House Judiciary Leaders Show Bipartisan Support for Interop Bill
Data portability and interoperability could get early movement as the House Antitrust Subcommittee looks to draft bipartisan bills for its antitrust review, Chairman David Cicilline, D-R.I., and ranking member Ken Buck, R-Colo., told us. At a hearing earlier Thursday, members of both parties showed support for working on portability and interoperability. Buck highlighted both items for potential subcommittee collaboration.
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Legislation is possible in the coming weeks, Buck told us, calling the hearing “encouraging.” He and other Republicans cited alleged conservative censorship on social media platforms. Afterwards, he deflected a question on whether Communications Decency Act Section 230 should be repealed or updated. “That’s Energy and Commerce,” not Judiciary jurisdiction, he said.
Judiciary ranking member Jim Jordan, R-Ohio, blasted Big Tech’s alleged censorship without delving deeply into antitrust issues. Jordan is concerned about censorship, said Buck, but he recognizes “you’ve got to deal with some of the monopoly issues to deal with the speech issues.”
“There’s no question” there has been consensus on portability and interoperability since Democrats and Republicans issued separate reports on Big Tech last session, said Cicilline: “You want to draft it properly ... and I expect that we’re going to move forward early on the areas where there’s bipartisan consensus.” Cicilline’s encouraged Buck is “very engaged in this work, has really approached it in a bipartisan way” and “identified substantial areas of agreement for real reforms.” The committee should act on something on interoperability, said Rep. Joe Neguse, D-Colo.
The subpanel will hold several more hearings on Big Tech antitrust, said Cicilline. Other areas Buck highlighted were increased funding for antitrust enforcers and reforming the burden of proof in transactions. He noted all six witnesses supported concept.
Interoperability and portability would allow incumbent platforms to face a lot more competition, said Public Knowledge Competition Policy Director Charlotte Slaiman. Increased competition would help with Big Tech’s alleged censorship of conservatives, said Kellogg Hansen's John Thorne. Censorship and CDA Section 230 were the first items addressed by Rep. Greg Steube, Fla., and some other Republicans. Platforms are undermining the First Amendment by de-platforming and censoring conservatives, and if it doesn’t stop, the section should “go away,” said Jordan: This is what the committee should focus on.
Senate Intelligence Committee Chairman Mark Warner, D-Va., drew attention in a statement to his Augmenting Compatibility and Competition by Enabling Service Switching Act. It would require Big Tech companies “make user data portable -- and their services interoperable -- with other platforms, and to allow users to designate a trusted third-party service to manage their privacy and account settings.” He introduced the bill with Sens. Josh Hawley, R-Mo., and Richard Blumenthal, D-Conn.
Interoperability will require an expert agency to determine what data is eligible, said Slaiman and Thorne. Buck noted interoperability worked with the telecom industry, too: One of Congress' most popular and pro-competitive decisions was mandating mobile phone number portability in the Telecom Act, allowing consumers to switch devices without fear of switching numbers, he said. Rep. Jamie Raskin, D-Md., asked what’s keeping Congress from acting on data interoperability.
The subcommittee’s review is the most significant congressional antitrust investigation in more than a generation, said House Judiciary Committee Chairman Jerry Nadler, D-N.Y. Members identified the problem last Congress, and now they must legislate, he said.
Cicilline said there’s also bipartisan consensus that self-preferencing is an issue. The subcommittee provided examples of Amazon and others last session. It undermines competition because it lowers the incentive for innovation, said Econ One Managing Director Hal Singer: Entrepreneurs have their ideas stolen by gatekeepers.
Rep. Darrell Issa, R-Calif., raised issues of censorship, suggesting Congress shouldn’t let a platform like Apple remove apps like Parler, which platforms acted against after the Capitol insurrection. Thorne agreed Apple and Android have much power in this regard because consumers aren’t going to often switch phones based on gatekeeper decisions.
Congress should be careful about excess regulation, said Global Antitrust Institute Competition Advocacy Program Director Tad Lipsky. Much regulation doesn’t “work out,” he said, citing the Interstate Commerce Commission as a failed example of sectoral regulation: “Perfect regulation doesn’t exist.”