Facebook and Congress Must Create Regulations Together

Featuring Eileen Donahoe, executive director of the Global Digital Policy Incubator and Allison Berke, executive director of the Stanford Cyber Initiative. Both programs are housed at the Freeman Spogli Institute for International Studies (FSI). Written by Nicole Feldman.

For the past two days, the United States Senate and House of Representatives grilled Facebook CEO Mark Zuckerberg on everything from user privacy to platform bias to Russian interference in the 2016 elections. Though prompted by Cambridge Analytica’s improper use of user data, Zuckerberg’s testimony provided a broader platform to talk about Facebook’s role in today’s increasingly digital world and regulation for the tech industry as a whole. FSI scholars Eileen Donahoe and Allison Berke give us their top take-aways from Zuckerberg’s testimony.

Eileen Donahoe

There were two big “take-aways” from Mark Zuckerberg’s testimony before Congress this week.

Digital privacy is a form of security that matters to Facebook users and to citizens in our democracy.

The good news that came out of the hearings is that the American public and our representatives in Congress are waking up to the importance of citizens’ privacy in our democracy, as well as to the consequences of the loss of privacy for freedom and security. The Cambridge Analytica — Facebook saga has succeeded in bringing to public consciousness a significant security threat to our democracy, which until now has been relatively invisible in public debate: how failure to protect user’s digital privacy can have real world consequences for democratic processes, national security, and citizens’ liberty. Earlier un-nuanced assertions expressed by many in the technology community that “privacy is over” and users don’t care about how their data is shared, can no longer function as a dominant operating assumption. The hard reality ahead of us is how challenging it will be to protect citizens’ privacy in a context where digital platforms, tools and services are intertwined with our daily lives. The bottom line is that digital platforms now will be required to have much more nuanced conversations with their users about the tradeoffs of using free services in exchange for monetizing personal data. This will have consequences for Facebook’s business model and all freemium digital services.

Congressional hearings are not an adequate vehicle for educating legislators about how to regulate digital platforms.

The range of complex, multilayered challenges that must be tackled to optimally govern digital platforms in democracy cannot be addressed effectively through a brief set of public hearings. Many Senators and members of Congress displayed a lack of understanding of how Facebook works, which strands of the debate warrant deeper inspection, or which issues must be prioritized to protect the liberty and security of citizens on digital platforms. Representatives jumped around from one subject to the next — from political bias in restricting content on Facebook, to whether Facebook is a monopoly, to whether citizens own their data, to the efficacy of user consent to terms of service — without adequately framing any of these important subjects. In effect, the Senate and Congressional hearings themselves were shown to be poor vehicles for deepening regulators’ knowledge or helping progress toward an optimal approach to regulating Facebook or other digital platforms. Other than moving toward passage of the bipartisan Honest Ads Act sponsored by Senators Amy Klobuchar (D), Mark Warner (D), and John McCain(R), which regulates political advertising on digital platforms in the same way as on television and radio, our representatives are not yet well-prepared to regulate digital services. A different mode of engagement between government representatives and technology companies must be developed, if legislators want to help protect citizens in the digital realm, while also allowing users to continue to enjoy the benefits of digital platforms they have come to rely upon in their daily lives.

Allison Berke, executive director of the Stanford Cyber Initiative at FSI. Working across disciplines, the Stanford Cyber Initiative aims to understand how technology affects security, governance, and the future of work.

Mark Zuckerberg prepared for his testimony as though expecting to face hostile opposing counsel. His notes — leaked, ironically, by a press photographer when left open on his table during a bathroom break — show prepared language to address calls for his own resignation, and for compensation for users whose data was improperly shared, though these topics were not raised during questioning. Despite promising to work with legislators on regulations, Zuckerberg stopped short of proposing specific measures. Though he voiced his support of the Honest Ads Act, when asked if he would return to Washington to aid its passage, he offered someone on his team instead and noted that he “doesn’t come to Washington too often.” The implications, both that he doesn’t need to and that he doesn’t want to be involved in forming regulations, revealed a relationship between Facebook and lawmakers with distance, shading from incomprehension to distrust to antagonism, on both sides.

Many of those watching the hearings noted the Senators’ and Representatives’ clunky and repetitive lines of questioning, their difficulty choosing the precise terminology to communicate the technological gist of their inquiries, and the inability of a five-minute oral format to properly convey — and convey strictly enough to reign in a witness looking for a question’s easiest possible interpretation — the nuance in, for example, the points made by Senators Blunt and Wicker about Facebook’s cross-platform tracking between a device hosting a logged-in Facebook app and a device registered to the same user but lacking the Facebook login.

One could imagine a more collegial relationship between Facebook and Washington DC, in which representatives would have discussed their questions with Zuckerberg and his team at greater length, and perhaps behind closed doors, and could use the testimonial hearing format to place prior agreements and understandings on the record. Facebook’s apparent openness to exploring regulation should be taken as an opportunity by policymakers, both to craft regulation that may need to be complex — to cover the myriad ways in which data can be collected and mixed, and to ensure that a savvy company can’t avoid both compliance and detection — and to forge a closer relationship between the tech giant and its community representatives. That may require Zuckerberg visiting Washington a little more often, and it will also require the acquisition of more technological knowledge and expertise by legislators and their staff, which may require them to visit Silicon Valley more, too.