This fall, the Senate judiciary committee approved legislation that would exempt the nation’s largest news outlets from some antitrust restrictions. If enacted, the Journalism Competition and Preservation Act (JCPA) would allow major news outlets to collectively negotiate payments from social media companies — such as Google and Facebook — that link to and profit from the outlets’ news reporting.
Framed by supporters as a solution to the news industry’s financial crisis, the bill enjoys robust bipartisan backing in Congress and endorsements from many media companies and some media unions. Yet, according to a letter to congressional lawmakers from more than twenty public interest, consumer advocacy and civil society groups, including Common Cause, Free Press, Public Knowledge and Electronic Frontier Foundation, the proposed legislation will “compound some of the biggest issues in our information landscape and do little to enable the most promising new models to improve it.”
Instead of “preserving” journalism, as the bill’s name suggests, the legislation will primarily benefit large corporate news conglomerates, such as Sinclair, which is the largest TV station owner in the U.S., and union-busting news chains such as Alden Global Capital, owner of the Chicago Tribune. JCPA will do little, if anything, to preserve or promote public-interest journalism. As one critical report on the legislation noted, “in a strategic sleight of hand, the large news-media companies want us to conflate the public importance of local journalism with their own bottom lines.”
Moreover, the bill contains a “must carry” clause that would prohibit platforms from making editorial decisions about which political content to carry. As written, this clause would force social media companies to carry opinions expressed by any digital journalism provider employing fewer than 1,500 people. This runs the risk of turning these platforms into environments like 8kun and 4chan, where odious content proliferates, and is probably unconstitutional to boot.
If JCPA becomes law, it is certain to transform the digital media landscape that hundreds of millions of Americans depend on for news and information each day. Yet, coverage of this proposed legislation by the very outlets that stand to benefit from it most has been sorely lacking. With the exception of op-eds promoting the bill in papers such as the Los Angeles Times, JCPA has been barely mentioned by corporate media. As usual, independent news outlets have provided more detailed and decidedly more critical coverage of the proposal.
A Pattern of Missing Crucial Media Policy Stories
The lack of corporate news coverage of JCPA is part of a broader pattern documented by several decades of research by Project Censored on important but underreported news topics. Dating back at least to the passage of the sweeping Telecommunications Act of 1996, which Project Censored highlighted as its top “censored” story that year, corporate news outlets have tended to ignore or provide only cursory, superficial coverage of important media policy stories. When they do cover such stories, they consistently frame them as “business” news, obscuring the broader impact of particular media policies on our democracy and public life, or as “opinion” pieces that attempt to persuade the reader to adopt the author’s perspective on this or that proposed regulation. Moreover, there is some evidence that news outlets whose parent companies have financial interests directly affected by a particular media regulation cover the regulation very differently from outlets that do not have conflicts of interest.
Consider, as examples of the failure of the establishment press to adequately cover media policy, two stories that Project Censored has identified as among the most significant underreported news stories of 2021-22: big media companies’ fight against efforts to regulate digital advertising and the unintended consequence of Congress’s attempt to clamp down on child pornography.
Dozens of the nation’s most prominent media outlets — including CNN, The New York Times, NBC, The Washington Post and Fox News — have covertly enlisted the Interactive Advertising Bureau (IAB) to oppose the Federal Trade Commission’s efforts to regulate how Facebook, YouTube, Instagram, TikTok, and other social media platforms collect and employ users’ data to target them with advertising. This sort of “surveillance advertising” has become commonplace and extremely profitable.
The IAB argues that targeted advertising has become necessary for news organizations due to declining revenues. But, for most media conglomerates, surveillance advertising revenues have soared, more than offsetting losses in traditional ad sales: Although non-digital advertising revenues decreased from $124.8 billion in 2011 to $89.8 billion in 2020, digital advertising revenues rose from $31.9 billion to $152.2 billion in the same period, according to Pew Research.
Major news outlets chose not to cover the story, Lee Fang reported for The Intercept, because “they would have had to acknowledge an awkward reality,” namely that they too employ data management companies, such as OpenX or Oracle’s BlueKai to place (and profit from) targeted ads of their own. As Fang wrote, these media corporations “increasingly rely on a vast ecosystem of privacy violations, even as the public relies on them to report on it.”
The EARN IT Act
Under the guise of holding internet service providers responsible for the online spread of child pornography, the 2022 EARN IT Act could significantly impact freedom of expression on the internet far beyond its stated aim of establishing a national commission to develop “best practices” for the elimination of “child sexual abuse material” (CSAM). As Riana Pfefferkorn, a research fellow at the Stanford Internet Observatory warned, the EARN IT Act is likely to result in service providers “overzealously censoring … perfectly legal user speech just in case anything that could potentially be deemed CSAM might be lurking in there.”
Furthermore, because encryption is a potential red flag for CSAM content, the EARN IT Act will likely pressure platforms to abandon end-to-end encryption, a vital privacy protection that nearly all online users benefit from — members of marginalized groups in particular.
Since early 2022, the EARN IT Act has received limited coverage from major corporate newspapers. A February 2022 editorial in The Washington Post reported on the bill’s “dangerous tradeoffs,” acknowledging that concerns raised by privacy and speech advocates — including threats to end-to-end encryption and legitimate free expression — “have some merit.” A February 2022 report in the Wall Street Journal noted opposition to the EARN IT Act by “a coalition comprising more than 60 privacy and human-rights groups” but emphasized a positive consensus between Republican and Democratic lawmakers, including Lindsey Graham (R-South Carolina) and Dianne Feinstein (D-California).
Unmuzzling the Public’s Watchdog
We all depend on news media to alert us to potential threats to the public interest, particularly threats posed by big corporations or powerful lawmakers.
Ironically, the only way the vast majority of Americans will ever learn about the EARN IT Act’s possible effects on online privacy or the FTC’s push to reign in the sheer amount of personal data advertisers can collect about users is if the media actually cover these stories. Absent detailed and incisive coverage of media policy proposals and debates, citizens are reduced to the role of passive bystanders in regulatory and legislative processes, and authoritarian politicians and highly paid corporate lobbyists are able to operate in secret to shape policies in ways that serve their interests, not the public interest.
It is true that corporate outlets like The Washington Post and The New York Times do sometimes cover important media policy stories, but slanted news coverage is not necessarily better than no news. News coverage of proposed policies like JCPA that unquestioningly presumes market principles essentially reinforces the idea that media are nothing more than a source of profit for their owners, rather than a vital source of information for the public and a central arena of debate for the citizens of our democracy. All of us deserve better coverage of media policy and media policy debates. It is time to unmuzzle the public’s watchdog.