After grilling Mark Zuckerberg for ten hours this past week, the big question facing Congress is, “What’s next?” The wide-ranging hearings covered everything from “fake news” to election integrity to the Cambridge Analytica scandal that spurred the hearings in the first place. Zuckerberg’s testimony did not give us much new information, but did underline what we already knew going in: Facebook’s surveillance-based, advertising-powered business model creates real problems for its users’ privacy rights.
But some of those problems can be fixed. As Congress considers what to do next, here are some of our suggestions.
DO Ask For Independent Audits
Facebook mentioned cooperating with FTC audits, but we’re not clear on whether or not Facebook is allowing independent auditors to inspect the data. If we allow Facebook to control the outside world’s visibility into its data collection practices, we can never be exactly sure if Facebook is actually complying with its own assertions. Facebook, along with other large tech companies that handle massive amounts of user data, should allow truly independent researchers to regularly audit their systems. Users should not have to take the company’s word on how their data is being collected, stored, and used.
DO Consider The Impact On Future Social Media Platforms
Tech giants come and go, and that is a good thing. In the mid-1990s, for example, it was hard to imagine a world where Microsoft was not the dominant force in the tech world. In the early 2000s, AOL email addresses and Instant Messenger were ubiquitous. Today, social media is dominated by a few platforms, but they too can be deposed. We need to make sure new regulations don’t forestall that possibility. If Congress decides to “do something” to address the problems it sees with Facebook, it’s worth considering how legislative proposals might help or hinder potential competitors.
For example, without Section 230 of the Communications Decency Act of 1996, Facebook could not have moved out of Mark Zuckerberg’s dorm room in 2004. Conversely, heavy-handed requirements, particularly requirements tied to specific kinds of technology (i.e. tech mandates) could stifle competition and innovation. Used without care, they could actually give even more power to today’s tech giants by ensuring that no new competitor could ever get started.
As a massive global company, Facebook has the resources to comply with anything Congress throws at it. But smaller competitors may not.
DO Watch Out For Unintended Effects On Speech
Several Senators and Representatives asked questions about how Facebook decided to remove content from their platform, accusing Facebook of bias and political censorship. Facebook has also been in the news recently for removing accounts and pages linked to Russian bots attempting to undermine American political discourse.
Creating a more transparent and neutral platform may sound like a worthy goal, but if Congress is going to write legislation, it should ensure that transparency and user control provisions don’t accidentally undermine online speech. For example, any disclosure laws must take care to protect user anonymity.
Additionally, the right to control your data should not turn into an unfettered right to control what others say about you—as so-called "right to be forgotten" approaches can often become. If true facts, especially facts that could have public importance, have been published by a third party, requiring their removal may mean impinging on others’ rights to free speech and access to information. A free and open Internet must be built on respect for the rights of all users.
DON’T Allow Big Tech To Tell Congress How To Regulate
Several times during his testimony, Mr. Zuckerberg called for privacy regulations both for ISPs and for platforms. While we agree privacy protections are important for both of these types of businesses, they shouldn’t be conflated. The rules we need for ISPs may be significantly different from those needed for platforms. In any event, Congress shouldn’t allow the tech giants to write their own rules given their strong incentives to favor the needs of shareholders over those of the public.
For example, it will be interesting to see how Facebook implements the EU’s General Data Privacy Protections (GDPR) for their non-European users. But if Congress tries to implement something similar here, we should all be watching to make sure Big Tech doesn’t gut the most important provisions.
DON’T Treat Social Media The Same As Traditional Media
The foundation of a functional democracy is the ability to communicate freely with one other and our elected officials. Like television and radio before it, social media is now a crucial vehicle for that civic discussion. However, the rules that govern traditional media cannot be the same rules that govern social media. While that may seem obvious to some, Sen. Ted Cruz has already called for the fairness doctrine to incorrectly apply to digital communications platforms.
Additionally, Congress should not be taken in by the assertion that AI filters on social media platforms will magically fix all discourse problems. Overbroad censorship is inevitable, and marginalized groups will be the ones most affected. The ability of the public to freely communicate with each other, without government interference, was so important to the country's founders that not only did they put the right to free speech and a free press at the top of the list of Constitutional amendments, they also included, in the Constitution itself, an independent agency to facilitate ordinary communication: the U.S. Postal Service. We have to be able to talk to each other, and Congress should be careful to protect that essential cornerstone of democracy.
DO Talk to Technologists, Engineers, and Internet Lawyers
We’ve seen lots of jokes about the Senate hearings sounding like tech support talking to your grandparents about how to fix their Facebook. It’s not a surprise that many Senators don’t know the technical ways that Facebook works – and that’s actually okay. Participating in a large and complicated branch of government requires a different set of skills than running a technology company, and those skills don’t necessarily overlap with writing or understanding code. The country’s lawmakers didn’t have to be mechanics to legislate basic vehicle safety, nor did they have to be indigent widows to create the Social Security Administration.
What they do have to do is talk to some experts. Congress should be looking to a wide variety of technologists, engineers, and lawyers with deep experience in tech law and policy for advice on any proposals. As Rep. Chaffetz put it in a very different context, time to bring in the nerds.
Congress needs to get this right. Balancing our right to privacy with our rights to communicate and innovate may be hard, but it’s a task worth doing right.