What They Are Saying: AICOA Reintroduction—Same Bill, Same Problems, Five Less Sponsors
Following Senator Klobuchar’s reintroduction of the American Innovation and Choice Online Act (AICOA), experts from across the aisle have come out in opposition to its consideration. Last Congress, both Republicans and Democrats expressed concerns with the bill and it returns this Congress with five fewer sponsors. Democrats and Republicans are unable to agree on whether the bill does or does not moderate content.
Here’s what experts have had to say about the current and previous introductions of the bill, and the issues that remain unresolved:
The Senate’s Latest Introduction Of AICOA Has Received Criticism From A Broad Slate Of Organizations
Chamber of Progress polling finds desire for legislation like AICOA is low among consumers. “Few voters prioritized issues like regulating smartphone app store rules (1%) and cracking down on integrated tech services (1%).”
CCIA states the bill “presents serious economic, competition, & national security risks.” “#AICOA presents serious economic, competition, & national security risks. CCIA is disappointed to see this flawed legislation reintroduced despite losing 5 co-sponsors, and failing to address bipartisan concerns.”
TechNet points out the “legitimate and serious concerns” remaining with the bill. “Since this bill was first introduced in the last Congress, lawmakers and national security experts have raised red flags about how AICOA would impact our global competitiveness, our national security, and our privacy. These legitimate and serious concerns remain.”
According to Connected Commerce Council, the bill would make small business digital tools more expensive and harder to use.” “After failing to convince 60 of their colleagues last year to support AICOA, and losing cosponsors this year, a bill that would completely rewrite the rules of the digital economy without regard for potential harm to American small businesses, Sens. Klobuchar and Grassley reintroduced the same bill that would make small business digital tools more expensive and harder to use.”
In a statement following its reintroduction, Taxpayers Protection Alliance lays out the range of issues with AICOA. “Economists have warned that the bill will stifle economic growth and raise prices for consumers. Privacy experts have identified colossal threats it poses to Americans online security. And observers have generally wondered at its many internal contradictions and economic incongruities.”
— They continue: “The bill would also vest extensive new powers in an unprecedentedly aggressive Federal Trade Commission (FTC). The current FTC, by its leadership’s own admission, seeks to reclaim the unbounded, more-or-less arbitrary authority that a concerned Congress, judicial branch, and legal community wrestled from it half a century ago.”
— The statement goes on: “For all these reasons, the bill is losing friends – and fast. Three Republican and two Democratic senators have chosen not to co-sponsor it this time around. TPA applauds them for revising their previous position based on the facts and evidence observers have presented, and it urges their colleagues to follow their lead.”
Previous Introductions Of AICOA Have Received The Same Criticism From Experts On Both Sides Of The Aisle
Left-leaning voices warn…
In a hearing of the Senate Judiciary Committee, Senator Alex Padilla raised concerns over AICOA’s threats to content moderation. “During the committee’s consideration last year of the American Innovation and Choice Online Act, I expressed concerns that provisions of the bill may open the covered platforms to either lawsuits or even threats of lawsuits for decisions they made to enforce their content moderation, policies against hate, speech, misinformation, and other content that they may want to not host. And several academics, nonprofit groups and other senators actually voiced similar concerns. And even supporters of the bill approached my office with differing opinions. I was told by some supporters that no such problems existed while other supporters told me that, yes, the concerns raised were indeed valid.”
— Sen. Padilla added: “I worry that in doing so, it may inadvertently do harm to products and services that consumers actually enjoy, for example, in broadly and presumptively making unlawful the referencing of a platform’s own product services or lines of business.”
Senators Brian Schatz, Ron Wyden, Ben Ray Lujan, and Tammy Baldwin underscore the bill could limit companies’ ability to moderate harmful content. “The bill would also hinder content moderation practices, such as the application of community guidelines and policies, which are used to remove hate speech and fight misinformation online. We are concerned that, unless it is clarified, the bill would supercharge harmful content online and make it more difficult to combat.”
A coalition of national security experts including former Obama Defense Secretary Leon Panetta and Director of National Intelligence James Clapper, point out proposals like AICOA could “curtail the ability of these platforms to target disinformation efforts.” “In the face of these growing threats, U.S. policymakers must not inadvertently hamper the ability of U.S. technology platforms to counter increasing disinformation and cybersecurity risks, particularly as the West continues to rely on the scale and reach of these firms to push back on the Kremlin. But recently proposed congressional legislation would unintentionally curtail the ability of these platforms to target disinformation efforts and safeguard the security of their users in the U.S. and globally.”
— The coalition continues: “Unfettered access to software and hardware could result in major cyber threats, misinformation, access to data of U.S. persons, and intellectual property theft. Other provisions in this legislation would damage the capability of U.S. technology companies to roll out integrated security tools to adequately screen for nefarious apps and malicious actors, weakening security measures currently embedded in device and platform operating systems. Our national security greatly benefits from the capacity of these platforms to detect and act against these types of risks and, therefore, must not be unintentionally impeded.”
Former Obama Administration DOJ Economist Carl Shapiro explains AICOA could have the effect of “stifling innovation.” “We also learn that regulations intended to promote competition can all too easily become ineffective, as they are overtaken by technological advances, or downright counterproductive by stifling innovation.”
— Shapiro adds: “Congress, in drafting legislation, does not appear to have paid sufficient attention to the lessons we have learned from more than a century of regulation aimed at promoting competition and controlling market power.”
Right-leaning voices warn…
Former National Security Advisor Robert O’Brien and Arthur Herman of the Hudson Institute emphasize that anti-tech bills like AICOA target major technology companies. O’Brien explains: “The Pentagon and the intelligence community rely on the resources and expertise of leading American developers to maintain the United States’ advantage in key areas such as artificial intelligence, machine learning, cyber, robotics, and autonomous systems.”
Mark Jamison of the American Enterprise Institute notes bills like AICOA could “financially weaken the U.S. information technology sector.” “These mandated business changes would financially weaken the U.S. information technology sector, severely limit these companies’ abilities to innovate, and significantly undermine their efforts to combat cyber threats and state-sponsored misinformation, disinformation, and malinformation.”
Tom Hebert of Americans for Tax Reform explains AICOA institutes “a litany of new restrictions” on the tech sector. “The version of AICOA Klobuchar tried and failed to pass last Congress enacted a litany of new restrictions on the business practices on companies above a certain size, a government-set cap on growth and innovation. One provision would ban these targeted companies from promoting their own private-label products next to name-brand products. If a bureaucrat determines that a company has violated AICOA’s deliberately vague provisions, they can whack the company with a ‘death penalty’ fine of up to 10 percent in revenue.”
Antitrust and tech policy experts warn…
Preeminent legal scholar Herbert Hovenkamp states the digital economy remains “competitively superior” in its consumers’ ability to identify and switch options: “Here online commerce seems to be competitively superior on both counts. Searching and switching are both easier and broader in online markets than on conventional markets. Customers can travel from one site to another with a mouse click. As a result, depending on a consumer’s location, the variety of sellers that are available online can be much greater than the variety that the brick-and-mortar world realistically permits. Price and product comparison can often be accomplished at little cost and almost instantly.”
— Hovenkamp adds bills targeting the internet economy are “a bad choice on every score.” “One disturbing thing about the AICOA is that it targets for harsh treatment a portion of the United States economy that is performing better than most. If one were looking for problem areas for increased antitrust enforcement it would be markets and products that exhibit stagnant growth, stable market shares, lack of new entry, signs of oligopoly or widespread price fixing, or lack of innovation. Focusing on the internet economy is a bad choice on every score.”
In written testimony to the Senate Judiciary Committee, NYU law professor Daniel Francis emphasizes AICOA would “result in more bad actors and more bad products.” “I do not think there is much room to doubt that AICOA will result in more bad actors and more bad products—ranging from the malicious and sinister to the merely buggy and spammy—getting access to platforms, data, consumers, devices, and ecosystems. As the Internet of Things expands and more devices go online, this means more bad actors getting easier access to consumers’ lives and homes.”
— Francis adds the bill takes aim at “two business models that are associated with real consumer benefit.” “As I read it, AICOA also presents a sharp challenge to two business models that are associated with real consumer benefit. First, it threatens the operation of free-to-use, ad-supported businesses, where the provision of free services is made possible by preferencing the platform owner’s own advertising, or a service that carries it. Deterring businesses from using that model—and driving them toward fee-paying models—does not seem likely to benefit consumers overall. Second, it also threatens closed or partly closed systems which offer users and businesses a secure, seamless option. But cybersecurity experts overwhelmingly emphasize the safety benefits of closed systems, and of platform-owners’ power to restrict and deny access to third party code.”
Other organizations warn…
A study from the non-partisan CRS finds that the bill “would limit popular practices,” according to Sean Heather of the US Chamber of Commerce. “Congress’ own non-partisan research arm, the Congressional Research Service (CRS), has found in its analysis of the bill, this legislation would limit popular practices that consumers widely support such as Google embedding Google Maps support on its website or Amazon’s preferred shipping options.”
Center for Democracy and Technology General Counsel George Slover adds AICOA could damage “incentives for online platforms to make their systems and their users’ personal information secure.” “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.”
The Progressive Policy Institute’s Aaron White explains the bill “sparks major national security and privacy risks.” “As written, the bill sparks major national security and privacy risks, includes overly broad and burdensome language, and will harm American consumers, workers, and the digital economy.”