Tanzina Vega: I'm Tanzina Vega, and you're listening to The Takeaway. On Tuesday, the United States Department of Justice filed a landmark lawsuit against Google, accusing the tech giant of abusing its monopoly in online search and search advertising. The lawsuit is the first-ever antitrust action taken against Google and it's also the largest antitrust case against any technology company in more than two decades. For more on what this means for Big Tech, I'm joined now by Makena Kelly, politics reporter with The Verge. Makena, welcome back to the show.
Makena Kelly: Hey, great to be back.
Tanzina Vega: Big news out of the Justice Department yesterday, what are they charging Google with specifically?
Makena Kelly: The Justice Department is charging Google with abusing a monopoly power that it created by using its Android products and putting Google as the default search engine on there and just being extremely dominant in the advertising market as well. They are charging them in violation of section 2 of the Sherman Act, which is pretty wonky, but it's the same style of case that the DOJ pursued with Microsoft about 20 years ago.
Tanzina Vega: Now, this isn't new. Hasn't the federal government been looking into Google for quite some time? Why is it the Department of Justice? Why isn't this more a Federal Trade Commission issue?
Makena Kelly: Last summer, the Department of Justice announced that it was going to start a sweeping investigation into anti-competitive behavior in the tech industry. Google is just one of the companies that it was looking at, but it was also looking at companies like Facebook, Amazon, and Apple as well. The Federal Trade Commission is a-- people like to call it a little bit of a toothless agency. When it comes to the charges like the DOJ laid out yesterday in violation of section 2 of the Sherman Act, that's a law enforcement task. That's why the DOJ stepped up this week.
Tanzina Vega: We're two weeks away from the presidential election. How politically motivated is this suit? This is something again, as I mentioned, that Google has been eyed by the federal government in the past for having dominated the search industry world and also the advertising industry. Is this politically motivated? President Trump has had his eyes on Big Tech for a while.
Makena Kelly: Of course, no one at the DOJ is going to say that. Bill Barr isn't going to say it, Deputy Attorney General, Jeffrey Rosen is not going to say that it's politically motivated. With the timing, two weeks until the election, with the president continuing to rail on Big Tech companies hitting a watershed moment last week, with the Hunter Biden, New York Post story with Facebook and Google and how they work to decrease its reach on their platforms. Having this lawsuit pop up just barely a week later does make things seem a little suspicious politically.
Tanzina Vega: What have we heard from Google so far about this?
Makena Kelly: Google is taking the approach that a lot of companies do when they are threatened by antitrust action. You can't get mad at us for being big. That's basically what they've said. It's not illegal to be big. It seems that's going to be--
Tanzina Vega: They are right, right?
Makena Kelly: No and it's not. In the DOJ suit, they're basically saying that no, you are big but the problem here is abusing that bigness to stifle out competition and innovation.
Tanzina Vega: What if one of the arguments is that Google on its Android phones installs Google as a search engine, people still have the opportunity to look at other search engines on their Android phones, don't they?
Makena Kelly: Right. They would be able to go through any search engine, but the default thing, it's really hard to get past a default. This is the same thing that happened with Microsoft 20 years ago, with its Internet Explorer browser, when there were also other browsers like Opera being more difficult to buy. That's when we had to buy software in stores. It was a little bit more difficult than with Google going to download a separate app. The argument is still there. I think that's what the DOJ is pursuing.
Tanzina Vega: How likely is this to head to court?
Makena Kelly: There is a lot of people wanting it to be. There's bipartisan consensus between a lot of lawmakers to push this through. It hasn't just been republicans investigating Big Tech. In the primaries, we had Elizabeth Warren call for break up Big Tech. The House Judiciary Committee has been investigating Big Tech companies for over 16 months now. It will go to court. As far as I know, I think Google has about 30 to 60 days to respond. This is going to be a very lengthy process. This isn't going to be solved today, tomorrow, next week, next month. This is going to be years and years of litigation.
Tanzina Vega: I've been talking to Makena Kelly, a politics reporter with The Verge about the Justice Department's antitrust lawsuit against Google. Now there's also another recent development in Big Tech and that's last week, Ajit Pai who's the chairman of the Federal Communications Commission, announced that he's going to look into, "clarifying the meaning of Section 230, the 1996 Communications Decency Act." Makena that sounds a little wonky. What is Ajit Pai wanting to do and what is this Communications Act?
Makena Kelly: Section 230 of the Communications Decency Act basically says that big companies, tech companies like Facebook, Twitter, Google cannot be held liable for the content their users posts on their platform. Basically, if I went to Facebook, and I said something defamatory about you, you could sue me, but you could not sue Facebook.
Tanzina Vega: Interesting. Why is this an issue for the Federal Communications Commission?
Makena Kelly: Traditionally, it hasn't been. In May, Donald Trump signed an executive order, basically prompting the FCC to do this. The FCC, it covers more broadband issues, telecommunications issues, but it's never had any role in regulating social media companies like this. My understanding is that last week, Ajit Pai got word that the general counsel at the FCC says that they do have jurisdiction, it's not illegal for them to act here. I think that's basically the basis that they're working on. Traditionally, this has not been an FCC issue.
Tanzina Vega: Because of that, similar to what we're asking about Google, these are issues that are coming up with just weeks before the election with frankly, the incumbent President Donald Trump is trailing behind Joe Biden in many states right now. I know the FCC probably won't admit to this, Makena, but does your reporting suggest that this also might be politically motivated?
Makena Kelly: What happened last week with the Hunter Biden New York Post story with Twitter shutting it down and not being able to send the link in DMs and with Facebook going to decrease its reach, for a lot of more populist leaning Republicans who have already been on board, they were very excited to attack this. They were already having making these arguments against conservative bias and Big Tech. At the FCC, there has only really been one Commissioner who really has cared about this section 230 issue and that's Brendan Carr. He has been the one internally pushing for the FCC to take initiative here.
Ajit Pai, it doesn't seem he really wanted to do anything before the election. With what happened last week, with Twitter and Facebook and Hunter Biden's story, I think for Pai it was a watershed moment and now no action is going to be taken on this. They're not going to reinterpret it in the next few weeks, and definitely not before the election. I think it was a signal and a message from Pai that now they take it seriously that last week was the tipping point.
Tanzina Vega: What exactly are they? This isn't the first time in recent weeks that section 230 has been in the spotlight. Has the Trump administration said other things about this section 230?
Makena Kelly: It seems every other week, President Trump is tweeting, repeal section 230 in all caps. For the past couple of years it seems the Trump administration first put out a weird survey for people to take, I think in the summer of 2019, to say whether or not they have been censored or banned or suspended or shadowbanned, and all these terms republicans like to throw around. You can make a complaint to the White House.
Then in May, President Trump signed a social media executive order after Twitter had first taken action against one of his tweets. Now they had pretty much never wanted to touch the President's tweets, Twitter, but he was saying some things about mail and voting that went too far. When that happened, the President signed an executive order, basically prompting the process that we're seeing taking place this week. The order told the FCC to reinterpret the law. The FCC has some ability to decide when and when they don't pick it up and take it forward. This week, I mean last week, last Friday, was when they decided, "Okay, here we going to do it."
Tanzina Vega: If the president gets reelected in the next couple of weeks, what happens to Section 230? If he doesn't get reelected what happens to Section 230? Have the Democrats and Joe Biden set their sights on this part of the law?
Makena Kelly: In an interview with the New York Times, a couple months ago, Joe Biden also said that he wanted to revoke section 230. There is no policy plan on his website that really addresses it but it could be on the table in a future Biden administration. Also, in the past couple of months, we've seen a bunch of Democrats responding to Republican calls for amending 230. They come from a way of thinking of where they don't want disinformation and misinformation and election falsities being posted on social media and they would amend section 230 in a way that prohibits that content, opposed to this weird bias ambiguous argument that Republicans are making.
Tanzina Vega: Makena Kelly is a politics reporter for The Verge. Makena, thanks for joining us.
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