Does a Bipartisan Bill Threaten the Autonomy of Local Platforms?
Last October, Senator Amy Klobuchar introduced Senate Bill 2992, the American Innovation and Choice Online Act. The bipartisan bill is cosponsored by 11 senators, six Republicans and five Democrats, including Chuck Grassley and Lindsey Graham on the Republican side as well as Democrats Richard Durbin and Cory Booker. This unusual display of across-the-aisle collaboration is in service of a proposal, which passed review by the Senate Judiciary Committee on January 20, that would prohibit large online platforms from practices deemed to be anticompetitive, such as:
- Giving unfair preference to their own products
- Unfairly limiting the availability of competing products from another business
- Using their terms of service to penalize some users but not others
- Restricting competing businesses from using the platform
- Restricting access to information about competing businesses
In addition to these provisions, the bill restricts the ability of online platforms to make use of nonpublic data and provides regulations about other details of platform operation, including the manner in which search results are ranked.
The companies that would come under the proposed legislation are those with at least $550 billion in annual revenue or market capitalization, with a user base of at least 50 million monthly active users in the U.S. overall, as well as at least 100,000 U.S.-based business users — in other words, the largest tech platforms, in particular Apple, Alphabet (Google), Amazon, and Meta (Facebook).
This month, Google launched a website and PR campaign alerting business users and consumers to the purported threat the bill represents. Google has suggested that, in addition to undermining the operation of products like Google Docs and Google Ads, the bill could prevent the search company from publishing information about businesses such as phone numbers, hours of operation, navigation instructions, and even consumer reviews. On its new website, Google encourages users to send messages to Congress expressing their opposition, and depicts what future search results might look like if the legislation is passed.
As you can see, Google is depicting a future where showcasing its own profile of a business in local search results, rather than simply pointing to the business website, is forbidden entirely. Leaving aside whether this would be a good or a bad thing for businesses – most businesses would probably agree that on the whole, Google’s local results offer more exposure online than they could easily get otherwise — the real question is whether Google’s characterization paints a believable picture of the bill’s intent.
What the American Innovation and Choice Online Act portends for platforms
The language of the bill is somewhat vague, a fact that was brought up when it was debated in the Senate. As such, it accommodates a range of interpretations. For example, the bill states that online platforms may not “unfairly limit the ability of another business user’s products, services, or lines of business to compete on the covered platform relative to the covered platform operator’s own products, services, or lines of business.” Though the passage makes no reference to business data like hours of operation, Google has chosen to interpret such provisions as a threat to its ability to convey information prominently about a business that the business offers elsewhere.
But there are other provisions that, to me, together point to a slightly different intent. For example, the bill forbids online platforms from using nonpublic data gathered through their interaction with a business in order to provide features in competition with the business. It also comes out against restricting businesses from accessing data generated on a platform they use and related to the activities of the business.
As for using data to provide features in competition with a business, that sounds a bit like asking a business owner to enable the Messaging feature within Google Business Profiles, then displaying nearby competitors to consumers who make use of the feature to communicate with the business. Or to take another example, showcasing delivery services like DoorDash within restaurant listings without the restaurant’s permission. Or for that matter, allowing Google users to specify the amenities and health and safety practices available at a business without the approval or permission of the business. All of these are common complaints among Google business users.
As for restricting access to data, Google’s Insights and Performance metrics show some of the data generated by a business profile, but only the data Google chooses to show. As an example, business users only have access to the most recent three months’ worth of Insights metrics within the Google Business Profile Manager dashboard. Some metrics, such as the number of orders generated from the aforementioned DoorDash integration, are hidden from the business entirely.
By depicting a dire future with severely pared back local search capabilities, Google may be overstating the case in order to obscure the lack of control currently offered to businesses over their representation on its platform. After all, in the absence of regulation, Google has staked out a clear position that ownership of business profiles is shared between Google, consumers, third-party services, and businesses themselves — a position many businesses feel is unbalanced.
The bill’s language is designed to cover a much broader range of use cases than that of local search on Google, but its scope is specific to the rights of businesses, in particular small businesses and entrepreneurs, who depend on and may be taken advantage of by massive online platforms. In the words of Senator Klobuchar, “As dominant digital platforms – some of the biggest companies our world has ever seen – increasingly give preference to their own products and services, we must put policies in place to ensure small businesses and entrepreneurs still have the opportunity to succeed in the digital marketplace.”
The push to regulate big tech is not new. In fact, a bill similar to the American Innovation and Choice Online Act was introduced by the House of Representatives last year, only to be relegated to the legislative back burner. So far, no meaningful legislation has made its way into law, but each new effort in that direction reawakens the possibility that companies like Google will eventually need to modify their practices to remove bias towards themselves.