” For many reasons, it should be defeated. https://www.uschamber.com/...
@sentedcruz Senator Ted Cruz on x
The power that the Big Tech oligarchs wield would make John D. Rockefeller blush! https://twitter.com/...
@attorneynora Nora Benavidez on x
Section 3(a)(3) of S. 2992 would make it difficult or impossible for covered companies to remove from their sites any biz that traffics in hateful or otherwise harmful content. Ripe for abuse down the line and I worry about how state AGs or future FTC officials will respond. 5/
@daphnehk Daphne Keller on x
Markup is today for the “American Innovation and Choice Online Act,” from @amyklobuchar @markwarner @ChuckGrassley @maziehirono & more. It opens the door to litigation over whether Daily Stormer, Breitbart, etc. should rank higher in newsfeeds. https://www.congress.gov/...
@judiciarydems @judiciarydems on x
NEWS: Today the Committee advanced 12 judicial nominees, including Second Circuit nominee Alison Nathan, as well as the bipartisan American Innovation and Choice Online Act. Watch Chair @SenatorDurbin's remarks on why this bill will support small businesses and spur competition: …
@lutherlowe Luther Lowe on x
It's an insult to the 40+ startups, mostly California who signed this letter in support of this legislation https://wesupportsb2992.medium.com/ ... https://twitter.com/...
@daphnehk Daphne Keller on x
That is both insanely expensive and incredibly threatening to the independence and integrity of platform content moderation. It's one thing to have transparency mandates for the public or researchers. It is quite another to let a politically motivated actor search all the files.
@attorneynora Nora Benavidez on x
S.2992 is described as antitrust reform but it only applies to a few companies — online entities above high-user thresholds or w/ annual revenues upwards of half a trillion dollars. So that's Amazon, Apple, Facebook, Google, possibly Microsoft or Walmart, Tencent and TikTok. 2/
@amyklobuchar Amy Klobuchar on x
Right now, big tech gets to call all the shots online. Does this benefit consumers or small businesses trying to compete? No. The good news: My bipartisan bill to create commonsense digital rules of the road passed the Judiciary Committee today and is closer to becoming law.
@willoremus Will Oremus on x
California Dems just coming right out and saying that they're against antitrust because they view tech giants as part of their core constituency https://twitter.com/...
@davidcicilline David Cicilline on x
GREAT news in the fight to #ReinInBigTech in the Senate today! Congrats, @SenAmyKlobuchar. Proud to call you a partner in this effort. https://www.cnbc.com/...
@attorneynora Nora Benavidez on x
But, Section 3(a)(3) of the amended bill in today's markup also prohibits covered platforms from “discriminating” against any “similarly situated business users.” Even if the platform itself does not compete with those businesses. What does this mean? 4/
@evan_greer Evan Greer on x
there's stuff to improve and work on in these bills, but overall they are clearly an improvement on the status quo, and may be Congress' best shot at getting something meaningful done to at least start chipping away at the dominance and abuses of Big Tech https://gizmodo.com/...
@chuckgrassley @chuckgrassley on x
2day Judiciary Cmte approved Klobuchar-Grassley bill to combat unfair practices of BigTech. Will create level playing field 4 smaller biz/prevent abuse from dominant platforms Its impt step in putting checks on growing power of BigTech over what we buy, see, read & say online
@daphnehk Daphne Keller on x
Then, for reasons I don't understand, someone added a cause of action if an AG or federal agency thinks Facebook, Google News, etc. should change the relative ranking of, say, Breitbart and the NYT because they are “similarly situated businesses.”
@ggreenwald Glenn Greenwald on x
Five out of 11 GOP Senators joined Democrats to send this Big Tech anti-trust bill to the floor. It's not perfect but it's a serious bill and a huge defeat for Big Tech: both Google and Apple lobbied vigorously against it, but got a large bipartisan vote in its favor. https://twi…
@senlummis Senator Cynthia Lummis on x
Today the Senate Judiciary Committee took a decisive step toward reining in the unchecked, monopolizing power that Big Tech has over the internet marketplace. 1/
@alexstamos Alex Stamos on x
Interesting 🧵 from Daphne on how provisions in this anti-trust bill that have generally been imagined as affecting commerce (Amazon generic batteries) or app stores might also affect speech, which would have the opposite of the impact these Senators have repeatedly asked for. htt…
@senlummis Senator Cynthia Lummis on x
Consumers in Wyoming and the rest of America would benefit from greater competition among tech companies, but right now the tech giants are self-promoting their own products over their rivals, which hurts competition and solidifies existing internet monopolies. 2/
@daphnehk Daphne Keller on x
We have a live example of how that plays out right now. Texas's AG, Ken Paxton, is litigating over Texas's politically-motivated law regulating platform content moderation. He wants Twitter to hand over basically all internal documents about content moderation.
@brianfishman Brian Fishman on x
Interesting thread. H/t @alexstamos My minor critique is the suggestion that transparency to researchers doesn't raise issues of politicization and agenda pushing. It does. Not as acute as w govt, and shouldn't prevent transparency, but build protections up front. https://twitter…
@netchoice @netchoice on x
It's clear the American Innovation and Choice Online Act will take away what makes today's online marketplaces so valuable. If enacted, the bill will... 🚩 Eliminate discounted bundles 🚩 Make it harder to use search 🚩 Force sites to host potentially dangerous products https://twit…
@duckduckgo @duckduckgo on x
DuckDuckGo joins 40+ companies in calling for the Senate Judiciary Cmmte to vote in favor of the American Innovation & Choice Act today. This bill would make our market more competitive by barring self-preferencing tactics. https://wesupportsb2992.medium.com/ ...
@daphnehk Daphne Keller on x
This glaring flaw in the bill has not had the scrutiny it deserves. I think that is because, for the most part, people who understand content regulation are siloed from people who understand competition law. Not many people who would notice this issue were paying attention.
@attorneynora Nora Benavidez on x
The bill will ban self-referential conduct i.e. that favoring these platforms' own sites & services, like Apple favoring its own mapping application over those created by rivals. 3/
@rileytestut @rileytestut on x
This is not accurate — they approved the American Innovation and Choice Online Act (S.2992), which is a separate bill focused on banning tech companies from “self-preferencing” The Open App Markets Act (S.2710) is what could allow sideloading, and was _not_ discussed today https:…
@daphnehk Daphne Keller on x
I'm honestly not sure what that part of the bill — Section 2(a)(3) — is even doing in there. The rest prohibits self-preferencing by platforms, like Google prioritizing its own Shopping site or YouTube etc. That sounds fine! (BTW, I used to be a Google lawyer.)
@senlummis Senator Cynthia Lummis on x
America has worked for generations to stop monopolies when they arise, and the internet age should be no different. I look forward to supporting this bill on the Senate floor. 3/3
@markwarner Mark Warner on x
Proud to serve as a cosponsor on this bipartisan initiative to level the playing field for smaller tech businesses and impose sensible regulation on bigger tech companies. As a former tech business guy, it's important to me to work on legislation that helps create competition. ht…
@wsjpolitics @wsjpolitics on x
Similar legislation passed the House Judiciary Committee last June but has stalled in the lower chamber since then, partly over skepticism among Democratic members from California https://www.wsj.com/...
@daphnehk Daphne Keller on x
@amyklobuchar ... Should Parler be entitled to hosting from AWS or a prominent spot in app stores? It tried the AWS claim last year, and lost. But under this bill, any sympathetic State AG (or federal agencies under control of some future administration) could win on that same cl…
@duckduckgo @duckduckgo on x
We thank the Senate Judiciary Committee for a bipartisan vote to approve the American Innovation and Choice Online Act! This act will help restore competition to the digital market, benefiting consumers and competition. Now onto a floor vote! https://thehill.com/...
@daphnehk Daphne Keller on x
The other thing about the wild new content moderation claims hidden in this nominally competition-focused bill is the practical impact of State AGs litigating for their preferred news, app, or other speech ranking.
@tech_oversight @tech_oversight on x
Sen. @AmyKlobuchar is right! The Biden Administration has been and will be a partner in the fight for increased competition and antitrust reform. 🗒️ LINK to WH readout: https://www.whitehouse.gov/... https://twitter.com/... https://twitter.com/...
@risingsmallbiz @risingsmallbiz on x
Small Business Rising member @Hardware_Gina, owner of A Few Cool Hardware Stores, joined a White House meeting on the urgent need to rein in Big Tech. “Concentrated market power is the single biggest threat facing independent businesses,” she said. https://www.whitehouse.gov/...
@matthewstoller Matt Stoller on x
Big tech probably spent tens of millions opposing this bill alone. Apple CEO Tim Cook and Google CEO Sundar Pichai were calling Senators personally. A bipartisan thrashing is not the outcome they wanted. https://twitter.com/...
@nihalkrishan @nihalkrishan on x
EXCLUSIVE: Bipartisan anti-Big Tech bills that are gaining traction in Congress are not a priority for voters around the country, according to new polls released by tech industry associations @ProgressChamber & @NetChoice. https://www.washingtonexaminer.com/ ...
@mrddmia @mrddmia on x
Dear @Google, @Amazon, @Facebook, and @Apple: 1. How much do you spend on lobbying? 2. How did you get beat so badly? Sincerely, @The_IAP https://twitter.com/...
@netchoice @netchoice on x
🪡🧵🧐 We want to flag some of the biggest concerns with the American Innovation and Choice Online Act. We also want to provide some resources explaining the consequences. In a world where S.2992 is law...
@technetupdate @technetupdate on x
@SenatorLeahy @texascarlindc Fact check: @SenFeinstein is right - there are real concerns about the national security ramifications of the American Innovation and Choice Online Act. Our statement below: https://twitter.com/...
@evan_greer Evan Greer on x
these polls are always kinda silly, like ... big shocker that your average person is more concerned about putting food on the table than they are about the complexities of antitrust enforcement. that doesn't mean antitrust isn't important or that it shouldn't be prioritized https…
@citizenalex3 Alex Harman on x
S.2992 vote in Senate Judiciary Committee: 16-6 How are you feeling about the literal tens of millions of dollars you are spending to fight this effort @amazon, @Apple, @Meta, and @Google??
@jesselehrich Jesse Lehrich on x
BOOM. Senate Judiciary advances the American Innovation & Choice Online Act by an overwhelming 16-6 (!!!) bipartisan vote.
@chrismarchese9 Chris Marchese on x
Common sense suggested and now evidence confirms: American voters don't want Congress to break the internet. They want privacy legislation, not anti-consumer legislation like the American Innovation & Choice Online Act. https://twitter.com/...
@robpwj Robert Winterton on x
This is a very long way for Sen. Klobuchar to admit that she has had no hearing on the American Innovation and Choice Online Act. If the bill is quite so good, why not hold a committee hearing on it? 🤨
@adamkovac Adam Kovacevich on x
@WillOremus To be fair it's not just the CA Dems. Leahy and Coons too - and they've been on the other side of big tech on past issues, particularly copyright and patent issues.
@ronmknox Ron Knox on x
Ah yes, consumers love it when the tech monopolies force them to use and buy their own products. https://twitter.com/...
@ronmknox Ron Knox on x
A more measured manner like, for example, not regulating the tech monopolies at all! https://twitter.com/...
@leah_nylen @leah_nylen on x
Padilla: “Is this committee choosing to trust regulators and courts to crack down on harmful self-preferencing practices while allowing activity that is benefiting consumers? We should approach in a more measured manner.”
@ronmknox Ron Knox on x
After a roll call, The American Innovation and Choice Online Act passes out of the Senate Judiciary Committee by a vote of 16-6. That's that on that! Congrats gang. On to the full Senate.
@dada_drummer Damon K on x
Incredible but this important bill potentially restraining big tech had some of the worst villains voting in favor (Cruz, Graham, Hawley) and a no from Feinstein cause Silicon Valley... politics makes strange bedfellows etc https://twitter.com/...
@matthewstoller Matt Stoller on x
As this bill moves, remember that it's just as possible for the bill to get stronger on the floor as weaker. Far more importantly than this bill, the Senate Judiciary just opened the floodgates. Now everyone knows there's an overwhelming majority to address big tech power.
@matthewstoller Matt Stoller on x
Except for California Senator Dianne Feinstein, virtually every Senator, supportive or not, conceded we have a massive monopoly problem with big tech. This isn't the last legislative proposal that will pass the committee, not by a long shot. Congrats to @SenAmyKlobuchar.
@willoremus Will Oremus on x
The extent to which the US Senate is getting its antitrust views and talking points from the very tech giants it's tasked with regulating raises the question: What if Big Tech is already so powerful that reining in its power is no longer possible? https://twitter.com/...

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