Congresswoman Pramila Jayapal on a New Roadmap for Regulating Big Tech

"Our democracy is at stake"

Though it feels like much longer, it was only last week that a House panel released its long-awaited look at the monopolistic practices of America’s most powerful tech giants. The media world seemed to pause and take note that Congress might be gearing up for something big, but then it quickly returned to a near total, frantic immersion in the dangerous final days of an ever-more-surreal election season. So let’s rewind a moment.

That blandly titled report, “Investigation of Competition in Digital Markets,” is an important document that could foreshadow major government intervention in the workings of some of America’s most reviled and beloved digital platforms. Democratic Seattle Congresswoman Pramila Jayapal is on the committee that produced the report, and she spoke with me by phone about what it says, what it means for the future, and why she can be tough with tech leaders while still getting easily reelected in a district full of their employees. This interview has been slightly edited and condensed.

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ELI SANDERS: You’re a member of the House subcommittee that just released a 400-page report on whether Amazon, Facebook, Google, and Apple should be broken up using antitrust law. During the hearings that led to this report, you received a lot of attention for the way you forced Jeff Bezos and Mark Zuckerberg to answer hard questions about their business practices. But the report makes clear you still don’t think these companies have been forthcoming enough. It also raises the troubling possibility that these digital behemoths may actually “believe they are beyond the reach of democratic oversight.” Do you think America’s tech giants believe they’re beyond democratic oversight, and if so what do you believe gave them this impression?

CONGRESSWOMAN PRAMILA JAYAPAL: I think they thought that they were beyond democratic oversight, because they pretty much were. There’s been no major investigation in Congress until our investigation. The enforcement of antitrust laws had been so meager and narrowed over the last several decades. There aren’t enough resources for the enforcement agencies sometimes, and they apparently feel they haven’t had a clear mandate. Plus the Supreme Court had really narrowed the interpretation of antitrust laws to a point where it was really very difficult to take on any of these monopolistic behaviors.

Combined with that, the growth of the tech platforms and the speed with which technology now moves—I mean, it’s very different than laying railway infrastructure. When you looked at a tech world acquisition—say, Facebook’s purchase of Instagram, which did go through the regulators—it was difficult to see what the effect would be of those mergers.

So everything was left to self-regulation. I think that’s one of the big take-aways of the report. And that came at a big cost to small businesses, and innovation, and creativity.

A big cost to democracy, too, as the report points out.

Exactly. To the free press, to democracy over all. I think things are changing, though.

My impression during the hearings was that the CEOs were not really used to talking to members of Congress who actually had facts at their fingertips and detailed information. You know, we got tens of thousands of documents from each of these companies. So I think there is a change in how they’re interacting. Some of that is that they’re putting a lot more money into lobbyists on Capitol Hill. That’s unfortunate.

They still have not been fully forthcoming, some more than others. And I think it will take a lot of work to implement the roadmap we’ve laid out in the report—to move quickly and be as bold as I believe we really need to be.

How do you get to bold moves in the current US Congress? In addition to the history you’ve outlined, another major reason we’re at this point is partisan stalemates. Does the path forward depend entirely on the upcoming election, and whether the Democrats end up controlling the House, Senate, and presidency once all the ballots are counted?

We have to win. We have to win in November for so many reasons. I mean, literally, our democracy is at stake. And there’s no question that moving forward on this antitrust roadmap is going to be a heck of a lot easier if we have Democrats controlling the White House, the Senate, and the House. It’s not impossible that something would move forward given a different outcome, but I think that it becomes much harder.

First, though, we had to do this investigation. Because it’s really a complicated subject, and I think we had to get at all the different things that are happening. I mean, it’s a 400-page report and there are a lot of recommendations in there.

For me, some of the key recommendation areas involve this question of structural separation—separating lines of business. This is an idea that I think Republicans are worried about because obviously it has consequences greater than just the tech platforms. But it is at the core of the idea that you shouldn’t be able to own the platform, and compete on the platform, and set different rules for yourself than for your competitors, and have different advantages.

This the point on which you really challenged Jeff Bezos during one of the hearings.

Correct. And also Sundar Pichai, in a slightly different way.

With Jeff Bezos, one of the questions is Amazon’s third-party sellers and how much information Amazon is collecting on those third-party sellers. Whether that gives Amazon a market advantage, where it can then create private-label brands and underprice competitors for a product that those competitors developed and were selling on Amazon. Essentially, Amazon could use information it collects on its third-party sellers to undercut them and push them out of business.

With Sundar Pichai, I was talking about the way Google serves on both the buy side and the sell side of ad revenue. That’s the main driver of Google’s profitability. They are both buying the ad space and they are selling the ad space. It’s called insider trading if you do it on Wall Street, but somehow here it’s not regulated at all. And one of the consequences is that it makes it almost impossible for news organizations to get the kind of revenue they used to receive.

Going back to what I think are the report’s key recommendations, in addition to pushing for structural separation I think a presumptive ban on mergers is also a good idea. It gets at the idea that there aren’t enough regulatory resources and you don’t always see the impact of an acquisition at the time it’s happening. This wouldn’t mean mergers can never happen. It just means the burden of proof falls on the acquiring company, not on the regulator.

And then finally, and maybe a little bit easier, is the idea of clarifying antitrust law to reassert that its core purpose is combatting monopolistic behavior.

Let’s talk about another harm you’ve identified from one of these alleged monopolists. In a recent tweet, you talked about Facebook having a “hate-for-profit algorithm” that needs to change because it currently emboldens “white supremacists, neo-Nazis, [and] right-wing militia groups.” So I wonder: In addition to being broken up—perhaps by separating Instagram from Facebook—do you think that Facebook itself needs to essentially junk its business model and start over? The Wired article your tweet linked to says Facebook has “a business model that’s fundamentally incompatible with democracy and human rights.”

Yeah, I think that’s been a deep concern. Now, Mark Zuckerberg disagrees that the algorithm is constructed in that way. But I haven’t seen the proof to back up his assertions. Everything that I’ve seen is that the algorithms are generated to move forward profit, and they do that by seeing what goes viral most quickly.

Other things don’t move that quickly. You know, Facebook just banned QAnon, but there’s a lot of criticism of Facebook for waiting so long.

The problem here, and the question I asked Mark Zuckerberg is, “Mr. Zuckerberg, are you too big to care?”

Because if, at the end of the day, your model is around ad revenue—which, most of these platforms, that’s where they’re getting their money—and you know that your platform is so dominant that an advertiser is never going to permanently pull their money away from you, and you’re not worried about regulators, then you’re essentially saying to everyone, “Sure, go ahead. Try to launch an ad boycott. It doesn’t matter, we know you’re going to come back.” Which is what he told his employees.

It’s sort of like the genie has been let out of the bottle. And I think unless you dramatically shift the drivers of what is seen as success for these companies, you’re not going to be able to stop the disinformation, the hate, and ultimately the attacks on democracy.

Keeping with the theme of Facebook being perhaps too big to care: The antitrust subcommittee’s report also talks about a pattern of “recidivism” by tech giants, in which they repeatedly break laws and violate court orders, possibly because they see the consequences of lawbreaking as an affordable “cost of business.” This reminds me of the set of facts in Washington State vs. Facebook, one of the cases that’s a touchstone for this newsletter. In this case, Facebook is in court right now because the attorney general of Washington state, who already sued Facebook once in 2018, believes the company continued to “repeatedly” break the same state campaign finance law he’d already sued them over.

There isn’t a real commitment on the part of these companies to even doing the things they say they’re going to do. We on the committee did look at this question of settlements and fines. I mean, these companies can pay what seems like an enormous amount of money in a settlement or a fine. But it is just pocket change given how enormous they are and how much wealth these four men at the helm of Facebook, Amazon, Google, and Apple now control. And so the scale of punishment is not sufficient to deter behavior.

You know, one of the things I found most fascinating about the investigation is that Microsoft went through an antitrust settlement and now they’ve sort of become the adult in the room. Not to say they’re perfect by any means. But I do think they had to completely change their culture and their way of operating, and I think at the end of the day some of their leaders would say that was a very good thing.

Right now, I feel like with some of these platforms, they’re just fighting us all the time. They’re refusing to take any real responsibility for what they’re doing or recognize what their platforms have done to democracy.

Just to put a fine point on the Washington State vs. Facebook question: Do you think Facebook should be following Washington state’s law on political ad disclosure? That’s the core issue in the case.

Of course! We have laws, and if you want to operate in our state you need to follow them.

You’ve made it a point to connect antitrust enforcement with racial justice, and not just the standard, more narrow idea of economic justice. For people who understandably fail to see it, how does a boring phrase like “antitrust law” connect to racial justice?

I always try to center this, and that’s why I asked Sabeel Rahman from Demos to make the argument during the last hearing. First of all, people don’t really understand antitrust. It sounds kind of intellectual. But they do understand competition, they do understand feeling trapped, and they do understand the idea of these platforms as public infrastructure—and therefore the effects if you don’t have access to them, and the disproportionate burden that places on black and brown communities from lack of access.

At the same time, they also understand the implications of hate groups, and hate speech, and breakdown of democracy, which always affects folks of color. So those are the connections that we’ve been trying to make for people. I think part of this investigation was making sure that we had all of the facts, but part of it, frankly, was about educating the public. Because it’s been a long time since people have talked about antitrust.

But all of this consolidation of power and monopolistic behavior hurts black and brown communities on multiple levels, and now we’re trying to unpack that.

Last question: All these firms have offices in your district, and while that obviously hasn’t kept you from standing up to their CEOs, I also see that you use Twitter, you’re a force on Facebook, I’m sure you use Google, you probably have an iPhone. Clearly there’s a lot of need for increased Congressional action and oversight with regard to these companies, but I wonder: What do you think’s good about them?

Oh, there’s so much good about them and that’s the other thing that makes this tech investigation so important. Everybody uses these tools. All of us on the committee, probably, were using products from each one of these four companies and it’s because they’ve created some really innovative things that are useful for people.

So I’ve always been really clear: I’m not saying these companies are bad. I’m not saying the things that they’ve made are bad. I’ve never, ever said that the people who work for those companies are bad.

As you now, a lot of my district works for one of these four companies—and I still get elected with the most votes of any member of Congress in the country. And it’s because people want these companies to be regulated. They want other Amazons and Googles and Facebooks to be born, and that’s not possible if you don’t regulate these companies and if you don’t prevent anti-competitive behavior.

So for me, what’s good about them is they’re innovative. They’re offering things people want, otherwise they wouldn’t be growing so enormously and people wouldn’t be utilizing the technology. They’ve changed how we operate. So it’s never about all things being bad. It’s about how we preserve competition and innovation, and how we ensure justice and democracy.

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As always, a few of the stories I’ve been tracking this week:

• “The 5G lie” — Geoffrey Fowler tests the hot new technology meant to make smartphones faster and finds that “across most of America in 2020, a 5G phone does diddly squat.”

• “Doubling down” — The Washington Post on how Mark Zuckerberg and his wife, Priscilla Chan, are increasing their effort to pay for local and state election infrastructure in parts of America where public funds are falling short.

• “Performative changes” — Elizabeth Warren on Facebook’s decision to extend its political ad ban past Election Day.

• “The reach of political speech should be earned and not bought” — A Twitter spokesperson, using the occasion of the company’s admission that it broke Washington state campaign finance law to explain why the company no longer accepts any political ads at all.

• “My own thinking has evolved” — Zuckerberg on banning Holocaust denial.

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(Photo via Office of Congresswoman Jayapal)