The worst ideas in Congress never die; they just get sneaked into unrelated bills. This week, that means lawmakers are reportedly trying to burrow a bad media protectionism bill into defense spending authorization. It's called the Journalism Competition and Preservation Act (JCPA), and it's a doozy of bad incentives and state favoritism.
In short, the JCPA would suspend antitrust rules for "publishers of online content" so they could "collectively negotiate with dominant online platforms regarding the terms on which content may be distributed." The latest version states that "digital journalism provider(s)" can engage in joint negotiations with large tech platforms "regarding the pricing, terms, and conditions by which the covered platform may access the content of the eligible digital journalism providers that are members of the joint negotiation entity." It also sets up rules for these negotiations and mechanisms for enforcing their terms.
The idea animating all this is allowing media companies to negotiate a link tax.
As it stands, search engines like Google and social media companies like Facebook that link to news articles tend to provide short snippets of these articles under their headlines. This is a benefit to consumers, who can get a better sense of what the article is about, and to media companies. Links to news articles on Google, Facebook, etc. help alert people to articles they would potentially like to read, and the small summaries entice people to click. But in the fantasyland where Minnesota Democratic Sen. Amy Klobuchar (who sponsored the bill) and other JCPA supporters live, search and social companies will pay for the privilege of sending traffic to media entities.
The plan utterly ignores the fact that search and social help online publishers find readers. Instead, it indulges a cartoonish rendering of tech companies as destroyers of journalism and possibly democracy.
Of course, it's true that search and social platforms have eaten into the ad budgets of online publishers. But the JCPA acts as if media companies are owed this revenue stream. Far from preserving competition, as the bill's name implies, it actually thwarts it by allowing lawmakers to pick winners (online publishers) and losers (tech platforms).
"It's cronyism," commented Jennifer Huddleston, a lawyer for tech-industry group NetChoice. "It provides a special government granted privilege that allows certain media outlets to collude and as a result risks making them more easily influenced by politicians who can take that privilege away."
"The JCPA fundamentally breaks the concept of the open internet where you can link anywhere you want for free" and "messes with copyright law in dangerous ways by implying a new right to demand a license for links or fair use snippets," warned Techdirt's Mike Masnick.
So, the JCPA is wrong on purely ethical grounds and also poses a danger to fair use, to the open internet, and to the free press. It's also likely to backfire against online publishers—and not just those who participate in negotiations.
Meta, the parent company of Facebook and Instagram, says that if the JCPA passes it will stop allowing links to news websites altogether—a move that could mean less web traffic for all sorts of media and, as a result, less ad revenue.
"If Congress passes an ill-considered journalism bill as part of national security legislation, we will be forced to consider removing news from our platform altogether rather than submit to government-mandated negotiations that unfairly disregard any value we provide to news outlets through increased traffic and subscriptions," said Meta in a statement. "The Journalism and Competition Preservation Act fails to recognize the key fact: publishers and broadcasters put their content on our platform themselves because it benefits their bottom line—not the other way around."
Meta's statement went to accuse the JCPA of "creating a cartel-like entity which requires one private company to subsidize other private entities," saying that this creates "a terrible precedent for all American businesses.'
If Google and other search engines have to pay to link to certain media websites, it would only be natural for them to start downranking or even entirely excluding those websites. There is no shortage of avenues where similar information can be found—news aggregators, perhaps, or social platforms where people are summarizing news stories.
Media outlets may find that instead of tech platforms paying them to link to their stories, Facebook blocks their stories entirely and Google starts linking to Twitter threads instead.
The JCPA has attracted a diverse range of detractors. "While the JCPA advanced out of the Senate Judiciary Committee on a 15-7 vote last month, moderates and progressives remain split on the bill," noted Politico in October:
That's in part due to support from Republicans like Sen. Ted Cruz(R-Texas), who successfully introduced an amendment that some fear will enable the spread of disinformation and hate speech. Others have raised concerns that the bill could undermine copyright law and benefit large media outlets at the expense of small ones — leading to a strange coalition of tech lobbyists, libertarian groups and progressive advocates lining up to oppose the legislation.
Whether the JCPA could pass as a stand-alone measure is unclear. So supporters are reportedly trying to stack the deck by slipping a version of the JCPA into an unrelated bill, the "National Defense Authorization Act" (NDAA).
"Supporters of the media bailout bill have secured the backing of Sen. Jack Reed (D–R.I.), chairman of the Senate Armed Services Committee which oversees defense spending," according to Breitbart:
This brazen last-minute ploy by supporters of the media cartel bill follows what Politico predicted earlier this week: having failed to secure a floor vote to the bill, the JCPA's supporters now want to attach it to an entirely unrelated bill.
Should the NDAA route fail, the bill's supporters may also try to attach it to an omnibus spending bill, another type of bill that is seen as a "must-pass."
A group of 26 organizations—including the American Civil Liberties Union, the Center for Democracy and Technology, the Niskanen Center, the R Street Institute, and the Electronic Frontier Foundation—issued a letter yesterday urging lawmakers to not attach the JCPA to any pending legislation.
"The JCPA will compound some of the biggest issues in our information landscape and do little to enable the most promising new models to improve it," the groups wrote before laying out specific issues they see with the bill. Among these are that the JCPA sets "a legal and political precedent that some uses of content that were once free of charge now require payment" and that "large media conglomerates can dominate negotiations, and small outlets would be unheard if not hurt."
FREE MINDS
Sigh: The American Civil Liberties Union (ACLU) is siding with the state in a case—before the Supreme Court this week—involving a website designer who declined to build a same-sex wedding website.
The ACLU taking the side of the state in the 303 Creative case in Colorado says a whole lot about how much that organization has fallen. https://t.co/015KI7eVPD
— Jay Caruso (@JayCaruso) December 5, 2022
More background on the case here. More on oral arguments here.
FREE MARKETS
By how much did Dobbs reduce abortions? Jacobin looked at whether the Dobbs decision has reduced the number of abortions taking place in the U.S., and by how much. "There are two main reasons to doubt that the overturn-then-restrict strategy of the antiabortion movement would make much of a dent in the number of abortions being conducted in the United States," wrote Matt Breunig:
The first reason is that most of the population lives in states that are not likely to impose significant restrictions. The [Society for Family Planning] data confirms this. Prior to Dobbs, 10 percent of US abortions occurred in states that went on to ban abortion, 16 percent occurred in states that went on to significantly restrict abortion, and the remaining 74 percent occurred in states that have not imposed significant restrictions.
The second reason is that abortion seekers have three ways of getting an abortion: 1) through a formal provider in their own state, 2) through a formal provider in another state, and 3) informally, such as by acquiring mifepristone or misoprostol without a prescription. Yet state laws can only really restrict the first option. When that option is closed down, many abortion seekers will opt for travel or informal methods.
The SFP data partially confirms that this is happening. Between April and August of this year, the number of abortions in states with bans or significant restrictions declined by 12,500 per month, while the number of abortions increased by 7,140 in states without significant restrictions.
Breunig noted that while this appears to be a reduction of 5,360 abortions per month, "many of those 5,360 missing abortions probably did occur through informal methods, like abortion pills acquired without a prescription, that escape this kind of tracking."
QUICK HITS
Citing Covid, DHS just announced enforcement of the REAL ID travel requirement for boarding flights in the U.S. has been delayed yet again—this time an additional two years until 2025. The REAL ID Act was passed by Congress in 2005 and originally intended to be in effect by 2008. pic.twitter.com/iwJN5MBAuA
— Dustin Volz (@dnvolz) December 5, 2022
• Today is the last day of Reason's 2022 webathon. Please consider giving a (tax-deductible) donation to support our work.
Whoa dudes. @Reason's annual Webathon fundraiser, with 28+ hours to go, just blasted through the HALF-MILLION DOLLARS mark. For the third year in a row.https://t.co/8s8q58NeMG
— Matt Welch (@MattWelch) December 6, 2022
• "A precedent set in the January 6 prosecutions could be dangerous to the public," warns Bonnie Kristian.
• Are we entering an era of #MeToo reckoning?
• A study published in Child Development "did not find a meaningful association between the age at which kids received their first phones and their well-being, as measured by grades, sleep habits and depression symptoms," reports Stanford Medicine.
• Celebrating Pauline Sabin, the woman who spearheaded Prohibition's repeal.
• Reason editors talk about "The Twitter Files," Matt Taibbi's report on Twitter content moderation decisions related to Hunter Biden's laptop and penis.
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