Archive – 2021-22

Dutch Competition Authority Rejects Apple’s Initial Proposal on App Payments Choice

Report from Bloomberg

In Brief – The Netherlands’ competition regulator has determined that Apple’s initial proposal to comply with their decision to allow dating apps distributed through the App Store to use alternatives to the Apple payments service is insufficient and will begin fining the digital giant at a rate of 5 million euros a day up to a total of 50 million euros. Apple had proposed to allow dating apps in the country to consider two alternative payments options or the current Apple payments service, but did not yet implement the proposal. Apple also said it would continue to appeal the ruling in court. In its statement accompanying the new fine, the regulator stated that Apple’s new system was not operational by the deadline and that forcing developers to choose between either the Apple service or a third party was not acceptable.

Context – This is one small flashpoint in the ongoing drama surrounding the fees Apple and Google charge app developers. They range from 15% to 30% for sales made through apps, with the biggest developers tending to pay at the 30% rate. Those fees are in line with many digital marketplaces. The fight over payments options is driven by the fact that Apple and Google both require apps distributed through their app stores to use their in-house payments service which automatically collects the platforms’ commissions. That simplifies bill collection and makes it hard to skirt fees. App developers have campaigned globally to overturn these payments service mandates. However, that debate is a distraction from the real issue, which is whether developers can convince government to mandate lower fees. Korea mandated app payments choice last year. Google has announced that they will allow payments alternatives in Korea, and developers that choose one will pay 4% less in fees to Google. For example, 26% rather than 30%. Google will collect the rest of the fee in some new way. Apple more recently proposed something similar in Korea, and now in the Netherlands too, although they have not yet said what their fee reduction will be in either case.

Four State AGs Adding to Law Enforcers Challenging Google Location Data Practices

Report from the Washington Post

In Brief – State Attorneys Generals from Washington D.C., Texas, Washington State and Indiana have filed suits alleging that Google has repeatedly engaged in deceptive practices to coerce users into sharing their location data through “dark pattern” tactics that they claim violate state consumer protection laws. The lawsuits, filed in the individual states, contend that the company made misleading promises starting in at least 2014 about its users’ ability to protect their privacy through account settings, while employing product designs to repeatedly nudge or pressure people to provide more and more location data. The services implicated include Google Search, Google Maps and YouTube. The company responded that the complaints were “based on inaccurate claims and outdated assertions” and that it has provided robust controls for users to protect and delete their location data.

Context – Location tracking is a ubiquitous aspect of smart phones. Google has faced similar charges in a number of forums in recent years, including by the Australia Competition and Consumer Commission, the Irish Data Protection Commission and the Attorney General of Arizona. In Arizona, Google has failed to have the AG’s case dismissed, but the Arizona judge also rejected AG Mark Brnovich’s motion for summary judgement. On the other hand, a federal consumer class action lawsuit filed in the US District Court for the Northern District of California on the same Google practices was dismissed in December 2019 for being too speculative and failing to identify any actual harms. The four recent AG suits focus on “dark patterns”, which cover a wide range of potentially manipulative coding and user interface practices from font and button sizes and colors to grammar, double-negatives and repeated prodding. While legislation in the US Congress has been proposed, it remains a longshot, but the European Parliament added a restriction on the use of dark patterns to its recently passed Digital Services Act, legislation that is highly likely to be enacted this year.

Google Challenges Australian Ruling That Search Links to Defamatory Stories are Defamatory

Report from The Guardian

In Brief – Google is appealing a decision of the State of Victoria’s court of appeals to Australia’s High Court that agreed with a 2020 trial court that found Google liable for $40,000 in damages to a lawyer, George Defteros, for allowing search results that included links to a 2004 article from the Australian newspaper The Age. The article in question implied that Mr. Defteros was a friend, confidant and co-conspirator with gangland figures and Google was responsible for not striking it from search after being asked. In 2016, Mr. Defteros’s lawyers asked Google to remove the article from search results but the company refused, claiming that The Age was a reputable source and that the notice filed by Defteros’s lawyers contained “false” claims. Google now warns the High Court that if the court of appeals’ judgment stands “Google will be liable as the publisher of any matter published on the web to which its search results provide a hyperlink” after a person complains that the online material defamed them, and such a liability regime will force the company “censor” search results.

Context – The application of defamation laws to widely used Internet services like social media and online search is an increasingly timely matter in Australia. The country, which is in the midst of implementing changes to its defamation laws, recently saw its High Court rule that news media companies are liable for defamatory online user comments posted to a media company’s Facebook pages in the same manner as they are responsible for printing traditional Letters to the Editor. That decision, which has led a number of sites to shut down use comments boards, has led PM Scott Morrison’s government to propose further amendments to the law specifying that social media users themselves are not liable for comments they are not aware of. In addition, the draft legislation aims to eliminate anonymity for some social media users, with Morrison claiming anonymity is abused by “trolls” and “cowards” to “say the most foul and offensive things.”

Senior Democrats Use Bill to Confirm That They Do Not Like Ad-Based Business Models

Report from The Verge

In Brief – Senior Democratic Members of Congress with a track record of activism on technology policy have introduced legislation in the US House of Representatives and Senate that proposes to ban nearly all digital advertising targeting. The Banning Surveillance Advertising Act from Reps. Anna Eshoo (D-CA), Jan Schakowsky (D-IL), and Sen. Cory Booker (D-NJ), prohibits digital advertisers from targeting any ads to users with limited exceptions to allow for broad location-based targeting, as well as contextual advertising linked to specific online content. (Like traditional TV and magazine ads.) Supporters are largely progressives who argue that online ills such as disinformation and extremism are worsened by advertising-based models they claim look to “drive engagement”. The bill grants authority to the FTC, state attorneys general and private lawsuits from users to enforce the restrictions.

Context – Top line, this bill is not going anywhere. It is a political statement of agreement with Frances Haugen’s claim that digital platforms like Facebook would be better if they were not trying to make so much money. But there are many privacy advocates truly committed to getting rid of “smart” or “targeted” advertising. (As if less effective, more expensive advertising is better for someone?) Facebook, obviously not a well-positioned advocate these days, has been the one large platform willing to defend targeted advertising as benefiting millions of small businesses who use it to find small numbers of relevant customers across the vast Internet despite individually small ad budgets. The European Parliament’s recent consideration of the Digital Services Act to regulate digital businesses, which is going to be enacted into law, included a showdown over behavioral advertising. The full body rejected calls to ban targeted advertising, instead amending the massive bill to prohibit advertising that targets children or people on the basis of their ethnicity, politics, beliefs, trade union membership, sexuality or health.

Google Appeals EU Court Defeat on European Commission Comparison Shopping Case

Report from Bloomberg

In Brief – In the latest legal maneuver in its longest-running battle with the European Commission’s Competition Authority, Google has appealed the recent decision of the EU’s General Court in Luxembourg to uphold the European Commission’s 2.4 billion euro fine in its “Comparison Shopping” case against the search giant. The EU’s investigation, which began in 2010, determined that Google changed its search engine algorithm to penalize comparison-shopping sites while, at the same time, providing a highly-preferenced place on its search results page to its own comparison-shopping service. Google was fined and ordered to provide comparison shopping sites the ability to compete for similar placement on its search engine results page as its own service. Google challenged the Commission’s fine, which was upheld by the EU General Court, the bloc’s second highest, and is now attempting to challenge that decision in front of the European Court of Justice, the EU’s top court, arguing that the General Court judges improperly substituted their own rationale for the Commission’s argumentation, as well as failing to appropriately apply the competition law governing “essential facilities”. While Google continues to appeal the fine and the legal reasoning of both the General Court and the Commission, it notes that it continues to provide a remedy to comparison shopping services that appears to satisfy the Commission.

Context – Unlike the other digital giants, Google is more than a decade into major EU competition cases on Search, Advertising and Android. The “Comparison Shopping” case, focused on the big issues of platform “self-preferencing” and “vertical search” abuses, was the first decided. The fact that it continues a decade later, and that vertical search competitors are quite disappointed with what they argue are ongoing Google abuses, is a driving force behind the EU’s Digital Markets Act “gatekeeper” legislation that aims to regulate the largest digital platforms rather than use case-by-case enforcement.

Effort to Derail Sohn Nomination to the FCC is Long-Shot Effort to Avoid Net Neutrality Rules

Report from ArsTechnica

In Brief – The long-delayed nomination of Gigi Sohn to join the Federal Communications Commission (FCC) as the body’s fifth commissioner, and more importantly the third Democratic commissioner, remains stalled in what is clearly a battle over Net Neutrality. Sohn is a long-time and highly respected champion of Net Neutrality (NN) and other progressive telecommunications policies. While her nomination is strongly supported by progressive groups, conservatives and broadband company advocates criticize her positions as overly regulatory. The Senate Commerce Committee held a hearing on Sohn’s nomination in December, and as expected, Republicans challenged her on a range of issues including a willingness to criticize conservatives on social media. Unlike other Biden Administration nominations to top telecommunications policy positions, including the extension of FCC Commissioner Jessica Rosenworcel and her nomination to be the FCC Chair, it is increasingly clear that broadband industry opponents of NN rules are throwing their weight behind delaying a Democratic majority by blocking Sohn, including calling for a new hearing based on criticism of her support for an over-the-Internet television venture intended to expand online access to free over-the-air TV signals.

Context – The partisan Net Neutrality divide, with Democrats supporting “strong” NN and Republicans objecting to mandates, is a political football that saw the Obama FCC enact landmark rules in 2015, which were overturned by the Trump FCC in 2017. President Biden campaigned in support of NN in 2020 and another FCC reversal has been fully expected. While Senate Democrats approving a pro-NN FCC Commissioner might have seemed a formality (filibuster rules don’t apply), in a 50-50 Senate it’s proving harder than anticipated. It turns out that Sen. Krysten Sinema (D-AZ) has been a rare Democratic NN skeptic and is a potential roadblock who is garnering lobbying interest from broadband giants.

Epic Games Files Appeal to Overturn Rejection of Their Apple App Store Antitrust Case

Report from Bloomberg

In Brief – As fully expected since Judge Yvonne Gonzalez Rogers delivered her ruling that largely rejected Epic Games’ federal antitrust complaint against Apple, the giant game developer has filed its appeal with the Federal Ninth Circuit Court of Appeals. Epic is directly challenging the judge’s ruling that it had failed to prove that Apple’s App Store was a monopoly, or that the phone giant was using its App Store rules and payments policy in ways that violated federal antitrust law, drove up fees and smothered competition. The initial trial was not a complete win for Apple, with Gonzalez Rogers pairing her 185-page vindication of Apple on the federal antitrust complaints with a one-page order based on California consumer protection law requiring Apple to end a range of “anti-steering” practices to keep developers from allowing users to buy digital content outside of their apps and Apple’s payment system. Apple appealed that order, and their motion to stay the changes pending their appeal was upheld by the Ninth Circuit Court of Appeals.

Context – Gonzalez Roger’s language shows that while she found federal antitrust law was with Apple, she is no fan of their business. When she rejected Apple’s motion to stay her order, she pulled no punches, accusing Apple of “incipient antitrust conduct including supercompetitive commission rates resulting in extraordinarily high operating margins.” Ouch. And they won! Epic is building their appeal on that narrative. However, the truth is that fighting over “payments” is a phony debate. The issue is fees. Korea, which mandated app payments choice last year, is showing where this fight is now going. Google announced last fall that they will allow payments alternatives in Korea, and developers that choose one will pay 4% less in fees to Google. For example, 26% rather than 30%. Google will collect the rest of the fee in some new way. Apple is also proposing something similar in Korea, and now in the Netherlands too. Attempts to regulate fees might soon overtake the court fight over payments.

Silicon Valley Founders Funding Anti-Big Tech Antitrust Advocacy Campaign

Report from the Washington Post

In Brief – Targeted antitrust legislation that aims to block Amazon, Apple, Google, Meta, Microsoft and a few Chinese giants from preferencing their own products and services that compete on their platforms against offerings from other businesses, is being backed by a new advocacy group funded by progressive tech entrepreneurs who used to hold key leadership roles at Facebook and eBay. The Tech Oversight Project, led by a veteran Democratic Party political official, is being funded by Pierre Omidyar’s Omidyar Network and Chris Hughes, an early Facebook leader and former Harvard classmate of Mark Zuckerberg, who has publicly called for the social media giant to be broken up. The group aims to use “campaign-style” tactics to counter the efforts of advocacy organizations supported by the tech giants opposing the legislation, such as the increasingly high profile Connected Commerce Council, and adds to the ongoing efforts of a few dozen small and mid-size tech firms including Yelp, Sonos and DuckDuckGo publicly championing the bill. The Omidyar Network, the philanthropic and activism organization created by the billionaire eBay-founder who no longer holds a role with the ecommerce platform, was also a key supporter of the strikingly professional global media and political campaign backing Frances Haugen, the “Facebook Whistleblower” calling for social media regulation.

Context – Sometimes a lobbyist says something so spot on that it must be called out and noted. Sacha Haworth, the Tech Oversight Project’s leader, defended the group’s focus on antitrust legislation rather than Sec. 230 reform or social media content moderation saying “Ultimately, we’re never going to get bipartisan agreement on it… Republicans want less oversight over content, and Democrats want more oversight over the content. … We’re at an impasse.” She’s right. If there will be bipartisan agreement on Big Tech regulation in the US Congress, it is far more likely on antitrust. That said, it’s an uphill prospect due primarily to Republican uncertainty over regulatory overreach.

The European Parliament Passes the Digital Services to Overhaul Platform Content Moderation

Report from Euractiv

In Brief – The European Parliament has overwhelmingly approved the Digital Services Act (DSA), legislation to establish new EU-wide standards for how digital platforms operate, including for the policing of objectionable content and restrictions on advertising and data practices. The Parliament departed from the European Commission’s draft on issues including imposing stricter controls on the use of personal data, protections for freedom of speech, and protecting online anonymity in some situations. Tightening restrictions on behavioral advertising was also a key issue that divided the Parliament. The full body eventually rejected the calls of many privacy advocates to completely ban targeted advertising, but they instead propose prohibiting advertising that targets children or people on the basis of their ethnicity, politics, beliefs, trade union membership, sexuality or health. The final measure also bans “dark patterns” that attempt to manipulate users to circumvent their privacy and security intentions.

Context – The European Parliament passed their version of the DSA on the same day that the Senate Judiciary Committee reported out the American Innovation and Choice Online Act antitrust reform bill (which, by the way, is more topically aligned with the EU’s Digital Markets Act, or DMA, which imposes new regulations on large digital “gatekeepers”). The most important thing to keep in mind is that the DSA and DMA are almost certain to become the law in the European Union in the next year. They next go through the EU’s unique “Trilogue” negotiations between the EU Commission, the Council of EU Member-States and the EU Parliament to determine each law’s final text, but that is going to happen. It is a very different situation with the US legislative process for any of the major digital policy issues, whether antitrust, content moderation, Sec. 230 or privacy, which remain very much up in the air. This is why the DSA and the DMA should be top of time for anyone who cares about digital platform policy.

State Attorneys General File Appeal to Overturn Dismissal of their Facebook Antitrust Case

Report from CNBC

In Brief – A coalition of State Attorneys General from 47 states and the District of Columbia has filed an appeal of last June’s unexpected decision by Federal Judge James Boasberg to dismiss outright the State AGs’ federal antitrust complaint accusing Facebook of anticompetitive conduct. Like a parallel complaint filed by the Federal Trade Commission, the State AGs focused on Facebook’s acquisitions of Instagram (2012) and WhatsApp (2014), portraying them as illegal efforts to shutdown nascent social media competitors, and called for the acquisitions to be unwound. Judge Boasberg granted Facebook’s motions to dismiss against both the FTC and State AG complaints. While the FTC was given an opportunity to amend their complaint to address technical shortcomings, a process that recently saw the judge allow the amended FTC case to proceed, the State AGs’ lawsuit was dismissed in its entirety on the grounds that the AGs had waited too long after the acquisitions to bring their legal claims. The AGs are arguing to the Federal Court of Appeals for the District of Columbia that states should not be held to the same time limits as private antitrust plaintiffs.

Context – When the Federal Government and State AGs filed major antitrust suits against Google and Facebook in late 2020, it seemed like the Facebook complaints were more clear-cut. Nearly every State AG was on the same lawsuit, and the FTC’s arguments paralleled the states’ case. On the Google front, four suits from a mix of complainants covered search, advertising and the Play Store, appearing far more chaotic. But Judge Boasberg’s dismissals sent a clear message that legal precedents and judges will have a major impact on the antitrust process in the US, writing in his FTC dismissal that “It is almost as if the agency expects the court to simply nod to the conventional wisdom that Facebook is a monopolist.” The FTC’s case is now back on the rails, but it will be a challenging case arguing that TikTok and YouTube are not Facebook competitors. And the State AGs will be years behind the process at best.

Senate Committee Sends Shot Across Big Tech’s Bow by Passing Anti-Preferencing Bill

Report from the Wall Street Journal

In Brief – The Senate Judiciary Committee reported out an aggressive piece of antitrust legislation intended to block the largest digital platforms from preferencing their own products and services competing against offerings from other businesses on their platforms. The American Innovation and Choice Online Act (S. 2992), with a bipartisan 16-6 vote, is the first Big Tech antitrust bill passed out of a Senate Committee in the 117^th Congress, seven months after the House Judiciary Committee passed four major Big Tech antitrust bills. One noteworthy change made by the bill’s sponsors to help move the measure through committee was to expand the scope of the bill to cover non-US digital giants, effectively adding the largest Chinese-based digital platforms like Tencent, Alibaba and ByteDance to the US roster of Amazon, Apple, Google, Meta and Microsoft. Although technically the bill can now proceed to the Senate floor, like in the US House of Representatives, there remain hurdles related to scheduling as well as whether there are really enough votes to pass the bill.

Context – While S. 2992 passing Senate Judiciary is a big deal, the $64,000 Question is how likely is it to pass the full Congress this year? We say still less than 50:50. At the end of the day, getting enough Republican support for such a regulatory bill will be hard. But make no mistake, Republicans are genuinely very upset about what they believe is Big Tech’s ideological bias and when bills like S. 2992 are moving, it raises the pressure on those tech giants. But Republican concern with empowering federal enforcers, including the FTC, with such broad power over tech giants is equally sincere. Many Republicans, including some who voted for the bill in committee, expressed those concerns in the hearing. Like in the House, a few Democrats, such as from California, and bureaucracy-wary Republicans, might end up halting the measure before it gets a floor vote. But its odds are still much better than Sec. 230 changes, which are going nowhere.

Dutch Regulator Vetting Apple’s Proposal to Allow Some Payments Choice for Dating Apps

Report from Reuters

In Brief – The Netherlands’ competition regulator will begin vetting Apple’s proposal to comply with the regulator’s recent decision to allow dating apps distributed through the App Store to use alternatives to the Apple payments service. Apple has announced that they intend to allow dating apps distributed through the Netherlands App Store to choose from two alternative payments options along with the current Apple payments service. Apple continues to argue that the regulator’s decision is not in the interest of its users and therefore they are pursuing an appeal through the courts. They also announced that they will not be able to handle some services such as customer refunds when a developer chooses to use an alternative payments service. Finally, Apple made it clear that app developers choosing to “link out or use a third-party in-app payment provider will pay Apple a commission on transactions.”

Context – Apple and Google charge app developers fees that range from 15% to 30% for sales made through apps sold through their app stores, commissions in line with many digital marketplaces. They have each required apps to use their in-house payments service which automatically collects the platforms’ fees, simplifying bill collection and avoiding circumvention. App developers have campaigned globally to overturn these payments service mandates. However, handling payments is not the justification for the full fees. Building and maintaining the operating system and app marketplaces is the justification. Korea, which mandated app payments choice last year, is showing where this fight is now going. Google announced last fall that they will allow payments alternatives in Korea, and developers that choose one will pay 4% less in fees to Google. For example, 26% rather than 30%. Google will collect the rest of the fee in some new way. Apple is also proposing something similar in Korea, and now in the Netherlands too. It is not yet clear how much the Apple commission will be reduced when an alternative is used. But expect app developers to be upset by a Google-like 4% drop in Apple fees.

Nigeria Ends Seventh-Month Twitter Ban as Company Agrees to Policy Changes

Report from the New York Times

In Brief – After a seven-month standoff during which the Government of Nigeria banned Twitter for content moderation decisions that culminated with the platform deleting a controversial tweet made by the country’s President, in which he threatened to punish secessionists, as well as temporarily freezing his account, the company has agreed to a series of in-country business operations changes and the service has been restored. Twitter commitments include establishing an office in the country, paying corporate taxes, and appointing a representative to engage with authorities. While Nigeria’s telecom companies implemented the government’s June order, largely blocking direct access to the platform, many Nigerians reportedly employed VPNs to bypass the domain restrictions. A September report had indicated that the government had ten demands to restore Twitter, three of which were not yet met.

Context – Nigeria’s Twitter ban has not been a standalone government effort to restrict the influence of social media in Africa. The Ugandan Government shutdown the entire Internet in the country for a week last January surrounding the country’s national elections, many social media sites remained blocked for nearly a month, and Facebook, which was widely used by the political opposition, was blocked through June. Facebook, Instagram and WhatsApp were also subject to a shutdown in Ethiopia. However, while government efforts to control disruptive social media sites are on the rise in Africa, it is simply in line with global trends. Look to Russia, Turkey, India and a collection of regimes in Central Asia, with all of them looking up to China as the model of comprehensive digital communications control. Finally, some free speech advocates are willing to point out that when Western governments regulate social media platform content moderation, such as through the proposed UK Online Safety Bill or EU Digital Services Act, it empowers repressive regimes to engage according to their tastes in online speech.

Google Offers to Drop the News Showcase Box from General Search in Germany

Report from Reuters

In Brief – In a unique twist to the global media payments saga, the Bundeskartellamt, the German competition authority, has reported that Google has offered to remove the Google News Showcase from its search engine results page. The Google News Showcase is a curated media content service created by Google in 2020 to help address criticism from media companies and their friends in government that its search and digital advertising dominance was unfairly harming the media industry. While media companies called for payment when their content appeared in search results, a process Google strongly rejected, the company pledged $1 billion to pay media companies to use content in specialized services, with its News Showcase as the highest profile example. While Google has signed up hundreds of media companies to the paid program, including in Germany, the Bundeskartellamt raised concerns that paying some media companies, but not all, could create a range of anticompetitive incentives, including that media companies might join the program in the hope of getting better treatment in Google search.

Context – The effort to squeeze payments for media companies out of Google (and now Facebook) goes back years because the Internet turned the media business model upside down early on. While France and Australia have been the most aggressive in recent years, Germany and Spain were unsuccessful early aggressors. Both Google and Facebook now operate large media services that pay for licensed content to forestall efforts to force payments for search results and user-posted links. Google’s experience with France, the first EU country to enact “neighboring rights” for media snippets, has been rocky, with France’s antitrust authority ordering Google to negotiate deals with publishers in April, and then fining the company 500 million euros in July for not negotiating in good faith. Facebook is now heading down the same path. And both companies threatened to shut down key services in Australia before a truce was engineered last year.

Federal Judge Allows Revised FTC Antitrust Case Against Facebook to Proceed

Report from CNBC

In Brief – Federal Judge James Boasberg, who shocked most legal and tech policy observers in June by granting Facebook’s motions to dismiss against the high-profile antitrust complaints filed by the Federal Trade Commission (FTC) and a large coalition of State Attorneys General, has now ruled that the amended complaint from the FTC can proceed. Judge Boasberg rejected the State AGs authority to challenge the Instagram and WhatsApp acquisitions so many years after the fact, but his criticism of the FTC focused on what he saw as a lack of substance and data to back up their claims. The FTC’s amended complaint put more heft behind the allegation that Facebook is a “personal social networking” company who’s top competitor is Snapchat, that giant platforms like TikTok, YouTube, LinkedIn, Twitter and Pinterest operate in different markets, and added data showing that Facebook has held at least an 80% share of that market since 2012. On other points, both sides suffered setbacks. The judge rejected Facebook’s argument that FTC Chair Lina Khan should be recused (certain to be analyzed by Amazon), while he did dismiss one of charges in the FTC case, ruling that the FTC couldn’t move forward with allegations that the company used strong-arm tactics to weaken competitors.

Context – Judge Boasberg granting the initial motions to dismiss was always a bit out of left field and it never seemed he thought the FTC rejection would stand. Now, like in many antitrust cases, defining the market Facebook operates in will prove key. If the relevant market is “personal social networking,” which seems to read as being social media services designed like Facebook and not like TikTok or YouTube, then Facebook is dominant and the case flows from there. Facebook argues that their business is digital advertising and they compete with other social media giants for user attention and advertiser dollars. They claim they are not remotely dominant in that market. By the way, the State AGs are appealing their dismissal. The court process for all of this is expected to take years.

Apple Submits Payments Choice Plan in Korea (Shockingly, They Still Plan to Collect Fees)

Report from The Korea Herald

In Brief – The Korean Communications Commission (KCC) has announced that Apple intends to allow apps distributed through the App Store in South Korea to use payments alternatives to Apple’s service. The intention is to bring the company into compliance with the app payments law enacted last August that bans Google and Apple from forcing app developers to use their proprietary payments services for in-app purchases. Apple has indicated to the regulator that it plans to allow app developers to choose from alternative payment services and those apps will be charged a reduced commission compared with Apple’s current 15 or 30 percent rate. The level of the fee reduction has not been released. In addition, it is not yeat clear when Apple plans to have the new payments regime go into effect.

Context – It has become increasingly clear that Apple, like Google, would need to develop a new way to collect the commissions they charge app developers who generate revenue by making digital sales over their mobile operating systems. App developers, led by Epic Games, but including a handful of other large businesses, have focused their lobbying and legal efforts on overturning Apple and Google policies that require developers to use their proprietary payments services. However, a key point is that those payments services are the bill collection method used by the platform, not the reason for the fees. They allow both platforms to conveniently collect fees while avoiding circumvention, cheating and late payments. The developments in Korea are noteworthy because Google has announced that they will allow payments alternatives. But that does not mean an end to fees. Instead, they will reduce fees by 4 percent. For example, 26% rather than 30%. They will collect the rest in a new way. As we’ve been predicting for months, Apple now appears to be doing the same. Epic Games’ angry reaction to the new Google payments and fee policy illustrates that their goal is for courts or regulators to simply force lower fees. Apple creating an alternative fee collection system should make that even more clear.

Facebook Faces Suit Claiming Algorithm Led to Killing of Law Enforcement Officer

Report from the New York Times

In Brief – Meta (Facebook) has been sued by the sister of a federal government security guard who was killed in a drive-by shooting in late May 2020 while stationed outside a government building. The alleged assailants are said to be extremists who conspired to shoot government law enforcement officers to stoke racial hatred and social discord in the midst of the racial justice demonstrations that swept the country following the killing of George Floyd. The complaint alleges that Facebook’s algorithms connected the assailants by recommending that they consider joining Groups that were based on racial hatred ideals, and that once they were communicating with each other the men hatched the plot that led to the shooting. Facebook has responded that it has banned more than 1,000 militarized social movements, works with experts to combat Internet radicalization, and the case is without legal merit.

Context – This lawsuit is noteworthy for attempting to circumvent Sec. 230 by making the argument that company “algorithms” are distinct from user content and company content moderation. Think of it along the lines of a May 2021 decision by the Federal Ninth Circuit Court of Appeals that Sec. 230 does not protect Snap from facing a claim of negligent product design from the parents of teenagers who died in a fatal high-speed car accident that occurred while Snapchat’s “Speed Filter” tool was being used. Congressional Democrats have taken up the algorithm issue as well, introducing legislation to strip Sec. 230 protections from platforms when content is recommended or promoted by an algorithm. This was a key charge made by Frances Haugen, the Facebook Whistleblower. Republicans have been reticent as the problems cited by Democrats focus on ideological divisions including the pandemic policies, election processes, vaccines and climate change. An alternative work-around to circumvent Sec. 230 preferred by Republicans is increasingly to argue that the large platforms are common carriers and should be required to treat all “legal” content and users the same.

Leading Progressive Democrats Criticize Google for Challenging DoJ Antitrust Chief

Report from CNBC

In Brief – Sen. Elizabeth Warren (D-MA and Rep. Pramila Jayapal (D-WA) have called on Google’s CEO to stop the company’s campaign to “bully” Department of Justice (DoJ) antitrust chief Jonathan Kanter into recusing himself on antitrust matters related to the search and digital advertising giant. Warren and Jayapal are two of the highest profile progressive Democrats in the Congress and each champion major antitrust reforms aimed at restricting the business practices of the largest digital giants, as well as support the antitrust complaints filed by the federal government and state AGs against both Google and Facebook in 2020. Kanter, who is one of the trio of high-profile advocates of aggressive antitrust action targeting the tech giants named to top positions in the Biden Administration, worked in private practice for years on behalf of digital companies that have been some of Google’s most vocal antitrust critics. Following his confirmation by the Senate, Google requested the DOJ review whether he should be recused from cases and investigations involving its business.

Context – Google raising questions about Kanter’s ability to be impartial follows similar recusal efforts by both Amazon and Facebook at the Federal Trade Commission which is now led by noted antitrust reform advocate and tech critic Lina Khan. There were no doubts about the views of Kanter or Khan on tech antitrust matters when they were nominated and confirmed to their positions, which included support from some Republicans. At the FTC, Khan has not recused herself and the Commissioners have not voted to recuse her. In their letter to Google, Warren and Jayapal argue that Kanter’s work for past clients who are not party to the DoJ case against Google does not meet the standard for recusal in the DoJ. However, some have noted that Sen. Warren called for previous DoJ antitrust chief Makan Delrahim to recuse himself from the investigation of AT&T’s proposed acquisition of Time Warner based on comments he had made prior to taking office.

Facebook Criticized Across Political Spectrum for Banning Far-Right Polish Political Party

Report from Politico

In Brief – Meta (Facebook) has banned the main Facebook page of the Polish Confederation party, one of the largest political parties on the far right, for ongoing violations of the platform’s content policies. The platform said that the page administrators has been warned repeatedly and the action was based on spreading false claims about face masks, the mortality rate of coronavirus compared with the flu, the effectiveness of vaccines, and for attacking people on the basis of protected characteristics including national origin and sexual orientation. The party is said to have enjoyed great success on Facebook due to claims that Facebook’s algorithms preference highly incendiary posts. The social media giant was swiftly criticized from across Poland’s political spectrum, including by the conservative but less extreme Law and Justice party that leads the government and supports limiting the authority of social media platforms to restrict legal speech.

Context – When social media platforms kicked then-President Donald Trump off their platforms, many European leaders criticized them. The issue was not “censorship”, free speech or biased online content standards, but who sets the standards. The prevailing view of government leaders in Europe, from Left to Right, is that government should. The EU’s Digital Services Act is designed to better achieve that goal. As a leader of Poland’s Together Left party said in criticizing Facebook’s action, “Public health should be protected from harmful disinformation, but this should be done by public institutions under the control of the EU, not corporate monopolists!” Populist governments in Poland and Hungary are likely to continue paralleling Republican leaders from Florida and Texas in trying to block what they claim is progressive content bias by Silicon Valley-based platforms. And the US Constitution’s First Amendment is likely to preclude an EU-style standard setting route in the US and protect the right of platforms to restrict content, including by government officials (like Marjorie Taylor Greene).

French Privacy Regulator Continues Cookie Campaign Fining Google and Facebook €210 million

Report by Reuters

In Brief – The French Privacy Authority (CNIL) has fined Google €150 million and Meta (Facebook) €60 million for failing to allow French users to easily reject online cookies. The companies also face a daily penalty of €100,000 if they have not addressed the CNIL concerns within three months. Like with their similar regulatory actions taken against Amazon and Google in December 2020, the CNIL is basing their orders on the EU’s e-Privacy Directive rather than the General Data Protection Regulation (GDPR). The GDPR includes the controversial “One Stop Shop” policy that empowers the privacy authority of the country where a company has its EU Headquarters as the primary privacy regulator. Both Google and Facebook are based in Ireland, limiting the authority of the French regulator under the GDPR. However, the e-Privacy Directive is not governed by the One-Stop-Shop process, allowing the French regulator to take actions without deferring to the Irish Data Protection Commission (IDPC). The CNIL has now imposed €350 million in penalties based on cookie policies and warned more than 90 additional companies about their lack of compliance, focusing on two primary violations: failing to allow users to refuse cookies as easily as it is to accept them, and placing cookies on people’s devices before they even have a chance to accept or refuse them.

Context – Many privacy advocates have blamed the One Stop Shop policy for a lack of major penalties hitting big tech companies under the GDPR. The IDPC has faced especially harsh criticism. Last year, EU Commissioner Vera Jourova publicly called on other privacy regulators to stop openly criticizing the IDPC and work cooperatively. The “One Stop Shop” also took a hit last June from the EU’s top court which ruled that the other data protection authorities have some flexibility to initiate judicial proceedings under the GDPR. The relationship between home state regulators, other Member States and Brussels will be an issue as final versions of the Digital Markets Act and Digital Services Act are wrapped in 2022.

Facebook Faces Suit Claiming Algorithm Led to Killing of Law Enforcement Officer

Report from the New York Times

In Brief – Meta (Facebook) has been sued by the sister of a federal government security guard who was killed in a drive-by shooting in late May 2020 while stationed outside a government building. The alleged assailants are said to be extremists who conspired to shoot government law enforcement officers to stoke racial hatred and social discord in the midst of the racial justice demonstrations that swept the country following the killing of George Floyd. The complaint alleges that Facebook’s algorithms connected the assailants by recommending that they consider joining Groups that were based on racial hatred ideals, and that once they were communicating with each other the men hatched the plot that led to the shooting. Facebook has responded that it has banned more than 1,000 militarized social movements, works with experts to combat Internet radicalization, and the case is without legal merit.

Context – This lawsuit is noteworthy for attempting to circumvent Sec. 230 by making the argument that company “algorithms” are distinct from user content and company content moderation. Think of it along the lines of a May 2021 decision by the Federal Ninth Circuit Court of Appeals that Sec. 230 does not protect Snap from facing a claim of negligent product design from the parents of teenagers who died in a fatal high-speed car accident that occurred while Snapchat’s “Speed Filter” tool was being used. Congressional Democrats have taken up the algorithm issue as well, introducing legislation to strip Sec. 230 protections from platforms when content is recommended or promoted by an algorithm. This was a key charge made by Frances Haugen, the Facebook Whistleblower. Republicans have been reticent as the problems cited by Democrats focus on ideological divisions including the pandemic policies, election processes, vaccines and climate change. An alternative work-around to circumvent Sec. 230 preferred by Republicans is increasingly to argue that the large platforms are common carriers and should be required to treat all “legal” content and users the same.

Leading Progressive Democrats Criticize Google for Challenging DoJ Antitrust Chief

Report from CNBC

In Brief – Sen. Elizabeth Warren (D-MA and Rep. Pramila Jayapal (D-WA) have called on Google’s CEO to stop the company’s campaign to “bully” Department of Justice (DoJ) antitrust chief Jonathan Kanter into recusing himself on antitrust matters related to the search and digital advertising giant. Warren and Jayapal are two of the highest profile progressive Democrats in the Congress and each champion major antitrust reforms aimed at restricting the business practices of the largest digital giants, as well as support the antitrust complaints filed by the federal government and state AGs against both Google and Facebook in 2020. Kanter, who is one of the trio of high-profile advocates of aggressive antitrust action targeting the tech giants named to top positions in the Biden Administration, worked in private practice for years on behalf of digital companies that have been some of Google’s most vocal antitrust critics. Following his confirmation by the Senate, Google requested the DOJ review whether he should be recused from cases and investigations involving its business.

Context – Google raising questions about Kanter’s ability to be impartial follows similar recusal efforts by both Amazon and Facebook at the Federal Trade Commission which is now led by noted antitrust reform advocate and tech critic Lina Khan. There were no doubts about the views of Kanter or Khan on tech antitrust matters when they were nominated and confirmed to their positions, which included support from some Republicans. At the FTC, Khan has not recused herself and the Commissioners have not voted to recuse her. In their letter to Google, Warren and Jayapal argue that Kanter’s work for past clients who are not party to the DoJ case against Google does not meet the standard for recusal in the DoJ. However, some have noted that Sen. Warren called for previous DoJ antitrust chief Makan Delrahim to recuse himself from the investigation of AT&T’s proposed acquisition of Time Warner based on comments he had made prior to taking office.

DuckDuckGo Charges Google with Anticompetitive Dark Patterns Intended to Dent Its Growth

Report from the Washington Post

In Brief – The CEO of DuckDuckGo, the fourth most popular search engine in the US, is accusing Google of using “dark patterns” in the Chrome browser, a generalized term to describe deceptive design tactics, to prod consumers to reject his company’s service. Google’s Chrome is the top Internet browser and Google search has a dominant market share outside China and Russia. DuckDuckGo has alleged for years that Google uses misleading notifications to prompt users to disable the “browser extensions” that allow a user to shift the default search engine from Google to DuckDuckGo. CEO Gabriel Weinberg claims that Chrome changes from August 2020 that more aggressively question users about their intention to change search engines have caused 10% more users to switch back. Weinberg supports antitrust legislation targeting Google and the other digital giants. Google’s response is that Chrome empowers users to easily change their default search engine but many users claim their settings are changed without their knowledge.

Context – Champions of digital platform regulation have proposed dark pattern legislation for years. One challenge is that the range of potentially manipulative coding and user interface practices is so varied that it can descend into potentially regulating everything from font and button sizes and colors to grammar and double-negatives on all sites and services. It is highly case and fact specific. To get a sense, review this consumer group report on how Amazon dissuades people from cancelling their Prime memberships. Such detailed design questions don’t lend themselves to court decisions, but instead fit a regulatory model more like that envisioned by the EU’s Digital Markets Act or the UK’s Digital Markets Unit. Think of regulators in a sort of co-pilot role with large platforms on technical product decisions. For example, Google and the UK Competition and Markets Authority recently agreed that the regulator will oversee the development of the Privacy Sandbox changes in the technical treatment of third-party cookies in Chrome.

India’s Competition Authority Joins the Regulatory Herd Investigating Apple’s Payments Policy

Report from the Wall Street Journal

In Brief – The Competition Commission of India (CCI) has tentatively determined that a range of Apple policies imposed on app developers, including the requirement to use the Apple payments service to process paid apps and in-app digital purchases, likely violate Indian competition law. The regulator has therefore opened an investigation with the intent to make a full report in 60 days. The CCI opened a similar investigation into Google’s app store payments policy in November 2020.

Context – The CCI’s action targeting Apple’s payments policy is notable because Apple’s share of the mobile phone operating system market in India has always been so low, below 4% in October 2021. By comparison, Apple’s market share in country’s where regulators have taken some action include in 66% in Japan, 45% in the Netherlands, 36% in the EU and 28% in Russia. In the United States, where Apple prevailed over Epic Games in federal court on charges that it’s App Store is a monopoly, Apple holds 47% of the market. Google has been the one in the spotlight in markets like South Korea and India because its market shares are so high there. The most important point to keep in mind is that the large app developers do not really want payments choice, they object to the Apple and Google fee levels that often reach 30 percent. They want lower fees. It is instructive to look to the developments in South Korea where legislation requiring payments choice was enacted last year. Google has announced that they will allow alternative payments systems but that does not mean an end to fees. Instead, they will reduce fees by 4 percent but collect the rest in a new manner. Apple has indicated they would likely do the same if pressed. If regulators in markets like India are pushing Apple on payments, it is clear that the company will need to change their fee collection and billing systems. But Epic Games’ angry reaction to the new Google policy illustrates that their goal is just for courts or regulators to force lower fees. At least that should be more clear in 2022.

The FTC is Planning Privacy and Algorithmic Decision-Making Rulemaking in 2022

Report from TechCrunch

In Brief – A regulatory notice from the Office of Management and Budget indicates that the Federal Trade Commission (FTC) is preparing to kick-off a rulemaking process to regulate digital platforms on high profile issues including privacy and algorithmic decision-making. Titled the “Trade Regulation Rule on Commercial Surveillance,” the notice mentions data security, privacy abuses and algorithmic decision-making that could lead to unlawful discrimination, and would be grounded in Section 18 of the Federal Trade Commission Act regarding unfair or deceptive trade practices. There is no public draft of the rule and no indication of how far along the planning process has proceeded.

Context – If the Democrats and Republicans were ever close to being on the same page to increase regulatory oversight of digital companies, that alignment appears to be fraying. The FTC has had a more partisan and divisive tone under the leadership of antitrust activist Chair Lina Khan. The FTC currently has just four commissioners (with Democratic Commissioner Rohit Chopra departing the agency on October 8th to take over as CFPB Director), and the nomination of Alvaro Bedoya was reported out of the Senate Commerce Committee on a tied vote with all Republicans in opposition. The Senate adjourned in December without voting on the nomination, and Bedoya was technically re-nominated this week by President Biden as required at the start of a new congressional session. Having the FTC, already under fire from Republicans and business groups for regulatory overreach, step into high profile and divisive policy issues like privacy when Congress has failed to find common ground, is likely to exacerbate divisions. At the FCC, which also has just four commissioners and only two Democrats, Gigi Sohn has likewise been renominated for the new year. She faces opposition from Republicans who oppose the expected FCC effort to restore Net Neutrality rules once there are three Democratic commissioners in place.

Three Focused 2022 Preview Deep-Dives (Weekend Reading)

There is a lot to look forward to on digital platform policy in 2022 that is off the beaten path of the daily news dominated by the platform giants. The three links below are worth a scan, especially armed with the associated PEI Insights.

Tech Policy in the US States – Report from Axios

Give this one a read. It is a brief overview on the prospects for 2022 state action on Privacy Legislation, App Store Regulation, Social Media “Censorship” Bills, Digital Taxation, and Cybersecurity.

PEI Insights: Privacy – As we saw in VA and CO in 2021, when Democrats are willing to drop private class action litigation, state privacy bills are doable. App Store Regulation – App developers don’t really want “payments choice” from Apple and Google, they want lower fees, so the platforms should just institute new billing systems to dispense with the phony issue. Social Media “Censorship” – Republican-dominated states will keep passing bills that Federal courts will keep blocking. Digital Taxes – Here at PEI we are excited to see how the courts deal with Maryland’s digital ad services bill that seems to clearly violate federal law. Cybersecurity – We wish they had included Gig work regulation instead.

Gig Work Regulation – Report from Bloomberg

As this overview illustrates, much of the Gig work regulation and worker classification news in the US is likely to be happening in relatively targeted and narrow court and regulatory arenas, rather than major high profile legislative fights.

PEI Insights: In the US, if there is a big political battle, expect it in Massachusetts with a sort of replay of the California Prop. 22 ballot initiative. Watch for more cities to regulate restaurant delivery apps along the model of New York and San Francisco. Finally, the most important developments will continue to come from Europe, with both court decisions and the European Commission’s effort to update labor standards for Digital Labor Platforms.

US Antitrust Law and Enforcement – Report from Constantine Cannon LLP

More a legal overview memo than opinion piece, the authors set the table on the Big Tech Antitrust Bills in the US Congress, the ongoing Epic Games v Apple court battle, the FTC v Facebook antitrust case, Merger Enforcement and a couple of less tech-focused issues, but refrain from bold predictions. We’ll be less shy.

PEI Insights: There will be a lot more anti-Big Tech antitrust talk in Congress but odds are stacked against major changes (the big stuff is happening in Europe). The pace of activity in the Epic v Apple legal battle will slow as Apple successfully fights off the mandate to open payments. We think the FTC will not see their amended complaint against Facebook tossed (again), although it would make great news. Finally, the divergence between the US and Europe on Big Tech acquisitions of start-ups will become for apparent.

As Expected, German Competition Authority Determines That Google is a Dominant Platform

Report from Politico

In Brief – As completely expected since Germany amended its Competition Act last January to overhaul the regulation of the largest digital platforms, the Bundeskartellamt, the German competition authority, has announced that Google falls under the regulator’s new legal authority to proactively address competition threats from the largest digital platforms. The new German regime rejects the traditional competition enforcement model of regulators investigating dominant businesses for anticompetitive abuses after they are accused of causing harms, a process criticized as too slow. The Bundeskartellamt is now authorized to identify digital companies “of paramount significance on competition across markets” and proactively establish rules to protect competition in the markets they occupy. Last year, the regulator opened proceedings to make that determination for Google, Facebook, Amazon and Apple.

Context – While Big Tech antitrust cases will plod ahead, the path of simply regulating digital platforms to address competition concerns is where the real action is. The most important is the march of the EU’s Digital Market Act (DMA). It aims to impose unprecedented regulatory mandates on “digital gatekeepers”. (See a chart of the DMA’s 18 “Do’s and Don’ts” here.) But the German regime, already in place, is a guide to how the regulatory model may work. Two things to keep in mind… First, a big issue facing the DMA has been the size and number of platforms covered. Some argued for the few largest, a model like the current German regime. But it looks like the DMA will cover a wider scope of platforms, maybe 20-to-30 in number, meaning smaller companies. Second, look to the recent agreement between Google and the UK Competition and Markets Authority (CMA) for an operational model. The CMA will work with Google on the development of its Privacy Sandbox plan to end 3rd party cookies in Chrome to certify it does not discriminate against competitors. Regulators will sit in a sort of co-pilot role in terms of the company’s technical product decisions.

UK Competition Court Releases Outline of Facebook’s Appeal of CMA Order to Sell Giphy

Report from Reuters

In Brief – The UK Competition Appeal Tribunal (CAT), the country’s special competition law court, has released a summary of the Meta (Facebook) application to challenge the Competition and Markets Authority (CMA) finding that Facebook’s acquisition of GIF platform Giphy will significantly lessen competition in the UK and that unwinding the deal is the only effective remedy. In late November, after more than a year of review, the CMA rejected Facebook’s $315 million acquisition of the New York-based startup that operates the largest online GIF marketplace. The regulator argues that Giphy was a nascent digital advertising services provider that could emerge as a meaningful display advertising competitor to dominant Facebook, as well as that Facebook could restrict access to Giphy’s GIF inventory to undermine rival social media competitors. Facebook argues that the regulator’s decision-making was procedurally flawed on a number of grounds, including in their determination of the markets involved, ability to exercise market power, and especially for failing to show that Giphy would “on the balance of probabilities, have become a significant competitive threat on a relevant UK advertising market.” Facebook offered a range of remedies short of selling Giphy which were rejected by the CMA.

Context – Two Facebook acquisitions, Giphy and Customer Relationship Management software platform Kustomer, have emerged as important landmarks in a potentially changed landscape for tech giants using acquisitions to add talent and capabilities, and entrepreneurs and investors looking to monetize innovations. Both companies are relatively small, not profitable, US-based startups without operations in Europe. The UK CMA has taken a very aggressive stance on Giphy while the EU has focused more on Kustomer. Facebook’s challenge of the CMA determination that Giphy, in an alternative timeline, would emerge as a meaningful digital ad industry competitor, with all the potential twists and turns in the market, will be interesting to watch.

The Netherlands’ Sides with App Developers, Orders Apple Payments Choice for Dating Apps 

Report from Reuters
In Brief – The Netherlands’ competition regulator has ruled that Apple’s policy requiring app developers to use the company’s payment services for in-app payments as a strict condition of accessing the Apple App Store and users is an abuse of Apple’s dominant position and violates the country’s competition law. The ruling, which applies only to dating apps, requires the mobile phone giant to allow such apps to use alternative payment systems by January 15th or face a fine of 5 million euros a week (up to 50 million euros total). Apple responded with a statement noting that it disagrees with the decision, that the company “does not have a dominant position in the market for software distribution,” and is appealing the ruling.

Context – Apple and Google charge app developers fees that range from 15% to 30% for sales made through apps sold through their app stores. They both mandate that those apps use their in-house payments service which automatically collects fees, simplifying bill collection and avoiding circumvention. App developers have campaigned globally to overturn these payments mandates. Three key things to keep in mind. In the US, this was a focus of Epic Games’ important federal antitrust lawsuit against Apple. Judge Yvonne Gonzalez Rogers‘ ruling rejected Epic’s charge that Apple was an illegal monopolist under US federal law, and her order to nevertheless require Apple to allow links to alternative payments in apps was stayed on appeal. Second, after South Korea enacted legislation mandating that app developers could use alternative payments, Google responded with a new policy that maintains their fee levels and simply provides a 4% rate reduction when developers use a non-Google payments provider. Developers cried foul. Apple has indicated something similar if forced. Fact is, in-app payments choice is a diversion. Developers want much lower fees. Expect a shift to rate regulation in 2022 and beyond, especially through the EU’s Digital Markets Act, potentially creating a major divergence with US law and policy.

Russia Fines Google and Meta for Failing to Effectively Block Prohibited Content

Report from the Washington Post

In Brief – A Moscow court has sided with the Russian communications regulator and fined Google nearly $100 million, and Facebook’s parent company Meta $27 million, for failing to delete illegal content, including material the state described as promoting extremist ideology, insulting religious beliefs and encouraging dangerous behavior by minors. The communications authority accused Facebook and Instagram of failing to remove 2,000 banned items, and Google 2,600 items, despite court orders. Russian courts had imposed smaller fines on Google, Facebook and Twitter earlier in 2021, and the most recent rulings were the first fines calculated based on company revenue earned in the country.

Context – Russia is not alone blaming social media for objectionable online content and mandating content moderation that often looks like censorship. Put them in line with Turkey, India and a collection of regimes in Central Asia and Africa looking up to China. But some free speech advocates are willing to point out that when Western governments regulate social media content moderation, such as through the proposed UK Online Safety Bill or EU Digital Services Act, it empowers repressive regimes. That said, the Russian Government has become increasingly focused on pressuring YouTube, Facebook and Twitter, which are now key alternative communications hubs for the political opposition to President Putin and the state-controlled traditional media. On the eve of September’s national elections, Russia threatened Google and Apple with jailing in-country executives to force the companies to pull apps used by Russian opposition parties from their app stores. Russian broadband and mobile services have also been slowing down Twitter downloads as a penalty for failing to police content. Finally, the Russian competition authority has charged YouTube with “opaque, biased and unpredictable” content moderation in an action that parallels charges raised by advocates of the Florida and Texas social media content moderation bills.