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DOJ preps to sue over Google’s ad tech, even without its antitrust chief – Politico

With help from Leah Nylen and John Hendel

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— Ready for round 2? The Justice Department is preparing yet another suit against Google, and it could happen before DOJ antitrust nominee Jonathan Kanter is confirmed.

230 watch: There’s no shortage of bills that would tighten social media content moderation rules now working their way through Congress. But which ones stand a chance, and which are just for show?

Eyes on Texas: The state’s abortion restrictions could cause trouble for ride-sharing companies, and a separate law waiting to be signed could ensnare social media platforms if they’re accused of censoring conservative viewpoints.

IT’S TUESDAY, SEPT. 7. WELCOME BACK TO MORNING TECH. I’m your host, Benjamin Din. Huge thank you to everyone who weighed in on headphone suggestions. The pair I ordered arrived last week, and they have been incredible.

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DOJ READIES ANOTHER GOOGLE SUIT — An actual filing against the search giant still isn’t imminent, two people familiar with the probe tell POLITICO antitrust maven Leah Nylen, but Google’s odds of avoiding a fifth major antitrust suit aren’t good. Prosecutors have spent months crafting a complaint focusing on one of the crown jewels in the company’s business model: its huge share of the $70.2 billion spent last year on online display and video advertising, according to the Interactive Advertising Bureau.

After Aon and Willis Towers Watson called off their deal to build the world’s biggest insurance brokerage and risk management service in July, DOJ antitrust reassigned the lawyers gearing up for trial in that case to the probes into Google and Apple. Their marching orders: Wrap up those probes by the end of the year.

But the Google ad tech probe is the closest to the finish line, and the Justice Department won’t be waiting on Kanter, the president’s pick for assistant attorney general for antitrust, to get the OK from the Senate. Attorney General Merrick Garland and Associate Attorney General Vanita Gupta will make the final call on whether to sue Google if Kanter still isn’t confirmed by the time prosecutors are ready. Their involvement as the decision-makers could also help assuage tech industry concerns about possible conflicts of interest posed by Kanter’s former clients, many of whom have complained about the search giant’s dominance.

Still under debate at DOJ: where to file. The department usually prefers D.C., but antitrust suits against Google by state attorneys general and private plaintiffs are already proceeding before Judge P. Kevin Castel in Manhattan federal court. Filing in New York would let one court decide Google’s fate.

— Walking down memory lane: Google’s ad tech has been one of DOJ’s main focuses since it began investigating the company in 2019, and many observers expected the department to file suit over that issue last year. Instead, when the department sued Google in October, it zeroed in on the online search market.

An antitrust probe into Apple is also proceeding, but DOJ prosecutors — who attended every day of game developer Epic Games’ antitrust trial against the iPhone maker in May — are waiting on Judge Yvonne Gonzalez Rogers. Her ruling in the Epic case is expected any day now and may affect both whether and where DOJ decides to sue.

SECTION 230 BILLS SPROUTING ON THE HILL — Lawmakers have introduced more than 20 bills to revamp or repeal the online legal shield that protects internet platforms from liability for what their users post. Our Julia Arciga breaks them down for Pros this morning:

Lawmakers on both sides of the aisle are pushing for changes to Section 230 of the Communications Decency Act of 1996, dissatisfied with how major tech platforms have approached their content moderation policies — albeit for different reasons. Democrats are worried that platforms have used Section 230 to avoid accountability for the spread of misinformation and other dangerous content, while Republicans say those same platforms use it to discriminate against conservatives.

That disagreement could make a meaningful overhaul of the law challenging. “There isn’t a ton of momentum around any particular idea for changing Section 230. I don’t really see a coalescing around any philosophical or legal approach to reform,” said Emma Llansó, director of the Free Expression Project at the Center for Democracy & Technology, a think tank that promotes “democratic values” in technology.

— No way: GOP lawmakers are more likely to propose revoking Section 230 entirely — an idea championed by former President Donald Trump, but one that will largely remain little more than political grandstanding as Democrats remain in control.

— Long shot: One strategy that has worked in the past is crafting legislation that creates exceptions to Section 230. Tech policy watchers think H.R. 3184 (117), led by Rep. Yvette Clarke (D-N.Y.), could become law. That bill would hold platforms liable for civil rights violations in targeted advertising.

— Potentially promising: An approach with bipartisan appeal is tying Section 230 protections to platforms’ conduct. This would require the platforms to take certain actions, such as publishing transparency reports or clearly defining content moderation policies for the public, in order to retain their legal protections.

TECH TENSIONS WITH TEXAS — Texas is facing criticism from some tech companies over its restrictive abortion law, which went into effect last week after the Supreme Court declined to intervene in a court challenge. And in another move that will irk Silicon Valley, Texas Gov. Greg Abbott is expected to sign a social media bill soon, after it landed on his desk Friday.

— Feeling deja vu: The Texas state legislature approved a measure late last week aimed at curbing perceived anti-conservative discrimination. (A similar law in Florida was temporarily blocked by a federal judge citing concerns over potential First Amendment violations; that ruling is under appeal.)

The Texas social media bill would require platforms with at least 50 million active monthly U.S. users to publicly release information about their content moderation practices and results, as well as put in place an appeals process for moderation decisions. It also would allow Texas users to sue the platforms over alleged censorship.

Critics of the bill — including prominent tech industry coalitions like the Chamber of Progress, as well as NetChoice and the Computer and Communications Industry Association, which co-led the challenge to the Florida law — say online platforms should have the right to enforce their own moderation policies and take down content they find objectionable.

— Abortion blowback: Meanwhile, a number of tech companies have spoken out against Texas’ new ban on abortions at around six weeks, when human embryos first show detectable signs of cardiac activity. The law also criminalizes helping to facilitate an illegal abortion, which has raised concerns at Uber and Lyft that the law could affect drivers who take a passenger to get the procedure done. In response, the chief executives of the two major ridesharing services have said their companies will help cover drivers’ legal fees. Bumble, a dating app with headquarters in Texas, said it would create a relief fund to support reproductive rights for those seeking abortions in light of the law, and Shar Dubey, CEO of Texas-headquartered Match Group, which owns dating apps like Tinder, said in an internal memo that she would set up a fund for employees and their dependents impacted by the law to seek out-of-state care.

John Branscome, a longtime expert on telecommunications policy, is leaving his post as a majority staff director for the Senate Commerce Committee, the panel told MT. He has been a past contender for a Democratic commissioner role on the FCC. … Dominic Cussatt is now the CIO and head of technology innovation for the Bureau of Intelligence and Research at the State Department. He was previously acting CIO at the Department of Veterans Affairs. … Jessica Cole is now interim CEO of U.S. Digital Response, and Tina Walha will join as director of public digital. Founding CEO Raylene Yung will join the Biden administration, working on tech modernization at the General Services Administration.

Matt Gerst is now VP for legal and policy affairs and associate general counsel at the Internet Association. He previously was VP of regulatory affairs at CTIA. … Troy Clair is now director of public engagement at Instacart. He previously was head of strategic public policy partnerships and senior policy manager at Amazon, and is a Hill alum. … Grace Diana is now a senior manager of federal government relations at Samsung. She most recently was executive director of the National Science and Technology Council and is a Biden and Trump White House alum.

Meghan Pearce has been promoted to federal policy manager at TechNet. … Mina Hsiang is now the administrator of the United States Digital Service, becoming the first woman and first Asian American to lead the agency. … Jaime Teevan has been promoted to CVP at Microsoft. She is the chief scientist for the company’s experiences and devices division.

Sana Sheikh has been promoted to VP of transformation, deputy general counsel and VP of strategic affairs at Granite Telecommunications. … Accounting Seed announced three new hires: former Salesforce director of technical consulting Ryan Sieve as CTO; former AOL analyst Brian Wai as VP of finance and accounting; and former Oracle manager Barry Thompson as partner relationship manager.

J. Alex Dalessio is now principal for the worldwide public sector innovation studio at Amazon Web Services. He previously was senior adviser at the office of the federal CIO and director of strategic initiatives and technology adviser for the White House Council on Environmental Quality. … Josh Divine is now chief counsel to Sen. Josh Hawley (R-Mo.). He most recently was a law clerk to Justice Clarence Thomas.

Something for everyone: “The Strange Tale of the Freedom Phone, a Smartphone for Conservatives.” More from NYT.

Stepping in: “Google locks Afghan government accounts as Taliban seek emails,” via Reuters.

ICYMI: There’s a new Democratic majority at the National Labor Relations Board. That could mean a dramatic shift in power from employers to workers, POLITICO’s Eleanor Mueller reports.

Pretty please: A Texas city hopes to entice Samsung into building a $17 billion chip plant there with large property tax breaks, Reuters reports.

ICYMI: Apple announced Friday it would pause its rollout of new child safety features amid scrutiny from privacy advocates, John reported for Pros. The Electronic Frontier Foundation said the company should drop the planned features altogether.

Tips, comments, suggestions? Send them along via email to our team: Bob King ([email protected]), Heidi Vogt ([email protected]), John Hendel ([email protected]), Alexandra S. Levine ([email protected]), Leah Nylen ([email protected]), Emily Birnbaum ([email protected]), and Benjamin Din ([email protected]). Got an event for our calendar? Send details to [email protected]. And don’t forget: Add @MorningTech and @PoliticoPro on Twitter.