I expected the United States Senate to show almost comical ignorance about how Facebook works. You have to remember that the Senate is comically ignorant about most of the industries and issues they regulate. Watching a Senate hearing on anything you are professionally familiar with is like watching a gang of kids in a bouncy castle: you just hope they don’t hurt themselves before they can go home and take a nap.
But… I did expect the Senate to know what they wanted to accomplish during Mark Zuckerberg’s time on the Hill. I’ve watched countless Senate Judiciary hearings. I know that both parties are capable of agreeing on an established set of talking points, respectively, and then hammering those points home over hours of questioning. I expected the Senate to have, like, a plan when they finally got the CEO of Facebook in front of them.
Instead, I saw six hours of disjointed, occasionally goofy inquisition from a bunch of people with hammers walking around looking for nails. The Senate wants to do something, or be seen to be doing something, but has no earthly idea what that something might be. It’s no wonder Facebook stock shot up during the hearing. It’s not just that the Senate doesn’t understand Facebook, it’s that the Senate doesn’t understand what it is about Facebook that they don’t like. To say that the Senate just wants Facebook “off their lawn” is a slur to homeowners with legitimate concerns about how skateboarders might damage their property.
The Senate, collectively, was unable to agree on a theory or even a set of theories about what legal authority it might be interested in applying to Facebook. It’s like they didn’t even understand what law could do, much less what they wanted it do to.
* A number of Senators seemed to be concerned about “privacy” on Facebook. And “transparency.” Often this devolved into griping about Facebook’s terms of service, which even the Senators realize most people don’t read. But unless the Senate just wants something other than “MORE, BETTER, BOILERPLATE PLEASE,” what they really need to do is to make the decision to share your data more explicit. And yet, I (and I didn’t listen to the whole thing so maybe I missed this) don’t recall hearing CAN-SPAM – a law that sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out tough penalties for violations — brought up once. So either they’re not really thinking of writing a CAN-SPAM-esque rule for Facebook, OR they have somehow forgotten that CAN-SPAM exists altogether.
* Of course, to apply a CAN-SPAM type of regime to Facebook more generally would require some determination about what Facebook is. If legal academics had conducted this hearing, it would have been 40 questions about whether or not Facebook should be viewed as a public utility, or not. That barely came up. What Facebook is barely came up. Zuckerberg got off a line about how Facebook is a “tech” company, not a “publisher.” This is a critical distinction Zuckerberg is trying to make. Nobody pressed him on it, FOR REASONS PASSING UNDERSTANDING.
* Lindsey Graham tried, I think, to argue that Facebook is a “monopoly” and I assume he was doing that to suggest that the government had antitrust regulatory authority over its practices. That’s a good, sound, legal theory of regulation, but see above about the Senate’s inability to conclude what Facebook is. “Is Facebook like Twitter?” THIS WAS AN ACTUAL QUESTION FROM GRAHAM! You can’t call the thing a “monopoly” unless you have some understanding of what it is allegedly a monopoly over. It’s hard to say that Facebook has a monopoly over people sharing information. Like the Senators, I’m old enough to remember MySpace.
* Ted Cruz and Mike Lee were concerned that Facebook has a “liberal bias.” When Cruz and Lee figure out how to legislate perceived “bias” out of a social media platform, please let me know.
* As often happens when the Senate Judiciary Committee convenes, only Amy Klobuchar (D – Fact-Based-Reality) displayed the requisite level of preparedness, humility, and concrete ideas that could move the discussion forward in any real way. She brought up the Honest Ads Act — which would simply hold Facebook ads to the same “I approved this message” transparency television and radio ads are currently subjected to (how is that not already a thing?). She brought up some of the European regulations, since the E.U. seems to be light years ahead of us on thinking about the legal issues surrounding social media. And she managed to not sound like a total idiot. How this woman isn’t a frontrunner for the 2020 Democratic nomination is beyond me.
I know people kind of say this all the time, but we really deserve better from the U.S. Senate. I’m not saying that these people need to be experts in the still emerging business model of social media. I’m not saying these people need to be experts in the GDPR. But it’s really not too much to ask that lawmakers have some basic understanding of which legal tools are at their disposal to fortify what rights and protections American citizens think they are supposed to have. The Senate doesn’t need to understand Facebook, they need to understand how to subject Facebook to laws we largely already have.
They can’t do that. They’re… not even really competent enough to try.
Dan Sullivan (R – Alaska), inadvertently gave up the whole game during his opportunity to question Zuckerberg:
One of my worries on regulation, again, with a company of your size. You’re saying, hey, we might be interested in being regulated, but regulations can also cement the dominant power. You have a lot of lobbyists. Every lobbyist in town is involved in some way or the other. … Do you think that that’s a risk, given your influence, that if we regulate, we’re going to regulate you into a position of cemented authority. … Isn’t that the normal inclination of a company: I’m going to hire the best guys in town. You wouldn’t do that?
I mean… look at that. That man just said: I am a U.S. Senator, can you agree to not try to fool me, BECAUSE I AM TOO STUPID AND CRAVEN TO REALLY STAND UP TO YOU IF YOU TRY!
It’s not going to be Facebook’s research and development team writing the laws governing Facebook. The lack of technical understanding is not a hurdle for smart regulation in the public interest. It’s going to be Facebook’s lawyers writing any new regulations. Because Facebook employs lawyers who have thought deeply about the regulatory environment while the Senators employ lawyers who think deeply about how their bosses can play grab-ass and get away with it.
UPDATE: Rep. Debbie Dingell seems to be an exception