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The American Innovation and Choice Online Act would crack down on Big Tech firms’ habit of using their platforms to preference their own products.
A wrench has been thrown into the legislative package targeting dominant tech platforms, threatening to break its left-right coalition. A handful of academics, advocates, and Democratic senators have attacked one of the bills, the American Innovation and Choice Online Act (AICOA), which would crack down on these companies’ habit of using their platforms to preference their own products. These critics, however, argue the law would create a path for conservatives to obliterate content moderation and pollute websites with hate speech and disinformation.
Supporters of AICOA are skeptical that the bill can be used in this manner. They believe the argument is being made in bad faith to drive a wedge between Democratic and Republican endorsers. Such an outcome would obviously play into the hands of large tech firms, which naturally want to use their platforms in whatever way they see fit. Supporters see the debate as a stalking horse for Big Tech’s wishes.
As evidence, supporters point to the fact that the main intellectual force in the debate, a professor who has assembled a coalition of internet law scholars to warn about the negative implications of AICOA, has a long-standing relationship with Google.
Not only has professor Anupam Chander of Georgetown University Law Center disclosed Google funding in ten separate research papers, but a source with direct knowledge of the situation told the Prospect that Chander also was reimbursed by Google for trips to three Asian countries in the mid-2010s to promote his work at conferences, and worked with PR firms with relationships with Google to place op-eds about his research.
The Prospect made multiple attempts to contact Chander and did not receive a response.
Nobody involved in the debate disputes Chander’s sincerity. Rather, the situation appears to be a classic example of how Google picks out “independent” voices that align with its interests and elevates them using its enormous money and influence.
AICOA SEEKS TO STOP PLATFORMS from harming competition by preferencing their own products above rivals on their sites. Section 3(a)(3) of AICOA also makes it illegal for a large tech platform to “discriminate in the application or enforcement of the terms of service of the covered platform among similarly situated business users in a manner that would materially harm competition.”
This isn’t a theoretical concern. As the House Antitrust Committee’s report in October 2020 explained, platforms have used terms of service to restrict competition. For example, Google Maps’ TOS included a provision that said app developers could not use non-Google map features in apps that also rely on Google tools. The provision attempts to block platforms from locking out competition or forcing users to employ their products.
But Chander and others raised a problem. Section 3(a)(3) could be used to sue any platform for denying use of their website. The section “is written like a common carriage provision,” said Matt Wood of Free Press, a nonprofit that advocates on technology and media.
Wood notes that Republicans have not-so-quietly been boasting that AICOA will give them the ability to take on tech platforms that are supposedly biased against conservatives, and he says this provision specifically opens that door. “If Apple is one of the platforms, and they decide to take Parler out of the App Store, [Parler] could say, ‘We were looking to compete, you decided to remove us, that was discrimination either because you didn’t ban other sites, or this was just legitimate political discourse.’”
The situation appears to be a classic example of how Google picks out “independent” voices that align with its interests and elevates them.
Platforms, the theory goes, would be wary of legal risk and large penalties under AICOA if they enforced terms of service. This would not only keep Parler in the App Store, but effectively end content moderation, turning every user-created content site into a cesspool.
Gilad Edelman of Wired interrogated this debate a couple of weeks ago, finding the arguments weak. First of all, there is no private right of action in the bill, so companies would need to get state or federal law enforcement to act on their behalf. While it shouldn’t be hard to find a conservative attorney general wanting to sue Facebook over conservative bias, they would have to argue that “similarly situated” businesses were also violating terms of service and got different treatment. (Wood points out that “similarly situated” isn’t defined in the bill.)
Then, they would have to show that this disparate treatment “would materially harm competition,” which supporters say has a specific meaning in antitrust law since the Sherman Act, with thousands of relevant cases. Parler tried to sue Amazon under the Sherman Act’s Section 1, which says every contract in restraint of trade or commerce is illegal, and lost. Antitrust law isn’t fit to the purpose of taking on alleged ideological bias, supporters allege. The bill “would not expose companies to any significant new legal risk based on their content moderation practices,” wrote Aaron Schur, general counsel for Yelp, in April.
Plus, the platforms have affirmative defenses to terms of service expulsions written into the law, like to maintain the functionality of their sites.
The opposition argues that, whether Section 3(a)(3) is a high bar or not, a conservative judiciary willing to throw out established rights won’t hesitate to force platforms to stop moderating content. But that is a nihilistic approach that argues against the passage of any law whatsoever, since it might be used by the “wrong” people in a harmful manner. In addition, Edelman notes, internet platforms would lose far more money making their sites unusable through a lack of content moderation than they would on the off chance of a successful lawsuit.
Wood, whose organization is independent of corporate money, thinks that a successful discrimination case under Section 3(a)(3) is plausible, and that companies shouldn’t be given a new cause of action to stay on platforms. The benefits of the provisions aren’t outweighed by the possible costs, he says. Free Press has advocated to remove the section from the bill.
But that’s not the same prescription as Chander, who led a letter from internet law professors on the topic, has proposed. The letter suggests that AICOA be amended to “exclude content moderation” from the covered conduct in the bill, to “avoid these adverse consequences for our online environment.” This matches the recommendation four Democratic senators made to the bill sponsor, Sen. Amy Klobuchar (D-MN), in a letter that cites an op-ed Chander co-authored in The Washington Post. Sens. Brian Schatz (D-HI), Tammy Baldwin (D-WI), Ben Ray Luján (D-NM), and Ron Wyden (D-OR) ask for a line of text to exempt content moderation practices from the bill.
Of course, Republican co-sponsors of the bill would go nuts from a specific citation that in their minds would enable continued conservative bias (which isn’t really true, but that would be the reaction). Without Republican support, the bill cannot pass. That’s why bill supporters believe raising the content moderation issue is needlessly provocative—sowing fear, uncertainty, and doubt intentionally to break the bill’s coalition.
Free Press’s Wood makes the point that if the coalition hinges on this one provision, it says something about the ways in which conservatives want to use it. That may be true, but the functional consequence of this debate is to rip apart the possibility of legislation to crack down on the ways Big Tech asserts its dominance. In that sense, it’s worth paying attention to the relationship between Chander, who prominently kick-started this debate, and Google.
CHANDER CAUGHT GOOGLE’S EYE when he was a professor at the University of California, Davis, more than a decade ago. His 2013 book, The Electronic Silk Road, made the case that internet intermediaries, like the platforms, required protections to allow cross-border payments and commerce. This was helpful to Google’s public-policy team, which seeks out academics with similar worldviews who can provide ballast for the company’s arguments. “It’s what he believes and a helpful argument from an academic about Google,” said a source with direct knowledge of Chander’s activities with the tech giant.
The Tech Transparency Project has identified ten different research papers between 2010 and 2016 in which Chander disclosed some manner of Google support. Other papers not in the TTP database which thank Google for support include “Data Nationalism” (2015) and “Robots, the Internet of Things and the Future of Trade” (2015). The source explained that scholars typically get in the range of about $200,000 per paper.
In one 2013 collection, “Brand New World: Distinguishing Oneself in the Global Flow,” a footnote reads that “the symposium would not have been possible without the generous support of Google, Inc.” The Tech Transparency Project adds that Chander received Google Faculty Research Awards in 2012, 2013, and 2014.
When questioned about this on Twitter, Chander has said on multiple occasions that the money received from Google was merely for a public-interest research fellow seven years ago. Chander’s faculty bio lists him as “a recipient of Google Research Awards,” but he insists that they went to UC Davis, and not him, to fund the fellow.
There are several problems with this story. First, while he pinpoints the awards to the year 2015, Chander was disclosing Google support as early as 2010. Second, in at least two papers—“The Battle to Define Asia’s Intellectual Property Law: From TPP to RCEP” (2018) and “Catalyzing Privacy Law” (2021)—Chander continues to disclose the Google grants, even though he moved on from UC Davis to Georgetown. The citations are for Google awards for “related research,” but if the grants went to the college and not him personally, it’s curious why he has to disclose them.
Third, the source explained that Google’s academic relations team, in conjunction with their public-policy team, does habitually give grant funding to universities or fellows for specific research—but it still benefits the individual professor who brought the money in. “If you’re an academic, if you bring in money from anywhere, it elevates you in the institution,” the source explained. “A lot of it does depend on the ability to bring money in.”
“It’s what he believes and a helpful argument from an academic about Google.”
Fourth, Chander in other papers disclosed more than just research grants. For instance, in the 2011 paper “Jasmine Revolutions,” Chander added in a footnote, “I am grateful to have had the opportunity to present early thoughts in this regard at a public policy talk at Google, Inc.” And in the 2011 paper “Googling Freedom,” he notes that “The circulation of a near final draft of this paper in early 2010 resulted in an invitation to the Internet at Liberty conference at the Central European University in September 2010, for which Google reimbursed my travel expenses.”
The latter disclosure, which is certainly not a grant to the university or to a fellow, was not the only travel reimbursement Chander received, according to the source with direct knowledge. Chander appeared at a 2014 conference on censorship and surveillance in Seoul, South Korea; a 2014 presentation on data localization in Hong Kong; and a 2015 conference on internet intermediaries in New Delhi, India. At least some of the trips appeared to be on the same junket, based on the date of this 2014 Chander tweet. Chander was also in South Korea on at least one other occasion in 2015.
These multicity trips, one in 2014 and one in 2015, were funded by Google, the source stated. “The paper on its own isn’t going to do much, you need to present at conferences. In this case the corporation did pay for the flights,” said the source. Google also organized the events in the various locations. The purpose from Google’s perspective was to prevent data localization laws in countries that were taking a look at their internet policies.
Another common tactic from Google is to partner with third-party PR firms that place op-eds to increase exposure for ideas by academics. This 2014 op-ed in The Star, a newspaper in Malaysia, was co-authored by Chander and Uyên P. Lê, also a co-author of his two papers where Google funding is disclosed. The source said that Google paid the firm that placed the op-ed. Chander put out a similar op-ed in East Asia Forum last month, though there’s no indication that Google had any role in it.
Chander remains heavily involved in questioning AICOA. He recently co-signed a letter responding to House Antitrust Committee chair David Cicilline (D-RI) about the bill, put together by TechFreedom, an organization that receives funding from Google. Also co-signing the letter is Matt Perault, now on the faculty at the University of North Carolina but formerly the head of global policy development at Facebook.
“I think [Chander] actually believes this stuff,” the source said. “Google doesn’t need to put words in people’s mouths. They find people who believe these things and give them juice.”
THAT GOOGLE FUNDS ACADEMIC RESEARCH that happens to be useful to their policy goals is not a groundbreaking revelation. The Tech Transparency Project’s database includes 329 papers with disclosed Google funding. In 2015, I wrote about Google’s grants of $762,000 to a center at George Mason University, particularly at a time when they were under threat of litigation from the Federal Trade Commission.
But AICOA represents a much bigger threat to Google and other tech platforms than FTC lawsuits, as it directly harms a major part of its business model. It has an interest in using every strategy at its disposal to split up the political partnership around AICOA and sink the bill.
Chander is prominent among the internet law community, and the voice of a Georgetown professor and expert matters to many of the policymakers determining what to do on AICOA. He’s in a prime position to inject doubt into the process. And that is undeniably helpful to Google’s interests.
The debate over content moderation and the bill is technical and complex. What side is right matters less in this moment than whether it sways the key swing votes to vote for or against AICOA. The class of legal experts (though none of the academics raising questions about the bill have antitrust expertise) is critical to that dynamic.
Meanwhile, there is a larger question about the role that large companies play in tipping the scales of that academic debate. The academic gets needed funds to do their research and a higher profile, both inside the academic community and out. They aren’t really asked to compromise their viewpoints, so they can see it as ethically untroubling. It’s mutually beneficial to the parties involved.
But companies like Google still get independent validation for their perspective, which goes a lot further than an obvious sock puppet, and academic viewpoints rise to prominence that they might not have without so much of a corporate boost.
And in this case, it could really harm the users, small businesses, and partners who are under the thumb of the tech platforms.
