FTC opens discussion on “Technology Platform Censorship”

1. Under what circumstances have platforms denied or degraded (“shadow banned,” “demonetized,” etc.) users’ access to services based on the content of the users’ speech or affiliations?

The FTC specifically wishes to learn about the types of adverse actions platforms took against users, if those actions were in response to a user’s speech or actions on the platform or outside of it, the platform’s notification practices regarding adverse actions and decisions, and whether such actions were justified based on benefits to consumers or promoting competition.

2. At the time of the adverse actions, did the platforms have policies or make other public-facing representations about how they would regulate, censor, or moderate users’ conduct on and off the platform?

The FTC also invites commenters to address the policies that platforms have in place regarding the denial or degradation of users’ access to services and whether they apply those policies regularly and consistently across users. Commenters are encouraged to share if a platform changed its approach to regulating users’ speech and how it notified users of those changes. Commenters may also discuss whether a platform’s policies were consistent with statements made by its executives and employees.

3. Did the platform represent, implicitly or explicitly, whether users had the ability to challenge or appeal adverse actions that deny or degrade the affected users’ access to services?

The FTC asks whether platforms gave users a meaningful opportunity to challenge or appeal actions taken by a platform that denied or degraded a user’s access, how long it took to adjudicate those challenges or appeals, and if the platform has applied those processes consistently.

4. How did the platforms’ adverse actions affect users (including creators of content)?

The FTC invites users, namely content creators, to share their experiences regarding how platform actions affected their ability to earn money or build followings. Additionally, the FTC asks whether competing platforms have engaged in analogous conduct against the same users or if platforms lured users to join under one set of moderation policies, only to change the rules. And the FTC queries whether targeted users were able to find adequate substitutes in other platforms, allowing them to reach similar audiences and achieve similar goals.

5. What factors motivated platforms’ decisions to adopt their policies or to take the adverse actions?

The FTC also seeks comment on whether platforms’ policies or adverse actions were influenced by pressures from advertisers, businesses, governments, or the private interests of platform employees or executives. Additionally, the FTC asks if platform employees or executives encouraged or colluded with outside parties to pressure the platforms into adopting policy changes or adverse actions.

6. Were platforms’ adverse actions made possible by a lack of competition? Did the practices and policies affect competition?

Finally, the FTC asks whether platforms adopted similar policies to other platforms and whether they coordinated with one another in doing so. Commenters may also address the extent to which platforms funded or collaborated with organizations, for-profit or non-profit, that advocated for or enabled censorship. The FTC seeks to understand if platforms changed their policies after gaining market dominance under permissive content policies and used their influence in other markets, like search engines and app stores.

On Tuesday, February 18, President Trump signed an Executive Order (EO) that seeks to make independent regulatory agencies, including the FTC, accountable to the White House. The implementation of that EO and the President’s broader agenda could impact the outcome of this inquiry. Please visit the Hogan Lovells Executive Order Tracker for more information.

Authored by Mark Brennan, Katy Milner, Ryan Thompson, Andrew McCardle, Sophie Baum, Harsimar Dhanoa, Jordyn Johnson, and Isabelle Dean.