According to some reports, Senator Amy Klobuchar’s (D-MN) American Innovation and Choice Online Act (AICO) could be headed for a floor vote in a matter of weeks. However, a letter was signed by four Senate Democrats this week asking for a key change to clarify that AICO would not be used to limit a platform’s ability to moderate content, and it could potentially throw a wrench into that timeline. This request highlights the lack of clear definitions and the significant ambiguity in this legislation.
The lack of clearly defined terms in AICO was brought up several times during the markup. Since then, an updated draft of the bill was released, but the main changes to the text were industry specific carve outs. The issue of ambiguous language and a lack of clearly defined terms still has not been addressed.
One example of this lack of clarity was highlighted in the letter addressed to Sen. Klobuchar requesting a change to clarify the intent of Sec. 3(a)(3) which makes it unlawful for a covered 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.” Outside groups like Free Press and TechFreedom stated their concerns that this language would be used to prevent covered platforms from moderating content.
The four Democratic Senators who authored the letter shared this concern and asked that new language be inserted into the bill text clarifying that AICO would not restrict a platform’s ability to moderate content. The language supplied by the Senators would add a new section:
“Protection for Content Moderation Practices.—Nothing in section 3(a)(3) may be construed to impose liability on a covered platform operator for moderating content on the platform or otherwise inhibit the authority of a covered platform operator to moderate content on the platform, including such authority under the First Amendment to the Constitution of the United States, section 230(c) of the Communications Act of 1934 (47 U.S.C. 230(c)), or any other provision of law.”
This would be a significant change for Republicans. The removal of Parler from app stores drew criticism from Republicans as another example of anti-conservative bias. In the markup of AICO, Senator Ted Cruz (R-TX) stated that AICO would make positive improvements to censorship concerns, stating it would provide protections to content creators and businesses that are discriminating against because of the content they produce. The changes supplied by Senate Democrats would ensure that platforms could still moderate content in a way contrary to Sen. Cruz’s interpretation of the bill text.
Notably, in a recent press conference with Senators Amy Klobuchar and Chuck Grassley (R-IA) and Representatives Ken Buck (R-CO) and David Cicilline (D-RI), Rep. Buck and Sen. Grassley both mentioned how passing this bill is critical to protecting free speech on the internet and expressed concerns about Big Tech’s ability to control what people see online. Rep. Buck stated it was imperative for Congress to act to address “the threat to free speech that big tech poses.” Shortly after, in the same press conference, Sen. Klobuchar stated, “this bill is about competition. It’s not focused on content.”
Sen. Grassley stated the change requested in the letter to Sen. Klobuchar would be a deal breaker. Clearly, Republicans’ focus is on content moderation and free speech. However, AICO does not address these issues, nor do leading Democratic cosponsors of this bill have the same view on the issues as their Republican counterparts. Instead, Sen. Klobuchar’s legislation is aimed at curbing the size of a select number of companies and expanding the government’s control of the tech sector.
The unintended consequences in AICO are numerous, and since the bill never received a hearing, there are still several unanswered questions about how this legislation would be enforced. It’s understandable that Senators Cruz and Grassley could read Sec. 3(a)(3) as having to do with content moderation. However, Republicans should look at the supporters of this legislation as a clue to see how this would be enforced.
Sen. Klobuchar has introduced legislation to allow the Secretary of Health and Human Services to define health misinformation online. The Biden administration, which disbanded their disinformation board earlier this year and recently put Vice President Kamala Harris in charge of curbing online abuses, has endorsed the legislation. Other notable supporters of the legislation include Hillary Clinton and John Oliver. It’s hard to imagine that these supporters are signing onto protecting conservative speech.
It’s no wonder why lawmakers are apprehensive about this legislation. It’s not clear what the bill does or how it would be enforced. The number of unintended consequences are numerous, and up until now, the vague language in the bill allowed for broad and contradictory interpretations. If it’s not clear to lawmakers what the bill does, it certainly won’t be clear to consumers and taxpayers. This legislation should not receive a vote, and lawmakers who signed on believing this legislation was promoting conservative speech should have no problem distancing themselves from this big government legislation.