Lawmakers see a rocky path to rein in tech
WASHINGTON >> “Facebook and Big Tech are facing a Big Tobacco moment,” Sen. Richard Blumenthal, DConn., said this past week when a whistleblower testified about how the social media company’s products harmed teenagers.
“I think that that’s an appropriate analogy,” Sen. Cynthia Lummis, R-Wyo., added later.
The whistleblower’s testimony, and the thousands of internal documents she shared with lawmakers, generated unusual bipartisan bonhomie in a divided Washington. Senators said it was time for Congress to coalesce around new regulations to rein in the company and perhaps the technology industry as a whole.
But if what faces Big Tech is anything like what happened to Big Tobacco — a reckoning over the industry’s harms to society, and children in particular — what lies ahead is likely to be a yearslong, complicated path toward new rules and regulations, with no guaranteed result.
Washington is weighing numerous proposals to curtail the industry and hold it more accountable. Some lawmakers have urged reworking a law that shields tech companies from lawsuits, changing it so that the firms could be held responsible if their software amplifies harmful speech. Another idea would force social media companies to share far more insight about their software, which is often a black box, and data on how people interact with their services.
Lawmakers have proposed creating a new federal agency dedicated to oversight of tech companies or expanding the power of the Federal Trade Commission. They have pushed stronger laws for child privacy and security and to regulate the behavioral advertising business models of Facebook and Google. And a handful of bills to overhaul antitrust laws, with an eye toward making the public less reliant on a small number of tech companies, have progressed out of a House committee.
But passing any one of those options is a steep climb. Tech companies are swimming in riches and use them to sway lawmakers, building the largest lobbyist army of any industry in Washington. Dozens of privacy and speech bills have stalled in Congress in recent years.
The issues are also complicated. Sharing far more data with researchers, some say, could undermine people’s privacy. Attempts to even narrowly regulate the content on platforms such as Facebook run into free speech concerns.
Perhaps the best chance of a crackdown on the industry is if President Joe Biden and his administration act forcefully. He has not yet put his weight behind any bills but has placed some of the industry’s leading critics in top regulatory jobs. Lina Khan, chair of the FTC, and Jonathan Kanter, nominee to run the Justice Department’s antitrust division, have promised to hobble the power of the companies.
“Facebook took a big hit this week, but they are capable of taking many hits just as the tobacco industry was,” said Allan Brandt, a professor at Harvard University and an expert on the rise and decline of the tobacco industry.
It took more than 50 years from the first published research about the dangers of cigarettes, and more than a decade after a whistleblower shared internal documents proving that the tobacco companies hid their knowledge of the ills of their products, before there was meaningful government regulation, he said.
“There will be regulation for Facebook and other tech companies,” Brandt said, “but I’m skeptical of a route to successful regulation anytime soon.”
The European Union has for years been more aggressive against the tech companies than the United States on issues including antitrust and data privacy. This past week’s testimony from the Facebook whistleblower, Frances Haugen, intensified calls to adopt proposals that would impose tougher rules for how Facebook and other internet companies police their platforms, and add stricter competition rules in an effort to diminish their dominance over the digital economy. The laws could be adopted as early as next year.
But in Washington, a key impediment to legislation is that Democrats and Republicans view the issues of tech power and speech on social media differently. Democrats want to address the spread of misinformation and the amplification of harmful political rhetoric, and Republicans argue that Facebook, Google, Twitter and other social media platforms censor conservative views.
And when it comes to questions about whether to break up the companies, many Democrats see antitrust action as a way to slow the most powerful tech platforms and address data privacy, security and misinformation. Some Republicans say that there is plenty of competition in the industry and that breaking up the companies would be an example of government overreach.
“Just because we hold the hammer of antitrust law in our hands does not mean we should treat every concern as a nail, lest we risk bludgeoning our entire economy,” Christine Wilson, a Republican member of the FTC, told Congress recently.
Facebook CEO Mark Zuckerberg said the whistleblower’s claims that the company prioritized profits over safety were “deeply illogical.” The company has also dismissed the comparisons with the tobacco industry.
“It is an absurd comparison,” said Andy Stone, a spokesperson for Facebook. “Social media helps people connect and small businesses thrive. Instead of making false equivalencies, the focus should be on updated regulation to address privacy, data portability, content standards and elections.”
But numerous lawmakers said comparing the industries was not hyperbole and was in fact instructive.
State investigators discovered tobacco company R.J. Reynolds’ secret marketing plans to use the cartoon mascot Joe Camel to turn children into smokers, a finding that helped buttress lawsuits against the company and spur lawmakers into action.
Some of the internal documents that Haugen shared with lawmakers showed that many teenagers felt worse about their body image after spending time on Instagram, Facebook’s photo-sharing app, occasionally to the point of expressing plans to harm themselves. Other documents showed that the company was studying how it could market to even younger children.
Blumenthal, who led a successful suit against Big Tobacco in the 1990s while he was the attorney general of Connecticut, said the importance of the documents struck him immediately.
“It was a lightbulb, and all the memories came back of the strategy papers done by tobacco companies on reaching middle schoolers,” he said. “It was like you could just rearrange the words and substitute it with ‘tobacco.’ “He also noted that tech is not exactly like the tobacco industry. Tech has broad legal protections that prevent state attorneys general from suing the companies as he did.
Section 230 of the Communications Decency Act, a law passed in 1996, guards the companies from most lawsuits for comments, photos and other content users post on their sites. As a result, if someone is harmed by what a user posts, the public — and the government — have little recourse against the firms.
Blumenthal supports revising that law to shrink those protections. He has pushed a bill that would strip the shield if the services allowed the spread of child abuse images. Other lawmakers have proposed eliminating the legal protection when the companies’ algorithms amplify — by automatically promoting, recommending and ranking highly — content that violates some anti-terrorism and civil rights laws.
Haugen said such changes, bringing the possibility of lawsuits, would force Facebook and other social media companies to stop using software that prioritizes engagement and the promotion of the most harmful content. But Blumenthal seemed to acknowledge that any change would not happen quickly.
“This battle won’t be fought in the courtroom,” he said.
“Congress needs to act,” Lummis said. “I’m keeping all options on the table, but even in this polarizing environment I’m encouraged by the bipartisan concern we have here.”