The Facts about Google, Antitrust, and the First Amendment

June 19, 2020

Many of you have asked about claims made by Tucker Carlson that Sen. Mike Lee “has taken the side of big tech companies over your constitutional rights.”

Nothing could be further from the truth.

To better understand what is really going on, please do read the following fact check of Tucker Carlson’s claims below.


Tucker: “Thanks to a special carve out Google has received from the United States Congress, something called Section 230 of the Communications Decency Act, Google itself is not responsible for the content on its platform because the Congress says it doesn’t have to be.”

Reality: Section 230 of the Communications Decency Act was passed by Congress in 1996. Google didn't even exist until 1998. Since Section 230 was passed two years before Google even existed it is impossible for it to be a “special carve out Google” received from the government. Section 230 protects online platforms (like a website, app, etc.) from being liable for the content created by someone on their online platform. Under Section 230, all companies operating online platforms are responsible for their own content that they create on their platform. But they are not responsible for the content that is created by another person or company who uses their platform. The person who creates the content is responsible for the content.

Tucker: “Immunity is a very nice thing to have if you are a big company, Fox News doesn’t have it. But again, thanks to Congress Google does have immunity.”

Reality: Section 230 applies to all companies equally. When Fox News operates its website, they do in fact have the exact same Section 230 protections that Google does. FoxNews.com has a comments section. And just as Google would be immune from any slanderous comments made by a commenter in a YouTube comments section, FoxNews.com is also immune from any slanderous comment made by a commenter in their comments section.

Tucker: “We would love to ask Sen. Mike Lee (R-UT) about this… Why do we ask him? Because Lee chairs the Senate Antitrust Subcommittee. He is the man that could do something to protect you from Google.”

Reality: Section 230 is telecommunications law. It has nothing to do with antitrust law. The Communications Decency Act is under the jurisdiction of the Senate Commerce Committee, not the Senate Judiciary Committee or the Antitrust Subcommittee. If people believe Section 230 is the key to protecting the American people from Google then they should look to amend communications law, not antitrust law.


Sen. Lee does share Tucker’s concern about liberal progressive bias at Google, Facebook, Twitter, NBC News, CBS News, ABC News, The Washington Post, The New York Times, and National Public Radio.

What the NBC News’ “Verification Unit” tried to do to The Federalist is absolutely a threat to honest and open speech in the United States. Conservatives should speak out against progressive attempts to silence conservative voices. And Sen. Lee did exactly that.

But our nation’s antitrust laws, the Sherman Act, the Clayton Act, and the Federal Trade Commission Act, were not designed, nor are they equipped, to regulate political bias in technology or media companies.

If we are going to be successful in protecting Americans constitutional rights against progressive activists that want to silence Americans they disagree with, we need to be accurately informed about what the real dangers to our civil rights are. If we waste our time misunderstanding when laws were passed, why they were passed, and what they actually do, we will only make it easier for progressives to win.

If you want to read more about Sen. Lee’s thoughts on how Antitrust law should be applied to Big Tech, please read this interview: CPI Talks… with Senator Mike Lee

A Failure Of Policy And Process

June 12, 2020

When kids ask their parents for a dog, most parents will only agree to buy the dog if the children promise to take care of it.

But what if, as often happens, the parents get the dog but the children then fail to take care of it? Of course, the parents will step in and take care of the animal as best they can while also reminding the children to do their part as often as possible.

But what if the children not only continue to fail to take care of the first dog they own, but also ask for a new dog on top of the one they already are not taking care of? No responsible parent would ever agree to that would they?

And it would be absolutely crazy if the parents then agreed to not only buy their irresponsible children a new dog, but then promised to buy them a new dog every year regardless of whether or not the existing dogs were being cared for, right?

Well that is exactly what Congress did this week with the Great American Outdoors Act. The federal government already owns more than 640 million acres of land throughout the United States. This is a total larger than the entire areas of France, Germany, Poland, Italy, the United Kingdom, Switzerland, and the Netherlands combined.

According to a recent Congressional Research Service report, there are more than $19.38 billion dollars worth of neglected maintenance projects on these existing federal land including significant backlogs at Arches, Bryce Canyon, Capitol Reef, Canyonlands, and Zions National Parks.

These projects include everything from roads and buildings to trails, bridges, and water systems. When these features are ill-kept, it makes it harder for Americans to enjoy the outdoors, and it also makes wildfires and other natural disasters more likely to occur and harder to maintain.

The Great American Outdoors Act does spend over $10 billion addressing this maintenance backlog, but then it turns right around and spends $900 million mostly acquiring new federal lands not just this year, but every year for eternity.

And while the money for buying new land in the bill is infinite, the resources for maintaining the newly acquired lands is not. The existing maintenance backlog will only grow, meaning more neglected infrastructure and worse wildfires. This bill is a natural disaster waiting to happen.

Worse, the more land the federal government buys, the smaller the tax base for our rural Utah counties. The Payment in Lieu of Taxes program was supposed to address this disparity by compensating counties and local communities for the loss of property taxes. But PILT payments have not adequately compensated rural communities. A Utah legislative commission recently found that Bureau of Land Management and Forest Service lands both in Utah cities and within one mile of Utah municipal boundaries should have delivered the state $534 million in annual property taxes. Instead, PILT payments to Utah totaled just $41 million … just 7.7% of the potential gain from property taxes.

We could have voted on amendments to address these problems with the Great American Outdoors Act.

One of my amendments would require state legislative approval for any land acquisition proposed in that state, so that land acquisition would be something Washington does with the states rather than to the states.

Another of my amendments would require the federal government to dispose of current federal lands before acquiring any new ones – forcing land agencies to exercise fiscal responsibility and prioritize which lands they keep under their control.

I’ve also got a number of amendments that would reform the NEPA process to help address the maintenance backlog on neglected land Washington already owns.

And finally, I have an amendment to support Utah’s interests under the Antiquities Act. Right now, other states are protected from unilateral land grabs by the federal government for designation of national monuments; and because 28% of the national monument acreage designated in the 50 states over the last twenty-five years has been in Utah, my state is due the same kind of protections that Wyoming and Alaska already enjoy.

These amendments were all written and filed. The Senate was literally doing nothing else. We could have easily debated and voted on each of these amendments. The floor was empty all day.

But instead not a single amendment was allowed to be debated or voted on. The Senate was created to be the place – the one place in our constitutional framework – where our diverse, divided nation could come together, air our disagreements, and find common ground.

The only reason the United States Senate was given the powers we have, by the Founders and by our constituents, is to facilitate those vital conversations. This isn’t the New York Times op-ed page. We’re not supposed to be afraid of debate here. But right now, we are abusing our constitutional privilege. We are willfully taking the powers the American people have given us to deny them their right to a diverse, deliberative, transparent lawmaking process. And for no other purpose than our own convenience.

This week was a complete failure of policy and process in the United States Senate. We must change how business is done in the Senate, or change will be forced on us.

The Flynn Travesty And FISA Reform

May 8, 2020

Another day, another egregious example of prosecutorial abuse by the federal government. The American people need stronger protections against federal law enforcement malfeasance, and we can secure more protections next week with real FISA reform.

This week, new documents from the FBI investigation of former-National Security Advisor Michael Flynn were released to the public and they paint a troubling picture of FBI agents and officials bending the rules to entrap an innocent American who committed no crime.

On January 24th, 2017, FBI agents Peter Strzok and Joe Pientka interviewed Flynn as part of Special Counsel Robert Mueller’s investigation into the since-disproven Russia collusion investigation. FBI regulations require notes about interviews to be submitted five days after the interview.

But Strzok and Pientka took three weeks, not five days, to submit their notes. Worse, during that time Strzok consulted with FBI lawyer Lisa Page, who he was having an extra-marital affair with at the time, about how to best edit the notes of the Flynn interview. FBI regulations specifically forbid personnel not at the interview from helping to edit interview notes.

The FBI then used these heavily doctored notes to prosecute Flynn, not for any real underlying misconduct, but for lying to the FBI during the interview that the FBI completely botched according to the Department of Justice’s own regulations.

Thankfully the Department of Justice has since reversed course and dropped the prosecution of Flynn. Attorney General Barr should be applauded for assigning General Flynn’s case to U.S. Attorney Jeff Jensen for review.

The botched Flynn investigation comes on the heels of a DOJ Inspector General report showing that there were 17 separate significant errors or ommissions in the Foreign Intelligence Surveillance Act (FISA) application to spy on Trump campaign official Carter Page, and another DOJ IG report showing that FBI malfeasance is common and widespread throughout the FISA system.

Our federal government’s law enforcement procedures are desperately in need of reform and we have a real opportunity to begin that reform next week when the FISA program comes up for reauthorization.

Sen. Pat Leahy (D-VT) and I have a bi-partisan amendment that will strengthen third-party oversight of the FISA process. Specifically our bill requires FISA court judges to appoint an amicus curae (a neutral third-party observer) in any case involving a “sensitive investigative matter” so long as the FISA court does not determine it to be inappropriate. This would apply to the FBI investigation of the Trump campaign.

The amendment would also empower the amicus to raise any issue with the court at any time and give both the amicus and the FISA court access to all documents and information related to the surveillance application.

This amendment will not solve every problem of incompetence and malfeasance at the FBI, but it is a good first step.

Washington won’t fix the covid-19 crisis alone. But it can harness the private sector.

May 1, 2020

The biggest mistake policymakers can make as we begin to dig out from the covid-19 shutdown is assuming that we’ll be able to intuit all the answers.

In the initial emergency, as workers were ordered home and businesses closed, our first reaction was to give money to businesses and workers to make up for lost incomes. But this was always a short-term solution. The urgent task was getting money out the door. And we have. Both Congress and the Federal Reserve have made trillions of dollars available to American businesses and families to help get through the shutdown phase of the crisis.

But as we move from the emergency phase of this epidemic to the recovery phase, Congress needs to be more flexible and more inclusive in our policymaking. We need to recognize that there are more solutions than we can craft with government programs and certainly more than we can sustainably finance.

Recovery policy can’t just be a matter of pumping more money into a few programs that were created on the fly at the height of the covid-19 panic. And while Congress should get back to work soon developing more robust and flexible programs for the next phase of pandemic response policy, there are two ideas we could implement this year that would serve as force multipliers for our efforts.

The first would be to greatly enlarge the charitable giving tax deduction. The nonprofit sector of our economy is being hit at least as hard as for-profit businesses. The services our charitable organizations provide will be more urgently needed this year than ever before. Yet in the rush of relief legislation, Congress increased the deduction by only $300 per person. By increasing the charitable deduction, Congress can effectively depute the American people to identify and indeed help the communities who need it most more quickly and efficiently than government programs will be able to. A November 2019 Tax Policy Center study estimated a similar policy would lead to an additional $6.9 billion in charitable contributions per year.

The second is to create a temporary tax credit for billing forbearance. Businesses this spring and summer are going to have trouble making their normal payments for things such as rent, insurance, outstanding loans and expensive equipment. In most cases, this won’t be because the businesses are failing; it’s simply because the government forbid them from doing business for weeks on end.

Banks and investors and utilities know this, and most aren’t jumping in to foreclose. Rather, they are trying to do the right thing, through forbearance — letting renters, lessees and customers miss or reduce certain payments until the economy reopens and they have some revenue to pay those bills. Congress should jump on this opportunity to incentivize as much leniency as we can prudently afford.

Landlords, equipment rental companies and utilities could be given a tax credit — perhaps 50 percent — for discounts they provide on payments through the end of the crisis. Lenders could be given a similar credit for the value of the interest on any deferred installments.

These aren’t catchall substitutes for other state and federal policies. They would be complements — prudent pieces of a more holistic and sustainable relief and recovery policy. Policymakers need to pull every lever we can, and one of the most important levers is the one that harnesses the market economy’s wealth of local knowledge and kinetic speed to public needs.

Providing financial incentives to lenders to help businesses and communities get back on their feet as quickly as possible is a win-win. More charitable giving will mean less demand for government services. More forbearance will mean fewer bankruptcies, layoffs and a quicker recovery. And we can tap the private sector to do this part of the nation’s relief and recovery work for us — at a fraction of the cost Washington would incur and with better outcomes. That also means we in government can focus on the problems the private sector can’t immediately fix.

One-size-fits-all programs aren’t going to fit this time. We need to encourage economic actors to be flexible and creative as we all adjust to our post-pandemic world.

Op Ed originally published by the Washington Post

Fighting the Coronavirus Together

March 22, 2020

If there is any state that is best prepared for the one-two punch of a global pandemic and a generational earthquake, it is Utah. We will rise to this occasion. We will beat this virus. And we will rebuild from the damage from the earthquake that hit us Wednesday.

All of us can do our own part to help our community through these times. For some, that means staying at home, practicing responsible social distancing. For others it means being on the front lines providing medical care and tests to those affected by the virus. And for some it means cleaning up, assessing, and rebuilding our infrastructure as we recover from the earthquake.

Here in Washington I am working with my colleagues to make sure the federal government’s response helps all Utahns who need it. That means fighting for broad-based action to help all Americans through the social and economic disruptions this emergency is creating.

Americans are all in this epidemic together. So the federal response – from loan guarantees to tax reforms to regulatory relief to direct aid to families – should be as inclusive as possible, rather than benefit specific companies.

Back in Utah I’ve been meeting virtually with key communities like Silicon Slopes and the Salt Lake Chamber of Commerce. You can watch those discussions in the videos below.

But I can’t reach everyone. So if you have any question, any concern at all about the federal response to the Coronavirus please email my office at covid_19@lee.senate.gov and we will get back to you as soon as possible.

COVID-19 Is Bigger Than Politics, We Must Be Too

March 13, 2020

Amidst all the disruptions and frightening statistics, there is good news: we are going to defeat the Coronavirus Disease 2019. And the most important part of that sentence is the word “we.”

The time is going to come for political debates –important and contentious debates – about the United States’ response to this coronavirus outbreak.

We will need to modernize our public health systems to answer the shocking speed with which pandemics spread in this era of globalization.

We will need serious economic policy answers to the disruptions this outbreak may have on employment, investment, trade, and economic growth.

And this epidemic raises grave questions about America’s global strategy, given the Chinese regime’s role in its spread and America’s dangerous reliance on China for manufactured goods.

And of course, governments at all levels will do their part to arrest the immediate spread of COVID-19 and treat those already infected.

But in this epidemic, the “we” who will win this fight against the coronavirus is not “the political class” or “government agencies in Washington.” It’s us: you and me and our families and friends and neighbors.

Policy is important, but it is also slow. The president cannot sign an executive order to outlaw a virus, or make our aging society suddenly younger and healthier. Congress cannot pass a law magically creating millions of surgical masks, testing kits, or ICU beds.

It can appropriate money to buy these things, and has already begun to do just that. But part of reason this pandemic has been so damaging is the disruption it has caused to global supply chains, specifically for things like medicine and medical devices.

As we all know from our dealings with the DMV, the IRS, or a health insurance bureaucracy, it is simply the nature of government, especially the federal government, that it takes time. The federal response to COVID-19 will be absolutely crucial in the long run, but it’s the short run - the next few weeks - that really matter right now.

And in these critical few weeks, what you do in your community is going to be more important in the immediate fight against COVID-19 than anything either party tries to do in Washington.

Activists, pundits, and especially politicians on both sides of the aisle need to get this. Today too many on the Left are using the outbreak as a cudgel to attack President Trump, and too many on the right are downplaying the urgency of the epidemic to defend the president against those attacks. In a genuine emergency like this, mindless partisanship could literally cost lives. There will be plenty of time for political recriminations once the crisis passes.

In the meantime, we cannot passively sit by and look to government to save us. Nor can we view our political opponents as adversaries. Viruses don’t care if you’re a Republican or a Democrat. Right now, we’re all in this together, and we all need to do what we can to be part of the solution and not the problem.

Wash your hands. Clean oft-touched surfaces. Practice social distancing. Avoid large gatherings, for yourself and your kids. Keep up on news from Utah’s Coronavirus Task Force. Thank you Governor Gary Herbert for acting so quickly and decisively to set that task force up.

If you’re an employee, work from home if you can. If you’re an employer, do whatever you can to help your employees stay safe and healthy – ideally at home. The more we can avoid getting sick ourselves, the more our health care professionals can focus on those with the greatest need.

And perhaps most of all, don’t forget about the most vulnerable populations: seniors, those with health issues, and especially elderly friends and family who live alone. They are going to need help, and they are going to need us. Get on the phone. Check in on them, ask them how you can help. Because you can.

The coronavirus threat is bigger than politics. But so are the American people. Over the next few weeks, we’re going to prove it. That’s how we’re going to beat this thing.

Together.

Make the FBI Accountable Again

March 6, 2020

The FBI improperly spied on the Trump campaign in 2016. We must ensure the bureau can’t do it in 2020 or ever again. Because if the FBI can unfairly target a presidential campaign, imagine what it can do to regular Americans.

Here’s how we know what happened. In December, Department of Justice Inspector General Michael Horowitz released a 478-page report detailing over a dozen “serious performance failures” in the FBI's use of the Foreign Intelligence Surveillance Act (FISA) to intercept the communications of President Trump’s campaign supporters. Horowitz identified “at least 17 significant errors or omissions” in the applications to spy on Trump campaign official, Carter Page.

We cannot let Congress forget. We must remember the FBI’s failure to respect Americans' right to privacy. More importantly, we must fix the problems with the FISA program so that these violations of United States citizens’ civil liberties never happen again.

Our Founding Fathers knew well the danger of a government with the power to snoop through the private communications of law-abiding Americans. They included the Fourth Amendment in the Bill of Rights to limit the government’s ability to spy on its citizens. They required law enforcement to go to court and show probable cause for why a specific person or place should be searched or seized.

Unfortunately, the federal government often justifies violations of privacy by claiming they need to protect us from foreign espionage and interference. While the threat of foreign espionage is very real, abuse of government’s surveillance powers is all too common.

As former White House Counsel Emmet T. Flood wrote to Attorney General Barr nearly a year ago: “It would be well to remember that what can be done to a President can be done to any of us.” If the FBI can unfairly target a presidential campaign, imagine what they can do to regular Americans. This isn’t just a hypothetical — we’ve seen it happen.

In 1976, the Church Committee released a report showing that the FBI maintained files on one million Americans between 1960 and 1974 including public figures like Martin Luther King Jr. and Muhammad Ali. The report concluded that presidents from both political parties had “permitted, and sometimes encouraged, government agencies to handle essentially political intelligence.”

Congress responded to these systematic violations of the Fourth Amendment by passing the Foreign Intelligence Surveillance Act in 1978. This law created a parallel system for federal law enforcement to utilize when protecting Americans from foreign intelligence activities. Among other items, the FISA program allows government agencies to monitor American citizens’ activities on an easier standard than a domestic law enforcement agency if the federal government first shows that the citizen is working with a foreign power.

This balancing act only works if the government agents running the system are unbiased and competent enough to balance the tradeoffs. Unfortunately, Inspector General Horowitz’s report obliterated that premise.

According to Horowitz’s report, the FBI team that investigated the Trump campaign was “hand-picked” for “one of the most sensitive FBI investigations.” These agents were supposed to be the brightest and best, of the highest character and professionalism, committed to protecting all Americans’ civil liberties. Yet Inspector General Horowitz found widespread failures including an outright lie to the FISA Court (FISC.)

We are faced with two possibilities.

Either these FBI agents intentionally used the power of the federal government to wage a political war against a presidential candidate they despised, or these agents were so incompetent that they allowed a paid, foreign political operative to weaponize FISA to spy on a rival political campaign.

Neither conclusion is acceptable. FISA must be reformed now. Any proposal to renew the program must include at least some of the following elements:

  1. Increase oversight of FISA applications. Current law requires the FISC to appoint an independent party (amicus) to provide oversight of FISA application only when there it involves a novel or significant interpretation of law. The FISC should be mandated to appoint an amicus in all cases involving any “sensitive investigative matter” such as the activities of a candidate and their staff, elected officials, political organizations or religious organizations.
  2. Force agencies to be fully honest with the FISC. Government agencies submitting a FISA application should be required to provide all information in their possession as part of the application, including any exculpatory evidence.
  3. Strengthen protections on First Amendment activities. Law enforcement agencies are currently not allowed to seek surveillance on Americans based “solely” on their First Amendment activities. This standard should be raised to “significantly.”
  4. Require a showing of probable cause. It should show that a known U.S. person is an agent of a foreign power or has been or will soon be involved in an act of terrorism or in clandestine intelligence activities in violation of the law for Section 215 warrants.

“If men were angels, no government would be necessary,” James Madison wrote in Federalist 51. “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.“

In 1788, long before the establishment of a secret court to authorize the electronic surveillance of Americans, Madison understood that the fallible nature of men, especially those in power, made it incumbent that the government control itself.

These FISA reforms will check the federal government’s surveillance power making it great again.

We Don’t Need Another War in the Middle East

February 14, 2020

When the Miami and Wabash Indians attacked Americans north of the Ohio River between 1791 and 1794, President George Washington confined his military operations to only defensive measures.

“The Constitution,” Washington wrote, “vests the power of declaring war with Congress; therefore, no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.”

This was not humility or modesty. It was duty.

Under the Constitution, whose drafting he oversaw as President of the Constitutional Convention, and to which he swore his oath of office, the power to direct war resided with him as commander-in-chief. But the power to declare war resided exclusively with Congress.

To his credit, President Trump has largely followed this standard. His strategy against Iranian aggression is working.

Tehran has already had to cut back support for international terrorist organizations and its nuclear program; and its oil exports are plummeting.

Its economy has been crippled, contracting by almost 10%… and the Iranian people know it is the fault of their own leaders.

Tens of thousands of Iranian protestors have taken to the streets to protest their own government, even knowing that such action may lead them to injury, imprisonment, or death.

There may be a pathway to peace and prosperity for the Iranian people through sanctions relief and trade – if the Iranian government is willing to cease its support for radical Islamic militant organizations, and abandon its pursuit of nuclear weapons and ICBMs.

Until then, the U.S. – under President Trump’s leadership – will maintain maximum pressure through sanctions, and defend the U.S. from any further attacks.

I stand firmly behind President Trump in this course of action. And, like President Trump, I believe we ought to avoid war if we can.

To be clear, under the War Powers resolution we voted on in the Senate this week, the president would retain all his authority as Commander-in-Chief to take defensive measures against active threats to U.S. persons, assets – including our armed forces stationed abroad, and our diplomats in U.S. embassies – even without an AUMF.

But any offensive military action against Iran requires Congressional approval first.

Osama bin Laden is dead. So are the 9/11 terrorists.

Soleimani is dead. Iran is weakened and isolated.

Saddam Hussein is dead and has been out of power for a generation, and Iraq is a sovereign nation that can – and should – dictate its own course.

We now face new challenges, and our priorities have rightfully changed.

While this resolution speaks only to offensive action against Iran, I believe it is time to repeal the 2002 AUMF and bring our troops in Iraq home.

That is a question that we can and should address in this body.

But in the meantime, we as a body – and as a nation – should at least agree that there is no justification for further military action against Iran in the absence of a new AUMF or declaration of war by Congress.

This resolution is consistent with the president’s desire to keep us out of excessive, unnecessary wars.

It is consistent with the vision of our Founding Fathers, who sought to make it harder to enter into war by requiring express consent from a bicameral legislature.

And it is consistent with the conviction that the American people – whose sons and daughters lay down their lives to defend us – should get a say in the matter.