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Judiciary and Commerce committees move to checkmate Facebook

Eric Garland Government Trends, Technology Trends Leave a Comment

On April 10th and 11th, the Senate and House committees on the Judiciary and Commerce held a rare joint open hearing with Mark Zuckerberg, the CEO of Facebook. The topic was Facebook’s handling of the data of US citizens. The peripheral, but more important matter, was use of Facebook data in election interference around the world.

Very few commentators differ on whether Mark Zuckerberg was equal to the questions posed to him. It is almost universally agreed upon that he was robotic, disingenuous, and evasive when faced with questions from very senior political figures. But, aside from Zuckerberg’s incapacity as a public representative for his firm, pundits have strayed to another theme that is dismissive and obtuse regarding the Senate. Many prominent “tech journalists” – a position I place in quotes because its bona fides are so ephemeral – have taken to criticizing the Senate and House as somehow unable to match the task of regulating the oh-so-sophisticated operations of an edifice so brilliant and faultless as Silicon Valley’s tech sector.

To paraphrase a gaggle of them, “it’s clear they have no grasp of Facebook,” and “how are they supposed to regulate what they clearly don’t even understand.” These tropes seem to be tantamount to “why should out-of-touch oldsters comment on some company that turned psychological profiles of millions of American citizens over to our enemies?

Rather than belabor these authors’ lack of familiarity with Washington, I’d like to instead expand on what the Senate actually accomplished in its game of cat-and-mouse with the callow CEO of a $40 billion-dollar company. Because if you know what these hearings are for, as well as the language that prosecutors use to arrive at an inescapable conclusion, you will agree that they were not there to “understand” Facebook – but to regulate it or abolish it.

Opening statements from the hearing

Some critics took after the Congressional committees’ treatment of Facebook for being insufficiently technical, or for evading the central question of how Facebook impacted the 2016 election in detail. This angle ignores the billet of each committee in Congress. Questions about Facebook from a purely technical perspective would be better served before the House Committee on Science, Space, and Technology. There would have been no primary responsibility to look at anything but the technology and its capabilities.

As it stood, the hearing was chaired by Senator Chuck Grassley of the U.S. Senate Committee on the Judiciary alongside the U.S. Senate Committee on Commerce, Science, and Transportation. Between those two committees for this case, they would be tasked mainly with investigating what technology companies are selling to the American people and whether this conforms to the laws of the United States. Thus, their questions were largely confined to their committees’ responsibilities. Moreover, within those confines they made significant inroads toward proving that the Legislative Branch may need to take action against Facebook.

Sen. Grassley led by reminding Zuckerberg that it was unusual and portentous for any one CEO to be facing 44 members – nearly half the Senate.

Sen. Thune reminded Zuckerberg that his company had not been fulsome in its duty to inform American consumers of what happened to their data. Moreover, he reminded Zuckerberg that until now, Facebook had been allowed to regulate itself.

Sen. Feinstein noted that in the 36-page indictment of Russian hackers, they currently assessed that 157 million Americans were exposed to Russian propaganda through Facebook.

Sen. Grassley – whose command of these matters was not deserving of mockery, in my opinion – noted that use of voter data was not new to politics, but that Facebook surely was an inflection point in these techniques given its significant power.

Sen. Nelson flat out warned that if we did not get the matter in hand, Americans may not soon have any privacy left. Ominously, he intoned that if Silicon Valley would not fix itself, the U.S. Government would intervene.

Then came the testimony and questions. From there, the Senate moved significantly toward making a case for sweeping reform of social media and its impact on elections.

Testimony, questions, and headed for checkmate

At this point Mark Zuckerberg began to testify. The written comments are available here from the U.S. Senate. His statement is so clouded with irrelevant buzzwords and softening language, I don’t find they are a good target for analysis. Suffice it to say that his comments could be summed up as, “Thanks for asking, but we’ll fix it ourselves.”

This, naturally, does not suffice for the U.S. Senate, which is why Zuckerberg was forced into a suit and cordially invited to sit in front of half the Senate after multiple subpoenas.

Then came the questions from the Senators. Between them, the committees and their members effectively established that Facebook is not self-regulating, is not being regulated via the free and open market, and has insufficient regulation from the U.S. Government. The sum total of those realizations all but assure a tectonic change in how Silicon Valley will operate in the 21st Century.

Sen. Grassley established that despite having pointillistic detail on billions of people, Facebook’s terms of service were a scant two pages long.

Sen. Nelson pressed on whether Facebook would allow consumers not to be spied on in terms of their personal habits and preferences. Zuckerberg gave an inchoate answer about not charging customers, but maybe charging them if they didn’t like being spied on as a matter of course.

Nelson also pressed on how Cambridge Analytica managed to assemble so much Facebook data for its assault on the 2016 election. Zuckerberg simply tossed off that CA told them they “deleted” the data, and that they simply closed the case. (Deletion of data in a world of redundant data archives is, of course, laughable.)

Sen. Thune pressed Zuckerberg on how his platform was used for hate speech, an issue which the beleaguered CEO has inexplicably failed to explain in even the most basic, believable terms.

Sen. Feinstein opened up the issue of hostile intelligence services using Facebook data to target Americans. Zuckerberg weakly attempted to claim that Facebook has stopped attacks from Advanced Persistent Threat 28, aka Fancy Bear, though somehow this was never announced during the 2016 election. Feinstein continued to press on issues around Brexit and the pervasive use of Facebook by bots and trolls, with no serious rejoinder from the so-called Chief Executive Officer.

Sen. Cantwell – who I was shocked to see made an object of derision by tech journalists – went for the jugular and asked Zuckerberg about early Facebook investor Peter Thiel’s company Palantir. She wanted to know if Palantir also used Facebook’s data, an issue which is already public knowledge. Zuckerberg, I believe, claimed to not know anything about California or data or bits or bytes. Seems a nerve was hit. In response, Sen. Cantwell asked if he would be comfortable with the full panoply of European-style regulation. I believe he drank the rest of the water at the table.

Sen. Leahy, a veteran prosecutor, used his laconic Vermont accent to casually inquire as to whether Robert S. Mueller’s office had sent Facebook subpoenas; the answer obviously was yes. More importantly, this shows that Facebook resisted the more casual requests for information and essentially had to be forced to cooperate.

Leahy then moved into asking about Facebook’s continued role in spreading propaganda that has been actively and recently used in sparking genocide. Zuckerberg’s only answer was that in general he thought genocide was bad.

For my money, the last essential question came from Sen. Graham in which he asked Zuckerberg to name his top competitor. He could not. Graham then asked if that was because he had no real competition. (Note: in competitive intelligence, every CEO should be able to name his or her top five.) All Zuckerberg could produce was that it didn’t feel like he had a monopoly.

Facebook faces imminent action from the U.S. Government

This is why the braying about “old people not ‘getting’ Facebook” was so far from the mark. The joint Senate hearing alone was a sign of imminent and major action from the Legislative Branch. Each in turn, these Senators exposed how Facebook has been failing consumers (the purview of Commerce) and operating free from legal constraints, while likely violating a plethora of civil and criminal statutes (Judiciary.) They weren’t there to opine on the future of Oculus, they were there to make a methodical case for why Facebook needs to be forced to answer to the law in order to protect the American people. This joint hearing was meticulous and made a large part of their case.

The rest may come from other committees, Mueller’s Special Counsel, or even foreign governments such as Australia, France, and Germany. Either way, Facebook will almost assuredly face material reforms in the near future.