“Proposals to Strengthen the Antitrust Laws and Restore Competition Online”

United States House of Representatives

Committee on the Judiciary
Subcommittee on Antitrust, Commercial and Administrative Law

October 1, 2020

Statement for the Record

Rachel Bovard
Senior Advisor, The Internet Accountability Project
Chairman Cicilline, Ranking Member Sensenbrenner, Chairman Nadler, Ranking Member
Jordan, and members of the committee, thank you for the opportunity to testify today.

A growing bipartisan consensus is emerging against the power of the Big Tech companies. This
consensus is based on the recognition that corporate hegemony – that is, concentrated power
exercised at scale – can be a threat to individual liberty, the free market, and independent thought
in a free society.

To that end, I started the Internet Accountability Project (IAP) with Mike Davis in September of
2019 to give a voice to conservatives concerned about the growing, concentrated power of Big
Tech. Since founding the group last year, our concerns have only been amplified by the COVID-
19 pandemic, the upcoming election, and the role Big Tech plays in both.

In addition to raising awareness about the dangers of corporate power exercised at this scale, IAP
has focused its efforts on three areas of policy remedy: antitrust enforcement, data privacy and
ownership, and reform of Section 230 – which one pro-tech law professor has identified as Big
Tech’s “implicit financial subsidy.”1

My remarks today will focus on the viewpoint discrimination exercised by these platforms and
its downstream effects, and on Sec. 230 reform and antitrust enforcement as potential remedies
to the broad and multifaceted issues that exist when corporate power is wielded without
accountability against both independent thought and the free market.

I. Big Tech’s Viewpoint Discrimination

As these Big Tech companies have grown, so too has their ability to filter information for
billions of people around the world – that is, to control what they see, when, and what they can
say.

Through its dominance of the search engine market, Google now decides how to filter
information for 92 percent of the world2 – and 87 percent of the United States.3 One content
decision by Google has enormous ramifications on what information is displayed, or what
businesses are promoted. Facebook, with its nearly 3 billion active monthly users, has similar
power to influence what users see and do not see.

Such decisions, when made at scale, have downstream effects on individual development of
opinions and beliefs. They can single-handedly change the shape of markets – as is evidenced in
the market disruptions that occur every time Google updates its core algorithm.

1
Eric Goldman, Want to Kill Facebook and Google? Preserving Section 230 is Your Best Hope, in NEW
CONTROVERSIES IN INTERMEDIARY LIABILITY LAW ESSAY COLLECTION (Tiffany Li ed., 2019), available at
https://law.yale.edu/sites/default/files/area/center/isp/documents/new_controversies_in_intermediary_liability_law.p
df.
2
Search Engine Market Share Worldwide, STATCOUNTER, https://gs.statcounter.com/search-engine-market-share.
(last visited Sept. 30, 2020).
3
Search Engine Market Share United States of America, STATCOUNTER, https://gs.statcounter.com/search-engine-
market-share/all/united-states-of-america. (last visited Sept. 30, 2020).

2
Conservatives feel the exercise of this power acutely. Content moderation and market power has
been used by some of the major tech platforms with impunity against conservative political ads,
fundraising opportunities, conservative news outlets, and even against the Twitter accounts
belonging to members of this committee.

While such concerns are routinely dismissed as “anecdotal,” or “unproven,” the lack of
transparency provided by these companies into their decision-making, and their promotion and
amplification of algorithms, renders those claims as unverifiable as the ones they seek to
invalidate. In other words, neither claim can be affirmatively proven or disproven.

As VICE News remarked after an image of Twitter’s internal content moderation panels leaked,
prominently displaying the phrases “search blacklist” and “trends blacklist” (emphasis added):

We can’t say with 100 percent certainty how the “Blacklist” tags work because we don’t
have full visibility into Twitter’s moderation mechanism. We can see its public facing
policy, but not debates inside of the company, and more critically, the technical process
by which accounts are suspended, banned, or prevented from appearing in search.

This opacity creates a situation where a devastating lapse in Twitter’s security leads to a
leaked image of an internal panel that contains the word “Blacklist,” which Twitter
doesn’t use when talking about moderation, and which sounds more sinister than it is.
For years, academics, journalists, and yes, conservatives, have been demanding
more transparency; these are the kinds of scandals that happen when a company’s
internal language is different from its carefully crafted blog posts and
announcements.4

Mark MacCarthy, a senior fellow at the Institute for Technology Law and Public Policy at
Georgetown Law, has also noted that the easiest way to dispel accusations of bias is for the tech
companies to allow researchers to look under the hood:

If social media companies are selectively enforcing their rules more vigorously against
conservatives than against other points of view, independent researchers should be able to
verify this if they have sufficient access to social media data.5

To date, however, none of the Big Tech companies have provided regular and system wide
algorithmic and content moderation transparency; though, depending on how President Trump’s
recent executive order on Sec. 230 is implemented, they may soon be required to do so. In the
meantime, conservatives are left with case after case of what appears to be a systemic double
standard applied by employees of these tech companies, whose staff are notably liberal.6

4
Emanuel Maiberg, Twitter ‘Blacklists’ Lead the Company Into Another Trump Conspiracy, VICE (July 16, 2020),
https://www.vice.com/en_us/article/n7wdxd/twitter-blacklists-lead-the-company-into-another-trump-supporter-
conspiracy.
5
Mark McCarthy, Trump’s Social Media Executive Order is a Huge Opportunity, THE HILL (May 30, 2020),
https://thehill.com/opinion/technology/500248-trumps-social-media-executive-order-is-a-huge-opportunity.
6
See, e.g., Steven Onerly, Twitter Public Policy Director Decamps for Biden Transition Team, POLITICO (Sept. 17,
2020), https://www.politico.com/news/2020/09/17/twitter-public-policy-director-decamps-for-biden-transition-
team-417293; Emily Birnbaum, Trump Supporters are on the Attack Against Yoel Roth. Twitter is Standing by Him,

3
The control that a handful of corporations have over speech has become clear during COVID-19,
and the runup to the 2020 election.

Facebook has taken on “fact-checking” with new parameters and absurd outcomes using the
notably opaque and subjective category of “missing context.” Already, this has been used by
PolitiFact to remove digital ads from conservative groups like the American Principles Project.

Facebook recently applied this same cudgel against conservative comedian Tim Young, who
wrote an opinion piece speculating on what President Obama would have done if he had been
presented with a Supreme Court vacancy. Absurdly, a fact check by USA Today claimed that an
opinion piece speculating about a hypothetical scenario was too dangerous to appear on
Facebook or Instagram (owned by Facebook) without a warning label.7

These platforms are also now in the medical profession, insofar as they determine what
constitutes “appropriate” medical information for their users. Google, Facebook, YouTube,
Twitter, and other platforms have banned board-certified physicians from discussing the efficacy
of hydroxychloroquine as a COVID-19 treatment,8 and positing alternative viewpoints about
viral spread and how best to contain it.9

In April, Facebook made headlines by removing content promoting anti-lockdown protests for
violating social distancing guidelines in certain jurisdictions.10 However, Facebook embraced no
such pseudo-governmental enforcement role against more recent protest activities organized on
their platform in violation of local ordinances.11

PROTOCOL (May 27, 2020), https://www.protocol.com/yoel-roth-twitter-president-tweets; Sheera Frenkel, Facebook

Employees Stage Virtual Walkout to Protest Trump Posts, THE NEW YORK TIMES (June 1, 2020),
(https://www.nytimes.com/2020/06/01/technology/facebook-employee-protest-trump.html; Jillian D’Onfro, Leaked
Video Shows Upset Alphabet Executives Responding to President Trump’s Election in Company-wide Meeting,
CNBC (Sept. 12, 2018),
https://www.cnbc.com/2018/09/12/leaked-video-from-alphabet-tgif-meeting-after-president-trump-election.html;
Joana Pearlstein, Techies Donate to Clinton in Droves. Trump? Not so much, WIRED (Aug. 31, 2016),
https://www.wired.com/2016/08/techies-donate-clinton-droves-trump-not-much/; Fredreka Schouten, Employees of
Four Big Tech Companies show lopsided support for Biden campaign, CNN (Sept. 28, 2020),
https://www.cnn.com/2020/09/28/politics/big-tech-joe-biden/index.html.
7
Tim Young (@TimRunsHisMouth), TWITTER, (Sept. 24, 2020, 11:27 PM),
https://twitter.com/TimRunsHisMouth/status/1309333695032184832?s=20.
8
Jon Passantino and Oliver Darcy, Social Media Giants Remove Viral Video with false coronavirus claims that
Trump tweeted, CNN (July 28, 2020), https://www.cnn.com/2020/07/28/tech/facebook-youtube-
coronavirus/index.html.
9
Hal Scherz, Why Banning Doctors with Different Ideas is Bad for Public Health, THE FEDERALIST (May 8, 2020),
https://thefederalist.com/2020/05/08/why-banning-doctors-with-different-ideas-from-youtube-is-bad-for-public-
health/.
10
Georgia Wells and Andrew Restuccia, Facebook Puts Limits on Protest Organizers, THE WALL STREET JOURNAL
(Apr. 20, 2020), https://www.wsj.com/articles/facebook-curbs-organizing-of-lockdown-protests-11587419628.
11
New Black Panther Block Party for Self-Defense, New Black Panther Block Party, FACEBOOK (Aug. 28, 2020),
https://www.facebook.com/events/2297086643933094/?acontext=%7B%22event_action_history%22%3A[%7B%2
2mechanism%22%3A%22search_results%22%2C%22surface%22%3A%22search%22%7D]%7D.

4
Google’s YouTube recently removed an interview with Dr. Scott Atlas, a neuroradiologist and
professor at Stanford University Medical Center and an advisor on the White House Coronavirus
Task Force. The interview was a data-driven discussion about the social harms of sustained
lockdowns. Notably, the interview, which was broadcast in June, was not declared to be
“medical misinformation” until after Dr. Atlas joined the White House’s Coronavirus Task Force
in August.

The platforms routinely cite the World Health Organization (WHO) as the arbiter of what can
and cannot be said about medical science on its platform. However, the WHO has shown it can
be swayed by China’s Communist Party, and as recently as January confidently relayed Chinese
assertions that there is “no clear evidence of human-to-human transmission” of the virus.12

Facebook has also acted as the arbiter of due process rights for Kyle Rittenhouse, the teen
charged with fatally shooting two people amid the riots in Kenosha, Wisconsin. Rittenhouse’s
attorney says his client acted in self-defense, but Facebook has blocked all posts in praise and
support of him, and taken down links to contribute to his legal defense.13 Facebook, by its own
admission one of the most powerful speech companies in the world,14 has already declared him
guilty of mass violence, and restricted the use of its platform to reflect their subjective, extralegal
judgement.

Google has unprecedented power to filter information for most of the planet and seems to flex
this muscle with impunity. A 2019 investigation by the Wall Street Journal found that Google
“made algorithmic changes to its search results that favor big businesses over smaller ones,” and
modified search results around subjects like abortion and immigration.15 In June, Google
demonstrated how much power it has to demonetize entire news sites for minor violations of its
ad policies.16 In July, the search engine inexplicably stopped presenting search results for several
leading conservative websites.17 Breitbart News has presented analysis suggesting conservative
sites are routinely downgraded.18

The gatekeeping role of these mega-platforms is taking on broad and opaque roles as it relates to
the upcoming election. Big Tech’s influence on voter behavior has already been well-

12
World Health Organization (@who), TWITTER, (Jan. 14, 2020, 6:18 AM),
https://twitter.com/WHO/status/1217043229427761152?s=20.
13
The Editorial Board, Facebook’s Rittenhouse Mistake, THE WALL STREET JOURNAL (Sept. 4, 2020),
https://www.wsj.com/articles/facebooks-rittenhouse-mistake-11599260134.
14
Tony Romm, Zuckerberg: Standing for Voice and Free Expression, THE WALL STREET JOURNAL (Oct. 17, 2019),
https://www.washingtonpost.com/technology/2019/10/17/zuckerberg-standing-voice-free-expression/.
15
Kirsten Grind, Sam Schechner, Robert McMillan, and John West, How Google Interferences with its Search
Algorithms and Changes Your Results, THE WALL STREET JOURNAL (Nov. 15, 2019),
https://www.wsj.com/articles/how-google-interferes-with-its-search-algorithms-and-changes-your-results-
11573823753.
16
Ben Domench and Sean Davis, NBC Tries to Cancel a Conservative Website, THE WALL STREET JOURNAL (June
17, 2020), https://www.wsj.com/articles/nbc-tries-to-cancel-a-conservative-website-11592410893.
17
Rod Dreher, Google Blacklists Conservative Websites, THE FEDERALIST (July 21, 2020),
https://www.theamericanconservative.com/dreher/google-blacklists-conservative-websites/.
18
Allum Bokhari, Election Interference: Google Purges Breitbart from Search Results, BREITBART NEWS (July 28,
2020), https://www.breitbart.com/tech/2020/07/28/election-interference-google-purges-breitbart-from-search-
results/.

5
documented. Center-left leaning research psychologist Dr. Robert Epstein testified before the
Senate Judiciary Committee that Google “displays content to the American public that is biased
in favor of one political party.” He estimated Google’s search behavior, which he tested against
other search engines in the weeks leading up to the 2016 election, swung as many as 2.6 million
votes to Clinton. He also estimates that Google’s algorithmic filtering has “been determining the
outcomes of upwards of 25 percent of the national elections worldwide since at least 2015.”19

Facebook and other tech platforms are reportedly “war gaming” different election outcomes, as
well as meeting with government officials about “potential threats to election integrity.” “Digital
platforms,” according to reports, are now as important as state and local elections agencies in
“protecting public confidence” as it relates to “faith in democracy.”20

The legality of content moderation itself is not at issue—but rather, the profound impact these
actions have on the nature of free thought and expression when done at the scale at which these
companies exist. A single algorithmic decision made by a private corporation, accountable to no
one, changes what kind of viewpoints and information are available to billions of people around
the world.

The appropriate remedy is not to suppress speech or politicize the platforms themselves, but to
reform the tools these platforms use to control what we see, and to ensure that consumers have
the power to engage with that process. It is also incumbent upon our antitrust enforcement
agencies to ensure that whatever actions these tech companies are taking, they are not doing so
with monopoly power.

II. Remedies

a. Section 230

A comprehensive approach to combating Big Tech’s power will include reforms to Sec. 230, Big
Tech’s congressionally created liability shield. Multiple Sec. 230 reform efforts are
simultaneously happening at once, but all of them share one common goal: to make the
recipients of Sec. 230’s benefits more transparent and accountable to their users in exchange for
the statutory legal privilege they receive.

The initial intent and purpose of Section 230 was to provide a very narrow immunity designed to
give platforms the freedom to filter content that is “obscene, lewd, lascivious, filthy, excessively
violent, harassing, or otherwise objectionable” without fear of liability.

Unfortunately, embedded in that section is a catch-all phrase, “otherwise objectionable,” that

gives tech platforms discretion to censor anything that they deem “otherwise objectionable.”
Such broad language lends itself in practice to arbitrariness.

19
Google and Censorship through Search Engines: Hearing Before the United States Senate Judiciary Subcomm.
on the Const., 116 Cong. 1 (2019) (Statement of Dr. Richard Epstein),
https://www.judiciary.senate.gov/imo/media/doc/Epstein%20Testimony.pdf.
20
Kyle Daley, Chaos Scenarios drive ‘Gatekeepers’ Election Prep, AXIOS (Sept. 3, 2020),
https://www.axios.com/2020-election-gatekeepers-chaos-scenarios-84181512-1fca-4b84-8c10-e95e02e95f61.html.

6
The intended protections were designed to protect the “good Samaritan” behavior of these
platforms to remove smutty content online at a time when infant tech companies needed
protection from massive liability. In today’s Big Tech era, it has created extraordinary legal
protections for these massive companies from lawsuits that challenge their suppressive,
discriminatory power over the lawful viewpoints of everyday Americans.

Conservatives are concerned with both sides of the Sec. 230’s judicially bloated immunity: that
which empowers tech platforms to engage in viewpoint discrimination without recourse, and the
shield it gives to tech companies to ignore the harmful content that facilitates unlawful conduct.
The parade of horribles is long and indefensible, and includes child pornography, revenge porn,
and terrorist conduct.

As law professor Mary Graw Leary stated in testimony to the Senate Judiciary Committee earlier
this year, Sec. 230 “was created with the goal of shielding children from objectionable content,
protecting good Samaritans, and protecting a nascent internet. The internet is no longer nascent,
and children are at risk of exploitation at unprecedented levels.”21

This latter part is, disturbingly, true. A New York Times report published in February revealed
that reports of online sexual abuse grew by more than 50 percent in 2019, “an indication that
many of the world’s biggest technology platforms remain infested with the illegal content.”22
Between 2017 and 2018, the National Center for Missing and Exploited Children’s CyberTipline
saw a 541 percent increase in videos reported containing the sexual abuse of children.23

Some argue that it is simply the prosecutorial arm of the Department of Justice (DOJ) that needs
better resourcing. However, the issue for the tech platforms is less the prosecution of offenders
than it is their failure to remove the images from circulation. In one case presented to the Senate
Judiciary Committee, images of one child’s abuse were on more than 160,000 websites.24 There
is far more these platforms can do to target the preservation and circulation of this content.

As Senator John Kennedy (R-La.) put it in March, “some people respond to light, others respond
to heat, and I bet if we took away the 230 protection, these companies would feel both light and
heat.”25

21
The EARN It Act: Holding the Tech Industry Accountable in the Fight Against Online Child Exploitation:
Hearing Before the United States Senate Judiciary Comm., 116 Cong. 2 (2020)
https://www.judiciary.senate.gov/meetings/the-earn-it-act-holding-the-tech-industry-accountable-in-the-fight-
against-online-child-sexual-exploitation.
22
Gabriel J.X. Dance and Michael H. Keller, Tech Companies Detect a Surge in Vides of Child Sexual Abuse, THE
NEW YORK TIMES (Feb. 20, 2020), https://www.nytimes.com/2020/02/07/us/online-child-sexual-abuse.html.
23
Id.
24
The EARN It Act: Holding the Tech Industry Accountable in the Fight Against Online Child Exploitation:
Hearing Before the United States Senate Judiciary Comm., 116 Cong. 2 (2020) (Statement by Nicole, Mother of a
Child Whose Sexually Abusive Images were Circulated Online)
https://www.judiciary.senate.gov/imo/media/doc/Nicole%20Testimony.pdf.
25
The EARN It Act: Holding the Tech Industry Accountable in the Fight Against Online Child Exploitation:
Hearing Before the United States Senate Judiciary Comm., 116 Cong. 2 (2020)

7
The DOJ recently put forward a proposal that aims to address both viewpoint bias and the
harmful content which Sec. 230 enables. A summary of their proposal is as follows:

Incentivizing Online Platforms to Address Illicit Content

• The DOJ has proposed denying Sec. 230 protections to truly bad actors that “purposely
facilitate or solicit third-party content or activity that would violate federal criminal law.”

• The DOJ’s reform also carves out from a liability shield any material that includes child
exploitation and sexual abuse, terrorism, and cyber-stalking.

• Also left unprotected by Sec. 230 would be any platform that had actual knowledge or
notice that the third-party content violated federal criminal law or was otherwise provided
with a court judgment holding that the content is unlawful in any respect.

Clarifying Federal Enforcement Capabilities to Address Unlawful Content

• The DOJ reform legislation also increases the protection of Americans by making clear
that Sec. 230 does not bar civil enforcement actions brought by the federal government.

Promoting Competition

• The DOJ also would reform Sec. 230 to explicitly clarify that federal anti-trust claims are
not barred by Sec. 230, which only protects against the publication of third-party speech
and not liability for anti-competitive behavior.

Promoting Open Discourse and Greater Transparency

• The DOJ reform proposal would specifically replace the vague “otherwise objectionable”
language in (c)(2) with “unlawful” and “promotes terrorism.” This would focus on the
core objective of Sec. 230 and remove platforms’ ability to remove content arbitrarily
based on subjective determinations.

• The draft legislation adds a statutory definition of “good faith” in order to provide more
accountability and transparency and to prevent hiding behind the Sec. 230 shield
regardless of intent.

• Lastly, the DOJ suggests explicitly overruling Stratton Oakmont, Inc. v Prodigy Services
Co., 1995 WL 323710 (N.Y. Sup. Ct. 1995) to clarify that a platform’s removal of
content does not, on its own, render the platform a publisher or speaker for all the content
on its site.

Given how pervasive content curation is on online platforms, I believe Congress should consider
whether this blanket immunity continues to be justified when platforms actively amplify or
suppress the content of others – either through human moderators or their algorithms.

8
 b. Antitrust

Antitrust enforcement, the subject of this committee’s remit, is equipped to tackle Big Tech’s
anti-competitive dominance in multiple sectors of the marketplace.

This committee has heard testimony about various antitrust concerns: if and how Amazon
prioritizes its products and services over those of its partners and competitors; Google’s
dominance in online advertising; Facebook’s acquisition strategy for smaller competitors; and if
and how Apple favors its own products through the App Store. You have also heard compelling
testimony from small businesses about wanton and aggressive anti-competitive behavior by Big
Tech giants.

Small businesses are not the only competitors impacted, however. Entire industries are at the
mercy of Big Tech’s power. As the National Association of Broadcasters told this committee in a
statement earlier this month:

It is no answer to tell broadcasters that, if they feel disadvantaged by the policies and
revenue opportunities offered by the dominant platforms, they can decline to publish their
content on Google, YouTube or Facebook and forego availability via various apps or
devices. Because hundreds of millions of U.S. consumers use Facebook, Google and
YouTube, and own smartphones, tablets and smart speakers produced by companies like
Apple and Amazon, local stations have no real choice. Beyond offering over-the-air
services, broadcasters must be available on all major platforms and types of devices to
remain relevant to audiences and advertisers in the digital age. As a result, TV and radio
stations lack bargaining power when dealing with the digital giants that have become
gatekeepers for content providers, including local media outlets, seeking to reach
audiences and monetize their content online. The digital giants have clear financial
incentives to keep consumers engaged with their own platforms, content and apps, and
lack effective incentives to adopt policies and practices that promote or financially
reward the providers of other content, including local news.

In short, the dominance of the leading digital platforms significantly and increasingly
impairs broadcasters’ ability to earn the ad revenues needed to support production of
local news and information.26

News publishers have also long argued that Google uses its dominance to force publishers to
give up their content without adequate compensation. As the News Media Alliance put it:

In today’s digital age, the tech giants’ dual control over news distribution and
monetization threatens the very survival of news organizations. These tech giants use
secret, unpredictable algorithms to determine how and even whether content is delivered
to readers. They scrape news organizations’ content and use it to their own ends, without

26
Online Platforms and Market Power, Part I: The Free and Diverse Press: Hearing Before the United States House
Judiciary Comm. on Antitrust, Commercial and Admin. Law, 116 Cong. 2 (2020) (Statement by Gordon H. Smith)
http://www.nab.org/documents/newsRoom/pdfs/09220_HJC_Local_Journalism_At_Risk_Submission.pdf.

9
 permission or remuneration for the companies that generated the content in the first place.
They also suppress news organizations’ brands, control their data, and refuse to recognize
and support quality journalism. In effect, a couple of dominant tech platforms are acting
as regulators of the digital news industry. Only these regulators are unconstrained by
legislative or democratic oversight. And their primary motivation is not to serve the
public interest, but rather to maximize their own advertising revenues. Indeed, two
dominant platforms—Google and Facebook—now take the vast majority of U.S. online
ad revenue through their online advertising services, leaving news organizations with
little to reinvest in high-quality, original journalism. They capture that revenue in two
ways. First, they scrape news organizations’ content and display it on their own pages,
where they can monetize it through ads. Second, they control the advertising technology
news organizations use to sell ads on their own sites, and the platforms charge
increasingly exorbitant fees for the use of those technologies.27

While Congress cannot enforce the antitrust law itself, it has a critical role to play in performing
the oversight which ensures the responsible agencies are adequately policing the market. It is
critical that these agencies have both the congressional support and resources to assess the
growing dominance of billion-dollar companies in the market. Many times, this involves
reviewing if previous agency decisions were wisely made.

For example, William Kovacic, appointed by President George W. Bush to the Federal Trade
Commission and later its chair, voted to approve Google’s acquisition of the ad technology
company DoubleClick. Kovacic recently told the New York Times, “If I knew in 2007 what I
know now, I would have voted to challenge the DoubleClick acquisition.”28

Many on the Right take issue with the use of antitrust enforcement against Big Tech firms. Their
claims are generally summarized as follows:

• Antitrust is being used by conservatives as a political tool to go after Big Tech platforms
they do not like.

• Antitrust cannot solve speech concerns

• Discussions of antitrust enforcement are actually proxies for updating antitrust law away
from the consumer welfare standard.

I will take these claims one at a time. First, the bipartisan efforts and wide-ranging remedies
under discussion make clear that there is growing awareness among legislators that Big Tech’s
unchecked power in specific circumstances warrants review. Big Tech isn’t being singled out for

27
Online Platforms and Market Power, Part I: The Free and Diverse Press: Hearing Before the United States House
Judiciary Comm. on Antitrust, Commercial and Admin. Law, 116 Cong. 2 (2020) (Statement by David Chavern)
(https://docs.house.gov/meetings/JU/JU05/20190611/109616/HHRG-116-JU05-Wstate-ChavernD-20190611.pdf.

28
Steve Lohr, This Deal Helped Turn Google into an Ad Powerhouse. Is that a Problem?, THE NEW YORK TIMES
(Sept. 21, 2020), https://www.nytimes.com/2020/09/21/technology/google-doubleclick-antitrust-ads.html.

10
its own sake; rather, specific actions – antitrust violations, viewpoint discrimination, and the
facilitation of various criminal acts – are being targeted.

Second, antitrust’s application to “speech concerns” may not be direct, but proper enforcement
of the law against violations could certainly have tangential effects. Antitrust enforcement does
not occur in a vacuum. Enforcing against the monolithic dominance of these companies in one
sector, if warranted, could free up the market in such a way that concerns over viewpoint bias
could be competed away in ways which Big Tech’s market dominance now makes impossible.

Third, it is the view of myself and the Internet Accountability Project that our antitrust laws do
not need to be updated; that the laws on the books are sufficient for tackling per se violations of
antitrust as they exist in the tech sector. Antitrust enforcement is law enforcement. As
conservatives, we do not support legal amnesty for those who violate our nation’s laws – and this
should extend to corporations who violate competition laws in the market.

Conservatives who rightly champion the innovation generated by a free market should be equally
vigilant about maintaining its integrity. To repurpose the old adage from Ronald Reagan, “trust,
but verify.”

As Congressman Ken Buck (R-Colo.), a member of this committee, has rightly noted:

Big isn’t inherently bad and we should celebrate American success stories. However,
when companies use their success as a bat to bludgeon smaller rivals, Congress must
address the root causes of these inequities to ensure the American dream remains
attainable for all Americans.29

III. Conclusion

When it comes to the expansive power of Big Tech, the question really distills to one of who will
rule. In America, it should not be the bureaucrats; it should not be the mob; it should not be the
tech oligarchs. Rather, in America, it is the people who rule through our system of self-
government. “I will not willingly cede more power to anyone, not to the state, not to General
Motors, said William F Buckley in Up From Liberalism. “I will hoard my power like a miser,
resisting every effort to drain it away from me.”30

Conservativism follows a tradition of skepticism when it comes to concentrations of power. In

1960, Barry Goldwater wrote Conscience of a Conservative. Goldwater – America’s first
libertarian politician, according to Reason magazine31 – had a prescient and applicable reminder
for American conservatives today. “Let us henceforth make war on all monopolies—whether

29
Ken Buck, David Peterson, Michael Sall, and Sam Ashenberner, Breaking Up or Better Regulating Big Tech?,
THE WALL STREET JOURNAL (Sept. 20, 2020), https://www.wsj.com/articles/breaking-up-or-better-regulating-big-
tech-11600622572.
30
WILLIAM F. BUCKLEY, JR., UP FRONT LIBERALISM 1 (1959)
31
Robert W. Poole, Jr., In Memoriam: Barry Goldwater – Obituary, REASON, Aug. 1998, at
https://arquivo.pt/wayback/20090628123204/http%3A//findarticles%2Ecom/p/articles/mi_m1568/is_n4_v30/ai_209
54419/.

11
corporate or union,” he noted. “The enemy of freedom is unrestrained power, and the champions
of freedom will fight against the concentration of power wherever they find it.”32

But perhaps it is Russell Kirk, one of the founding fathers of conservative thought, who surmised
the challenge most aptly: “Our conservative task is to reconcile personal freedom with the claims
of modern technology, and to try to humanize an age in which [Permanent] Things are in the
saddle.33

32
BARRY M. GOLDWATER, CONSCIENCE OF A CONSERVATIVE 1 (1971).
33
RUSSELL KIRK, RUSSELL KIRK’S GUIDE TO CONSERVATISM 1 (1957).

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