Sen. John Kennedy and the ‘Breakup Big Tech’ bill

Baton Rouge Reporter | by Robert H. Bork, Jr. | published July 29, 2022

John Kennedy has quite made an impression in his first term as a U.S. Senator – an Oxford-educated lawyer with a colorful country-store wisecrack for just about everything. He compared economic forecasting to psychic hotlines, said that a group of state bureaucrats were so incompetent he wouldn’t hire them to run a food truck, and told police critics that that they next time they’re in trouble, they should “call a crackhead.” ​

Kennedy has been no less colorful in complaining about the size and power of Big Tech. Like many conservatives, he is righteously angry about the content moderation decisions made by big social media companies that always seem to go against conservative speech. He has expressed concern that these companies have become “countries” that are “killing fields for the truth.” It is out of fear of censorship that he joined with Sen. John Thune (R-SD) on June 16 to introduce the BIAS Act, which would restrict search engine algorithms that treat emails from political emails as spam.

Given Sen. Kennedy’s displeasure with Big Tech, it is perhaps no surprise that he joined with four Republican colleagues in the Senate Judiciary Committee in January to pass the Innovation and Choice Online Act – legislation that purports to reign in Big Tech. Kennedy might have done so in part to stay in the good graces of a committee colleague and sponsor of the bill, Sen. Amy Klobuchar of Minnesota (D-MN). If he continues his support now, Kennedy could lead enough Republicans to help the bill clear the Senate’s 60-vote hurdle and send it to President Biden’s desk for signature. But John Kennedy, who has argued that social media needs to simplify the “fine print” on its data policies, might want to take a moment to scrutinize the fine print on this bill. 

The text of the Klobuchar bill won’t “break up” Big Tech or turn off the social media censorship machine. Rep. David Cicilline (D-RI), Trump impeachment manager and author of the companion bill in the House, admits this legislation will not touch “content-moderation practices online.” But the Klobuchar bill would give the Federal Trade Commission expansive powers to regulate large tech and social media companies. 

Kennedy, who expressed skepticism about Klobuchar’s bill before voting for it in committee, should see that her bill for the government power grab it is. It would subject businesses to “death-penalty fines” of 15 percent of revenues for what seem to be intentionally vague infractions. If Big Tech is put under such a degree of control, it will amount to a shotgun wedding between Big Government and Big Tech. The result would be not the current “countries” of Google, Apple, Facebook, and Amazon, but a giant continent fused with Washington, D.C. 

The power grab could soon include much of the rest of the business community. Sen. Tom Cotton (R-AK) said the bill “includes language that could catch up a lot of other firms that are nothing like these [social-media] companies . . . potentially treating Kroger, or Piggly Wiggly, or Home Depot with the same kind of antitrust restrictions that we expect on Facebook, Apple, or Google.”

Worse, this bill would create so many new mechanisms for government control of business that C-Suite wokeness and ideological intolerance could easily be enforced by Biden’s hyper-aggressive regulators. Another Senate Judiciary Republican, Mike Lee (R-UT), said the Klobuchar bill “may actually entrench the very four companies at which it’s aimed.” This could happen because Klobuchar’s legislation would force Big Tech companies that do business with third parties, such as Amazon’s marketplace for small sellers, to deny access to their operating, hardware, and software systems. “This could crush thousands of small businesses,” Lee added. 

Klobuchar’s bill would also make it illegal to restrict or impede a business user from accessing data on the platform. The practical effect of this data portability would be to force everything Facebook, Amazon, and other tech giants know about American consumers to share with thousands of other companies, some of them foreign.

Where might all that data go? Sen. John Cornyn (R-TX) notes that a 2017 Chinese law obligates companies doing business in China to cooperate with Chinese intelligence services. Alarmed by this critique, Sen. Klobuchar amended her bill to exclude sharing of Americans’ data with China or any other “foreign adversary.” Once Americans’ data is shared by thousands of companies in the digital wild, however, how realistic is it to believe that China will not gain access to it?

It is understandable why conservatives want to lash out at Big Tech censorship. It makes no sense, however, for a senator as conservative as John Kennedy to vote for a bill that would incentivize more censorship for conservatives, marry Big Tech to Big Government, and ship off our data to China.

ROBERT H. BORK JR. is the president of the Antitrust Education Project