Thread by @TechFreedom

Tomorrow, @HouseJudiciary will mark up 5 bills to regulate big tech platforms. Two essentially impose common-carrier-style requirements, but are totally unmoored from basic common carriage principles

We explain our concerns in this letter: techfreedom.org/wp-content/upl…

1) the American Choice and Innovation Online Act (HR 3816) & the Ending Platform Monopolies Act (HR 3825) both apply broadly to the offerings of the five biggest tech companies just because they're big

That's not how common carriage works. It's not about size or market cap...

1a) HR 3816 replicates the "no reasonable discrimination" provision at the heart of common carriage (eg 47 USC 202(a)) while HR 3825 goes far beyond structural separation imposed on common carriers

Both bills use common carrier concepts in radically new ways

2) These bills authorize civil penalties for violations of amorphous standards borrowed from common carriage law—standards that have never been subject to enforcement through penalties

This likely violates the Fifth Amendment’s due process principles and the Fair Notice doctrine

2a) In general, in common carriage law, "penalties do not follow upon innocent mistakes" Am. Tel. & Tel. Co. v. United States, 299 U.S. 232, 245 (1936) (“the violation of the Act must have been knowing and willful.”)

2b) Here, the bespoke standards created by these laws deny regulated parties fair notice of what the law requires and are ripe for arbitrary enforcement. Expect these bills to become political weapons if they pass, used by both parties to coerce tech companies content decisions

3) These bills could regulate not only discriminatory business practices, but also editorial judgments inherent in the algorithmic ranking at the core of both search engines and social media, as well as the refusal to associate with content that platforms find objectionable

3a) This violates the First Amendment

This problem arises because these bills abandon the longstanding principle that “a carrier will not be a common carrier where its practice is to make individualized decisions in particular cases whether and on what terms to serve.” NARUC II