The American Innovation and Choice Online Act Manager’s Amendment Doesn’t Really Fix the Bill’s Problems

Bill still impacts Amazon Prime, creates privacy problems, and threatens content moderation

Since introducing the American Innovation and Choice Online Act, proponents have maintained that the bill would not impact consumer products. Senator Chuck Grassley, who cosponsored the bill, argued, “This bill is not meant to […] destroy the products and services [big tech] offers.” Senator Amy Klobuchar, the bill’s sponsor, went even further, specifically saying, “Nothing here will destroy Amazon Basics” and “This bill does not outlaw Amazon Prime.”

However, during the bill’s markup, Senator Klobuchar introduced a manager’s amendment to address opponents’ concerns, saying it was intended to “make clear that subscription services like Amazon Prime are not impacted” and “clarify that certain types of privacy-enhancing conduct would […] be allowed.” The amendment inserted a section that exempted certain products and actions from the bill’s coverage, expanded the definition of covered platforms, and slightly adjusted the language related to violations and affirmative defenses.

Unfortunately, the changes in the manager’s amendment are not enough to resolve concerns about the impact on products we use every day, and they do not come close to addressing warnings about the damage to privacy protections and content moderation practices intended to keep us safe and secure online.

Even with the manager’s amendment, the bill still threatens products consumers use every day.

We’ve highlighted some of the products consumers use every day that would be dismantled or degraded by the bill. The bill targets these products by banning dominant platforms from “unfairly preferencing” their own products over competitors.

For example, the bill targets Amazon Prime and Prime’s Fulfillment by Amazon (FBA) program. By displaying the Prime logo, ranking Prime-eligible products above others, and guaranteeing two-day shipping for products sold by businesses who participate in the FBA program, the bill’s proponents allege that Amazon is unfairly preferencing its own products and services over competitors’.

Disrupting these products that millions of us use every day would be an unintended negative consequence of the bill. Unfortunately, the authors’ attempts to avoid it through the manager’s amendment fall short.

Although Senator Klobuchar maintained during the markup of the bill that Amazon Prime would not be impacted, the Rules of Construction section inserted in the manager’s amendment includes language that seems specifically designed to address the service. The amendment allows platforms to offer “a fee for service subscription that provides benefits to covered platform users.” Specifically, this provision seems to attempt to guarantee that users can still opt in to the service and receive free two-day shipping.

Section 3(c)(7)(A)(v)(II) of the manager’s amendment

Unfortunately, the fee-based Fulfillment By Amazon program that sellers pay into is still threatened by the bill, threatening the survival of Prime as a whole. Without the FBA program, the supply of Prime-eligible products would shrink and two-day shipping would be nearly impossible to guarantee. All together, even with the manager’s amendment, Prime as we know it would be seriously degraded.

Surprisingly, the manager’s amendment does not include similarly targeted exemptions for Google Search or Amazon Basics. Despite the sponsors’ assurances, the bill clearly would implicate these products. If the bill’s authors do want to prevent their destruction, they need to reexamine the whole bill instead of offering piecemeal changes.

The bill would also disrupt existing privacy protections, shifting the balance from privacy for all to access for all.

By forcing platforms to provide equal access to all businesses, the bill would break many of the privacy protections users have come to take for granted.

For example, Google automatically includes an encryption service in many of its products, including Gmail and Google Drive. Because Google owns the encryption service, including it automatically in any of Google’s other products could be seen as unlawfully preferencing its own products over competitors’.

The bill also requires platforms to share significantly more data with more people and with fewer restrictions than they do now. All the covered platforms collect data about us as we use their services–think payment information on Amazon, location information on Google Maps, heart rate tracking on Apple watches, etc. But none of the covered platforms give businesses unrestricted access to all of the data they collect. They have data minimization policies in place that limit the personally identifiable and sensitive information they share with businesses and have requirements about how businesses store and use that data once they have it.

For example, Apple’s App Store Review guidelines require apps to be transparent about how much data they collect from users and to collect as little as possible. Apple also requires particularly sensitive apps–like those that use health or fitness information–to agree not to use any user health data for advertising purposes and to not store that information in the cloud.

Unfortunately, the bill would eliminate many of those data protection policies — and require platforms to share all of the data generated when a user interacts with a business on the platform and prevent platforms from implementing any “contractual or technical restrictions” that prevent businesses from moving the data elsewhere.

Section 3(a)(7) of the manager’s amendment

When platforms do take action to protect user privacy by blocking malicious apps or trying to safeguard user data, the bill would automatically put them on the defensive. The bill requires platforms to prove by a “preponderance of the evidence” — a higher bar than what was set in the House companion bill — that their actions were “necessary” to protect user privacy in order to dismiss legal challenges.

During the bill’s markup in the Senate Judiciary Committee, a number of Democratic Senators flagged the bill’s potential impact on these privacy protections. The manager’s amendment attempts to walk back some of the damage — but falls short:

First, the amendment would allow platforms to block entities “identified as limited or prohibited from engaging in economic transactions as part of U.S. sanctions or export control regimes or have been identified as national security, intelligence, or law enforcement risks” from having full system access and accessing user data.

Section 3(c)(7)(A)(iii)(I-II) of the manager’s amendment

But identifying named national security threats or sanctioned entities as the only entities too dangerous to be trusted with user data ignores the threats from everyday hackers, unscrupulous data brokers, and well-intentioned businesses vulnerable to hacks.

Second, platforms would be allowed to request permission from users before sharing their “non-public, personally identifiable information to a business user.”

Section 3(c)(7)(A)(iv) of the manager’s amendment

But removing any restrictions on how that information can be used creates a worse situation for consumers. Any time a user would want to share their data, like sharing their heart rate with a fitness tracking app to get the full use of the app, they would have less guarantee that their data would not be misused.

Third, the amendment would allow platforms to continue “offering full end-to-end encrypted messaging or communication products or services that allow communication between covered platforms users”.

Section 3(c)(7)(A)(v)(I) of the manager’s amendment

But the carve out for end-to-end encrypted messaging products still leaves out the encryption services built into Google’s other products, like Drive, that aren’t used for communication.

The amendment also adds a small tweak to the bill’s affirmative defense section, which still requires platforms to defend privacy protections, but now allows platforms to argue their actions were “reasonably necessary” instead of “necessary.”

This small tweak doesn’t do anything to change the fact that the bill sees privacy considerations as secondary. Platforms would still be forced into a defensive posture any time they tried to protect user privacy.

Overall, by requiring so much more of our data to be shared with so many more people and with fewer protections, the bill makes the online marketplace less safe for consumers.

The manager’s amendment fails to address the bill’s content moderation harms.

The past few days have shown us how important it is for platforms to be able to move quickly to remove harmful content and malicious actors from their sites.

Following Russia’s invasion of Ukraine, Ukraine’s Digital Minister Mykhailo Federov called on platforms like YouTube to remove Russian propaganda from their sites. In spite of threats from the Russian government, Facebook banned Russian state media from running ads on the platform, continued fact-checking and labeling their posts, and restricted their access to users across the EU. Lawmakers rightly welcomed these moves, calling them an important step in combating Russia’s “unprecedented assault on the truth.”

But organizations running the full spectrum of political ideology, from Free Press to Tech Freedom, have been raising the alarm about one of the AICOA’s provisions that would take away one of the most common tools platforms use to remove content and bad actors.

During the bill’s markup, Senator Padilla raised the same concerns, saying the bill would “hamper the efforts of platforms to address the spread of hate speech and misinformation” and would be a “gift” to bad actors trying to eliminate content moderation practices.

The section at issue prohibits platforms from “[discriminating] in the application or enforcement of the terms of service of the covered platform among similarly situated business users in a manner that would materials harm competition.” All of the covered platforms’ terms of service require businesses to adhere to certain standards of conduct–for example, not to “promote, incite or glorify hatred” or “graphically portray violence”–or in the case of businesses that publish user-generated content (like social media sites), to have some ability to monitor and remove content that is harmful or incites violence.

These terms of service are an important tool the platforms use to ban malicious businesses like Infowars and Parler and stop the spread of hate speech and disinformation. Infowars has been banned from platforms owned by Facebook, Google, and Apple for promoting violence and hate speech against marginalized groups, violating the platforms’ terms of service. After Parler refused to take action to stop the organizers of the insurrection at the Capitol on January 6th, it was removed from Apple’s App Store and Google’s Play Store until it agreed to implement tougher content moderation policies.

Applied to recent events, this section of the bill would allow RT to bring a complaint against Facebook or YouTube for removing its channels, because doing so “discriminates” against RT, a “similarly situated business.”

In spite of all these warnings and real life examples of what happens when harmful content is given a platform, the manager’s amendment doesn’t even attempt to address the problem. There is no rule of construction allowing the platforms to ban harmful content or malicious businesses. There is no tweak to the language to clarify the intended effects. The manager’s amendment did not change any aspect of the bill to protect platforms’ efforts to moderate content online.

Overall, the manager’s amendment does not change the biggest problems with the bill. It still would degrade products and services consumers use every day and would make the online space less safe for consumers. If the bill’s sponsors really want to avoid that damage, they should not focus on merely small tweaks that will destroy beloved products and services. The bill’s authors should go back to the drawing board.

The Chamber of Progress (progresschamber.org) is a new center-left tech industry policy coalition promoting technology’s progressive future. We work to ensure that all Americans benefit from technological leaps, and that the tech industry operates responsibly and fairly.

Our work is supported by our corporate partners, but our partners do not sit on our board of directors and do not have a vote on or veto over our positions. We do not speak for individual partner companies and remain true to our stated principles even when our partners disagree.

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