US regulator FTC launches investigation against Big Tech for "censorship"

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In line with the second Trump administration and its campaign slogan of allegedly unlawfully restricting freedom of expression, the Consumer Protection and Trade Commission (FTC) launched an official investigation on Thursday into whether online providers have unlawfully restricted freedom of expression. At the end of his previous term in office, Trump had already threatened to withdraw liability privileges from companies that set rules that are too strict.

"Technology companies should not bully their users," said FTC head Andreas N. Ferguson. "This investigation will help the FTC better understand how these companies may have violated the law by silencing and intimidating Americans for speaking their minds." The FTC sees two types of affectedness: restrictions on freedom of expression through restrictions on the content or accounts of users – and restrictions on the freedom of information of those who no longer receive the content.

Those who may be affected by such – – measures, which the FTC refers to as censorship, should contact the authority and provide cases. Censorship historically refers to state intervention in freedom of expression, but is also extended in the discussion to restrictions by private actors, regardless of whether their intervention is at the instigation of the state.

Focus on shadow banning and demonetization

One questionnaire reveals what the FTC considers to be important under the new US government: Shadow banning, i.e. an artificial reduction in reach and demonetization, i.e. that no money can be earned from posts through upstream advertising, for example. The FTC is not only concerned with possible misconduct by users on the platform and violations of its terms of use, but also with cases in which users have been sanctioned for behavior outside of this contractual relationship.

A number of questions that the FTC wants to know answered are almost reminiscent of the European regulation of the Digital Services Act when it comes to the question of how to deal with account and content blocking or range reduction: Trump's supervisory authority wants to know, for example, whether there were opportunities for users to take action against decisions made by providers. This is precisely what is required by law in the DSA in Europe.

Focus on creator platforms

Based on the questions with which the FTC is starting the proceedings, it is already reasonably foreseeable which providers will be targeted: YouTube, Meta's Instagram and other high-revenue creator platforms in particular, which have moderated content and accounts more strictly in the past – much to the displeasure of the current US President.

Part of the US-EU dispute

However, there is also another side to the investigation: US representatives such as Vice President James David Vance see the divergent European view on the limits of freedom of expression as a betrayal of values. Accordingly, the questionnaire also includes questions on how the platform usage conditions or practices came about. In addition to the question of whether measures came about due to pressure from advertisers or other business partners or from US authorities, the questionnaire explicitly asks whether measures came about due to the intervention of "foreign governments or other foreign entities". The latter formulation most likely refers to the EU.

In its investigation, the FTC appears to base the implementation of moderation, demonetization and shadow banning primarily on a suspicion of distortion of competition. The outcome of the proceedings should above all provide information on the extent to which the FTC acts independently: X, the former Twitter, was not the last to display behavior that hindered competition –, for example by blocking links to Mastodon or most recently to Signal. While US President Trump recently reached a financial settlement with Meta due to its blocking following the attack on the Capitol.

If the FTC does not now focus on X at least as much as other platforms, the credibility of the long-established authority would be massively damaged. Submissions to the investigation are possible until the end of May 2025, after which the FTC intends to evaluate them.

(mho)