Happy Thursday! I know, I know, going to law school probably would've helped writing today's newsletter.
But in the years since, a growing number of Republicans have flipped that playbook on its axis, extending it to social media platforms and calling for them to be treated like “common carriers” or “public utilities” and blocked from discriminating against users’ viewpoints.
Now, that legal argument is gaining prominence within conservative legal circles and could soon appear on its largest stage to date: a decision by the Supreme Court.
Conservative op-eds calling for the government to use the tool to “break Silicon Valley’s anti-free-speech monopoly” date back at least as far as 2017, but for years remained largely a fringe proposition.
"Nobody took that seriously, outside of the net neutrality debate,” said Harold Feld, senior vice president at the consumer group Public Knowledge.
When it came to applying comparable standards to ISPs, Republicans balked. Sen. Ted Cruz (R-Tex.), now an outspoken social media critic, pilloried Democratic efforts to impose net neutrality standards on telecom companies in 2014, likening it one of his least favorite laws.
"Net Neutrality" is Obamacare for the Internet; the Internet should not operate at the speed of government.— Senator Ted Cruz (@SenTedCruz) November 10, 2014
Legal experts and conservative analysts point to two turning points: an initially obscure 2020 law article and a 2021 opinion by Supreme Court Justice Clarence Thomas, floating the common carrier model.
The article by Adam Candeub in the Yale Journal of Law & Tech called for placing a new “anti-discrimination requirement” on major tech platforms “so that individuals, not corporate platforms, set the boundaries of on-line speech.” Candeub, a law professor at Michigan State University, would go on to play a central role in trying to carry out former president Donald Trump’s own plan to punish social media companies over claims of “bias.”
Clare Morell, a tech policy analyst at the Ethics and Public Policy Center who served in the Trump Justice Department, called Candeub’s article one of the earliest and most prominent arguments for a common carrier standard for platforms. Feld called Candeub one of the “intellectual centers” of the push, which Feld views as “bad policy.”
Candeub for his part said in an interview that he saw it as a “logical and predictable” regulatory response to decades of telecom law. “The arc is very much in the tradition,” he said.
Then, Thomas cited the law article in an opinion that sent shock waves through Silicon Valley, in which the Supreme Court justice argued that “some digital platforms are sufficiently akin to common carriers … to be regulated in this manner.”
Republican FCC Commissioner Brendan Carr told me that Thomas’s opinion marked a “watershed moment” for many Republicans.
But according to some legal experts, another driving factor may have been brewing: a proxy battle between the tech industry and the telecom industry.
Blake Reid, a tech policy professor at the University of Colorado, argued “one potential root cause” may have been arguments “that non-discrimination and privacy regulations for ISPs were unfair because [platforms] were not regulated in the same way.”
Reid called it a “remarkable shift in Republican orthodoxy” to oppose nondiscrimination regulations for ISPs and then support more sweeping standards for platforms.
“Hypocrisy? I’m shocked,” quipped former Democratic FCC chairman Tom Wheeler, who led efforts to cement net neutrality rules at the agency in the Obama administration.
Carr argued the dynamics between the two industries are distinct because the “abusive practices that we're seeing with Big Tech” in barring some speech necessitate nondiscrimination rules, unlike with ISPs.
And he said the embrace of common carrier-style regulation for Silicon Valley companies reflects a bigger shift within the GOP on attitudes toward big businesses.
Carr said there’s a “broader realignment that we're seeing within the conservative movement, where there is a moving away from the view that if a large corporation wants to do it, who am I as a conservative to get in the way? That has changed.”
Regardless of its origins, the push is rapidly gaining steam. It has inspired a slew of legislative proposals on Capitol Hill, including from Sen. Roger Wicker (R-Miss.), ranking member on the key Senate Commerce Committee, and Sen. Bill Hagerty (R-Tenn.).
Rep. Jim Banks (R-Ind.), chair of the influential Republican Study Committee, is working on his own legislation that could impose common carrier obligations on social media platforms to target allegations of anti-conservative “bias,” his office confirmed to The Technology 202.
The push has also informed a slew of state efforts to combat so-called “censorship,” which have been dealt a string of bruising legal blows on constitutional grounds.
Now one of those measures, a Texas law that bars social media companies from removing posts based on users’ political ideology, may be headed for a Supreme Court decision. While it’s unclear whether the court will weigh in on the merits of the law, its GOP proponents say Thomas’s remarks could pave the way for their first major legal win.
“I’m hopeful that if the Supreme Court is fully briefed, they'll uphold the law,” said Candeub, who served as an expert witness for the state of Texas in the case.
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DHS is ‘pausing’ its Disinformation Governance Board amid right-wing criticism
Disinformation expert Nina Jankowicz, who was named as the board’s executive director, has resigned and the board could be shut down pending the Homeland Security Advisory Council’s review, Taylor Lorenz reports. The dramatic implosion of the board came just three weeks after DHS announced its creation.
“The board itself and DHS received criticism for both its somewhat ominous name and scant details of specific mission … but Jankowicz was on the receiving end of the harshest attacks, with her role mischaracterized as she became a primary target on the right-wing Internet,” Taylor writes. “She has been subject to an unrelenting barrage of harassment and abuse while unchecked misrepresentations of her work continue to go viral.”
DHS previously said the board would coordinate countering disinformation spread by human smugglers to attempted migrants and Russian disinformation threatening critical organizations.
The board’s pause comes at a critical time. Experts are gearing up for midterm elections, which are expected to be a major source of foreign disinformation.
The disastrous rollout of the board could hamper DHS efforts to recruit top talent, some staffers worry. “We’re going to need another Nina down the road,” a DHS staffer told Taylor. “And anyone who takes that position is going to be vulnerable to a disinformation campaign or attack.”
Facebook isn’t prepared for misinformation around midterm elections, groups say
Researchers, civil rights activists and former employees say the social media company isn’t prepared for the challenge of removing and preventing the spread of election-related misinformation this year, Naomi Nix reports. This year is shaping up to pose some difficult questions for Facebook as Republicans continue to promote the baseless claim that the 2020 election was stolen.
“While there is no proof of widespread voter fraud in the 2020 presidential election, GOP leaders in key states across the country are continuing to question Biden’s win and using the perception of fraud among voters to pass new voting restrictions,” Naomi writes. “Only 55 percent of Americans accept that Biden legitimately won the 2020 election, which was down slightly from 58 percent a year ago, according to a January Axios|Momentive poll. More than a quarter said they don’t even accept Biden as the winner.”
N.Y. attorney general investigates Discord, Twitch, 4chan and 8chan over Buffalo shooting
The probe by New York Attorney General Letitia James (D) will focus on “platforms that may have been used to stream, promote, or plan” the gunman’s racist rampage on a Buffalo supermarket last weekend that killed 10 people and injured three more, James’s office said.
Social media companies have faced scrutiny in the wake of the shooting. The alleged gunman said he was radicalized on 4chan, wrote of his plans on Discord and streamed the shooting on Twitch, though the company said it removed the stream two minutes after he began shooting.
In a letter dated Wednesday, New York Gov. Kathy Hochul (D) asked James for “assistance to investigate the specific online platforms that were used to broadcast and amplify the acts and intentions of the mass shooting … and determine whether specific companies have civil or criminal liability for their role in promoting, facilitating, or providing a platform to plan and promote violence.” The investigation is not limited to Discord, Twitch, 4chan and 8chan. James has the power to subpoena witnesses and compel the disclosure of documents as part of the investigation, her office said.
Rant and rave
Journalists and experts reflected on DHS's decision to “pause” its Disinformation Governance Board. BuzzFeed News's Joe Bernstein:
David Kaye, a clinical professor of law at the University of California:
the rollout for this was ridiculous (it hardly existed), the naming of it absurd, but the worst was the treatment of @wiczipedia - abused by the right, left alone by the administration. terrible treatment of a leading expert in the field of #disinformation & online harassment. https://t.co/0dG132VkQV— David Kaye (@davidakaye) May 18, 2022
NBC News's Brandy Zadrozny:
Inside the industry
- The FTC discusses education technology and children’s privacy at a meeting today at 1 p.m.