Google Hearings Force the Question: Do We Really Want ‘Regulation by Federal and State Governments’ of ‘Today’s Disruptive Technologies’?

The most important thing about today’s appearance before Congress by Google CEO Sundar Pichai is the simple fact that it took place at all.

It’s just one more sign that the tech sector may not only be resigned to federal regulation, but possibly excited by the opportunity to help write the rules that will govern their part of the economy. In his prepared testimony, Pichai took pains to “recognize the important role of governments, including this Committee, in setting rules for the development and use of technology.” That’s as anodyne a statement as possible, but in the given political context, during which both Republicans and Democrats seem to be looking for scapegoats to explain unexpected losses in 2016 and 2018, it’s hard not to read it almost as a commitment to cooperate. On every level—political, economic, intellectual—it seems as if a consensus is building that whatever is described by vague terms such as “social media,” “the tech sector,” “the gig economy,” or whatever needs to be under some sort of control. Apple’s Tim Cook, the head of the world’s biggest company, has declared “the free market is not working” and that regulating “tech” is “inevitable.” Ash Carter, President Obama’s former defense secretary, is calling for the resurrection of the Office of Technology Assessment, a Cold War relic that would, he vows, route around partisan gridlock to assess and protect us all from the “public impact of today’s disruptive technologies” (more on that terrible idea in a moment).

Earlier this year, of course, Facebook CEO Mark Zuckerberg testified before the Senate and said that the question wasn’t whether social media should be regulated but how it should be brought to heel (he was, he said, happy to help write those rules). Earlier this fall, Google declined to send a representative when tech heavyweights Facebook (represented by COO Sheryl Sandberg) and Twitter (represented by CEO Jack Dorsey) were called to talk to the Senate Intelligence Committee about all things related to the Internet, Russian bots, trolling, shadow-banning, fake news, you name it.

In the wake of bad publicity for not showing up, Pichai did fly to Washington later in September and made the rounds, promising to appear at today’s hearing, which was titled “Transparency & Accountability: Examining Google and Its Data Collection, Use and Filtering Practices” and held by the House Judiciary Committee.

As expected (and as my colleague Robby Soave has already reported), the hearing provided many examples of members displaying general ignorance of computer-related technology. But it also included non-veiled threats of political reprisals, such as when Rep. Louis Gohmert (R-Texas) told Pichai that he was tired of bias when it comes to searching, navigating, and evaluating information found on the internet.

My problem is when the government gives its immunity from lawsuits over to a private corporation [and] the head of that corporation doesn’t even realize that there is political bias run amok in his company….for you to come in here and say “There is no political bias in Google” tells us you either are being dishonest, I don’t want to think that, or you don’t have a clue how politically biased Google is.”

Gohmert cited Google’s use of the intellectually odious Southern Poverty Law Center (SPLC) as a “trusted flagger” of dubious content at YouTube and recounted a 2012 gun attack on the Family Research Center by a shooter inflamed by the SPLC’s characterization of the Christian organization as a hate group. He also raised the SPLC’s multi-million payout to Quilliam, an anti-Muslim extremist group it incorrectly identified as a pro-jihadist organization, as a sign of “bias run amok.” Even as he was denouncing Google for partnering with a group that slimed a Muslim organization, Gohmert felt a need to say that “Christianity is really more based on love than about any other religion in history. God so loved the world, He sent His Son, His Son so loved the world, He gave His life.”

Gohmert was essentially raising the specter of eroding Section 230, the section of the Communications Decency Act that protects websites and platforms from various forms of legal liability for what users do or say on a given site or service, unless conservatives and Republicans were given what he considers a fairer shake on the various platforms operated by Google.

As Elizabeth Nolan Brown has written, Section 230 is “the law that lets most of the U.S. internet today exist as it does“:

Basically, that’s by declaring that “no provider or user of an interactive computer service” should be treated as the speaker of content created by others when it comes to assessing certain legal liabilities….

You can be a web publication with an explicitly ideological slant, a social platform with idiosyncratic policies on permitted speech, or a private messageboard for anarchist Amish redheads to discuss the Cubs and Section 230 doesn’t care. All that matters, for the most part, is whether a digital platform or service created whatever content is in question….

The law explicitly states that a service’s efforts to filter out illegal or undesirable content do not open it to liability. “Any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected,” reads 230(c)(2).

Gohmert’s comments, which parallel similar ones made by other conservatives such as Sen. Ted Cruz (R-Texas), are troubling because they essentially recast private platforms as the equivalent of government-regulated broadcast networks. As Cruz put it in a Senate debate with challenger Beto O’Rourke,

“Right now, big tech enjoys an immunity from liability on the assumption they would be neutral and fair,” the senator said. “If they’re not going to be neutral and fair, if they’re going to be biased, we should repeal the immunity from liability so they should be liable like the rest of us.”

There is little-to-no solid evidence that platforms such as Facebook are in fact screwing over people espousing political viewpoints at odds with the owners or workers there (indeed, the engagement rates for Donald Trump’s Facebook posts grew and those Bernie Sanders and Elizabeth Warren declined during the period Cruz zeroed in on). But conservatives and Republicans are convinced that they are being discriminated against, even as liberals and Democrats are convinced that “big tech” was overrun by Russian agents who stole the 2016 presidential election from Hillary Clinton.

Which brings me back to reasons to believe that a consensus is building among Republicans and Democrats that “social media” or the “the tech sector” or whatever you want to call it “needs” to be regulated. Each side has scalps it wants to claim, and Donald Trump is nothing if not a dealmaker. If Ted Cruz can boost the reach of pro-Trump duo Diamond & Silk, he’s all in. If disgruntled and mistaken Hillary fans can walk away saying that social media will never again ruin their day, so be it.

And the centrists will be able to justify it all with soothing appeals to technocratic impartiality, like the one that former Defense Secretary Ash Carter made recently in the pages of Politico. In anticipation of today’s hearing and with the spring’s Facebook hearings in mind, Carter (who worked for a Democrat but started out with a Republican!), wrote

Members seemed unbriefed on even rudimentary issues—”[H]ow do you sustain a business model in which users don’t pay for your service?” one senator asked—while Facebook founder Mark Zuckerberg seemed not to understand the gravity of his company’s public responsibilities. This was a gridlock of understanding, not partisanship, and it meant a historic opportunity was missed.

Imagine a different outcome where several options mixing self-regulation by companies like Facebook and informed regulation by federal and state governments were analyzed, debated and prepared for a vote. Imagine, too, that such bipartisan insight came directly from a body under congressional control, rather than lobbying firms, advocacy groups and think tanks, which often peddle tendentious recommendations….

Carter’s solution is to revive the Office of Technology Assessment (OTA), which lasted from 1972 to 1995. He rhapsodizes:

At one point, I worked with the makers of the Goodyear Blimp on the design of giant airships floating randomly over the United States so that they couldn’t be targeted by the Soviets—surely a crowd pleaser!

The point is that we were an expert staff that provided purely technical analysis. We looked at options, not answers. Other teams worked on a broad range of issues, including telecommunications, health and safety, agriculture and manufacturing. Though scientifically independent, OTA was no rogue agency. It worked directly for, and was supervised by, a bipartisan and bicameral group of senators and members; OTA was truly congressional.

You can read his whole case for restoring the OTA here. I find it unconvincing and risible, not because “purely technical analysis” is a chimera, or because Congress shouldn’t be better informed on all the things it shouldn’t be trying to regulate, or because there are times when non-partisanship (un-partisanship?) isn’t appealing. It’s like Sundar Pichai’s presence in Washington: The most important thing is that it exists at all. It’s a marker that one era is ending and another beginning, one that will almost certainly take regulation of the tech sector and managed capitalism for granted.

If you’re old enough to remember the fight over the Communications Decency Act, which passed Congress overwhelmingly and was happily signed into law by President Bill Clinton before being almost completely slapped down by the Supreme Court as terrible nonsense, you might remember a time when an era of unprecedented freedom, expression, and experimentation still all lay in front of us. Nobody knew how any of this stuff would work out, but we’d figure it out as we went along, right?

Time was when the dominant strain of thought was to declare independence in cyberspace (remember that phrase?) and to state bluntly, “Governments of the Industrial World, you weary giants of flesh and steel…You are not welcome among us. You have no sovereignty where we gather.” Nowadays, the giants of cyberspace are weary, battered by fickle publics and volatile markets, and are as likely as not to welcome regulation and control as long as it comes with guaranteed market share.

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