FTC Cracking Down On Online Censorship

By: Steven Eichorn

The Federal Trade Commission (FTC) has recently launched a public outreach effort to obtain information from the public regarding how they are treated by technology platforms. As explained by the FTC, they are seeking to “understand how technology platforms deny or degrade users’ access to services based on the content of their speech or affiliation, and how this conduct may have violated the law.” This outreach effort should be welcomed by a large segment of the public because technology platforms often seem to arbitrarily block certain users and there does not seem to be any sort of standard imposed by the technology platforms regarding the who, what, and when of blocking users.

Notably, the FTC is specifically looking for whether the platforms acted in a consistent manner and whether the response was similar to analogous conduct by other users. The FTC is also focused on whether the platform’s actions were consistent with its own policies or procedures, and, whether they provided meaningful opportunities for users to challenge their decisions.

This selective blocking of users is often seen and discussed in the political world; however, it also applies to the online gaming world, where some companies can obtain access to online advertising while others are blocked from online advertising in the same exact industry because they are told it’s against the platform’s policy. There’s often little remedy for such companies because they are blocked by technology platforms that have an outsized reach that cannot be duplicated by any competitive entity.

This broad use of power and its effect on competition was highlighted by the FTC in its request for public comment. For instance, the FTC is seeking information on practices that may affect competition or may have resulted from a lack of competition. As noted by the FTC, the technology platforms can employ confusing or unpredictable internal procedures to cut users off, and, there is sometimes no legitimate avenue to appeal to the decision. These technology platforms block users that are seeking their services because of reasons that may violate the law due to unlawful blocking activities or to prevent competition.

The competition question is a critical question for the FTC because it works to promote competition as part of its mission statement. Thus, the FTC’s request for public comment focuses on whether users were able to find adequate substitutes on other platforms, whether the adverse action by the technology platforms was made possible due to the lack of competition, and whether the platform has used their dominance in one market (e.g. search engines, app store) to prevent platforms from competing with them in a different market.  Similarly, the FTC is focused on how those decisions affected the user’s ability to earn money and whether there was a lack of competition that prevented users from using competing platforms.

Interestingly, the FTC included in its request for information a very large variety of companies as examples of technology platforms. For instance, the FTC explicitly lists companies like those providing social media, video sharing, photo sharing, and similar entities. However, it also lists technology platforms providing ride sharing, event planning and even the quite broad “internal or external communications.”

Finally, to highlight the broadness of the request, they even request information on any platform that is providing “other Internet services.” In short, the FTC is seeking information on the entire gamut of users’ experience with technology companies and how they may be adversely affected by the often-random decisions of such tech platforms. The FTC’s response to this information may significantly alter the online gaming industry, as well as the entire user experience in dealing with online platforms.