The global battle between Big Tech and regulators is on

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CNN 24 June, 2021 - 07:11am 36 views

Updated 11:07 AM ET, Thu June 24, 2021

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House Judiciary Committee to consider six antitrust bills

CNBC Television 24 June, 2021 - 10:10am

Lawmakers take aim at Big Tech with new antitrust legislation

CNBC Television 24 June, 2021 - 10:10am

Analysis | The Technology 202: Congress takes aim at antitrust legislation designed to reel in Big Tech

The Washington Post 24 June, 2021 - 08:46am

The company is coming under fire in London for an undercover report finding that it has marked millions of items in a U.K. warehouse for destruction, Jennifer Hassan reports. Lawmakers in the country are demanding a meeting with an Amazon representative, and Prime Minister Boris Johnson vowed to look into the allegations, which he said were “incredible.” 

“We are working toward a goal of zero product disposal and our priority is to resell, donate to charitable organizations or recycle any unsold products,” the statement said. “No items are sent to landfill in the UK. As a last resort, we will send items to energy recovery, but we’re working hard to drive the number of times this happens down to zero.”

Apple published a white paper on Wednesday to argue that its App Store protects iOS users. The graphic design was a bit distracting, however. Designer, developer, artist and writer Nick Heer:

The New York Times's Shira Ovide:

Jim Jordan's Section 230 bill won't bring back Donald Trump | Opinion

Newsweek 24 June, 2021 - 06:00am

We agree with Jordan that Section 230 reform is a must, and he is one of our most outspoken congressional allies in the fight against Big Tech censorship. His credibility on the issue is impossible to deny. But unfortunately, Jordan's proposed Section 230 legislation, the Protect Speech Act, will not do much to protect free speech online—and may actually codify Big Tech's censorial regime into law.

Republicans should embrace a simple litmus test in deciding whether to support a particular Section 230 reform bill: Will the reform require, or at least strongly incentivize, Facebook and Twitter to un-ban President Donald Trump? If the answer is "no," then we have a problem. And the answer with Jordan's bill is almost certainly "no."

With only minor exceptions, the Protect Speech Act continues to provide Big Tech companies with the extraordinary legal protections they enjoy under Section 230. The bill empowers these companies to freely censor user content across a number of different categories. While some of those categories make sense and have judicially honed definitions—for instance, content that is "obscene"—other categories are extremely vague and constitutionally suspect. Censoring "excessively violent" content is permitted by the bill, but who gets to define "excessiveness?" Would online news footage of a bloody Antifa riot qualify as "excessive"? It appears these questions are left solely to the discretion of woke content moderators in Silicon Valley.

Other vagaries abound. Tech giants would have unfettered power to censor "harassing" content and suppress anything they deem to be sufficiently disagreeable. Promotion of "violent extremism" can be banned—which sounds anodyne, but Big Tech companies could, and likely would, interpret "violent extremism" to be any hyperbole that departs from politically correct orthodoxy. In fact, they've already done it by blocking complaints about the integrity of the 2020 election and by removing ostensible COVID-19 "misinformation" (much of which, incidentally, turned out to be true).

Those in favor of the Protect Speech Act might counter that the bill protects Big Tech censorship decisions only if they are based on an "objectively reasonable belief" that the decisions conform with one of the bill's enumerated categories. But that three-word phrase is an ill-fitting tool for evaluating the content moderation decisions of online platforms. That same phrase has been invoked in some complex and confusing judicial rulings in patent infringement and tax evasion cases, where objective reasonableness can indeed be demonstrated. But in the Big Tech context, a monopolist could easily use its terms of service as a pretext to subjectively suppress undesirable opinions—and get away with it.

Unfortunately, the Jordan bill fails to anchor its prescriptions for online speech to the objective free speech values of the First Amendment—or, for that matter, any other constitutional metric. Left to drift on an ocean of uncertainty, the Jordan "objectively reasonable" requirement will find safe harbor with judges who will, as they have been doing for years, defer to the Big Tech monopolies and their army of lawyers, thereby immunizing their subjective censorship decisions.

This outcome is virtually guaranteed because the bill actually mandates that companies follow their own terms of service as a sign of "good faith." This inflicts the deepest cut of all: The Jordan bill allows mammoth tech giants to continue depriving citizen-users of their day in court thanks to Section 230, Washington's never-ending gift to woke digital monopolies.

Ultimately, Section 230 reform must adhere to three principles derived from our Founding Fathers. First, the Declaration of Independence listed jury trial deprivation at the hands of the British Crown as one of the Founders' great grievances. Today, a private citizen right of action against market-dominant tech companies is a must.

Addressing concentrated power is also essential, both logically and historically. The Framers were wary of government-supported monopolies, and though the constitutional language prohibiting the practice advocated by some of them did not win the day, their concerns should inform any Section 230 amendment today.

Finally, Congress should heed the wisdom and democratic fabric of the First Amendment as the only truly objective measurement to correct the censorship practices of Big Tech monopolists.

Congressman Jordan certainly understands the existential threat Big Tech companies pose to our democracy. He will play a key role in determining any legislative solution that is ultimately adopted by Congress and signed into law. Our hope is that he will go back to the drawing board and try again. The Protect Speech Act should be regarded as a worthy attempt at a first draft—but nothing more.

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Antitrust Overhaul Passes Its First Tests. Now, the Hard Parts.

The New York Times 24 June, 2021 - 04:06am

When the Judiciary Committee began approving a suite of bills on Wednesday, it exposed the fault lines that could make final passage difficult.

WASHINGTON — Capitol Hill politicians have groused for years about the power and influence of the country’s largest tech companies. But they took little action to match their rhetoric.

That started to change on Wednesday, when House lawmakers took their first votes on a suite of bills that are meant to weaken the dominance of Big Tech. The bills, six in all, would bulk up antitrust agencies, make it harder to acquire potential rivals, and prevent platforms from selling or promoting their own products to disadvantage competitors.

In a marathon session of debate and voting that ran into the early morning on Thursday, the Judiciary Committee advanced five of the six bills, a sign of the growing bipartisan agreement for taking on the tech companies. A handful of Republicans joined the widespread support among Democrats for the bills. The committee is expected to vote on the sixth bill after the discussions restart late Thursday morning.

But the outcome of the votes, and the debates before they took place, also exposed the fault lines among Republicans and Democrats — and underscored why final passage of all the bills is expected to be difficult.

Democrats, who have had the most say over the bills, are focused on the market power of Amazon, Apple, Facebook and Google. Representative Jerrold Nadler of New York, the Democratic chairman of the committee, said the votes “pave the way for a stronger economy and a stronger democracy for the American people by reining in anti-competitive abuses of the most dominant firms online.”

Some Republicans have united with them, arguing that the proposals would help address one of their main concerns: the power that social media companies have over speech, and what they argue is political bias and censorship of conservative voices. But many other Republicans say that the bills only add more government intervention into the economy while not directly addressing their concerns about free speech.

That debate within the Republican Party spilled out on Wednesday as soon as the first bill was brought up for a vote. The proposal, considered among the least contentious of the six, would increase the costs of fees associated with some mergers, to help raise more funding for the Federal Trade Commission, which helps regulate deals.

During a three-hour debate about the bill, Representative Jim Jordan of Ohio, the top Republican on the committee, said the bill was a power grab for the Democratic-led antitrust agencies, making them bigger and more influential. He also said the proposals and the other antitrust bills failed to address the ability of Facebook and other social media companies to cut off political voices.

“Big tech censors conservatives,” Mr. Jordan said. “These bills don’t fix that problem, they make it worse.”

Representative Ken Buck of Colorado, a fellow Republican and a co-sponsor of the bills, agreed that the tech companies silence conservatives. But he implored his party for unity to take on the power of Big Tech through the proposals, which he said would limit the overall power of the companies.

“These bills are conservative,” Mr. Buck said.

Representative Lou Correa, a Democrat from Southern California, said that the number of people in the state working for the big tech companies had grown substantially, helping the state fund services like public education and support for people affected by Covid.

“We want to make sure that we don’t kill the goose that lays the golden eggs,” he added later.

Mr. Correa also said: “These firms — high tech — are the reason California has a budget surplus, as opposed to a deficit, enabling the state of California to invest in public education, to help those affected by Covid, the middle class, those who are trying to get to the middle class.”

Other California Democrats who expressed concerns about the bills included Representative Zoe Lofgren, whose district includes part of San Jose, and Representative Eric Swalwell.

Ms. Lofgren worried during the hearing that the bills could ensnare companies that do not share the tech giants’ immense scale. Mr. Swalwell said before the hearing even began that he would oppose several of the bills.

“In my district alone, I represent thousands — likely in the five digits — of employees affected by the proposed laws,” he said. “It is these people whose jobs, families and livelihoods I was elected to protect — and must advocate for today.”

The committee’s passage of the bills kicks off a much harder process. Eight Democratic lawmakers have asked Speaker Nancy Pelosi, who has tremendous sway over when bills are taken up in the full House, to slow the process. The lawmakers repeated arguments made by companies like Apple that say the bills could open up security and privacy vulnerabilities for customers.

The challenge is even stiffer in the Senate, where the bills will each require significant Republican support to reach the needed 60 votes. A few Republicans, including Josh Hawley of Missouri, have pressed for stiffer antitrust laws. But it is unclear whether many more will join him.

Some bills, like the one to generate more money for the Federal Trade Commission, could face less resistance than others. The most contentious is a bill that bans platforms from selling their own products, such as Amazon selling its own branded Amazon Basics toilet paper and putting rivals like Charmin at a disadvantage.

“We think it’s an uphill climb for the toughest bills,” said Paul Gallant, a research analyst at Cowen and Company. “The Senate filibuster is always the highest hurdle and I suspect it will hold back the toughest of these bills. But the House is going faster and farther against tech than anyone expected.”

The bills face fierce opposition from technology companies that have marshaled their considerable lobbying operations. Ahead of the votes on Wednesday, Apple sent a letter to committee leaders warning that the if the bills were passed, the company would not be able to offer certain privacy and security features for users. Think tanks and lobbying groups funded by tech companies issued critical statements before the votes.

The bills “single out a handful of America’s most innovative and globally competitive tech companies for divestiture and draconian regulation,” said Alec Stapp, a director of the Progressive Policy Institute, a nonprofit think tank that received sponsorship from tech companies.

Chamber of Progress, a newly formed tech trade group representing Amazon and Google, said a recent Morning Consult Survey showed that voters didn’t see tech regulation as a top priority.

“Consumers want the government to scrutinize and regulate the tech industry, but don’t want Congress redesigning the apps and services that make their lives easier,” said its chief executive, Adam Kovacevich.

Alex Harman, a competition policy advocate at Public Citizen, which had been pushing for the bills, said Wednesday’s votes represented an important moment. Almost a decade ago, he said, there had been little Capitol Hill support for an investigation of Google’s practices by the Federal Trade Commission, which ultimately decided not to pursue a case against the company.

“Nine years later, we are in a world where a serious bipartisan effort in a committee is not just trying to push on an investigation, they’re trying to break them up,” he said. “That is a big deal.”

House panel approves sweeping tech crackdown during overnight showdown

POLITICO 23 June, 2021 - 11:16pm

A package of bills aimed at reining in the industry's biggest players drew support from both Republicans and Democrats — but encountered fierce bipartisan opposition.

By CRISTIANO LIMA

Still to come in Thursday's wee hours is a vote on the committee's starkest proposal: a bill that could make it easier to break up tech giants like Google and Facebook.

Taken together, those and other bills voted on Wednesday and Thursday would represent the most significant changes to U.S. antitrust law in decades.

But reaction throughout the Capitol to the panel’s tech antitrust legislation showed that the effort could face serious obstacles from lawmakers of both parties, despite years of growing anger at the industry among both Democrats and Republicans in Congress.

For more about the committee's marathon antitrust votes, and the fierce pushback, read POLITICO's full coverage here.

ORIGINAL STORY: The House Judiciary Committee advanced legislation late Wednesday to make it easier for consumers to move their personal data from one digital service to another, in the panel’s third vote of the day meant to limit the power of tech giants.

The committee then moved on to one of its most sweeping proposals: a bill, H.R. 3826 (117), that would prohibit the largest tech companies from squelching competition by acquiring their potential rivals. Yet another bill, H.R. 3825 (117), would allow the Justice Department or the Federal Trade Commission to sue to break up the biggest tech companies that offer their goods and services on platforms they operate.

The panel's marathon markup showed no signs of flagging as the clock ticked past midnight Eastern time.

The tally: The panel favorably referred the data bill, H.R. 3849 (117), with a bipartisan 25-19 vote after 11 p.m. ET, with three California Democrats breaking ranks and opposing the measure — Reps. Lou Correa, Zoe Lofgren and Eric Swalwell. Three Republicans supported the bill.

The debate over the measure, which began before 4 p.m., dragged deep into the night as the bill's detractors on both sides of the aisle introduced a bevy of amendments to pare back the proposal, most of which were unsuccessful.

The text: The data legislation, sponsored by Rep. Mary Gay Scanlon (D-Pa.), would require major platforms to create interfaces that allow users to transfer their data among online services — a step that could help other companies compete with the likes of Facebook. A bipartisan group of senators introduced companion legislation in the last Congress, S. 2658 (116).

"Too often, the segments of the digital economy that are dominated by the largest platforms are closed off to competition,” Chair Jerry Nadler (D-N.Y.) said during the markup. "These markets often have high barriers to entry, switching costs, and other characteristics that lock-in consumers and businesses to using one company in that industry.”

The politics: The push to boost so-called data interoperability has drawn backing from lawmakers on both sides of the aisle and tech industry leaders. But ahead of the markup, tech companies including Apple voiced concern about the specific bill under consideration, which narrowly targets dominant platforms.

Lofgren said she had “substantial concerns” that the legislation could create vulnerabilities that expose user data.

“Unfortunately, given the speedy nature of this process and both the legal and technical complexities of these challenges, it’s not been possible to fix this concern prior to today,” she said, adding that she hopes to work with Scanlon and others to address those issues.

The measure also survived objections from Republicans, including the panel’s ranking member, Rep. Jim Jordan of Ohio, who argued it would give too much leeway to regulators at the Federal Trade Commission to set up rules to govern the transfer of data among services.

The changes: The bill advanced with an amendment offered by Rep. Ken Buck (R-Colo.) aimed at addressing Jordan’s concerns. It would create a reporting requirement for the technical committee that would advise the FTC on interoperability rules.

By voice vote, the panel also adopted an amendment to change the definition for the companies covered under the bill from "mobile online platforms" to simply "online platforms." That could widen its reach, possibly making it easier to apply the provisions to Microsoft.

The proposal's proponents narrowly sidestepped a potentially damaging snag by beating back an attempt to dramatically broaden the number of companies covered under the bill. Lofgren proposed an amendment lowering the market capitalization threshold for the covered companies from $600 billion to $250 billion, but the change was defeated in an 18-25 vote where numerous lawmakers crossed party lines.

Other action: The committee had voted earlier Wednesday to increase merger filing fees, H.R. 3843 (117), and to allow state attorneys general to pick where antitrust cases are heard, H.R. 3460 (117).

Google, Facebook Pressure Falls Short as Antitrust Measures Advance in House Committee

The Wall Street Journal 23 June, 2021 - 10:33pm

The centerpiece of the six-bill package, a measure to bar big tech companies from favoring their own products in a range of circumstances on their platforms, was approved early Thursday by a vote of 24 to 20. Known as the American Choice and Innovation Online Act, the legislation would prohibit big platforms from engaging in conduct that advantages their own products or services, or disadvantages other business users, or discriminates among similarly situated business users.

Another measure, passed late Wednesday, requires that the largest internet platforms make it easier for users to transport their data to other platforms and even communicate with users on other platforms. The bill—known as the Augmenting Compatibility and Competition by Enabling Service Switching, or Access, Act—would give the Federal Trade Commission extensive new powers to set individualized standards for the tech giants. It passed, 25-19.

The bills must still pass the full House, where the timetable for bringing them to the floor for final votes remains unclear. The package would affect large tech firms including Google, Facebook, Apple Inc. and Amazon.com Inc.

The debate over the House Judiciary Committee’s legislation started Wednesday morning and continued into Thursday morning, as Republicans—and some Democrats—raised concerns and floated amendments.

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Big Tech faces new onslaught on Capitol Hill as lawmakers push package of antitrust bills

Fox Business 23 June, 2021 - 08:38am

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Rep. Ro Khanna, member of the House Armed Services Committee, calls for more thoughtful antitrust legislation. He argues that there is a 'lack of knowledge' on the subject within Congress.

Big Tech is under mounting pressure on Capitol Hill as lawmakers take up a series of sweeping new antitrust bills that could break up some of Silicon Valley's most powerful companies.

The House Judiciary Committee on Wednesday began to mark up six bills that are designed to rein in the power of Amazon, Apple, Facebook and Google – an effort that's elicited support from both sides of the political aisle after years of near-constant condemnation from Congress.

The massive legislation package, led by Rep. David Cicilline, D-R.I., would prohibit the tech behemoths from acquiring promising startups that could later become potential rivals and forbid them from using their platforms to discriminate against competitors. It would also prevent the companies from favoring their own products over competitors using their services.

The bills are the result of a 16-month, bipartisan investigation that concluded the tech giants abused their market power by charging exorbitant fees, imposing oppressive contract terms and extracting data from people and businesses that rely on them.

The four companies have repeatedly denied abusing their market power and have argued the legislation could prevent the companies from running popular services and hurt small businesses.

 abusing their dominant market position and have asserted that improper intervention in the market through legislation would hurt small businesses and consumers.

"America is in a monopoly moment," Cicilline tweeted. "Big Tech has gotten a free ride for decades. They pay no taxes. They use their power to crush innovators and entrepreneurs. Republicans and Democrats don’t agree on much these days, but we agree that we need to pass legislation to build #AStrongerOnlineEconomy."

If lawmakers pass the antitrust bills – a heavy lift, despite the widespread agreement over the need to crack down on tech giants – it would mark one of the biggest industry shake-ups in decades, since the federal government in 2001 accused Microsoft of illegally bundling its web browser, Internet Explorer, with its market-dominating Windows operating system.

Although Democrats control the House, their slimmest-possible majority in the Senate means they would need to secure the support of at least 10 Republicans in order for the legislation to pass.

And while the antitrust package has received a broad swath of bipartisan support, it has also been plagued by party infighting on both sides: Moderate Democrats have raised concerns that the proposals could have a broader impact on the U.S. economy and could weaken privacy protections as well as increase the risk of cybersecurity attacks, according to Bloomberg News. 

At the same time, some GOP lawmakers, including Rep. Jim Jordan, the ranking member of the Judiciary Committee, have belittled the antitrust effort as a group of "Democrat bills." Other Republicans say the bills do little to address their top concern of alleged anti-conservative bias. 

"We’ve got a beef with all Big Tech in the sense of the censorship they have of conservatives now," Jordan, R-Ohio, told FOX Business on Tuesday.

Although the companies – some of the biggest political spenders in Washington – enjoyed a mostly cozy relationship with the Obama administration, President Biden campaigned on revoking Section 230 of the Communications Decency Act, which shields companies from liability for what users post and gives them broad authority to decide how to regulate content on their platforms. 

Biden said during the Democratic primary in 2019 that splitting up tech giants is "something we should take a really hard look at" but that it was "premature" to make a final judgment. 

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Rep. Ken Buck: Big Tech's monopoly powers must be broken up – conservatives should support antitrust reform

Fox News 23 June, 2021 - 04:00am

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Rep. Ken Buck, R-Colo., addresses concerns from House Minority Leader Kevin McCarthy on bipartisan antitrust legislation to curb the power of Big Tech companies.

Republicans and Democrats recently introduced six bills tackling Big Tech’s market power under our nation’s century old antitrust laws. The bills vary in scope. One bill would give more resources to the antitrust agencies to support ongoing litigation filed by President Trump’s administration against tech titans Google and Facebook. Another bill would create a pro-consumer, pro-competition data portability mandate so consumers can take their data from a platform like Facebook to a competitor platform. 

All six bills have one thing in common: they take on Big Tech’s market dominance that allows them to throttle small businesses, limit consumer choice, and stifle conservative speech online. 

The pro-monopoly lobbyists representing Big Tech are telling Republican members of Congress that these antitrust reform bills will hurt small businesses and limit consumer choice. 

Don’t let them fool you. 

These bills were preceded by ten hearings at which many small businesses that make a living online testified. At those hearings, the small businesses brave enough to testify against the tech titans told members Congress about the ordeals they face trying to get a fair shake from platforms like Apple, Amazon, and Google. 

Amazon was the poster child in this regard.  As documented in last year’s Majority, Minority, and Third Way reports on competition in digital markets, Amazon has 2.3 million active third-party sellers on its marketplace worldwide, and a recent survey estimates that about 37% of them—about 850,000 sellers—rely on Amazon as their sole source of income. 

The report found that Amazon’s conflict of interest as both a seller and host to competitive third-party sellers has created serious challenges for these small businesses. The report concluded "Amazon has engaged in extensive anticompetitive conduct in its treatment of third-party sellers. Publicly, Amazon describes third-party sellers as ‘partners.’ But internal documents show that behind closed doors, the company refers to them as ‘internal competitors.’" 

American consumers agree that it is time for Congress to act.  Recent polling shows that most Americans support this legislation, and they do so across party lines. 

Eighty-six percent of Americans no longer trust Big Tech and 57% of them even support breaking up the Big Tech monopolies. 

American consumers may appreciate some of the conveniences brought to them by Big Tech, but they also know that these conveniences come at a steep price. That price includes a lack of competition and consumer choice online. 

Just as we moved beyond Henry Ford’s mantra that we "can have any color car, so long as it’s black" so too can we move beyond having one search engine and one social media platform. 

Ordinary Americans know they can do better than this.  These bills will free up competition and restore the free market. 

Thanks to this legislation, newly liberated competition will spur innovation and create new options for consumers beyond the "one size fits all" Big Tech platforms’ current offerings. 

Just as we moved beyond Henry Ford’s mantra that we "can have any color car, so long as it’s black" so too can we move beyond having one search engine and one social media platform. 

Antitrust has often played an important role in freeing up competition and spurring innovation. It was not that long ago that the DOJ took action to block Microsoft’s growing dominance in the online browser market. 

Thanks to the DOJ’s intervention, a scrappy start-up named Google survived and grew to become the world’s leading search engine.  Unfortunately, Google has long since forgotten the debt of gratitude it owes to antitrust and it now engages in anticompetitive conduct not dissimilar to Microsoft’s conduct back in the day. 

Even though Google may have lost sight of the important role antitrust plays in preserving competition, consumer choice, and innovation, the rest of us have not.

A final reason for Republican consumers to rally behind these bills is Big Tech’s clear bias against conservative speech. Big Tech and its swamp creatures would have us think that conservative bias does not exist. Unfortunately for them this is not my first rodeo and I know bias when I see it. 

From Big Tech’s clear collusion to throttle conservative social media app Parler from the marketplace earlier this year, to blocking the New York Post Hunter Biden laptop story last year, Big Tech uses and abuses its monopoly power to stifle conservative speech. 

Big Tech’s ability to de-platform and censor conservatives is downstream from its market power. Until Republicans in Congress and elsewhere are prepared to tackle this fundamental reality through antitrust enforcement and reform, Big Tech will continue their illegitimate ways. 

Big Tech’s Republican allies in Congress have argued that there is no role for antitrust in Big Tech markets.  They tell us that the market will correct itself and that Big Tech’s market power will, over time, be defeated by competitive forces. They argue that conservatives can easily "build their own Facebook." 

They used to point to Parler as the robust conservative social media alternative.  They argued that competition from Parler is "just a click away." These are now academic arguments that no longer pass the laugh test of reality. 

Enough is enough. The time to act in now.

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