Race, Competition & the Tech Marketplace: Questions Washington Elites Don’t Want Congress to Ask

How much should civil rights inform antitrust and competition policy?eMarketer predicts Google and Facebook will haul in some 52% of all internet ad revenues this year. Apple and Amazon control enormous shares of the device and cloud-based services markets. Google dominates search and has its own thriving cloud-services business. Evaluating the impacts of these markets and how they overlap is already a formidable task for lawmakers.

But the question of how big tech companies’ market behaviors have impacted civil rights is equally, if not more, important than the cut-and-dry economic analysis normally applied in traditional antitrust cases, and unlike any the nation has previously faced in the context of antitrust—or otherwise. The conduct of a handful of companies has greatly undermined the Constitutional principles upon which we rely and for which countless Americans have fought and died.

Facebook’s unilateral refusal to implement better content moderation practices raises important questions. It has made their work with some of the world’s largest advertisers who are currently boycotting the social media giant, untenable. This move has come at a sacrifice, with higher costs and greater difficulty reaching audiences as efficiently as they once did on Facebook and Instagram. Testing and implementing new marketing tactics costs advertisers considerable time and money. Advertisers are consumers themselves. Can anyone legitimately argue these costs are not ultimately passed on to individuals?

Even assuming the nation’s civil rights laws do not come into play in the context of antitrust analysis, when it hears from the CEOs of Apple, Facebook, Google, and Amazon on Wednesday, the House of Representatives’ antitrust committee has a moral obligation to consider how hate speechmisinformation, and having a homogenous workforce limit product quality and consumer choice

Section 230

Facebook Founder and CEO Mark Zuckerberg owns a controlling majority of Facebook’s stock and makes all final decisions, decisions a team of civil rights auditors recently called out as “vexing and heartbreaking”. Here is his take on free expression:

“In times of social turmoil, our impulse is often to pull back on free expression. We want the progress that comes from free expression, but not the tension.”[1]

[1]Mark Zuckerberg, A Conversation on Free Expression (2020).

But can hate speech ever truly be free? How can speech that reinforces stereotypes and justifications for discrimination ever be truly “free” from the perspective of the group against which that speech is directed? 

How can misinformation be considered “free” if it is designed to suppress votes?

When it attempted in 1996, via Section 230 of the Communications Decency Act (CDA), to limit internet platforms’ liability for obscene and illegal content posted by their users, Congress unwittingly invited internet speculators to interpret the law in the most outlandish ways imaginable, allowing hate speech, misinformation, and discriminatory ad targeting tactics to flourish. Now, we are well past the point of absurdity. We are well past the point of abuse.

Facebook hides behind Section 230 with impunity mocking nearly two-and-a-half centuries of civil rights advancements. For example, in the context of housing discrimination, it has argued that it has no responsibility whatsoever for ads, designed with tools on its own platform, that perpetuate housing discrimination:

Advertisers, not Facebook, are responsible for both the content of their ads and what targeting criteria to use, if any. Facebook’s provision of these neutral tools to advertisers falls squarely within the scope of CDA immunity.[2]

[2]See Notice of Motion & Motion to Dismiss First Amended Complaint for Defendant at 2, Onuoha v. Facebook, Inc., No. 16-cv-06440-EJD (N.D. Cal. Apr. 3, 2017).

Impacts to its bottom line seem to be the only language Facebook understands. In 2019, it settled multiple lawsuits and agreed to change its ad policies and prevent advertisers from targeting users based on race, national, origin, ethnicity, age, sex, sexual orientation, liability, or family status. However, it remains to be seen whether the current advertising boycott will lead Facebook to a similar, forced moral and ethical awakening, or whether Congress will decide market forces and self-regulation simply have not worked fast enough and that it is time for meaningful policy reform. 

Diversity and Inclusion

While the 4 companies set to testify Wednesday have had varying degrees of success in their employment of African and Hispanic/Latinx+ Americans, none have made meaningful progress when it comes to improving diversity within their leadership ranks. This has critical implications for the threshold for algorithmic bias these companies are willing to accept, and for their business engagements, such as contracts with the police and militaryWithout people of color in positions of decision-making authority to assess the implications of these technologies on marginalized communities, how can these companies ensure they are not promoting the systemic injustices they claim to oppose?

Mark Zuckerberg admitted that all of the executives who decided to leave up President Trump’s “When the looting starts the shooting starts” post were white, except for one, Maxine Williams, Facebook’s Chief Diversity Officer, who is Black. How does Mark Zuckerberg think the quality of Facebook’s content is impacted when so few people of color are at the table making these decisions?

According to the most recent data from the U.S. Census Bureau, African Americans comprise 13.4% of the U.S. population but just 3.9% of all roles (3.4% leadership) at Facebook and 5.5% all roles (2.6% leadership) at Google. Hispanics/Latinx+ Americans comprise 18.5% of the overall U.S. population but just 6.3% of all roles (4.3% leadership) at Facebook and 6.6% of roles (3.7% leadership) at Google. This is compared to African Americans comprising 9% (3% leadership) and Hispanic/Latinx+ Americans comprising 14% (7% leadership) of Apple’s workforce, and African Americans make up 26.5% (8.3% management) and Hispanic/Latinx+ Americans comprise 18.5% (8.1% management) of Amazon’s overall workforce. 

Diversity is only part of what Congress should consider when it comes to diversity and inclusion. Where are the “hidden scars”? What happens behind the doors newly-hired people of color have closed behind them upon entering these workplaces? 

For example, Bloomberg recently reported on a security system at Google, designed to supplement its existing badge-swiping system, in which employees and security personnel were encouraged to spot-check identification badges of those on Google’s property. Google’s Black and Hispanic/Latinx+ American employees reported being subjected to these spot-checks more frequently than their white and Asian counterparts. How did this disproportionate scrutiny, and other indignities employees have reported, affect the quality of their work and, by extension, Google’s products? What does it mean for consumers who are forced to accept these injustices in order to use them?

The tech sector is also plagued by pay disparities, with women making less than men in most statesEmployees talk to each other. How do these companies control for how these pay disparities affect morale and, by extension, the quality of their products and services?

The Federal Trade Commission, Department of Justice, and courts will ultimately decide whether civil rights violations should be considered “market behavior” for antitrust purposes. I am not an antitrust lawyer and perhaps that is a good thing. Many antitrust lawyers work at law firms with diversity problems of their own. Conditioned to consider antitrust in a silo separate and distinct from civil rights, these lawyers will naturally attempt to keep the scope of this inquiry as limited as possible, focused exclusively on the traditional macro-economic types of analyses that have characterized these discussions since the Standard Oil/Jim Crow era. But even John D. Rockefeller, who married abolitionist Laura Spelman and financially supported her family’s founding investment in Spelman College, wouldn’t turn a blind eye to black people.

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