Why S. 2992 Didn’t Pass: Fundamental Policy Flaws & Bipartisan Opposition

Washington, D.C (12/22/2022) – The 117th Congress adjourned without passing the American Innovation and Choice Online Act (S.2992) after the bill’s sponsors failed to address serious policy problems concerning privacy, security, and content moderation raised during the Senate Judiciary Committee markup in January. 

“The legislation didn’t get a vote on the Senate floor because of bipartisan concerns about the national security, privacy, content moderation, and inflationary impacts of this bill,” said Don’t Break What Works spokeswoman Katey McCutcheon. “Congressional leaders knew the bill did not have the votes needed for passage because it would have raised prices, slowed delivery times, and threatened phone security. The bill’s supporters never secured 60 votes needed for passage because they could not solve a range of bipartisan concerns raised during the January committee markup.”

Here are 7 reasons why S. 2992 failed:

  1. Nearly a year after the Senate Judiciary Committee considered the bill, numerous substantive concerns were never resolved and some are unresolvable. It is apparent that deep and widespread concerns about S. 2992, raised by bipartisan members of the Senate Judiciary Committee, were never resolved. Also unaddressed during the last year were concerns raised by experts from the national security, cybersecurity, and consumer advocacy communities. Despite these clearly articulated concerns, there is little evidence that the bill’s sponsors made progress in assuaging them. This is evidenced by the introduction of a manager’s amendment, which admitted to but failed to address S. 2992’s issues.
  2. Republicans and Democrats don’t agree on key parts of it – including content moderation. In their attempts to garner support, the bill’s sponsors struck “an awkward compromise.” For example, when four Democratic senators wrote a letter asking for the bill’s key sponsor, Senator Klobuchar (D-MN), to fix one portion of the bill that they said would limit companies’ ability to moderate content, the lead Republican proponent of the bill  said such changes would be “a nonstarter.”
  1. The national security community expressed deep reservations about it. A letter to Congress signed by several prominent national security officials noted that House and Senate antitrust bills would “damage the capability of U.S. technology companies to roll out integrated security tools…weakening security measures…in device and platform operating systems.” It would also make it harder for U.S. companies to compete with state-owned companies in countries like China and Russia. 
  1. Cybersecurity experts have significant concerns about it. S. 2992 weakens cybersecurity protections and data privacy for American consumers. Right now, online platforms can remove harmful software that compromises user data. According to The App Association, S. 2992 “would essentially prohibit software platforms from removing bad actors,” making consumers less likely to download applications from smaller companies without public profiles and hurting the marketplace.
  1. American consumers like the very products the bill targets. S. 2992 would break popular, free digital services that Americans like and use often, such as Google Maps and Google Search. It would also break Amazon Prime’s popular, two-day delivery. According to recent polling, 57% of Americans oppose legislation that could eliminate products and services provided by companies like Amazon. 
  1. The American people have other priorities. 61% of Americans want Congress to focus on the economy, while only 2% said regulating the tech industry is a top priority. Overall, 89% of Americans said Congress should work on fixing inflation instead of breaking up successful U.S. businesses. At the same time, 54% of Americans think laws like S. 2992 would make inflation worse. 
  1. For all the reasons stated above, the bill did not have the 60 it needed to pass the Senate. Majority Leader Schumer said there are not 60 votes in support of S. 2992, the threshold needed to overcome a filibuster. His office continued to confirm there is a lack of support for the bill, saying that, while the majority leader worked with the bill sponsors to gather the necessary votes, many senators refused to commit to supporting the bill. 

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