Google’s Criticisms Against Tech Antitrust Bill – Are They Valid?

Google is arguing that a bill proposed by U.S. Congress has the potential to compromise users’ safety, and damage such products as Search and Maps.

Known as the American Innovation and Choice Online Act (AICOA), bill S.2992 contains bipartisan legislation proposed by U.S Senators Amy Klobuchar (D-MN) and Senator Chuck Grassley (R-IA).

The intention behind the AICOA is to create a level playing field for businesses to compete online. It targets purported anti-competitive practices, such as a platform favoring its own products and services over competitors’.

Google claims the bill will do more harm than good. Royal Hansen, Google’s VP of Engineering for Privacy, Safety, and Security, penned a blog post earlier this week with a list of the company’s concerns regarding S.2992.

Do Google’s claims hold water? Let’s look at Google’s arguments and compare them with what’s outlined in the bill.

How Does The Antitrust Bill Harm Google & Others?

Google has four main arguments against bill S.2992:

  • It harms security by banning basic product integration.
  • It opens up Google’s products for exploitation by foreign companies.
  • It limits Google’s efforts to fight misinformation.
  • It doesn’t address valid security concerns.

Does The Bill Ban Product Integration?

Google doesn’t point to any specific verbiage within the bill that speaks to the banning of product integration, so I can only speculate what the company is taking issue with.

I believe Google is referring to section 3.1 of the bill, which states it will be unlawful for platforms to:

“Preference the products, services, or lines of business of the covered platform operator over those of another business user on the covered platform in a manner that would materially harm competition.”

Google could also be referring to section 3.2, which states it will be unlawful for platforms to:

“Limit the ability of the products, services, or lines of business of another business user to compete on the covered platform relative to the products, services, or lines of business of the covered platform operator in a manner that would materially harm competition.”

That could affect Google’s product integration, like how Search, Maps, and Business Profiles are all integrated, since companies with similar products can’t compete at the same level.

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Section 3.8 could be drawing the ire of Google as well, which will make it unlawful to:

“Materially restrict or impede covered platform users from uninstalling software applications that have been preinstalled on the covered platform or changing default settings that direct or steer covered platform users to products or services offered by the covered platform operator, unless necessary.”

That may impact how Google integrates its products, as it would have to grant users the ability to decouple Google’s applications from each other.

“I tend to agree with Google’s position,” Ericka Johnson, a Senior Associate with Squire Patton Boggs LLP specializing in cybersecurity, commented via email. “This legislation appears to have all of the best intentions – to promote more competition among large online platforms. [But] because the bill bans basic product integration, [Google] might not be able to secure its products by default.”

Ultimately, Johnson adds, “This could cause unintended consequences, particularly for those smaller businesses that may not have the resources to understand the nuances around defending against cybersecurity attacks other than relying on the default settings provided. ”

However, the bill does add that platforms could restrict users from uninstalling software “for the security or functioning of the covered platform.”

Does The Bill Allow Foreign Companies To Exploit Google’s Products?

Google says the bill will require companies to open their platforms to outside parties, potentially leading to exploitation by foreign companies looking to access data from American companies and citizens.

Google points to section 3.4 of the bill that says it will be unlawful to:

“Materially restrict, impede, or unreasonably delay the capacity of a business user to access or interoperate with the same platform, operating system, or hardware or software features that are available to the products, services, or lines of business of the covered platform operator that compete or would compete with products or services offered by business users on the covered platform.”

Whether this would have the impact Google describes is a matter of interpretation.

“While efforts to promote competition are generally good for the American economy and society, I think we need to be careful about … unintended consequences,” Johnson notes. “Cybersecurity is a national security issue and, particularly in light of the existing cybersecurity threats from Russia, among other countries, I think Congress must be careful not to weaken US-based online platforms.”

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Does The Bill Limit Google’s Ability To Fight Disinformation?

Google argues that S. 2992 will limit its ability to take action against malicious content, as the bill states that there must be “nondiscriminatory treatment.”

In making its argument, Google points to section 3.9 of the bill, which says it will be unlawful to:

“… in connection with any covered platform user interface, including search or ranking functionality offered by the covered platform, treat the products, services, or lines of business of the covered platform operator more favorably relative to those of another business user than under standards mandating the neutral, fair, and nondiscriminatory treatment of all business users.”

If Google were to lose the ability to “discriminate” against competitors by downranking them, it might be possible for entities to spread misinformation more easily.

Does The Bill Fail To Address Valid Security Concerns?

Here’s what Google says about the bill as it relates to “valid” security concerns:

“… the revised bill says that we don’t have to interoperate with or provide access to data to entities who pose ‘clear’ and ‘significant’ security risks. But this assumes that we know in real time which risks are significant, and could prohibit us from blocking moderate or emerging security risks that don’t obviously meet the bar of a ‘significant’ threat.”

In other words, Google argues the bill would prevent it from taking action on small threats before they become major security concerns.

“Threat actors are highly sophisticated,” Johnson adds, “and will look for every opportunity to exploit a weakness in an organization’s IT infrastructure.”

Section 2.2 of the bill does say tech platforms don’t have to accommodate entities that are a “clear national security risk.” However, I couldn’t find anything that explicitly restricts Google’s ability to moderate security risks that aren’t national concerns.

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The bill also lists affirmative defenses for violating any unlawful conduct outlined in the legislation. One of those defenses includes protecting user safety and privacy.

Technically, that means Google can block any entity it deems a security threat, as long as it can provide sufficient evidence of a risk to user safety.

Are Google’s Claims Valid?

Fellow tech giants — who would be subject to legislation if the AICOA is passed into law — echo Google’s concerns.

The Computer & Communications Industry Association (CCIA), for instance, has started a campaign called Don’t Break What Works to raise awareness of the potential impact of S.2992.

Proponents of the bill say critics are missing the mark and that the AICOA is designed to make it easier for small businesses to compete against large monopolies.

On the Morning Joe Show on Tuesday, Senator Klobuchar explained what she aims to accomplish by introducing the bill:

 “… what the bill does is it says if you’re going to sell stuff on your own platforms, then you can’t preference it over other competitive business products. Because that’s what they’re doing. They’re starting to buy thing after thing and basically outcompete, because they own the pipeline by which people are buying other competitors. That’s not fair capitalism. That’s when antitrust steps in.”

Senator Klobuchar’s office did not immediately respond to a request for comment.

What Happens If The AICOA Is Passed?

If congress passes the AICOA into law, it could impact many of the major tech platforms people use every day.

Users might see a scaled-down experience, for instance, as far as Google Search goes.

Google potentially wouldn’t be able to make its own products more visible than others, for instance, which means it couldn’t display a local pack of Google Business Profiles when searching for restaurants.

Search could look more like it did back in the day, when it was just ten blue links with a few ads at the top.


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