Protocol | Policy

How Congress' parade of tech hearings totally lost the plot

Political theater has replaced anything resembling achievement.

A Congressional hearing room surrounded by theatrical stage curtains.

Lawmakers have fumed at Facebook over its effect on teens.

Image: Getty Images; Protocol

On last week's episode of "Congress Yells at Tech," a Facebook executive was dragged in to answer competition questions but instead mostly spent his time in the hot seat listening to legislators letting out a primal scream about the company. On this week's episode, Senators grilled a different Facebook executive about children's safety. And looking ahead to next week's episode, the Senate will be bringing in a whistleblower from inside Facebook, presumably to join in heaping abuse on the company — all mixed together with episodes on privacy, security, competition and more.

The issues before regulators and lawmakers today are absolutely critical. Privacy, big data, surveillance, online safety, competition and disinformation are major challenges of our era, and the laws and regulations we have in place — from the 1990s, most recently, and often far older — have not kept up. It sure seems, from the frequency and volume of these episodes, that Big Tech's luck has run out in Washington.

"The time to act is now!" Sen. Roger Wicker said Thursday, joining a bipartisan call for privacy legislation as lawmakers faced down Facebook's head of global safety. "We are serious about taking action."

But instead these hearings, meant to be a tool to help advance lawmakers' understanding, are nothing but a repetitive farce, a loop of a bad album in which almost nothing changes. They become the end, rather than the beginning, of any change. And Congress has only itself to blame.

A long time brewing

Lawmakers on both sides of the aisle have for years been declaring themselves to be completely fed up with tech. Regulation is coming, they proclaim, because tech has turned out to be as pervasive, important and misleading as tobacco, polluters, railroads or some other large industry that, historically, someone finally did something about.

Congressional hearings are a tentpole of the "won't somebody do something about this" circus. Schoolhouse Rock was always a little too simplified, but it had the right idea: A Senator or Representative is supposed to identify something they want changed and introduce a draft bill, with hearings used as a vital part of the process to improve it.

Nobody, after all, can be an expert on everything, and federal legislation is a very generalist space. So we get hearings, where expert witnesses are supposed to explain the matter at hand to the committee in question so that everyone comes away with a richer understanding of the landscape and avenues for staff to keep digging into. Committees can also convene hearings for research or investigative purposes, on areas of concern that members may consider crafting legislation on in the future.

At first, the Big Tech hearings more or less followed this mold. Congress would call in a competent executive from a company, some consumer advocates, a professor who had studied all this and maybe a state lawmaker or federal agency official who'd already been dealing with the issue at hand. The committee would hear a variety of views on a topic, such as privacy, from a variety of angles.

Typically, after the opening statements, lawmakers would take it in turns to ask those expert witnesses actual questions for their allotted five minutes each. The questions might delve into areas where the speaker didn't already have a firm opinion or understanding, such as: Are there free speech concerns with regulating advertising? Or, would giving the FTC power to make rules without congressional input be a better response to fast-moving technical issues? Are some ads more harmful than others?

Back in the 2000s these were calm, sedate affairs, heavy on titles like "professor" and "researcher." Even into recent years, the congressional response to Cambridge Analytica, for example, brought in so many witnesses the hearing series took months, and a House subcommittee on antitrust developed a reputation for asking substantive questions.

Ideally, after a series of hearings, members of Congress come away better informed to do something, and they can go craft an effective bill, or amend an existing bill, then send something around to be voted on and signed into law. Unfortunately, what we get is far from that ideal.

Off the rails

More recently, instead of a serious series of thoughtful questions and meaningful answers, these hearings more often take the form of Congress hauling some executive on the Hill to yell at them. If you've watched more than one or two of these hearings — or even just read summaries — you could probably write a script for the next one in advance and have better than even odds of nailing most of the lines.

The committee chair begins the proceeding by outlining serious concerns about something. The expert witness from Alphabet, Amazon, Apple, Facebook or sometimes Twitter thanks everyone for inviting them and reads their statement. Members begin their time with pointed questions to which the executive has no ready answers, then descend into simply yelling at the executive. What lawmakers leave behind is not understanding but a proper clip, ready to go viral, of their indignant scolding. Everyone leaves frustrated and nothing actually changes.

The past few years, especially the last 12 months, have accelerated the frequency of these productions. Some are in response to an actual action or crisis: Facebook's Cambridge Analytica scandal, for example, led to a series of spread out hearings across several months in 2018 and 2019. But deep partisan acrimony and an extremely online White House drastically upped the ante during the tail end of the Trump administration.

Republicans repeatedly tried to use tech policy to force social media companies to allow or boost their political content, while Democrats tried to make those platforms take responsibility for keeping the volatile 2020 election from descending into violence. As lawmakers fought for advantage, Facebook and others kept faltering on issues such as pervasive COVID misinformation and how to handle Trump's accounts following the Jan. 6 riot — all of which raised Washington's anger without pointing the way toward anything Congress could agree on.

Through 2019 and 2020, chief executives from major tech and social media companies were repeatedly summoned — physically or virtually, as the pandemic grew — into hearings to face grilling over topics as broad as the existence and function of their companies and as narrow as moderation choices made over a single tweet.

Those unfortunate few who sit through hearings can easily spot production of these high-drama, packaged-for-virality political "moments" right in the middle of the legislative session. The easiest tell is when a lawmaker joins some comparatively well-watched hearing after it's been going for a few hours and strikes a particularly oppositional and defiant tone — in order to "ask" something that's already been answered.

Even then, confrontational questioning certainly has its role, and lawmakers striking the adversarial position could, for example, focus on answers that company representatives have been dodging or trying not to give. Instead, lawmakers tend to opt for what-color-is-the-sky probing that makes members of Congress look too out of touch to be in charge of U.S. innovation.

Congress has only itself to blame

The endless parade of Shake Fist At Tech hearings is just one symptom of a larger problem. The 117th Congress — the body in session through 2022 — has passed very few bills since beginning in January of this year. And aside from a very brief blip in March and April of this year, when Congress was taking action on emergency COVID-19 relief legislation, Congressional approval numbers have languished below the 33% mark since 2009 — when emergency action was underway in the wake of the 2008 economic crisis. The most recent Gallup poll, conducted in August, found about 28% approval of Congress and a whopping 69% disapproval. Another Gallup poll this year found that only 12% of Americans have "a great deal" or "quite a lot" of confidence in Congress, putting it dead-last among U.S. institutions, behind banks, TV news... and tech companies.

For many members of Congress, who are perpetually running for reelection, taking a vote that could conceivably end up in an opponent's attack ad is seen as foolhardy. Putting pressure on colleagues to take votes that will end up in their opponents' ads is gauche.

But a lawmaker who can produce their own stream of social media posts and ads showing them getting tough on a Silicon Valley fat cat? Well, that's just good branding. For some lawmakers, there's not much reason to get properly briefed for a hearing or waste time with a serious or new question when the camera is focused on them facing down someone the public hates. The only upside would be the attempted regulation of a powerful industry, whose lobbyists have piles of money for ads accusing that lawmaker of killing jobs in their district. That's a waste of a spotlight.

Meanwhile, if asking an empty question that's already been answered means Zuckerberg looks peeved, it's good for the political-showdown video. And in truth, no amount of on-the-spot confrontation is likely to stop the flow of donations that tech companies make to incumbents on committees that theoretically have the power to regulate businesses.

Is real regulation possible?

Even when some members of Congress are just out for PR fodder, real work does occasionally still happen… at least, until it all falls apart.

In the wake of the Cambridge Analytica scandal, for example, Sen. Maria Cantwell, at the time the ranking member of the Senate Commerce committee, introduced a bill with only Democratic backing despite months of bipartisan negotiations with Wicker, a Republican who was then the chairman. (Cantwell took over that role earlier this year.) Wicker then introduced his own, separate draft, while parallel talks between Democrat Richard Blumenthal and Republican Jerry Moran similarly came to nothing.

As each party's negotiators held out for more leverage, the two sides couldn't bridge issues such as whether consumers could sue and how to treat existing state laws. Democrats in particular had little reason to compromise, as they hoped they could retake the majority in the 2020 election, only seemingly dimly aware that other urgent issues, including COVID-19, would beat out privacy once they had. Republicans today seem to have the same hopes as they look toward to 2022.

Bills come and go all the time, but the failure of the last effort to pass privacy legislation was perhaps particularly shocking: The industry itself was finally begging for clear federal regulation, because of its fears about Europe's GDPR and California's nascent, punitive privacy rules. Unfortunately, the collapse was hardly unique. The House's process likewise imploded. Even efforts to revamp kids' online privacy have likewise ground to a halt, despite "protecting children" being a universal political win.

Privacy, too, is just one tiny slice of this pie. Going back in time past a 2020 full of content-moderation battles, it's not hard to find a mountain of hearings and briefings on aspects of privacy, cybersecurity, federal network vulnerabilities and a whole other range of tech issues stretching through the entire 21st century. The play is constantly revived, but it never wins awards.

Sometimes there simply is no common ground to find. Both Democrats and Republicans, for example, frequently call for Section 230 reform — but from completely opposed directions. Republicans want to prevent platforms from moderating their content, even when it's disinformation; Democrats want platforms to do more moderation, especially around disinformation. The industry's many lobbyists are also happy to stick their noses in and exploit those fundamental disagreements to hamstring the chance of unfavorable legislation becoming a reality.

Sometimes, too, the "someone" who should do something simply isn't Congress at all. Lawmakers who are good and mad about an issue can yell at a company representative all they like, but if it's an issue that cannot be addressed with an amendment to federal law, then there is simply nothing for Congress to accomplish.

In the meantime, tech executives, particularly Zuckerberg, are clearly getting tired of playing along. They know the script as well as anyone, and when your business reaches nearly 3 billion users — more than a third of the entire living human population of the planet Earth — having a few dozen angry people who never actually do anything haul you in for a lecture clearly loses its appeal.

But this political paralysis that keeps the public's concerns, rights and well-being unaddressed is problematic for all involved. Politically convenient ignorance and inflexibility have made Congress unable to tackle tech, and the wealthiest corporations have worsened the problem by helping to feed spin to the loudest, least informed voters.

Today, however, it seems ludicrous to take lawmakers at their word yet again when they say Congress has latched onto public momentum, come together, brought the industry to the table and done whatever other euphemisms lawmakers offer when nothing actually changes. So far, Congress has taken every opportunity to prove the doubters right — and they'll have to get down off the stage and roll up their sleeves if they want to do any more.

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