Big Tech and Democracy: The Critical Role of Congress

Big Tech and Democracy: The Critical Role of Congress

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April 23, 2019, 11:24 am

Contributors: Bogdan Belei, Toni Bush, Maeve Campbell, Ash Carter, Lucy Chase, Mignon Clyburn, Bennett Craig, Daniel Gastfriend, Dipayan Ghosh, Gene Kimmelman, Heidi Legg, Laura Manley, Nicco Mele, Hong Qu, Amy Robinson, Philip Verveer, Tom Wheeler

This report also appears on the Belfer Center’s website, whose Technology and Public Purpose Project (TAPP) co-hosted the workshop for Congressional staff that this report is based on.

Download the PDF of this report, with additional resources, here.

Executive Summary

Technology has reached a critical juncture in American society. The unfettered optimism of recent decades is now tempered by rising concerns over privacy and security, the impact of disinformation campaigns, and increasing calls for digital accountability. It is clear that the 116th Congress will face pressure to shape technological innovation through policies that protect and serve the best interests of their constituents.

In March 2019, two projects at Harvard Kennedy School—the Technology and Public Purpose (TAPP) Project at the Belfer Center for Science and International Affairs and the Platform Accountability Project at the Shorenstein Center for Media, Politics and Public Policy—hosted a workshop for Congressional staff to identify and discuss policy approaches to the dilemmas of big tech platforms. Rather than seeking consensus or prematurely delving into specific solutions, the day-long educational workshop sought to create an open space for discussion among congressional staffers and experts in the field. Underscoring the interest in this topic, the workshop included Chiefs of Staff, Committee Counsels, and Legislative Directors from both Senate and House offices.

At the outset, Former Secretary of Defense and Belfer Center Director Ash Carter emphasized the responsibility that policymakers have in shaping emerging technology. By drawing parallels to other “disruptive tech” from the past, such as nuclear technology, Carter stressed the historic opportunity to shape today’s technology for the human good: “Once invented, it can’t be undone.” Secretary Carter proceeded to lay the groundwork on how case studies from other revolutionary communication technologies, such as the postal service, telegraph, radio, and telephone, can provide insight into the existing toolbox of self-regulation, antitrust, and regulatory solutions.

The opening panel featured several experts who were centrally involved with some of the major reforms in telecommunications and media. The similarities in these historical parallels suggested that today’s Congress ought to seek 21st century solutions for 20th century problems. Representing a wide range of expertise regarding antitrust, the private sector, and regulatory agencies, the panel included: Toni Bush, former Senate Commerce Senior Counsel; Mignon Clyburn, former FCC Commissioner; Dipayan Ghosh, Pozen Fellow at the Shorenstein Center and former privacy and public policy advisor at Facebook; Gene Kimmelman, former Chief Counsel of the Justice Department’s Antitrust Division; Hong Qu, Program Director for Technology at the Shorenstein Center and former User Interface Designer at YouTube; and Tom Wheeler, former FCC Chairman.

The panelists explored the multitude of issues at play in the big tech space, namely competition, content accountability, privacy and security, accessibility, and protection of civil rights and liberties [See the full event briefing packet for an in-depth discussion of these key issues]. However, the panel expressed concern over issue identification.“It always worries me that we are addressing the symptoms and not the malady,” said Clyburn. As part of their discussion, the speakers debated whether market shortcomings related to key issues of democracy could be emanating from the fundamental economics of digital platforms (e.g., network effects, economies of scale and scope) as well as big tech’s underlying business model, which centers on user data exploitation. As a result, the panelists agreed that any path toward sustainable policy solutions must first begin through a public and national debate. Congress has a critical role in setting this agenda by launching a concerted effort of hearings and engaging a diverse set of actors.

During the event, congressional staff were able to further delve into specific questions and concerns regarding tech policy issues through facilitated breakout groups that were joined by expert panelists.

The discussion surfaced four key insights on the tech policy challenges facing Congress and how legislators could more effectively engage with the dilemmas of big tech:

1) The digital marketplace and new business models are creating gaps in governance authority and coordination

The digital marketplace and emerging business models within the tech industry have disrupted the traditional structures of regulation and oversight. While certain issue span across the jurisdictions of Congress or regulatory agencies, others challenges are novel and evidence authority gaps. This has complicated problem identification within an under-resourced Congress.

2) A healthy mix between self-regulation and government policy is necessary

There is a variety of corporate and government policy options available to address issues related to big tech and democracy—ranging from self-regulation to antitrust enforcement and regulatory reform. History offers many examples, such as the corporate restructuring of AT&T and the Cable Act of 1992, where similar problems were addressed with vastly different solutions.

3) Congressional hearings are underutilized on technology-relevant topics

Congress has a critical role in advancing the public debate on tech policy issues through thematic and granular hearings. In recent years, however, there has been a substantial reduction in the number of Congressional hearings, and the hearings that are held are increasingly used as opportunities for political messaging instead of investigative opportunities to inform policy making. More substantive and frequent hearings can increase policymaker awareness, hold companies accountable to the public interest, and inform the American people.

4) Tech policy debates are still ‘pre-partisan’

The American people, regardless of their political allegiance, are negatively affected by non-competitive markets, privacy breaches, or inequitable access, bias, and discrimination. The current tech policy environment is nascent and it presents a rare opportunity to advance sustainable solutions through a united, bipartisan front.

This is a historic opportunity to guide the Information Age toward a promising future. The educational workshop adds to a vibrant, deliberate, and increasingly growing conversation among congressional leaders and the public to frame big tech policy solutions. Now, our leaders must spark the urgency of this moment in order to protect American consumers, promote innovation and competition as pillars of American enterprise, ensure an informed citizenry, and preserve our democratic values.

Key Insights

Gaps in Governance Authority and Coordination

The evolution of technology has not always aligned with the structure of governments. In recent decades, the digital marketplace and technological developments that have caused sectors to appear, disappear, and merge has complicated Congressional legislation and oversight.1 The emerging business model of today’s tech economy has resulted in gaps in governance authority. For instance, the ambiguous identity of platform companies has clashed with the traditional responsibilities of publishers and content providers. In some particular cases, such as tech platform interoperability or data transparency, there is no agency with direct governance authority over the issue.

In Congress, this issue has contributed to a number of overlapping jurisdictions and frustrated coordination efforts where policy questions about a specific technologies are often being considered simultaneously in multiple committees and/or subcommittees. These duplicative efforts further limit Congress’ ability to effectively leverage their oversight capacity over Executive branch agencies, where it is often unclear which agency holds the appropriate authority. The combination of these challenges has contributed to an unfocused definition of the problems at hand.

In order to advance the conversation on public good and big tech, it is crucial to clearly and precisely identify the problem that needs to be addressed. As the panelists and participants expressed, this can be difficult due to the wide range of issues, such as content accountability, privacy, security, accessibility, and civil rights and civil liberty protections. Yet as many of the panelists cautioned, these might all be indicators of the larger problem of a business model centered on data. “I think the key is to follow the money,” Toni Bush advised. “Fake news, misinformation, etc. are all larger symptoms of the fact that these are advertising platforms and their decision making is driven by revenue.” Therefore, the inconvenient truth could be that the incentives of the marketplace are presently misaligned with consumer interests.

The problem identification dilemma is further complicated by Congress’ resource constraints. In the past couple of decades, there has been a consistent decline in the number of Congressional staffers in both personal and committee offices. This reduced workforce works on myriad issues and frequently cite a lack of bandwidth and the need to be ‘a mile wide and an inch deep’ as a challenge when trying to engage on new and technical policy issues. This bandwidth challenge is compounded by a lack of constituent focus and/or pressure on science and technology (S&T) issues like big tech platforms. Many staffers note that Congress tends to be reactionary—in large part due to their resource constraints—so without pressure from constituents on S&T issues, it is significantly less likely that proactive policy concerning big tech platforms will be pursued.

Ambiguous jurisdiction, an unfocused definition of the problem, and significant resource constraints have stalled the path to progress.

A Healthy Mix of Self-Regulation and Government Policy

Leibniz’s Law states that no two objects have exactly the same properties. The same principle could be applied to policy prescriptions. Market concentration is not a new phenomenon. The history of U.S. competition law dates back to the late 19th century. Tom Wheeler, former FCC chairman, emphasized this familiar history in his remarks: “We have been here before. We have dealt with these kinds of issues before. The lesson we must take away from these past experiences is that fleeing the challenge is failure. You have to confront it.” Congress should indeed confront this history and extract lessons from the many similarities. Yet when addressing today’s tech challenges, there is a full range of options varying from self-regulation, to policy guidance, legislative and administrative regulation, and antitrust reform for Congress to explore. Considering a healthy mix of options will ensure that each issue can be addressed with an appropriate solution.

The telephone and cable industries provide two key case studies that demonstrate the outcomes of deploying different policy options to similar problems.

The breakup of the telephone industry manifested in the Department of Justice’s antitrust lawsuit against AT&T in 1974. While the case ultimately resulted in the separation of AT&T’s long-distance telephone service from regional telephone service, the divestiture case took almost a decade from start to finish. It ended up being a drawn-out and complicated process for a corporate structure, and its accompanying assets, that was comparatively much simpler than the structure of today’s big tech companies [See event briefing PDF for “Big Tech Company Functions”]. In addition, the success of this divestiture is debated as the regional telephone companies, known as Baby Bells, were ultimately reintegrated and long distance competitors folded back into their corporate control. However, the divestiture did introduce greater interoperability in the telephone marketplace that was crucial for technological innovation and future internet competition.

The Cable Act of 1992, on the other hand, represents a regulatory policy solution to promote competition. Similar to the breakup of AT&T, the Cable Act sought to address the vertical integration of cable companies that controlled both the cable service and the content of their channels. By enforcing nondiscrimination in the sale and distribution of content, Congress used the Cable Act to promote diversity in information sources and news. This is analogous in many ways to how several big tech platforms operate as both the marketplace owner and a participant, prioritizing their products and/or content over their competitors.

Accordingly, policymakers can draw many parallels and distinctions between the tools used to address problems that the AT&T breakup and the Cable Act of 1992 were designed to tackle. As Dipayan Ghosh, Pozen Fellow at the Shorenstein Center, noted, “At the highest level there is no difference between AT&T and these contemporary companies, as they are also natural monopolies and vertically integrated.” Ghosh went on to say it is worth dissecting how these companies operate and says it is very simple to see how three tenets drive the business model that governs the consumer internet:

1. The creation of tremendously engaging platform services that collectively concentrate power amongst the largest firms in the sector and limit competition over the consumer internet;

2. Uninhibited collection of personal information that allows them to create behavior profiles on individual users without affording them control or access over their data; and

3. The creation of highly sophisticated but opaque predictive algorithms that curate

Both Qu and Ghosh, respectively former Google and Facebook employees, termed such algorithms as potentially dangerous. Ghosh added that it is this precise business model that has generated negative externalities including the disinformation problem and the spread of hate speech, and that a triumvirate of corporate and regulatory policies could be considered to effectively respond to overextended companies that implicate the public’s interest: consumer privacy, competition policy, and algorithmic transparency.

Congressional Hearings Are Underutilized

Apart from its legislative function, Congress holds an exploratory and investigative power through Congressional hearings. Congressional hearings played a crucial role in understanding and investigating both AT&T’s corporate structure, as well as the cable industry in the 1990s. In both instances, Congress brought more information and expertise to the conversation, including insights from a broad spectrum of potential competitors, innovators, academics, and the public interest community. In describing the process leading up to the AT&T case settlement, Gene Kimmelman, former Chief Counsel for the U.S. Department of Justice’s Antitrust Division, recalled that, “In 1981, the House Telecommunications subcommittee held 11 hearings in 6 months to put together a report.” This report then served as the basis for both Senate and House bills.

However, Congressional hearings are being used less and less to inform the policy making process. There has been a notable decline in the number of hearings Congress holds. In the 1970s, Congress held roughly 6,000 hearings per year. By 1994, Congress held just over 4,000 hearings. Today, Congress holds just over 2,000 hearings annually.2 In recent years, there has also been a marked shift in the way in which Congress utilizes the hearings they do hold. According to a 2015 study examining 40 years of committee hearings, sessions used to be used to solicit input from experts and explore potential policy solutions. The study found that today, however, hearings are more frequently used as a public communication tool to spotlight issues in a manner that is consistent with members’ partisan leanings.3 Not only are there substantially fewer hearings where Congress can leverage their exploratory and investigative power, but today’s hearings are less frequently featuring substantive discussions to inform policy.

Among the event participants, there was widespread appetite to reverse this trend. Granular hearings, clearly tied back to the problem’s definition and organized thematically, could increase policymaker awareness, hold companies accountable to the public interest, and better inform the American people.The importance of diverse perspectives in this process cannot be overstated. As Hong Qu, Program Director for Technology Shorenstein Center, noted, “In order to accomplish norms toward the public good, it needs to be a multi stakeholder process.” A series of hearings would provide ample opportunity to allow consumers, workers, and industry representatives to voice their positions. In particular, when inviting companies, Congressional members should avoid only inviting C-level executives. The engineers and business managers, those who manage the company’s day-to-day operations, will be particularly insightful in providing more technical and granular information on department-level business incentives, predictive models, and algorithms.

Throughout the event, the panelists and participants raised a variety of potential hearings topics, including but not limited to: an examination of big tech’s data collection; how to define privacy; agency enforcement; algorithmic transparency and the impact on credit scores, housing, banking, employment, education, and the judicial system; the impact of foreign cyber regulatory regimes; data portability and social media; the impact of big tech on childhood development; and the risks of a decimated local news ecosystem.

Today’s Tech Debates Are Still ‘Pre-Partisan’

The issues of the Information Age—such as protecting consumer privacy, preventing disinformation campaigns, and non-competitive, overly concentrated markets—affect the constituents of each and every Congressional member. The nascent nature of today’s debates over Big Tech and related policy issues presents a rare opportunity for healthy and honest partisan debate in service to the consent of the governed. From the Trump Administration’s creation of an FTC competition task force to Senator Elizabeth Warren’s ‘Breaking Up Big Tech’ proposal, there is already interest to address these issues from both sides of the aisle.

The leadership for big tech policy solutions must reflect this reality through bipartisan engagement and a united front. As Toni Bush explained, “The important feature of the Cable Act of 1992 was that it was a bipartisan effort. In fact, it was the only successful veto override in the Bush administration.” Likewise, the divestiture of AT&T began under Republican President Gerald Ford, continued under Democratic President Jimmy Carter, and came to a resolution under Republican President Ronald Reagan.

Continuing the Conversation

The Belfer and Shorenstein Center’s “Big Tech and Democracy” workshop fostered a space for congressional staffers to express their most-pressing concerns, inquiries and insights regarding tech policy issues. It added depth to the ongoing discussion of how to bring both policymakers and technical experts to the same table, undertake problem identification, and build a unified bipartisan front. The Belfer and Shorenstein Centers will continue to carry this momentum by providing additional resources to support congressional policy solutions. While an examination of past case studies built a foundation for discussion and policy frameworks, policymakers will need to consider a menu of technical, market-based, social, and regulatory solutions to adapt these historical observations into a blueprint for addressing today’s tech marketplace.

To stay up to date on upcoming Big Tech and Democracy workshops from the Harvard Kennedy School, sign up at: www.BelferCenter.org/TAPP#Contact and follow @TAPP_Project and @ShorensteinCTR on Twitter.

1 Venkat Alturi, Miklos Dietz, and Nicolaus Henke, “Competing in a world of sectors without borders,” McKinset Quarterly, July 2017. Accessible online.

2 Pacrell Jr., Bill. “Why is Congress so dumb?” The Washington Post, January 11, 2019. Accessible Online.

3 Jonathan Lewallen et. al. “Congressional dysfunction: An information processing perspective,” Regulation and Governance, May 8, 2015. Accessible Online.

For more resources visit the Belfer Center’s event briefing, or download the PDF of this report which contains additional case studies and research.