The Senior Counsel for Competition Policy and General Counsel at the Center for Democracy & Technology (CDT), George Slover, continues to warn about flaws in proposed antitrust bills. His recently published piece “Looking Back, and Forward, on Online Platform Antitrust Reform” described how privacy and content moderation issues in the language of AICOA and OAMA were not clear enough “to avoid uncertainty in some critical areas.”

Members of Congress and experts echoed these concerns surrounding last week’s Senate Judiciary Subcommittee Hearing.  

1) First area of uncertainty: Privacy

Until there is “a strong, comprehensive privacy law,” Slover notes “it is important that the incentives for online platforms to make their systems and their users’ personal information secure are not chilled by legal requirements.”

— “The first area of uncertainty was in how the bills could affect the need to ensure that user privacy and data, and system security, are not jeopardized. Users need to feel safe – and be safe – in using the internet for commerce, communication, and information gathering. The United States is long overdue for a strong, comprehensive privacy law. But until we get one, and even after we do, it is important that the incentives for online platforms to make their systems and their users’ personal information secure are not chilled by legal requirements and prohibitions that needlessly interfere with their ability to do so, even if that interference is not intended.”

2) Second area of uncertainty: Content moderation 

There is a “vigorous ongoing debate” about online platforms’ content moderation policies; Slover writes the issue “cannot be resolved in, and does not belong in, our antitrust laws.” 

— “The second area of uncertainty was in the need to ensure that these antitrust bills are focused on commerce, not ideology. Online platforms, as part of their efforts to make themselves a safe and satisfying place for their users, engage in content moderation: setting policies about what user-generated content is and is not acceptable on their service, and removing content that the platform considers dangerous, fraudulent, harassing, or otherwise not something they want to be hosting. Some believe the platforms need to be more vigilant and restrictive; others believe the platforms are too vigilant and restrictive as it is. There is a vigorous ongoing debate about how to draw the balance, which also has constitutional implications. But important as this issue is, it cannot be resolved in, and does not belong in, our antitrust laws.”