Document Hunting
The validation came from the unlikeliest of places, but I’ll take it! Last week, this newsletter’s name received an unintentional endorsement from Republican Senator Lindsey Graham, who closed his big hearing on potential paths to regulating social media by saying that right now in America, in the absence of new rules for tech companies, “it’s pretty much becoming the wild, wild west.”
Yes, Senator, it is—and there’s a newsletter for that.
As for the rest of the hearing, there was, once again, bipartisan agreement that a decades-old liability shield for Big Tech, Section 230, is long overdue for serious revision. “Change is gonna come,” Graham promised. From the other side of the aisle, Democratic Senator Richard Blumenthal echoed: “Change must come to social media.”
Facebook CEO Mark Zuckerberg and Twitter CEO Jack Dorsey were there via video link, summoned to testify before Congress for the second time in three weeks, and Blumenthal told them directly: “You have failed your responsibility.”
But the hearing also displayed the wide, and by now very familiar divergence between the two parties regarding what, exactly, the platforms are failing to do. Republicans think they’re failing to be fair to conservative voices and viewpoints. Democrats think the platforms are failing to do enough to mute dangerous liars, instigators of violence, and other malevolent actors.
On the whole, this turned out to be a much more substantive effort than the last hearing, held on October 28 by the Senate Commerce Committee. Perhaps there’s something different about Graham’s Judiciary Committee. Or perhaps it had more to do with the election being over (at least in theory). Whatever the reason, something seemed to have calmed many senators’ quests for viral stardom, putting them instead in a mood to ask searching, open-ended questions that might elicit thoughtful responses.
Democratic Senator Richard Durbin, for example, led off with an interesting history lesson that never even took the form of a question. Instead, Durbin’s meandering comments served as a prompt for the two tech executives to describe their own regulatory worldviews. Here’s what Durbin told them:
We certainly know what the Constitution says when it comes to free speech. And we know what it meant over the years—[in] New York Times vs. Sullivan, and others—with [regard to] publications. We certainly didn’t suggest that anyone that used a telephone line for nefarious, illegal, banned activity somehow implicated the telephone company into it by its nature.
And then came radio and TV, and we had to come up with new rules—in terms of, at one time, equal time, fair content, and so forth. And now we have this new—relatively new—mechanism of communicating information and we’re trying to determine what to do with it.
Whether to treat it like a newspaper publishing, or treat it like some sort of a communications network alone. Section 230 is an attempt to do that, and I’m sure everybody finds fault with it. I’d like to ask the two witnesses if they’d comment on the historical aspects of this particular debate.
In response, Zuckerberg and Dorsey both said notable things. Zuckerberg spoke about how he’s frequently presented with the question of whether Facebook should be regulated more like a newspaper publisher or more like a telecommunications giant, and that his answer is: neither. “From my perspective, these platforms are a new industry and should have a different regulatory model that is distinct from either of those other two,” Zuckerberg said.
Dorsey praised Section 230 for creating “so much goodness and innovation,” including Twitter, which Dorsey said would not have been able to launch without the law’s sweeping protections. He then returned to his provocative idea for reforming how social media platforms use algorithms, perhaps through a new government mandate for more transparency and user choice when it comes to the algorithms that decide what pops up when an individual scrolls Facebook or Twitter.
Rather than the companies getting to pick algorithms that keep people’s eyes on their sites as long as possible (algorithms that often end up privileging incendiary and false content), consumers would be able to choose their own algorithms—or no algorithms at all, leaving them with just a chronological, un-curated list of posts.
It’s one of the more interesting ideas for near-term reform. Zuckerberg, however, seemed unexcited about it.
Senators also had various demands for specific information from Facebook and Twitter, with many senators becoming frustrated by the companies’ lack of eagerness to respond. A clear theme emerged on this issue.
Republican Senator Josh Hawley, after describing Zuckerberg and Dorsey as modern-day “robber barons,” revealed information he’d received about Facebook’s internal content moderation systems from a “whistleblower” and demanded the company produce lists related to these systems. Republican Senator Ted Cruz asked for lists showing how many times Republican officeholders have been blocked in recent years from sharing information. He also asked for a similar list showing only Democratic officeholders. Republican Senator Mike Lee, for his part, wanted a general list of users who have been de-platformed or otherwise had their distribution limited by Facebook and Twitter.
Senator Marsha Blackburn, also a Republican, took it one step further, decrying “blacklists” and telling Zuckerberg and Dorsey: “You say you don’t keep lists. Obviously, you have lists. Because there are some of us who are regularly censored and called down by your content moderators. Do we want to see these lists? Yes. How have you built these lists? We want to know.”
Maybe these Republican Senators will pry a few interesting lists out of Facebook in the coming months. But I think we’re far more likely to learn something useful from a different batch of requests for internal Facebook data that I mentioned last week.
These requests come out of the discovery phase in the ongoing case of Washington State vs. Facebook, and they involve what Facebook describes as “expansive” demands for internal company documents.
Washington State Attorney General Bob Ferguson is making the requests as part of a normal pre-trial exercise in which both sides in a lawsuit get to ask for information from the other so that they may introduce relevant disclosures as evidence when the trial comes. Normally the public wouldn’t see these requests. But in September, Facebook filed a copy of Attorney General Ferguson’s “First Set of Interrogatories” with the court as part of the company’s failed bid to rearrange the trial schedule.
If Facebook had gotten its way in rearranging the schedule, it could have put off responding to many of the AG’s requests for information, perhaps indefinitely. Having failed in this gambit, Facebook now has a lot of work to do assembling the material Ferguson wants to see.
The attorney general is requesting a detailed map of Facebook’s corporate structure, explanations for numerous Facebook policies and procedures, precise descriptions of how Facebook’s political ad system works, insight into Facebook’s accounting system as it relates to political ads, and details on Facebook’s bank accounts and advertising revenue.
At bottom, this case is about whether Facebook has failed to make required disclosures about election ads in Washington state, and if Ferguson gets his way with these interrogatories Facebook will be forced, through the discovery process, to make all the disclosures it’s failed to produce—and then some.
Most intriguingly, Ferguson wants Facebook to send him “the findings and conclusions” of certain internal studies, investigations, and reviews. He wants to hear what the company’s said internally about its own ability to comply with Washington state’s disclosure law. More broadly, he wants to know what Facebook has concluded internally about “fraudulent or inauthentic activity (including foreign influence) conducted on any of [Facebook’s] platforms, through paid advertising or otherwise, that may have affected users in Washington State.”
Potentially, this last request could drag something new into the public record: Facebook’s private take on the Russian efforts to influence the US presidential election in 2016. It could also turn up Facebook reports on more recent influence operations by Russia, China, Iran, and perhaps other previously unknown election meddlers.
Why would Ferguson need this sort of evidence in the first place?
Because Facebook is arguing that Washington state’s disclosure law asks for too much political ad information and thereby ends up violating the First Amendment. Ferguson strongly disagrees, and his filings point out that one important justification courts have recognized for state disclosure laws is “combatting foreign interference in elections.”
Some of the stories I’ve been watching over the last week:
• Facebook loses a defamation case in Austria — A possible indicator of what might happen in the US if Section 230 were repealed. Developments include Facebook apologizing to an Austrian lawmaker who was falsely accused on Facebook of being a pedophile, in a QAnon-style smear by a conspiracy theorist.
• Tracking MAGA movements — A Trump campaign app was designed to track the behavior of Trump supporters “on the app and in the physical world.”
• “Digital ads are such a mess” — YouTube edition.
• “Engagement rises as content gets worse, barring manual intervention” — A summary of an argument made in 2018 by… wait for it… Mark Zuckerberg.
• A very worthwhile thread on how people misunderstand an idea about troublesome speech famously put forward by Supreme Court Justice Louis Brandeis:
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