Let’s be honest about congressional hearings on technology policy issues. Often they devolve into political infighting among the members, coupled with opaque or even misleading responses from witnesses. And, of course, there is often a clear demonstration that some of the members simply do not know their stuff.
We needn’t look beyond Mark Zuckerberg’s very first hearing before Congress to see this. In 2018, in a hearing that was scheduled in the immediate aftermath of the Cambridge Analytica revelations, certain members of Congress showed the Facebook chief executive their substantial lack of awareness about the way that Facebook—and other internet giants—works.
The events that transpired during Wednesday’s House Judiciary Committee hearings on matters of antitrust concerning the top four players of big tech—Google, Facebook, Amazon, and Apple—displayed much the same tendencies. Republicans fought with Democrats over matters of speech regulation and censorship; one congressman mixed up Facebook and Twitter. Many observers, quite reasonably, came away from the hearing with the feeling that it suffered from a general lack of focus, as the topics ranged from the highly technical to the intensely political.
But all that being said, we believe there are real reasons to feel optimistic about the results of the hearing—and even to expect that we will see appropriate congressional scrutiny of the big tech firms as we move forward. Here’s why.
First and foremost, we saw bipartisanship. For the longest time, it has appeared as though Democrats and Republicans would be approaching the issue of overbearing market power in the tech industry from diametrically opposed perspectives. Republicans—including Donald Trump, members of his Cabinet, and congressional members—have over the past several years complained about speech regulation, making anti-conservative bias the key issue facing the tech industry. They have grilled tech executives, particularly Zuckerberg and Twitter chief executive Jack Dorsey, on steps their companies have taken to restrict (such as by nixing profile verification or deleting particular posts) or even remove the accounts of far-right personalities. Trump himself was on the receiving end of such action from Twitter, which flagged his tweets about mail-in ballots and the George Floyd protests as misinforming and violence-inciting, respectively. And this week indeed, Republican Reps. Jim Jordan of Ohio and Matt Gaetz of Florida stoked these fires further, with the former kicking off the hearing with a shouting match with Democratic committee chair David Cicilline of Rhode Island.
But there were also many encouraging moments that illustrated that the regulatory interest from Congress is not limited to speech issues. It may be a bit more quiet, but members of the committee were quite focused on matters of the industry’s penchant for economic exploitation, both of consumers’ personal data and the technology of would-be rivals through alleged anti-competitive practices and diminishment in quality of service. There is interest in these concerns from Democrats and, critically, Republicans like Rep. Kelly Armstrong of North Dakota, whose pointed technical questions concerning issues like Google’s supposed anti-competitive antics in suppressing third-party cookies in its Chrome browser stood out. Down the pike, we might perhaps expect to see more such political unity across the two sides of the aisle.
The next good sign was the members’ technical awareness. Refreshingly, the committee showed great concern over a number of deeply technical issues that varied from company to company. Facebook’s Zuckerberg, for instance, received a grilling over the nature of his company’s acquisition of Instagram. In texts entered into the record, the founder of Instagram revealed he feared that Facebook would go into “destroy mode” if Instagram didn’t sell to Facebook—the suggestion being that Facebook would do everything in its power to diminish Instagram’s presence. The pin-down of Zuckerberg on this incident shows great awareness from the committee company that the major tech companies can use their stranglehold over the digital sector to prolong and perpetuate their economic dominance of the industry. Such “monopoly-leveraging” is precisely the kind of behavior that should be subject of the committee’s investigations. It is the sort of corporate decision-making that helps maintain systemic economic exploitation of consumers, limits the pace of market innovation, and suppresses the general quality of services rendered in the technology market—the last of which is evidenced by negative externalities of tech business models, such as the spread of hateful conduct online and the foreign disinformation problem. The committee showed similar guile in pressing Amazon on its actions to restrict small-business sellers in its marketplace; Google over its acquisition of DoubleClick and subsequent sharing of data across DoubleClick and other Google services; and Apple over the percentage of revenue it takes in from App Store sales.
As we move forward, the committee could go in one of two general directions. It could build evidence against and bring antitrust cases against individual companies. But it could also build a broader understanding of how the internet works in general and surveillance capitalism in particular, and attempt to advance legislation that would seek to establish a new regulatory regime. Many experts have asserted that it is difficult to imagine the latter having a huge impact on the future of the industry. Antitrust cases can take a very long time, and any efforts to break up big tech might result in legal challenges from the companies, which, given developing jurisprudence on antitrust issues, might be successful—with limited reform if any at the end of the tunnel. We think that the committee is working, however, toward a unifying theory of how the internet works—an idea that the pillars of its success rest on the practices of uninhibited data collection to the end of behavioral profiling, the use of sophisticated but opaque algorithms that curate content, profile people and target ads, and the pursuit of aggressive platform growth through, on some occasions, questionable means.
A legislative proposal that encompasses the broader problem and responds to it through regulatory policy addressing the overreaches of what have been cornerstone business practices—and that effectively places power back in the hands of the individual consumer—is ultimately the most meaningful thing Congress can do.