December 2020 | DISHA TECHNOLOGY

Google Likely Facing An Uphill Battle

The online advertising marketplace is a complicated one, where nearly all online publishers depend on Google to be the middleman in e-commerce and internet advertising venues. The complaint alleges that internal documents from Google reveal the company “sought to kill competition” through various exclusionary tactics, including an unlawful agreement with Facebook to fix advertising auctions.

Google does hold a dubious position in the online advertising market, often representing both buyers and sellers while also operating AdX – the largest exchange platform for digital ads. If successful, this lawsuit could really hit Google where it hurts, as the company generates nearly all of its revenue from ad sales – roughly $135 billion last year.

The End of An Era?

Google points to falling prices in digital advertising over the last ten years and its practice of charging less than the industry standard for online ads as evidence that it does not hold monopoly power. The company has called these most recent claims “meritless,” and says it will defend its “don’t be evil” reputation.

But the AGs contend that “the public image of brainy Google engineers having fun at their sunny Mountain View campus while trying to make the world a better place” is a lie. They say the company has repeatedly and brazenly violated antitrust and consumer protection laws, and that it’s finally time for someone to do something about it. Tech companies have enjoyed a fair amount of latitude from regulators for years, but it seems that era is coming to an end.

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Dec 15 2020

Federal Court Rejects Challenge to Online Censorship Executive Order

President Trump has won a small court victory in his ongoing attempt at Section 230 reform. Section 230 protects social media companies from liability when they remove offensive content. Despite the win, however, it appears that President Trump will not have been able to make significant changes to Section 230 during his term.

The Trump administration’s Executive Order on Preventing Online Censorship, issued last May after Twitter began including fact checks on the President’s tweets, started the process for federal agencies to re-examine Section 230. While controversial, the EO did not immediately accomplish anything substantial, instead directing agencies to examine potential laws and consider possible enforcement action. Even at the time, it was largely dismissed as a political statement more than a concrete step toward Section 230 reform.

That didn’t stop the Center for Democracy and Technology, a tech policy group, from challenging the EO as an illegal retaliation action against social media companies that had displeased the President. On Friday, December 11, a federal district court judge in Washington, D.C. held in favor of the President, finding at the pleadings stage that CDT lacked standing to contest the EO. According to District Court Judge Trevor McFadden, CDT did not suffer any concrete, particular harm – and the claims were not ripe for litigation.

President Trump’s Efforts to Revise Section 230 Appear to Have Failed

Despite the court win for the Trump administration, its larger efforts to amend Section 230 appear to have failed. In a last-ditch attempt to create meaningful change, President Trump threatened to veto the National Defense Authorization Act, which Congress has passed every year since 1967, unless it also revised Section 230. However, a veto-proof 84 Senators passed the bill, rendering President Trump’s threat largely hollow. It is also possible the President was bluffing when threatening to veto the bill.

But . . .

Despite failing to get Section 230 liability reform passed in the unrelated NDAA bill, many members of Congress remain open to Section 230 reform. During this past summer’s Congressional hearing involving the four heads of Big Tech, Rep. Jim Jordan (R-OH) and others called out Big Tech’s alleged bias of conservative voices on Facebook, YouTube, and other social media platforms. The Department of Justice submitted proposed legislation to Congress revoking Section 230 in October.

Proponents of Section 230 will not be able to rest easy any time soon, as President-Elect Joe Biden has previously indicated support for a repeal of the decades-old law, albeit for vastly different reasons than President Trump or Representative Jim Jordan.