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Nonpartisan Experts Raise Serious Questions About Sen. Klobuchar’s Antitrust Bill

Senator Amy Klobuchar’s signature bill— S. 2992—to overhaul U.S. antitrust law “[i]mplicates difficult questions involving innovation, privacy, data security, and online speech,” according to a new report by the nonpartisan Congressional Research Service (CRS). The report’s conclusion further echoes the concerns raised by national security experts, small businesses, economists and former U.S. antitrust enforcers.

The report also substantiates problems related to privacy, data security and content moderation flagged by Klobuchar’s fellow Democrats, including Senators Dianne Feinstein, Brian Schatz, Ron Wyden, Ben Ray Luján and Tammy Baldwin.

While the report’s findings mirror the consensus view of the bill, the Congressional Research Service’s credibility further threatens to kill the bill’s prospects. Klobuchar’s proposal has been stalled for months, but she has refused to hold additional hearings or continue amending her bill. Instead, she has deflected such concerns as misinformation spread by hired guns.  

But the Congressional Research Service is not so easy to dismiss. Created by Congress in 1914, the agency reports to it and provides lawmakers with nonpartisan research and analysis. In 2016, Congress passed legislation requiring CRS Reports be made available to the public free of charge. In supporting that bipartisan law, Klobuchar said, “Opening Congressional Research Service reports to the public will provide citizens with more nonpartisan information about everything from the national debt to prescription drug costs to foreign policy.” The CRS’s “tax-payer funded reports,” Klobuchar continued, should be “available to all at the click of a mouse.”

Well, here’s what the CRS taxpayer-funded report on Klobuchar’s antitrust bill found.

First, the bill risks stifling innovation. The most direct threats to innovation, CRS finds, stem from the bill’s intrusion into intellectual property law and encouragement of lawsuits under vague provisions.

Second, the bill’s interoperability provision “may create privacy concerns and data-security risks.” Under this requirement, leading U.S. technology companies like Google and Microsoft would have to open their systems to third-party rivals, including foreign firms. Klobuchar has claimed this poses no risk to Americans’ privacy or data security.

Third, the bill’s language is so unclear that “[i]nterpretative issues recur throughout” and “could present regulators and courts with difficult questions” about the law’s meaning. Critics have long cited the bill’s broadly worded, unclear provisions as putting at risk popular services like Amazon’s Prime for sellers, Apple’s preinstalled iPhone apps and Google’s integration of Google Maps and customer reviews into Google Search. Klobuchar has dismissed these concerns whenever critics have raised them. But the CRS report cites the same concerns. As written, the bill could be applied to prohibit those pro-consumer business practices.

Fourth, the bill either prohibits “unfair” content-moderation practices, as co-sponsor Senator Chuck Grassley contends, or it leaves moderation completely untouched, as Klobuchar ensures. According to the CRS report, both are right: because of poor drafting, whether the bill “would in fact prohibit certain forms of content moderation is unclear.” In other words, the bill empowers the federal government—and whoever inhabits the White House—to decide what the language means. That ambiguity becomes a cudgel for whichever party runs the White House. Under a Republican administration, the government may use the threat of antitrust litigation to pressure tech businesses to moderate less content. Under the Biden administration, which has already criticized tech businesses for hosting content the administration dislikes, the government will likely use the provision to coerce more moderation.

In other words, the bill empowers the federal government—and whoever inhabits the White House—to decide what the language means. That ambiguity becomes a cudgel for whichever party runs the White House.

Sen. Klobuchar won’t respond to her critics in good faith. But as the Congressional Research Service’s new report concludes, her bill “implicates difficult questions” for which Americans deserve to hear answers.