Jul 28, 2021 • 9M

🗞️ COVID may change a major internet law

Open in playerListen on);
Welcome to Not Billable. Weekly legal news updates. Full event replays. And, a chance to hear from industry leaders about what’s been going on behind the scenes. Powered by Lawtrades, and hosted by their Head of Community, Matt Margolis.
Episode details

This week: Amy Klobuchar has a new reason for changing Section 230, and Epic gets teamed up with the government against Google. Plus: the lowdown on Biden’s latest Justice Department nominee.

😷 The latest reason for redoing Section 230

The road to reforming Section 230 has been strewn with potholes and detours, but, of all things, COVID may provide an impetus for making changes to this very important internet law. 

  • Vaccinations are not proceeding at an adequate rate: About half of U.S. adults are fully vaccinated, far below the benchmark needed for herd immunity, and one key reason is internet misinformation. Lies about the vaccines are spreading like wildfire, especially on social media sites like Facebook and Twitter. 

  • So Sen. Amy Klobuchar filed a bill that would hold those companies responsible: According to Recode, they would be vulnerable to lawsuits for letting users post and spread misinformation. Section 230 has largely granted internet companies immunity from lawsuits related to content posted by users since its introduction in the 1990s.

But the bill is narrow, and misinformation is more complicated than you might think 

Outside of punishment for allowing misinformation to spread about “an existing public health emergency,” Section 230 would remain intact. 

  • There’s also the question of gauging whether tech companies are at fault. A judge would have to decide whether an algorithm led to the misinformation spreading, not to mention define what constitutes misinformation. 

The Verdict

Although the bill is a long shot to pass, it may serve notice to Twitter and Facebook to moderate their content just a little tighter. 

👯 Epic finds an ally against Google

Who says tech and the government can’t get along?

Lately, of course, states and tech companies have been at odds, duking it out in court antitrust filings. But one major tech company and a few crusading states have unwittingly found themselves on the same side. 

  • States, meet Epic: Epic filed a lawsuit against Google in 2020 after it was kicked out of the Google Play store. Earlier this month, three dozen states filed suit against Google, too. According to Law360, that brings the total count of government-related Google lawsuits and fines to seven, including three fines from the EU. 

  • But there are obvious similarities in the suits: A federal judge clearly thought so and linked Epic and the states’ cases together, according to the Verge. It’s a rare marriage between tech and the government in a year of antagonism. 

Action in the cases should pick up soon

A hearing for the consolidated states/Epic case should be held in October.

The Verdict

Epic still has its case against Apple, too. There will be no linking with the government on this one, as a judge has already heard arguments, and the verdict is pending.  

🪄 Biden nominates even more antitrust personnel 

The federal government has taken a hit in its antitrust game in recent weeks--notably from a federal judge throwing out its case against Facebook, but the Biden administration is striking back. 

  • Biden named a major appointee to the Justice Department: The nominee is Jonathan Kanter, the principal of a firm that labels itself an “antitrust advocacy boutique” and who has represented companies like Yelp and Spotify. He joins notable antitrust activists Lina Khan and Tim Wu as Biden appointees, assuming Kanter is approved by the Senate. 

  • The decision is partially about timing: According to the NYT, it’s a sign that the Justice Department and the Biden Administration do not have much faith in Congressional action toward Big Tech and need to push for change themselves. 

A huge challenge remains

No matter how much emphasis the Justice Department puts on antitrust, it will likely have to wait for at least some Congressional action. Experts say lawsuits might keep getting thrown out, a la Facebook, if legislation doesn’t change some of the thresholds for what constitutes an antitrust behavior.

The Verdict

There’s another way Biden may try picking up the pace on antitrust: nominating federal judges more sympathetic to his cause.

💌 What else we're forwarding

The FTC can take a few more weeks to refile a Facebook antitrust suit: Speaking of all that antitrust. The FTC now has until August to refile the Facebook suit thrown out in late June. 

Steps for improving GC-outside counsel communications: This may sound simple, but GCs and firm attorneys dish on why communication is key between the two parties.

🎧 Music we’re working to

Today we’re listening to Bella Boo, an LA-based Swedish electronic music producer. Her debut album, Once Upon a Passion, is predominantly a dance album but is full of surprises, with moments of decompression and contemplation. With 9 tracks featuring exciting collaborations from Def Sound, Nils Janson, and Axel Boman. It’s a great album to add to your Wednesday playlist!

Once Upon a Passion - Bella Boo (40m, some vocals)
Spotify / Apple Music / YouTube Music / Amazon Music 

See ya next week,

✌🏽 Raad