Been Hearing That for a While Now
Yet another hearing with top tech executives came and went last week, this one lasting more than five hours. But at this hearing, the powerful men Congress was hoping to call to account tried to gently turn the tables. Mark Zuckerberg was first to roll out this strategy, politely suggesting in his opening remarks that lawmakers “move beyond hearings and get started on real reform.”
The Facebook CEO’s point was clear: These sorts of Congressional hearings have become a kind of rote theater, serving mainly to vilify the leaders of America’s digital powerhouses in a way that distracts from the ongoing failures of Congress itself. For years now, federal lawmakers have been dramatically laying a long list of maladies, from political misinformation to teenage depression, at Big Tech’s feet, and over that same period what have members of Congress done about those same problems? Nothing.
A number of journalists on the tech beat also fired this criticism at the March 25 hearing. The great Casey Newton wrote: “In the past six months, Big Tech CEOs have been hauled before lawmakers three times… Gosh, won’t somebody do something? Lawmakers, maybe?”
There’s obviously something to this. Twitter CEO Jack Dorsey doesn’t often generate sympathy, but it was hard not to empathize with his exasperation at last week’s command performance. He conveyed that frustration in his remarks and in a sarcastic tweet he put out during the hearing itself, mocking the oversimplifications and gotcha strategies that led lawmakers to demand Dorsey, Zuckerberg, and Google CEO Sundar Pichai give only “yes” or “no” answers. It’s also maddeningly true that some of the very same Republican members of Congress putting tech leaders on the hot seat during the “Disinformation Nation” hearing had themselves been amplifiers of the #StopTheSteal disinformation campaign. Those members are, in effect, walking evidence for Zuckerberg’s claim that the tech problems Congress is so loudly upset about actually have roots that extend well beyond (and well before) the digital era, implicating our entire “political and media environment.”
At the same time, as pointed out by Emily Bell, director of the Tow Center for Digital Journalism at Columbia University, any time you notice journalists echoing the well-financed PR of tech giants, you should crank the skepticism dial up a few notches.
In this case, I think at least two important factors were often discarded along the route to all of last week’s post-hearing dunks on Congress for having yelled, yet again, about problems Congress has the power to try and fix.
One, this is the first hearing of its kind since Democrats took control of all three branches of government. If you view these tech CEO hearings as one single, endless melodrama with an abysmal script that’s still stale, even after a supposedly consequential election, then of course it’s merely time for another eye roll when Democratic Representative Mike Doyle of Pennsylvania rails against what tech companies have done to America and promises: “We will legislate to stop this.”
But from the perspective of House lawmakers now seeing a narrow Democratic majority in the Senate and a tech-skeptical Democrat in the White House, it probably does look like an entirely different show. Was their more than five hours of performative treadmill walking on March 25 a necessary component of that brand new show? Probably not. But if what happened on March 25 serves to foreclose any future arguments about how the new Congress hasn’t debated these fast-changing issues, and real legislative action is swiftly taken up, then maybe last week’s boring re-run of a hearing will look a bit different.
Two, and more importantly: Who do we think actually writes the script in Congress?
Last year, according to Public Citizen, tech powerhouses spent almost twice as much on lobbyists as the big lobbying heavies of yore, Exxon and Philip Morris. There are literally hundreds of people paid to jawbone members about Big Tech’s desires for action or, where it prefers, inaction. As Senator Amy Klobuchar pointed out last year, one would assume that this “army” of persuasive tech representatives could have shoved federal reforms like her “Honest Ads Act” along, if that were truly what tech leaders wanted.
Facebook alone spent about $17 million on lobbying in 2019. Last year, the company spent close to $20 million. It’s more than fair to be cynical about what Congress does and does not do. But perhaps we should be just as cynical about the role all that tech lobbying cash has played in shaping the endless legislative stalemates that lead to the sort of endless stale hearing re-runs that Zuckerberg now wants people to dismiss as a waste of time.
While we’re on the topic of tech legislation, a return to that digital privacy bill in Washington state I flagged last week:
The bill, known as the “Washington Privacy Act,” made it out of its state house committee on Friday after the Democratic committee chairman, Drew Hansen, amended a number of the bill’s major provisions.
For example, while the original version of the bill that came to Rep. Hansen from the state senate on a 48-1 vote didn’t include a “private right of action”—which allows individuals to sue tech companies that violate their privacy rights—Hansen’s revised bill does offer a limited private right of action. Under his new provisions, people could sue a digital services company that fails to protect their privacy, but only to get a court injunction against such practices going forward, not for punitive damages.
Do Rep. Hansen’s revisions satisfy the concerns of the ACLU, which along with other privacy-focused groups has called the “Washington Privacy Act” weak and full of loopholes? No.
Jennifer Lee, the Technology and Liberty Manager at the ACLU of Washington, concedes the revised bill is now “slightly stronger” than the version that came out of the state senate, but adds: “not by much.” The changed language on the “private right of action,” for example, means, according to Lee, that “an individual could only get a company to stop a specific action, but would not be compensated for any harms done, and would have to expend significant attorneys’ fees with a substantial risk of not getting all of those fees back even if they win.”
To Lee, the bill remains “fundamentally flawed” because of the private right of action issue, as well as its continued lack of a universal opt-in requirement for data collection and its policy of pre-empting all future digital privacy legislation in the state’s local jurisdictions.
Rep. Hansen, after the amended bill passed out of his committee on an 11-6 vote, described the revised measure as “reasonable.” He said his changes move its provisions “closer to what California has done already”—California being the more progressive of two states that have passed comprehensive digital privacy laws in this era of Congressional inaction—and he announced the “breaking news” that Consumer Reports and Common Sense Media support his amendments.
Whatever ultimately happens to this hotly disputed proposal stands to affect how Congress looks at privacy legislation (if it ever actually takes up privacy legislation). So what’s the ultimate fate of the “Washington Privacy Act” likely to be?
Hard to say. The committee vote was strictly along party lines, with the 11 “yes” votes coming from Democrats and the 6 “no” votes coming from Republicans who don’t like the idea of following California on anything and worry that Rep. Hansen’s revised bill will, as Republican Rep. Jim Walsh put it, “open the floodgates of legal actions but not effectively guarantee or improve any Washingtonian’s digital privacy.”
Democrats presently control the state house, but even if the full house were to pass Rep. Hansen’s revised bill, those revisions would still have to be approved by the state senate.
Last year’s version of the “Washington Privacy Act” also came out of the senate on a near-unanimous vote and then underwent significant revisions in a house committee, after which the senate refused to concur with those house revisions and the bill died.
Meanwhile, as the parties to the Parler v. Amazon lawsuit continue to wrangle over whether that suit should be heard in federal or state court, a new lawsuit has been filed against Parler by its ousted former CEO, John Matze. As NPR reports:
John Matze claims Parler's leadership took away his 40% stake in the company in an "arrogant theft," intimidated and bullied him in an ouster he says was illegal and left him owed millions of dollars.
The lawsuit adds to the troubles that the conservative social media site has had since the Jan. 6 attack on the U.S. Capitol, which pro-Trump rioters had discussed on Parler. Shortly after the violence, Amazon Web Services refused to continue hosting Parler, and the site went dark. It has since come back online but is not yet fully functional.
Matze’s lawsuit says his firing occurred after he tried to push Parler to get tougher on QAnon and domestic terrorism, and he’s now accusing Parler of defamation and breach of contract for the way he was pushed out of the company. Perhaps ironically, defamation and breach of contract are among the claims Parler itself is making in its ongoing lawsuit against Amazon.
Some of the things I’ve been reading this week:
• A big list of ways Congress might reform Section 230 — From the helpful folks at Slate.
• A look at the decline and fall of Medium’s journalism ambitions — By Casey Newton.
• When ICE wants your Google user information — In the Los Angeles Times, Johana Bhuiyan explains what happens.
• Want to stop misinformation before it takes off? Try friction, says Renee DiResta in Wired.
• The best tweet from the March 25 hearing:
