Republicans take aim at Google in fight to remove legal shield

Google’s decision to ban a far-right website from its ad platform and issue a warning to a conservative media outlet over posts in its comments sections is adding fuel for Republicans who say tech giants have an anti-conservative bias and need more regulation.

Several GOP lawmakers, as well as a Republican member of the Federal Communications Commission (FCC), pointed to the move as a prime example of why the government must target the protections a company like Google enjoys over the content posted by its users.

They’re also accusing Google of hypocrisy, considering the tech platform has protections that prevent it from being held liable for third-party posts. The protections do not play a role in Google’s decisions on how it runs its ad network.

“It is profoundly disingenuous for Google to insist on applying a standard to other companies that it disclaims for itself,” Sen. Josh Hawley (R-Mo.) wrote in an open letter to Google CEO Sundar Pichai on Wednesday. “In short, Google demands minimum oversight for itself, but maximum power over those who use its platform.”

Sen. Marsha Blackburn (R-Tenn.), chairwoman of the Senate Judiciary Committee’s Tech Task Force, added in a statement that Google’s recent actions would give federal regulators “more ammo to use” in their investigation into the company’s alleged anticompetitive business practices, including its dominance in digital advertising.

The comments from GOP lawmakers come as Republicans ramp up their assault on Section 230 of the 1996 Communications Decency Act, a provision that says websites cannot be held liable for posts shared by its users. Republicans are also going after a clause that allows “good-faith” efforts on the part of tech companies to moderate the content they host.

The legal protection is viewed as the foundation of the internet, though critics from both parties argue it allows big platforms to avoid responsibility for harmful posts appearing on their sites.

Republicans have also zeroed in on the law, alleging bias against conservatives, though no evidence has backed up that assertion.

Trump in May signed an executive order that got the ball rolling on narrowing the scope of Section 230 after Twitter amended fact-check labels to a pair of his tweets about mail-in voting. The Justice Department and GOP senators followed up on Wednesday with separate proposals on how to strip some of the protections.

Google may have emboldened them. The proposals came just a day after the company said it had banned the far-right site ZeroHedge from participating in its ad network over policy violations in the comments sections of stories about Black Lives Matter protests.

Google initially said it had made a similar decision with regard to racist comments on The Federalist, but later backtracked and said they worked with the conservative media site “to address issues on their site related to the comments section.”

“Our policies do not allow ads to run against dangerous or derogatory content, which includes comments on sites,” Google said, adding that The Federalist had responded by turning off its comments section.

The site’s comments section remained off as of Thursday evening, though the publication’s editors have vowed to reinstate it.

House Minority Leader Kevin McCarthy (R-Calif.), Rep. Jim Jordan (R-Ohio) and Sen. Ted Cruz (R-Texas) were among the Republicans who argued Google’s move amounted to political bias.

Hawley and FCC Commissioner Brendan Carr (R) took their criticism a step further, saying it was ultimately a reason why Big Tech’s defense of Section 230 was flawed. The two argued it was hypocritical for Google to hold sites it does business with liable for comments when Section 230 protects the tech giant from lawsuits over third-party content.

“Google makes one of the strongest arguments yet for Section 230 reform,” said Carr, who has publicly endorsed Trump’s order calling on the Commerce Department to petition the FCC to craft and enforce rules narrowing the 1996 law’s scope.

4. Google has no problem treating The Federalist as the publisher of comments and user-generated posts on that website for purposes of Google’s own ad policy.

Yet Google expends significant resources to protect its own platforms from that type of treatment under Section 230.

— Brendan Carr (@BrendanCarrFCC) June 16, 2020

A Google spokesperson said Thursday that the company has “strict publisher policies that govern the content ads can run on, which includes comments on sites.” The company’s stated policy says publishers can lose their ability to serve ads through Google’s AdSense program if they host comments inciting hatred and promoting discrimination.

In 2019, the company terminated more than 1.2 million publisher accounts from its ad network for breach of polices. It also removed ads from more than 21 million pages.

Mike Masnick, the founder and editor of TechDirt, a site covering technology and legal issues, wrote in a blog post that Google’s recent actions appeared similar to a case affecting his own site in 2019. Masnick said Google took the same action because of “certain comments” that apparently violated the policy, adding that it led the company to pull ads only from the page where the comments appeared.

Masnick said that the policy had its shortcomings, namely that it could encourage bad-faith actors to attempt to demonetize a certain site by posting comments that violate Google policies.

Eric Goldman, a professor at the Santa Clara University School of Law, told The Hill that Google’s decisions regarding what sites it places ads on isn’t a Section 230 issue; instead, it is “just a matter of fundamental editorial discretion” when it comes to doing business with certain sites.

“They’re not an open-access platform, nor would we ever want that,” Goldman said. “Google is doing exactly what we as a society want them to do.”

But Hawley argued in his letter to Pichai that the tech giant’s dominance in the ad market made it so that publishers were required to do whatever it demands. He alleged Google was transforming advertising platform access into “a cudgel wielded against dissenting voices.”

The letter was sent the same day Hawley introduced legislation that would require companies to prove a “duty of good faith” in their content moderation in order to continue receiving Section 230 protections. The bill, which was co-sponsored by several Republicans, would make it easier for individuals to sue platforms that carry out moderation policies deemed improper.

Legal experts and open-internet proponents panned the bill.

“There are legitimate concerns about the dominance of a handful of online platforms and their power to limit Internet users’ speech,” Electronic Frontier Foundation staff attorney Aaron Mackey said in a statement. “But rather than addressing those concerns, this bill bluntly encourages frivolous litigation and will lead to massive trolling.”

Goldman, who practiced internet law for eight years before becoming a professor, said that for many Republicans, Section 230 “has become a brand for all the problems that people have with internet companies.”

He characterized the GOP position as: “Whatever the problem is that an internet company is creating, Section 230 is the reason why that’s happening and therefore Section 230 is bad.”