On October 20, 2020, the Department of Justice along with ten State Attorneys General filed a civil antitrust lawsuit against Google. The Department of Justice claims in United States v. Google LLC that Google is “unlawfully maintaining monopolies in markets […] through anticompetitive and exclusionary practices.”
This lawsuit represents only the latest example of the battle between the United States and Big Tech companies like Google.
Only one week earlier, on October 13, 2020, Supreme Court Associate Justice Clarence Thomas wrote a statement in response to a petition for a writ of certiorari on another Big Tech lawsuit. He stated that he believes Title 47 U.S. Code § 230, colloquially known as “Section 230,” a statute that provides immunity to internet platforms from some civil and criminal claims, is too broadly interpreted.
Led by Attorney General Bill Barr, the Justice Department looks to diminish Google’s stranglehold on general search services, search advertising, and general search text advertising. Google handles roughly 90% of the internet’s yearly searches overall and 95% of the internet searches on mobile devices. The DOJ maintained that Google has paid billions of dollars to phone manufacturers in order to use Google as the default search engine; a price tag so high that it “stifles competition and innovation from smaller upstart rivals to Google.” This claim is backed by the Senate Judiciary Committee which found that Google does use monopolistic practices. The committee reported that Google has acquired an estimated 260 companies in 20 years all in an effort to suppress competition.
Google’s Senior Vice President of Global Affairs, Kent Walker, issued a statement claiming that the “lawsuit by the Department of Justice is deeply flawed. People use Google because they choose to, not because they’re forced to, or because they can’t find alternatives.” This encapsulates a very good defense for Google. In the most basic example of a monopoly, consumers are forced to use the company’s products because it is the only company creating that product. Walker made it clear that this is not the situation in which Google finds itself. Walker even went as far as showing consumers how they can switch to Google’s competitors’ products should they want to.
Currently, State Attorneys General from seven more states are still investigating Google’s practices and have yet to consolidate their case with the DOJ’s. The case will likely reach the U.S. District Courts in late 2021-early 2022. In all likelihood, the army of lawyers representing the United States against the army of lawyers representing the world’s 13th largest company will drive this case up through the Federal Court System until it reaches the Supreme Court.
In other Big Tech news, Justice Clarence Thomas issued a statement in response to a petition for a writ of certiorari. For those not familiarized with the legal processes of appealing a case, a petition for a writ of certiorari might sound very confusing: it is actually quite a simple concept. When a case is decided, the attorney representing the loser of the said case has the opportunity to petition a higher court. This petition lays out the facts of the case and why the attorney thinks it was wrongly decided. Specifically, with the Supreme Court, the justices review these petitions and decide whether or not they agree on hearing the case. Four justices must decide that the case should be heard in order for the petition to be accepted. Of the thousands of cases that the Supreme Court turns away each year, the amount of statements in response to petitions numbers in the single digits. Hopefully, this not only puts into perspective what a petition for a writ of certiorari is but just how rare a statement in response is.
The statement written by Justice Thomas was in response to Malwarebytes v. Enigma Software Group USA. In his statement, Justice Thomas agreed with the court’s decision to turn away the case but wrote the response in order “to explain why, in an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.”
In §230, there are two subsections relating to the protection of interactive computer service providers. These are companies such as Facebook, Youtube, Twitter, etc. The first subsection, §230(c)(1), is definitional: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” Information content provider refers to the users of the platform. This law makes the delineation between publishers and platforms. The second subsection is open for much more interpretation. §230(c)(2) says that computer service providers shall not be held liable for (A) good-faith acts to restrict access to, or remove, certain types of objectionable content; or (B) giving consumers tools to filter the same types of content. The combination of these two subsections creates an Everest-like barrier for an attorney to climb in their effort to win a case. In Justice Thomas’s words, “In short, the statute suggests that if a company unknowingly leaves up illegal third-party content, it is protected from publisher liability by §230(c)(1); and if it takes down certain third-party content in good faith, it is protected by §230(c)(2)(A).” Justice Thomas argues that this interpretation allows computer service providers too much leniency; they are either not punished for a lack of action or not punished for incorrect action, so long as the defendant can prove the action was made in good faith. Justice Thomas proposes the idea of revising the §230(c)(2)(A).
Thomas’s argument as to why the law should change is this: many of today’s platforms more closely fit the definition of a publisher because they are regulating information far past what platforms are defined as being capable of; this breach of law is protected under the current and too broadly interpreted §230(c)(2)(A).
Publishers are classified by their ability to regulate information. In other words, they get to decide what is seen and what isn’t. The argument that platforms, specifically the three companies Facebook, Twitter, and Google, are regulating information, rather than restricting objectionable material in good faith is quite an easy one to make. Though the argument most commonly found in today’s political discourse isn’t that they are unfairly regulating information on both sides, but rather that the liberal Big Tech giants are targeting conservative voices.
Regardless of whether or not you believe in censorship by Big Tech or that Google is participating in monopolistic practices, both subjects are a function of a single idea—Big Tech is powerful. It is important, regardless of political affiliation, to remember that unchecked power is dangerous. Though Big Tech has made this world that we live in today possible, it is also important to make sure that Big Tech does not become the reason why markets become monopolized and ideas become silenced.