FTC Takes Step to End “Tyranny of Big Tech” with RFI
As its first policy initiative under Chair Andrew Ferguson, the FTC announced
a Request for Information (RFI) “to better understand how technology platforms deny or degrade users’ access to services based on the content of their speech or affiliations, and how this conduct may have violated the law.”
The premise of the RFI is that “technology platforms” – which include a wide variety of “internet services” – “deny or degrade (such as by “demonetizing” and “shadow banning”) users’ access to services based on the content of the users’ speech or their affiliations, including activities that take place outside the platform,” which the RFI refers to as “adverse actions.” The RFI solicits comments from consumers who have experienced limits on the “ability to share . . . ideas or affiliations freely and openly,” including from “current and former employees of technology platforms” who may have knowledge of platforms’ motivations behind their decisions and policies.
These topics are not new to Chair Ferguson. In a September 2024 statement
about the FTC’s report on social media and video streaming services, then-Commissioner Ferguson criticized the report for “say[ing] nothing about the pervasive political censorship and election interference carried out by the studied companies under the guise of ‘content moderation.’” Similarly, before President Trump selected Ferguson as FTC Chair, then-Commissioner Ferguson identified “[f]ocus[ing] antitrust enforcement against Big Tech monopolies, especially those engaged in unlawful censorship” as a key part of his “Agenda for the FTC.”
The RFI is notable not only for its clear expression that platforms’ treatment of users based on their political opinions may violate the FTC Act but also for what it may portend for Trump-era FTC priorities and actions.
- It is unclear whether there was a Commission vote on the RFI. Commission Rule 4.14 requires a majority of Commissioners to approve “[a]ny Commission action” (unless a greater majority is required). As of this writing, the FTC’s website does not state whether the Commission voted to release the RFI. Several RFIs issued under Biden-era FTC Chair Lina Khan were similarly announced without describing a Commission vote.
- The RFI applies to a broad range of “technology platforms.” The RFI defines “technology platforms” to “include, among others, companies that provide social media, video sharing, photo sharing, ride sharing, event planning, internal or external communications, or other internet services.” This definition would appear to include essentially any service that uses the internet.
- The RFI embraces expansive consumer protection and competition theories that could reach beyond “big tech.” In addition to posing questions that are oriented toward identifying whether technology platforms misrepresented how they “regulate, censor, or moderate users’ conduct,” the RFI asks about forms of consumer harm that could be the basis for unfairness theories. Specifically, the RFI states that the FTC wants information about actions taken directly against speakers as well as “consumers that would have otherwise received or had a higher likelihood of receiving the censored content.” This is in addition to the pecuniary harm that could follow from deplatforming. The RFI also asks a series of questions about whether technology platforms’ “adverse actions” were “made possible” by collusion among competitors or unilateral conduct by firms that “achieve[d] market dominance under permissive content policies, only to change policies after they had achieved market power.” Finally, the FTC seeks information about whether other organizations, including non-profits, “advocated for or enabled censorship.”
- The RFI follows other significant steps to assert presidential control over independent agencies. The FTC released the RFI two days after President Trump signed an executive order on “Ensuring Accountability for All Agencies”. This order directs “so-called ‘independent regulatory agencies’” to submit to greater “supervis[ion] and control[] by the people’s elected President.” This EO, in turn, follows the acting Solicitor General’s announcement
that the Department of Justice (DOJ) would no longer defend for-cause removal protections in statutes such as the FTC Act and Chair Ferguson’s endorsement of DOJ’s action. It also follows President Trump’s dismissal of officials across several agencies whose appointments fall under such statutory protections. It is unclear whether the FTC coordinated its announcement of the RFI with President Trump, but its themes echo his complaints about platforms decisions to ban or otherwise punish certain users.
- What comes after the RFI? Notwithstanding the RFI’s statement that “[c]omments submitted . . . could inform the FTC’s enforcement priorities,” the RFI would be a novel place to start for enforcement actions. It’s likely that the FTC could identify potential enforcement targets without conducting a public inquiry. (At least one state attorney general announced
– in 2021 – that it was investigating several platforms for alleged censorship.)
Another possibility is that the Commission seeks to gather a wide range of views about its Section 5 theories, with an eye toward providing further guidance. For example, the FTC’s Office of Technology published a 2023 blog post analyzing comments received in response to an RFI on cloud computing.
Another possibility is that the RFI is a prelude to a rulemaking. One of Chair Ferguson’s X posts – quoted in the title of this blog post – references the FTC’s efforts to “restor[e] free speech,” and it suggests to us that the FTC may be considering taking this direction. Seen in this light, the RFI could be used not simply to gather information about individual platforms’ practices but to build a record of a “widespread pattern of unfair or deceptive acts or practices,” which could provide a basis for a Magnuson-Moss rule.
Comments on the RFI are due on May 21, 2025.