Combating Big Tech’s Totalitarianism: A Road Map

Report Technology

Combating Big Tech’s Totalitarianism: A Road Map

February 7, 2022 Over an hour read Download Report
Kara Frederick
Director, Tech Policy Center
Kara is director of the Tech Policy Center at The Heritage Foundation.

Summary

Applying and modernizing antitrust law, scrutinizing Big Tech’s ad tech models, instituting executive accountability, punishing fraud and breaches of contract, and creating private rights of action to enforce consumer rights and protections requires a layered approach to securing fair practices and freedom of expression in the digital world. Initiatives outside of Congress and enforcement agencies are of equal significance. This layered approach should include efforts to promote the principles of federalism through state legislative action, to build platforms where freedom of expression is protected, and to expose Big Tech’s abuses within civil society. Absent campaigns on all of these fronts, Big Tech will continue to erode individual liberties, segment the American citizenry, and stunt human flourishing and self-governance.

Key Takeaways

The growing symbiosis between Big Tech and government gives these companies undue influence over Americans’ daily lives and undermines their rights.

Big Tech has increasingly exercised pervasive control of information and access to the digital space in ways that undermine freedom and a functioning republic.

It is time for aggressive reforms to ensure that Big Tech is held accountable, provide scrutiny and oversight, and constrain its ability to reshape society.

Too many gatekeepers of information for the American public—elite media, academia, government institutions, and various organs of the culture—are captured by leftist ideology. As the past year has borne out, Big Tech companies are not afraid to exercise their power in the service of this ideology.REF Given their positions as global oligopolies, the ability of Big Tech companies to manipulate the flow of information renders their actions transformative. Every American should be concerned about Big Tech’s willingness to shut off direct access to digital information, their demonstrated pattern of information manipulation, and their impact on America’s culture of free speech.

Beyond this, the growing symbiosis between Big Tech and government, the constriction of digital life, the pernicious targeting and exploitation of the next generation, and the expansion of digital surveillance will accelerate the stratification of American society. If current patterns are not disrupted, conservatives will bear the brunt of this tech-enabled classification system implemented hand-in-glove with the government. This report examines the developing landscape and issues a call for conservatives to push back against the trend toward totalitarianism in America that is being ushered in with the help of Big Tech.

Big Tech’s Information Monopoly

Information Manipulation. A handful of Big Tech corporations now manipulate the flow of information in such an expansive way as to fundamentally reshape the public discourse. The past year demonstrated that suppression of conservative viewpoints by technology companies can materially impact the body politic.REF For example, tech corporations actively insert themselves between “the user and content” in increasingly ideological ways.REF

  • An October 2021 poll by research firm McLaughlin and Associates found that 52 percent of Americans believe Facebook, Twitter, and other social media sites’ censorship of the New York Post’s Hunter Biden story constituted interference in the election.REF
  • A November 2020 study by the Media Research Center (MRC) found that one in six Biden voters claimed they would have changed their vote had they been aware of information such as the Hunter Biden laptop story that was actively suppressed by tech companies.REF
  • More than 17 platforms muzzled the then-sitting President of the United States within two weeks in January 2021. At the same time, three tech companies acted in concert (within approximately 48 hours of each other) to eliminate a conservative-friendly competitor as it sat atop the Apple store.REF
  • In July 2021, a consortium of companies and organizations revealed plans to expand an industry-wide terrorism database to include “right-wing” content.REF

Quantifying viewpoint discrimination by Big Tech is becoming easier. Conservatives used to be hard-pressed to collect data to verify the anecdotal suppression they experienced at the hands of these companies.REF Yet the evidence now paints a clearer picture.

  • Using a dataset of prominent, politically active users suspended from Twitter since its inception, a Columbia University researcher discovered in 2019 that Twitter suspended users in the “conservative” category at a ratio of 21-to-1 compared to “liberals.”REF
  • In 2020, an independent media company observed that Google likely suppressed conservative-leaning outlets such as the Daily Caller, Breitbart, and The Federalist during the 2020 election season.REF The company’s analysis of raw, third-party data indicated, for example, that Breitbart’s Google search visibility shrank by 99 percent during the 2020 presidential election cycle compared to the same period in 2016.REF
  • In October 2021, the MRC determined that Twitter and Facebook censor Republican Members of Congress at a rate of 53-to-1 compared to Democrats in Congress.REF
  • Also in October 2021, leaked documents obtained by The Wall Street Journal revealed that Facebook created and used two internal tools in the aftermath of Donald Trump’s 2016 electoral victory that suppressed right-wing content, media traffic, and reach on the site. Facebook’s own internal research concluded that if the tools were removed, Breitbart would experience 20 percent more traffic, The Washington Times 18 percent more, Western Journal 16 percent more, and Epoch Times 11 percent more.REF One of these tools was still in use by Facebook as of October 2021.

Additional evidence is pouring in. YouTube censors content that contradicts left-wing orthodoxy.REF Facebook suppresses access to information critical of Democrat politicians.REF Sitting Republican Members of Congress are regularly sanctioned by multiple platforms.REF Christian commentators, preachers, and even mothers are penalized for posting “misinformation.”REF The works of authors and filmmakers are suppressed or removed entirely due to critical stances on the Black Lives Matter organization or biological views on the sex differences between men and women. And run-of-the-mill outlets expressing a right-leaning position, including Sky News and the New York Post, America’s oldest daily newspaper, are curbed for violating Big Tech’s ever-changing policies.REF

A few recent examples (among the many others that could be cited) serve to make the point:

YouTube

  • In January 2022, YouTube removed an interview between podcaster Joe Rogan and vaccine scientist Dr. Robert Malone for comparing the current public health climate in America to Germany in the 1920s and 1930s.REF
  • In November 2021, YouTube suspended U.S. Senator Ron Johnson’s (R–WI) channel for discussing vaccine injuries.REF
  • In August 2021, YouTube suspended U.S. Senator Rand Paul (R–KY) after he referenced studies that questioned the efficacy of cloth masks.REF
  • In August 2021, Presbyterian minister Carl Trueman’s YouTube livestream was dropped for a “content violation” as he lectured on classic Christian mores for the Immanuel Baptist Church.REF
  • In April 2021, YouTube removed a recording of a roundtable conducted by Governor Ron DeSantis (R–FL) for contradicting “the consensus of local and global health authorities regarding the efficacy of masks.”REF
  • In March 2021, YouTube suspended commentator Steven Crowder after he questioned the legitimacy of the 2020 presidential election in Nevada.REF

Facebook

  • In January 2022, Facebook locked the ads account of a conservative publisher that sells children’s books featuring former President Ronald Reagan, economist Thomas Sowell, and Supreme Court Justice Amy Coney Barrett for violating rules against “low quality or disruptive content.”REF
  • In August 2021, Facebook removed the Instagram account of a Gold Star mother who criticized Joe Biden after the death of her son, a U.S. Marine, during the Afghanistan withdrawal. Her profile on Facebook was “incorrectly deleted” from the main platform as well.REF
  • In October 2020, Facebook suppressed details reported by the New York Post of a potential relationship between Joe Biden and a Ukrainian energy company that employed his son as a board member.REF

Twitter

  • In January 2022, Twitter permanently suspended the account of U.S. Representative Marjorie Taylor Greene (R–GA) for repeated “violations” that include citing Vaccine Adverse Event Reporting System data, discussing the risks of masking children, and highlighting studies on alternative COVID treatments like ivermectin.REF
  • In December 2021, Twitter suspended the policy director of a pro-family think tank for supporting bans on the chemical castration and surgical mutilation of minors suffering from gender dysphoria.REF
  • In October 2021, U.S. Representative Jim Banks (R–IN) was suspended from Twitter after referring to a transgender individual who was born male as a man.REF
  • In August 2021, former lawyer for President Trump Jenna Ellis was suspended after criticizing Biden’s Afghanistan withdrawal and his plan to resettle refugees in the United States with limited or no vetting.REF
  • In August 2021, Christian commentator Allie Beth Stuckey was suspended after tweeting that transgender Olympic weightlifter Laura Hubbard is “a man” and that men “should not compete against women in weightlifting.”REF

Amazon

  • In September 2021, Amazon prohibited ads promoting Heritage scholar Mike Gonzalez’s book criticizing the Black Lives Matter organization and its relationship to Marxism.REF
  • In March 2021, Amazon revealed that it removed scholar Ryan T. Anderson’s book on gender dysphoria, which was written from a conservative perspective, from its platform three years after publication.REF
  • In February 2021, Amazon deleted a documentary on Supreme Court Justice Clarence Thomas without explanation.REF

The list goes on. All of this occurs while MSNBC’s Rachel Maddow propagates misinformation of her ownREF and the Taliban, Iran’s supreme leader, and Chinese Communist Party (CCP) spokesmen spread anti-Semitic and genocidal rhetoric on the American-owned platforms without consequence.REF

Access to Information.REF As a practical matter, Big Tech companies can now control Americans’ ability to access information. Not all censorship is created equal. Censorship conducted at the cloud hosting infrastructure or Internet service provider (ISP) level severely curtails direct access to digital viewpoints and actors who run afoul of these providers. By controlling these lower levels of the technical stack upon which many other layers (like digital platforms and applications) depend, a small group of unelected tech executives can pull the plug on entire companies—and with very limited recourse. No company’s board of directors doing business at any layer of the stack is insulated from political and public pressure to jettison specific viewpoints in today’s woke culture.

The case of Twitter competitor Parler in January 2021 illustrates how this can happen. Google and Apple removed Parler from their stores at the application layer of the technology stack after the January 6 Capitol riots, but it was not until Amazon Web Services declined to host Parler at a lower level of the stack (cloud hosting infrastructure) that it suddenly ceased to exist on the Internet as originally conceived. Parler, then the most downloaded application on Apple’s app store and a Big Tech competitor popular with conservatives, has yet to reach even 4 percent of the users it had gained immediately before its deplatforming.REF

Culture of Free Speech. At a more abstract level, despite arguments focused on Big Tech as private companies acting within their rights to ban users,REF America’s culture of free speech is at issue. The threat of deplatforming by tech companies based off wanton enforcement of their vague rules inevitably has a chilling effect. When confronted with the evidence that certain viewpoints are disproportionately censored, sympathetic users are apt to restrict their speech. Such practices engender a form of self-censorship that imperils a foundational norm within American culture—the disposition to speak freely.

Even the American Civil Liberties Union’s senior legislative counsel stated in January that “it should concern everyone when companies like Facebook and Twitter wield the unchecked power to remove people from platforms that have become indispensable for the speech of billions.”REF Russian dissident Alexei Navalny, German Chancellor Angela Merkel, and Mexico’s President Andrés Manuel López Obrador—none of whom is particularly sympathetic to American conservatives—have also spoken out about Big Tech’s threat to freedom of expression.REF

New Trends in Big Tech

Beyond restriction of speech, conservatives face more expansive problems: the growing fusion between technology companies and the government, the constriction of digital life, practices that target and exploit the next generation of American citizens, and novel forms of digital surveillance that will disproportionately impact conservatives.

Symbiosis Between Big Tech and Big Government. New revelations reflect what is already a troubling trend in the digital public square: the growing symbiosis between the federal government and Big Tech.REF

The Biden Administration is attempting to circumvent the Constitution by pressuring private tech companies to take down content under a broad and politically biased definition of misinformation.REF When Big Tech companies do the government’s bidding by removing users and content that the government tells them are objectionable, they are essentially acting as government agents—a potential violation of the First Amendment.REF

In July 2021, White House Press Secretary Jen Psaki described how the government is coordinating with social media platforms to flag users and content that cut against the Administration’s COVID messaging:

Well, first, we are in regular touch with these social media platforms, and those engagements typically happen through members of our senior staff, but also members of our COVID-19 team…. We’ve increased disinformation research and tracking within the Surgeon General’s office. We’re flagging problematic posts for Facebook that spread disinformation…. [I]t’s important to take faster action against harmful posts…. And Facebook needs to move more quickly to remove harmful, violative posts—posts that will be within their policies for removal often remain up for days. That’s too long. The information spreads too quickly.REF

Within a month of this warning—and additional warnings from U.S. Surgeon General Vivek Murthy—Facebook removed the Administration’s “Disinformation Dozen:” the 12 individuals explicitly cited by the White House as “producing 65% of anti-vaccine misinformation on Facebook.”REF Separate from the COVID narrative, Department of Homeland Security Secretary Alejandro Mayorkas also declared that his organization is “working with the tech companies that are the platform for much of the disinformation that reaches the American public”REF with respect to elections and “threats” to the homeland.

This willingness of Big Tech to respond to and comply with the government on censorship is also demonstrated in the case of conservative commentator Rogan O’Handley. The O’Handley v. Padilla complaint details how Twitter responded directly to an organ of state power by censoring a conservative on behalf of the California Secretary of State’s office. In November 2020, government employees at the taxpayer-funded California Office of Election Cybersecurity used a direct channel with Twitter employees to flag O’Handley’s discussion of election integrity as “disinformation.” Twitter subsequently labeled his tweet and issued a strike, or penalty, against the account.REF According to the complaint, Twitter had never suspended or meted out strikes against O’Handley until the government became involved.REF O’Handley’s account was then repeatedly scrutinized by Twitter employees and permanently suspended in February 2021.

Further, the Biden Administration is vocal about its plans to push tech companies to ban users across all platforms—an act that would extinguish a culture of free speech. Once banned, whether justly or unjustly, users would have nowhere else to go. Press Secretary Psaki declared this publicly when she stated from the White House podium again in July that purveyors of “misinformation” should not just be “banned from one platform and not others.”REF Government control of the ability to exist on any private digital platform would undermine the creation of competitors such as RightForge, GETTR, Odysee, and Rumble.REF

In 2022, government strong-arming of private platforms to police speech continues apace. President Biden himself pressed tech companies to “deal with” misinformation and disinformation in a January address.REF In a direct response to controversy over a viral COVID-related interview with podcaster Joe Rogan and vaccine scientist Dr. Robert Malone, Surgeon General Murthy once more used his capacity as a Biden Administration official to exhort tech companies to “limit the spread of misinformation.”REF And Press Secretary Psaki intervened yet again—this time explicitly to target Rogan’s employer, audio streaming service Spotify—in an attempt to pressure the private company and “all major platforms” to censor “[misinformation] and disinformation” at the behest of the White House.REF

Constriction of Digital Life. Suppression of conservative speech is not limited to social media. Big Tech is actively making the digital world hostile to specific perspectives, and other tech companies are following suit. In addition to Amazon removing conservative books and films from its platform, smaller e-commerce platforms and other service providers such as banks, digital payment companies, e-mail delivery services, and online fundraising platforms have cut off conservative organizations and individuals.REF For example:

  • E-commerce company Shopify banned Trump’s online stores in January 2021, and JP Morgan Chase–owned payment processor WePay cut off a Missouri conservative organization set to host a Donald Trump Jr. event in November 2021.REF
  • E-mail delivery service MailChimp suspended the Northern Virginia Tea Party over “misinformation” and blacklisted the conservative organization Women for America First as well as the conservative satire site the Babylon Bee (before reversing its decision) in June 2021.REF
  • Web hosting company GoDaddy kicked off a website for a pro-life group, Texas Right to Life, that sought to crowdsource support for the Texas Heartbeat Act in September 2021.REF
  • Online fundraising platform GoFundMe banned campaigns supporting the legal defense fund of Kyle Rittenhouse, a teenager who killed two rioters in self-defense in the summer of 2020, and during the same time frame, GoFundMe hosted and even contributed to fundraisers for rioters in Kenosha, Wisconsin.REF

These efforts are only intensifying. In 2021, left-leaning organizations and Big Tech platforms announced major partnerships aimed at targeting “extremists.” The Anti-Defamation League and payment service PayPal have teamed up to investigate the funding mechanisms of right-wing organizations.REF Meanwhile, Amazon has used the left-leaning Southern Poverty Law Center to vet recipients of charitable donations.REF As day-to-day life increasingly takes place in the digital world, denial of access to these electronic services based on users’ political views will stratify American society.

Targeting of and Effects on Children.REF In addition to their political impacts, Big Tech’s practices result in measurable, deleterious effects on young citizens. As companies compete for younger and younger portions of the market, the “race to the bottom” is in full swing.REF Newer companies are vying for footholds as others hemorrhage users in this demographic. For instance, Wall Street Journal reporting on Facebook’s internal research suggests that in the United States, the number of teens who use Facebook every day has fallen by 19 percent in the past two years and is projected to fall an additional 45 percent by 2023.REF In a similar period, Facebook set a multi-year goal to create products specifically for preteens, considering them a “valuable but untapped audience.”REF

Later, in March 2021, Facebook revealed that it intended to create an Instagram for children younger than 13 years old.REF (It already has a Messenger app focused on children from six years old to 12 years old.REF) YouTube Kids invoked children as young as three years old in its rollout in 2015.REF Up-and-comers like TikTok, which is owned by a Beijing-based parent company, are deliberately courting younger markets. According to Statista, 37.3 million out of 78.7 million total TikTok users in the United States in 2021 belonged to Generation Z (those born after 1997) and were skewing younger.REF Further research indicates that as of early 2021, 25 percent of TikTok users in America were teenagers or younger.REF A July 2020 Pew Research Center survey found that among children from nine to 11 years old, 30 percent of their parents claim that their child uses TikTok, 22 percent of parents estimate that their children use Snapchat, 11 percent say that their children use Instagram, and 6 percent assess that their children are on Facebook.REF

This is significant because of the toxic effects of these platforms on American youth. According to Facebook’s own research from 2019 to 2020, 32 percent of teenage girls said that “when they felt bad about their bodies, Instagram made them feel worse,” 6 percent of teen Instagram users who reported suicidal thoughts traced their emergence directly to Instagram, and one in three teen girls said that Instagram made their body image issues worse.REF

These platforms also portend broader social impacts. According to The Wall Street Journal, teenage girls in the United States, the United Kingdom, Canada, and Australia are likely developing verbal and physical tics by watching influencers on TikTok who exhibit the same habits. In one case, Texas Children’s Hospital reported incidents of approximately 60 teens with these behaviors, compared to one to two cases pre-pandemic—and every reported incident of an uptick involved the use of TikTok, according to the Journal’s assessment.REF Author Abigail Shrier also documents social media’s influence on social contagions of the moment, stating that these sites offer an “endless supply of mentors” to fan the flames of gender dissatisfaction among teen girls.REF

Companies like Facebook are aware of these impacts yet continue to double down and expand efforts targeted at children.REF Google-owned YouTube easily absorbed a $170 million fine levied by the Federal Trade Commission (FTC) and the State of New York in 2019 for collecting data on children younger than 13 years old without parental permission.REF In fact, after research on Instagram’s toxic effects on young girls was made public, the head of Instagram declared publicly that “building ‘Instagram Kids’ is the right thing to do.”REF

Americans should be aware of and push back against these efforts to tear at the moral fabric of our society at any cost, starting in kindergarten. As Representative Bill Johnson (R–OH) said at a congressional hearing in March 2021, “Big Tech is essentially giving our kids a lit cigarette and hoping they stay addicted for life.”REF

Underpinning all of this is the fact that these tech companies continue to benefit from special liability protections from the federal government.

Surveillance and Invasion of Privacy. Just as these technologies break and atomize the next generation of Americans, digital surveillance will accelerate the fracturing of existing social cohesion. Tools originally created for legitimate purposes are poised to be weaponized against a subset of American citizens. The next phase will likely consist of broadening the fight against domestic extremism to include suppressing conservative content.REF The seeds of this development are becoming apparent now.

Big Tech companies can repurpose the tools they build to contend with genuine problems like child exploitation and foreign Islamist terrorism to target conservative viewpoints. At one “Big Five” tech company, counterterrorism teams based their approach to fighting foreign Islamist terrorism content on a more established child safety model.REF The teams that countered child exploitation within the company shared both know-how and personnel with the counterterrorism teams as they built out their capabilities. Now these companies are using the foreign counterterrorism model to detect “domestic extremism.” The Global Internet Forum to Counter Terrorism (GIFCT), for example, announced in July 2021 that it would expand its hash-sharing database—which had been created to share foreign Islamist terrorist content with Google-owned YouTube, Facebook, Twitter, and Microsoft—to include right-wing extremism.REF

We are entering a reality in which tech companies target average conservative organizations, users, and speech as part of such efforts. Just days after President Trump’s election in 2016, Google co-founder Sergey Brin referred to Trump voters as “extremists” in a leaked video of a Google employee meeting.REF In July 2021, Facebook, seeming to expand its definition of extremism to include conservative content, began to issue test “extremism” warnings to users who engaged with popular, mainstream conservative accounts.REF The Wall Street Journal even documented Facebook’s proclivity to put “its thumb on the scale against communities it deemed to be a problem,” especially those on the right deemed “harmful,” as recently as early 2021.REF

In another example of repurposing counterterrorism efforts to target right-leaning audiences, journalist Mollie Hemingway reported that Brin suggested employing Google’s technology incubator, Jigsaw—originally used to counteract foreign Islamist terrorism—to influence Trump voters.REF

Conservatives should be aware of this tactic by leftist organizations to repurpose child safety and counterterrorism methodologies to expand digital censorship and surveillance practices, as well as the role of the government in using them. They will not stop with child safety or strict counterterrorism. The Senate’s recent hearing with a former Facebook “whistleblower” is yet another example. In September 2021, Frances Haugen, a former Facebook lead product manager for election “misinformation,” released internal Facebook research documents that revealed the company knew and ignored the damaging effects of Facebook’s Instagram on teens, especially girls’ mental and physical well-being.REF In an orchestrated rollout—complete with a well-timed CBS 60 Minutes expose, harmonious media cheerleading, Senate hearing testimony, and paid Democratic consultants—Haugen used teen health to advocate for increased policing of speech and “misinformation” by tech companies and the government.REF At the October hearing, she scolded Facebook for not taking down enough content posted by “domestic extremists” leading up to the January 6 Capitol riots.

Patterns outside of the digital world reveal a similar impulse to expand the definition of extremism and normalize the use of counterterrorism tools to target dissenters. In October 2021, the National School Boards Association, working with White House personnel, requested that the White House classify the parent-led revolt against critical race theory in schools as “domestic extremism” and seek “appropriate enforceable actions” under “the PATRIOT Act in regards to domestic terrorism.”REF Within five days, the U.S. Attorney General instructed the FBI to address such “threats” using, in part, the Department of Justice’s national security apparatus.REF According to Representative Jim Jordan (R–OH) and a Department of Justice whistleblower, the FBI deployed its Counterterrorism Division to categorize assessments of these alleged parent-related threats with a specific “threat tag.”REF

The mobilization of U.S. government agencies to classify movements to the right of leftist ideology as “domestic extremism” lays the groundwork for the purging of these citizens from digital platforms. This should send a chill up every American’s spine. The January 2022 creation of a new domestic terrorism unit within the Department of Justice to target Americans who subscribe to “anti-government and anti-authority ideologies” suggests that this trend is accelerating.REF

And the slope is indeed slippery. The next evolution in digital surveillance was teased by Apple in September 2021. Again, in the interest of child safety, Apple unveiled plans to clear the way for scanning images—and ultimately other files and content—directly on an individual’s private device.REF This represents a sea change in the nature of digital surveillance. Previously, companies relied on other mechanisms to screen content without directly scanning personal devices. If continued, Apple’s new system would open the door for the company (and any entity with leverage over this technology) to automatically process and monitor the content of an individual’s phone.REF When child exploitation tools have been repurposed to conduct searches for terrorist content and the definitions of terrorism and extremism have been broadened to encompass more of the right, conservatives will soon find themselves in the crosshairs of these new surveillance tools.

In fact, a more sinister version of this already takes place in China. The party-state’s modus operandi is to link the digital world with the physical one and “totalize control.”REF The CCP uses, in part, privately developed surveillance tools turned inward on its population to enforce social control.REF Information-sharing platforms help to enable a social credit system and its pilot programs in which individuals are monitored and assessed for potential blacklists.REF These lists—with some gradation—prohibit offending individuals from job advancement, real estate purchases, obtaining loans, government subsidies, transportation, and more.REF In the Xinjiang region , a predictive policing platform fuses biometric and behavioral data to scrutinize individuals for possible detention in the CCP’s “reeducation camps.”REF

More benign examples of these intrusions are surfacing in the United States today, but it is easy to see what is coming. One example is Facebook’s efforts to contend with suicidal ideation. Facebook contacts first responders if its tools, using applications of machine learning, signal that a user is at risk of self-harm based on what he or she posts.REF By 2018, this led to over 1,000 knocks on doors, or wellness checks, from those first responders.REF While this is perhaps a laudable (albeit highly intrusive) effort, it is easy to envision how it could be abused for more nefarious purposes. In China and beyond its borders, for instance, type something “wrong” on the messaging platform WeChat and that knock on the door from law enforcement is not for the user’s welfare.

It did not take long for this linking of the digital with the physical to arrive in proximate countries and even democracies.REF As recently as September 2021, Australian officials were canvassing social media and subsequently knocking on doors to warn potential protestors of consequences if they took to the streets.REF

Unfortunately, the United States is no longer immune to this impulse to restrict individual liberties through tech. Previously, governance practices in the United States provided a safeguard against the potential for technology abuse: sufficient rule-of-law protections, a culture of openness, a free press, an independent judiciary, and an engaged citizenry. But that bulwark is increasingly in jeopardy.

Now the government has at its disposal both the powers of federal agencies and the capabilities of companies that are eager to target their own countrymen. The distinction between the coercive power of the government and the lack of coercive power of private companies is erased when these companies do the government’s bidding. This difference is especially indistinguishable if one’s otherwise legal digital speech on a private company’s platform results in a knock on the door by a government official.

Background to Recommendations for Reform

The answer to the Big Tech problem lies in solutions that promote human flourishing and arrest the infringement of God-given rights like freedom of speech by private entities. Governments are not the only actors capable of encroaching on Americans’ individual liberties. Private, monopolistic corporations should be held accountable if they violate these liberties to the degree that Big Tech has violated them just during the past year. These companies are not sacrosanct: Sovereign citizens of the United States do not exist solely to serve the economy or maximize gross domestic product. Recommended remedies should acknowledge this truth and reflect the imperative need to protect Americans’ natural rights against abuses flowing from the consolidation of power—whether by the government, private corporations, or a combination of the two.

In effect, American policymakers and representatives should take on Big Tech as a force that is uniquely deleterious to a healthy body politic. Congress should target areas in which current antitrust laws and enforcement are inadequate to address Big Tech companies anti-competitive behavior and harm to users. This should include investigation of their ad tech practices, establishing executive liability for misapplication of stated policies, and mandated transparency and data privacy.

Proposals to hold Big Tech companies accountable should empower citizens to redress the imbalance between the companies and their users, focus on how Big Tech companies leverage their scale and reach to exploit users’ data, and implement much more rigorous oversight of these entities.

In terms of company-to-user imbalance, Big Tech companies are restricting choice, demonstrating anti-competitive behavior, and exploiting the consumer. Companies like Amazon and Google, for example, evaluate the digital behavior of their customers and then use their specific digital fingerprints to microtarget their users or deliver tailored ads and information to the user based on this fingerprint. In doing so, Big Tech companies often preference their own products over those of competitors, quietly sell this information to advertisers, and use it to maximize user engagement and the addictive properties of their platforms. The proposed solutions contend with these practices and address the exploitation of the American consumer. Remedies like circumscribing the collection, storage, and sharing of customer data can also help the consumer by increasing protection of individual privacy and reducing the likelihood of data exploitation.

In terms of scale and reach, Big Tech companies, aided by Section 230’s liability shield, flourished in the late 1990s and early 2000s. They cemented first-mover advantage in a technical sense—for example, by accruing data, refining their algorithms, and building network effects over decades—to enhance the products Americans use today. Changes in existing legislation or new proposals should not cement these technical advantages (which in some instances have compounded after their initial accrual with government help) and entrench a handful of companies within the market at the expense of competitors.REF Instead, reforms should be enacted with the understanding that changes in legislation will not affect new entrants or smaller companies in the same way that they will affect Big Tech companies.REF Thus, a distinction should be made between Big Tech companies and their less established competitors.

Additionally, the following recommendations draw a contrast between Big Tech companies that are actively and deliberately shaping the public square as major conduits of information and other tech companies that do not yet impact the discourse in the political and cultural ways demonstrated in the earlier sections of this report.REF Unless specifically delineated, the following recommendations have been formulated with Big Tech companies and their outsized capability and willingness to shape the public square in mind. For example, the Section 230 reform recommendation applies to all “interactive computer services” bounded by the 1996 Communications Decency Act, and the antitrust reform suggestion applies only to a handful of tech companies defined by a more selective threshold of revenue and users as outlined below.

As argued throughout this paper, the Big Tech issue presents a grave and near-term threat that requires drastic action. These recommendations should be viewed as narrowly and specifically applied to tech companies, not construed as support for broader economic intervention. With these starting points, legislation should be written as tightly as possible to avoid wanton application to other sectors and to minimize any unintended consequences that would remake the economy. We recognize that there will be costs and risks associated with this approach, but the consequences of not acting make it both necessary and worthwhile.

Recommendations for ReformREF

Several of the following recommendations for reform can be deployed simultaneously. Each of these approaches has potential advantages and drawbacks—none is a panacea. However, the aggregate effect should be far more scrutiny, pressure, and oversight over Big Tech companies. Big Tech companies have proven themselves irresponsible stewards of their government-enhanced power. A recalibration of their relationship to the American people is warranted.

What Congress, with Relevant Federal Agencies, Should Do

Ensure enforcement of antitrust law and reform or modernize antitrust laws where necessary.

  • Precipitate the enforcement of existing antitrust laws through scrutiny of Big Tech mergers—past, present, and future—and anti-competitive behavior using the Department of Justice and/or the Federal Trade Commission (FTC).
    • Launch and prompt aggressive antitrust investigations (for example, through committee oversight and relevant federal agencies) to ensure that Big Tech companies are not utilizing legitimate oligopoly power in one market to gain an unfair advantage in another market. At a broader level, these investigations should also verify that Big Tech companies are not engaging in other illegal antitrust actions.
      • For Big Tech platforms that leverage their market dominance to shape the public square, prohibit these platforms from preferencing their own products or combining the “buy-side” of the market with the “sell-side” (for example, Google’s ad practices or even cross-market permutations of this behavior such as Google creating an anti-competitive tie with its operating system, app store, and search app).REF Companies to which this scrutiny broadly applies include Alphabet, Amazon, Apple, Meta, and Microsoft.
      • Like per se violations under the Sherman Act, prohibit collusion by firms across the entire digital stack, including social media platforms, which would deny consumers access to a specific type of Internet service or Internet access. If collusion exists, this should be subject to penalties under both federal and state law. For example, Amazon Web Services, Apple, and Google’s combined takedown of Parler across the cloud services and app markets within approximately 48 hours in January 2021 would be prohibited by this recommendation.
    • Ensure that antitrust enforcement agencies have the necessary resources to investigate Big Tech mergers properly and effectively.
  • Launch aggressive antitrust investigations to determine whether Big Tech companies are colluding on content moderation and viewpoint discrimination against legitimate speech.
  • Develop arguments that the limitation of access to legitimate political speech and the exploitation of user data constitute harm to consumers.
    • Clarify that the consumer welfare standard, which should be codified into law, applies to zero price markets that consist of “free” services in terms of fees for the use of social media platforms, search functions, etc. Clarify for all stakeholders (legislatures, the courts, etc.) that antitrust law must be applied to Big Tech firms, which often leverage and hide behind their zero price practices as a justification for behavior that would otherwise be constrained by the proper application of existing antitrust rules.
  • Direct and provide the necessary funding for the Government Accountability Office to do a comprehensive study of federal policies that provide special treatment to Big Tech firms (for example, through subsidies and regulations).
    • Carefully review this list and remove preferential treatment. Taxpayers should not subsidize Big Tech, and policymakers should not grant them special favors. States, as listed below, should enact similar measures.
  • If the enforcement of existing antitrust law does not sufficiently address Big Tech’s abuse of market dominance, business practices, and harm to consumers, then reform or modernize antitrust laws to contend with this abuse more effectively.

Scrutinize Big Tech companies' ad tech model.

  • Prompt the FTC to investigate unfair and exploitive data collection, storing, and sharing; excessive online surveillance; and anti-competitive digital advertising practices such as those mentioned above.
  • Severely curtail current microtargeting practices that exploit user privacy. For instance, companies can collect generic consumer information under a certain threshold of identifiable information, but biometric data should be classified as “sensitive data” and be given additional privacy protections and strictures including strict time limits on data retention, third-party data sharing, and the prohibition of indefinite data storage.REF Privacy-preserving technologies should be encouraged at all times.

Establish executive liability.

  • Hold Big Tech CEOs, C-suite leadership, and vice presidents accountable for business fraud and breach of contract either through action by federal or state authorities or through private right of action.
    • If Big Tech executives engage in intentional, egregious misconduct to defraud the public, then potential criminal prosecution should be on the table.REF For instance, digital platforms like Facebook and Google initially claimed to be neutral conduits of information, and Section 230 enshrined this claim and allowed these companies to accrue users and technical advantages under those auspices. Now these companies are reneging on that claim as they disproportionately target one set of their user base and even work in concert to stifle competition sympathetic to those users, as in the case of Parler.
    • Other actions can include depositions and subpoenas as part of the oversight or civil litigation process to investigate the inconsistent application of their community standards.
  • Impose personal liability on boards and management for violating disclosures. If a platform has a pattern or practice of misrepresenting what it has communicated about being a viewpoint-neutral platform, the process of removing content or users, content moderation policies, other community standards, and other policies outlined in these recommendations, then the firm’s board and management could be personally liable. Each of these individuals should sign a personal statement attesting to the firm’s viewpoint-neutrality (if the firm asserts it is viewpoint-neutral) and commitment to following the firm’s publicly and clearly stated processes.REF

Reform Section 230.

  • Strip immunity if tech companies censor content based on political and other views protected by the Constitution (with clearly outlined exceptions for specific content as indicated below).REF Big Tech companies should not receive liability protection against lawsuits when they act as publishers and alter or restrict content based on political opinion, association, or viewpoint in such instances.REF
    • Clarify that the use of algorithms to moderate speech does not excuse a firm’s inappropriate moderation practices.
    • In addition to clarifying what speech may be (and is expected to be) moderated under Section 230, policymakers should expressly state specific examples of what is not covered by the 1996 law, such as restrictions based on viewpoint in all its forms (for example, “misinformation” claims). If firms are moderating content based on these criteria, they should not be afforded liability protections under Section 230 and would not be considered “viewpoint-neutral.”REF
  • Remove Section 230 liability protection if a firm is feeding certain content to users or otherwise favoring or disfavoring speech based on viewpoint (such as labels or warnings on some speech).

Allow American citizens to hold tech companies accountable for inconsistent application of policies by means of the judicial system.

  • Examine discrepancies between Big Tech’s advertised mission statements, terms of service, and policies and implementation as possible cases of fraud and/or breach of contract. If companies claim they are for free speech and are acting in a politically neutral manner, then they should prove it. Otherwise, they should be held accountable by the public.REF

Require transparency.

  • Require transparency on algorithmic impacts through quarterly transparency reports to the FTC with a public availability component.REF
    • Too often, Big Tech companies hide behind their algorithms to justify censorship.REF Yet programmers and other personnel dictate the design and implementation of those algorithms. Users have a right to information on this main ingredient of the product they use.REF Transparency reports should include detailed impact assessments of how these companies’ algorithms operate and affect users, including details on the impact of any ad hoc changes within reporting periods.
    • Institute legislation requiring platforms to disclose how their algorithms rank searches and to give consumers the option of obtaining unfiltered search results. This can be implemented by degrees. If companies choose to incur fines rather than comply with FTC enforcement, more aggressive transparency measures such as insight into algorithmic design might be warranted.REF Carve-outs for smaller competitors and new entrants would be necessary in this instance.
  • Require content-moderation transparency through quarterly transparency reports to the FTC with a public availability component.
    • Companies should report content-moderation methodology and decisions to the FTC with a public availability component. For example, some tech companies post quarterly, public reports on the enforcement of their community standards.REF These should be more granular and cover content-moderation decisions, practices, behaviors, and impact assessments related to free expression (for example, wrongful or erroneous takedowns such as Amazon’s prohibition of ads for Heritage scholar Mike Gonzalez’s book BLM: The Making of a New Marxist Revolution).REF Other major tech companies should follow suit. As the Biden White House admits its collusion with Big Tech to police and remove content, this is a good starting point from which to expose such practices.
      • If social media conduits fail to be more transparent about their algorithms and practices, consider regulating them as common carriers by applying anti-discrimination laws, including viewpoint discrimination, to them. Consider exemptions for smaller companies.
  • Require that companies implement a user-friendly appeals process to provide prompt and meaningful recourse for users who are wrongfully targeted for their speech.REF
    • Require platforms to provide user-friendly information that outlines simple and clear processes for how they remove users and content, how users can challenge and appeal removal actions, and how firms moderate content. If firms do not follow their own stated and clear processes, then this should make it easier both for state and federal enforcement agencies and for individuals suing the firms directly. Firms could focus on specific types of content (for example, a platform focused on education issues) without violating “viewpoint neutrality” so long as it is viewpoint-neutral within the content they do cover.
  • Require data transparency through quarterly transparency reports to the FTC with a public availability component.
    • Companies should be required to implement Fair Information Practice Principles when handling U.S. user data.
    • Like truth in lending, Congress should require truth in data use through FTC enforcement.REF Companies should use plain language to tell consumers what happens with their data.

If the above proposed solutions prove ineffective, Big Tech companies should be required to provide researchers with third-party access to data to conduct external impact assessments for algorithmic, content-moderation, and data-transparency efforts instead of doing so on a voluntary basis.

Institute additional reporting requirements.

  • Congress and/or the Federal Election Commission (FEC) should clarify that permitting access to one political candidate or party but not other candidate or party will be deemed an in-kind and reportable campaign contribution to that candidate or party.
    • Subsequently, tech companies should be required to report suppression of political candidates as in-kind contributions for campaigns directly to Congress or the FEC with a public availability component.
  • Require the articulation of an expectation of accountability, transparency, and fair treatment for all users by tech companies. This can include:
    • Platforms providing users with clear terms of use, an evenhanded application of public community standards, and transparency in content-moderation practices.
    • Immediate notification to users when their content violates company terms or policies, clearly indicating which terms or policies have been violated, and offering genuine recourse through which to appeal a violation.

Pass data privacy legislation.

  • Establish a federal data protection framework with appropriate standards and oversight for how the federal government and commercial entities collect, store, and share U.S. user data.REF
    • Consumers must affirmatively opt in to any system that allows their data to be shared with any third party (with possible exceptions for law enforcement and national security authorities).
    • This should be enforceable by a private right of action with a minimum amount of statutory damages (in the absence of evidence of a greater amount of actual damages) and an attorney’s fee provision for any federal private right of action.

Prohibit the government from using social media platforms as their agents to chill speech.

  • Restrict government actors in their governmental position from pressuring social media platform to take down content or remove a user for legitimate speech protected by the First Amendment. Government actors who take such action should not receive any type of governmental immunity.

Impose costs for ties to the CCP and other adversary nations.REF

  • The Department of Justice should determine whether Big Tech companies, almost all of which operate in countries all over the world (including countries with endemic corruption), are in strict compliance with the Foreign Corrupt Practices Act.
  • In the near term, Congress and relevant federal agencies should institute transparency requirements for Big Tech’s involvement with the CCP.
  • In the long term, Congress and relevant federal agencies should take measures to prohibit Big Tech companies from entering joint ventures in technology development or deployment with companies that are directly tied to or beholden to the CCP.REF
  • Together with Big Tech companies, Congress should either demand reciprocity for CCP use of U.S.-based digital platforms or ban state-linked actors (for example, CCP spokespersons) from U.S. Big Tech platforms.

What U.S. Tech Companies Should Do

Explore privacy-preserving tech and privacy by design initiatives to shore up data privacy.

  • If possible, Big Tech and all U.S. tech companies should design privacy protections at the initial stages of technology development and prioritize the research and development of privacy-preserving technology as well as mechanisms and protocols that favor user control. This will help to avoid privacy abuses after digital tools are deployed to the populace.

Institute additional mechanisms for user control and strengthen parental controls.

  • Big Tech leadership must make firm commitments to implementation of user control efforts like third-party algorithm use and not just hint at them in front of Congress.REF Big Tech companies should also aggressively enforce their age requirements for use of their platforms and expand and strengthen parental controls for users under the age of 18. If Big Tech companies have not made significant guarantees to users in these areas after a three-year period, Congress should:
    • Consider legislation giving consumers more control of their own data by requiring data portability for those who wish to transfer to competing platforms.
    • Consider legislation requiring technological interoperability among platforms.
    • Consider a law giving consumers greater control of the content they see in their news feed so long as the material is not illegal, immoral, or indecent (very tightly defined).
    • Require Big Tech platforms to establish parental controls for users under the age of 18.

Build with a full stack in mind.

  • Tech founders should take into account the entirety of the digital stack in their initial business models to avoid withdrawal of mid-tier or foundational stack services (such as happened with Amazon Web Services and Parler).REF It is imperative that responses to the suppression of conservative speech on Big Tech platforms include diversified initiatives that provide a hedge against vulnerabilities at each digital layer, from applications to cloud hosting services to Internet service providers.

What State Legislatures, Executives, and Attorneys General Should Do

Continue to fight Big Tech censorship and practice through state legislative action to seek accountability, transparency, and fair treatment for all users.

  • Develop new approaches to policy solutions that depend on basic principles of federalism to ensure that decisions and authority exist to address these issues at the state and local levels whenever feasible.REF
  • Tie the protection of free speech to the financial incentives of Big Tech companies.REF For example, the Iowa Senate passed legislation in March 2021 that tied acts of censorship, deplatforming, and other restrictions on speech by tech companies to tax incentives offered by the state. In theory, this bill would prevent companies like Amazon and Facebook from receiving tax abatements for constructing a warehouse or data center in Iowa if they engage in practices prohibited by the legislation such as censoring constitutionally protected speech or preventing the purchase of protected publications online.REF
  • Identify ways that state laws, enforcement of those laws, and private rights of action under state law can be used to address deceptive trade practices, misrepresentation, and other possible causes of action against Big Tech firms.
  • Direct and provide the necessary funding for an appropriate independent entity within the state to do a comprehensive study of state and local policies that provide special treatment to Big Tech firms (for example, through subsidies and regulations). Policymakers should then carefully review this list and remove preferential treatment where appropriate. Taxpayers should not subsidize Big Tech, and policymakers should not assist them by granting them special favors.

What American Citizens Should Do

Strengthen grassroots efforts to demand transparency from these companies.

Look outside Washington, DC.

A full spectrum of action is necessary to right Big Tech’s wrongs. Applying and modernizing antitrust law, scrutinizing Big Tech’s ad tech models, instituting executive accountability, punishing fraud and breaches of contract, and creating private rights of actionREF to enforce consumer rights and protections requires a layered approach to securing fair practices and freedom of expression in the digital world. Yet initiatives outside of Congress and enforcement agencies are of equal significance. This layered approach should include efforts to promote the principles of federalism through state legislative action, to build platforms where freedom of expression is protected, and to expose Big Tech’s abuses within civil society. Absent campaigns on all of these fronts, Big Tech will continue to erode individual liberties, segment the American citizenry, and stunt human flourishing and self-governance.

Conclusion

Alexis de Tocqueville observed presciently in his 1835 treatise Democracy in America that tyranny in democratic republics manifests differently from tyranny in monarchies. But tyranny in the free world exists nonetheless, and it takes on a specific character—one not altogether unfamiliar to what conservatives are beginning to experience today. Despotism in the United States, Tocqueville wrote,

ignores the body and goes straight for the soul. The master no longer says: You will think as I do or die. He says: You are free not to think as I do…. You will retain your civic privileges, but they will be of no use to you…. You will remain among men, but you will forfeit your rights to humanity…. Go in peace, I will not take your life, but the life I leave you with is worse than death.REF

To avoid this fate, conservatives should act now—to fight, to build, and to restore the principles of free expression and the democratic promise of technology. The stakes are rising by the day. If we do not confront this tech-enabled stratification now, conservatives will be relegated to the status of second-class citizens, constrained within a patchwork of technical restrictions or cut off entirely from the new digital world.

Kara Frederick is Research Fellow in Technology Policy in the Center for Technology Policy, of the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, at The Heritage Foundation.

Authors

Kara Frederick
Kara Frederick

Director, Tech Policy Center