If Republicans are lucky, they’re looking at a narrow House majority in the fall. A Senate flip may be in the cards as well. It’s not enough simply to secure a majority, however. What matters is how it’s used. And on Big Tech, Republicans will need to come out swinging.
Their approach is beginning to take shape, with Section 230 reform percolating in the House, data privacy proposals being bandied about, and Sen. Mike Lee, R-Utah, on the cusp of introducing a bill to break up Google’s digital advertising arm, where it makes 80 percent of its revenue.
To this point, the Republican strategy on Big Tech has been largely rhetorical, focused on attempting to shame these companies into better behavior. This includes dragging CEOs and other executives before congressional panels where they are excoriated with example after example of market distortion, politically motivated speech moderation, and questions about the effects of social media products on children.
But the CEOs are too polished to be of much use, and trained to provide non-substantive answers with obsequiousness. They respond to pointed questions with vague platitudes, claim ignorance, promise follow-ups that never materialize, and smile blandly at the committee dais while saying nothing.
Why Mere Shaming Doesn’t Work
Moreover, as we’ve learned over several years, shaming these companies has no real effect. No company has undergone a major course-correct after a hearing. Rather, the opposite: they’ve doubled down.
This is because these companies are impervious to shame. In fact, Silicon Valley is proud of the double standard they impose for conservative and leftist speech, and filled with self-righteous moral fervor over banning users like former President Donald Trump and shaping narrative arcs by calling political speech they disagree with “dangerous misinformation.” Just look how well this went for them during Covid lockdowns.
Calls for transparency, meant to expose the subjectivity with which these companies enforce their terms, is largely an ineffective approach. The only way to change the behavior of Big Tech is to change the law (or, in the case of antitrust, ensure it can be properly enforced.) Big Tech constantly shape-shifts its way out of legal accountability, abuses the judicial contortion of existing laws, exploits the lack of firm antitrust enforcement, and buys its way out of trouble.
A Republican Party that is not prepared to aggressively assert itself in the face of companies with the unprecedented ability to distort, at massive scale, our markets, our discourse, and our information gathering, doesn’t deserve our votes.
A Select Committee For Big Tech
The desperate need for a legislative strategy does not mean committee hearings should be tossed entirely to the side. In addition to crafting and marking up legislation, Republican control of specific House committees gives the GOP ample opportunity to do what committee hearings were designed for: to investigate and to demand both information and accountability at a more granular level than what’s been tried before. But Big Tech issues are multi-faceted, layered, and cross-jurisdictional, meaning committee action often becomes siloed, duplicative, and performative.
A select committee, however, overcomes these issues. Select committees are formed for special investigatory purposes. By now, most everyone is familiar with House Democrats’ January 6 select committee, formed to investigate the events of January 6, 2021. (The committee’s investigation is one-sided, flawed, and tied up with issuing subpoenas for “dangerous threats to democracy” like Steve Bannon and Alex Jones, but that’s another matter).
But there have been select committees before. Republicans formed one to look into the events of Benghazi. Before that, the select committee to examine the Iran-Contra affair established a bicameral approach, with the House and Senate joining forces.
Follow the Jan. 6 Precedent
The January 6 select committee has established itself as arguably the most powerful select committee ever to exist. In using the powers of the House to compel private phone records, text messages, and emails from telecommunications companies and issuing all manner of subpoenas for private citizens not even directly related to the event itself, House Democrats have laid down far-reaching precedent for what a select committee can do. House Speaker Nancy Pelosi has even set a precedent for speakers deciding which members of the opposing party get to serve.
This now-established precedent should not be ignored on Big Tech. The oft-hurled complaint about Congress acting on tech policy is that members of Congress “don’t know enough.” A select committee—especially one established between the House and Senate, bipartisan if Republicans so choose, and armed with resources to hire staff with subject matter expertise as well as investigatory counsels—offers the opportunity to examine, in detail, everything members need to know.
A select committee also overcomes the turf wars and jurisdictional disputes that plague the current committee structure as it seeks to address a multi-dimensional issue. An interdisciplinary investigation, staffed by individuals with expertise both in technology and investigations, is less likely to be plagued by rivalries. An expert staff, including committee counsels available to conduct most of the questioning in a more long-form and Socratic manner, will also overcome the learning curve on complex issues.
From the tech companies’ ties to China, the detailed process for their content moderation decisions, the tangled web of fact-checkers funded by the tech companies, and the lawless market for third-party data, a select committee could cover all of it, requiring testimony, documents, emails, and whatever else they need to fully understand how the biggest companies in the world are reshaping our privacy, markets, discourse, politics, and mental health.
What This Committee Should Do
Here are just a few of the topics on which a Congress select committee should focus.
Ask censorship questions to the mid-level content managers, not the CEOs or team leads. If Republicans really want to understand how speech suppression at these companies works, they need to talk to the implementers. Those are the people who actually made the decision to ban a story critical of Hunter Biden from circulation on Facebook and Twitter in the weeks leading up to the 2020 election. It also includes teams responsible for implementing Google’s blacklist, shadow banning members of Congress, letting human smugglers use Facebook to help exploit shoddy U.S. border enforcement, and deciding when calls to overt violence are just fine and dandy.
Compelling testimony and relevant documents from the employees who make these decisions will illuminate these largely opaque processes with few substantive public explanations. These employees can explain the rules (or lack thereof), the decision trees, detail the efforts at narrative construction and control.
Importantly, Congress must seek to get to the bottom of whether these efforts are coordinated with competitors. Congress should also consider subpoenaing documents and testimony from the companies’ chief diversity officers, to see how HR and internal requirements are influencing external content moderation practices.
Require scheduled, regular CEO appearances before Congress, and make each CEO personally responsible for document discovery. Tech CEOs may be largely trained to be useless in hearings, but this does not let them off the hook.
The ineffectiveness of prior hearings has been, in part, due to their sporadic nature. Members come, raise legitimate concerns, and are given a dutiful commitment that always ends with zero substantive follow-up. Six months later, the concern has been forgotten. A hearing on a monthly schedule would ensure CEOs are held accountable for the specific questions raised by members.
It would also require more honest answers. At a congressional hearing in 2018, Google CEO Sundar Pichai was asked if Google manually intervened in search results. He denied it. Not long after, former Google engineer Mike Wacker exposed how the internal blacklist at Google actually works, catching Pichai in a lie. A regularly scheduled hearing would allow for robust follow up for Pichai to explain and justify his material misrepresentations to Congress.
Each of the CEOs should also be personally responsible for presenting, in a timely fashion, the documents subpoenaed by the committee. The Big Tech platforms are notorious for slow-walking discovery in litigation—so much so that a U.S. district judge recently urged plaintiffs suing Facebook to file sanctions against the company and their lawyers for stonewalling during the discovery phase of the case, calling Facebook’s excuses “egregious” and “preposterous.” Making CEOs personally liable, subject to being held in contempt by Congress, for documents that do not turn up on time would urge this process along.
Subpoena emails and documents related to “fact-checking” organizations. Big Tech is now notorious for banning, labeling, and deplatforming users and posts as a result of “fact checks” from third-party outlets they compensate, or organizations that have suddenly popped up out of nowhere. Tech companies pay established news organizations and other outlets to fact-check user posts, but the process is murky and ill-defined. Moreover, as the Federalist uncovered in 2020, some fact-checking outlets are funded by the tech giants and have additional funding sources linked to China.
Specific questions should also be asked about “hate speech” designations, often outsourced to leftist hack organizations like the Southern Policy Law Center. Since 2010, SPLC has designated conservative groups like the Family Research Council as “hate groups” because of their traditional beliefs about marriage.
If tech giants are outsourcing speech suppression to external bodies, especially to overtly political groups, or groups with ties to foreign nationals, Congress should seek to understand the funding and communication arrangement between these organizations, and consider if Section 230 protection is warranted for content that is clearly not “user-generated.”
Get detailed answers (and documents) on tech’s relationship with China. It’s a well-known fact at this point that Big Tech companies are dying to get into the Chinese marketplace. They’re also, if Apple is any example, willing to shed every principle or standard of democratic norms to get there.
This has deep implications for American national security and public policy towards these companies. If the price of entry to Beijing is, as Apple has agreed to, material aid to America’s biggest geopolitical adversary, that is something policymakers must build into their baseline when making laws about Big Tech, especially those governing the access these companies have to government contracts and the detailed data of American citizens.
Google, for example, claims it can help the United States in the race toward supremacy in artificial intelligence. But Google also has opened an AI office in Beijing. To what end? Congress should see the details.
Which companies have shown their source code to China? (Microsoft, at least, has done so, both with Russia and China.) What are the details of current agreements these companies have made with China? Do these companies have research branches in China, and what are they for?
What access have they agreed to let China have? Is U.S. user data stored in China, or does the Chinese government have access to it? Internal emails, deep dives, and depositions are the only way to answer some of these pressing questions.
Obtain internal research on user behavior, including what companies know about harm to users and the addictive qualities of their product. Late last year, Facebook whistleblower Frances Haugen dumped a trove of documents on Congress detailing what the company knows about how its products harm the mental health of children and teens. Haugen is a Democratic operative with terrible policy ideas who should be ignored. But the documents she produced have value, and the issue warrants further scrutiny from Congress.
Big Tech’s business model is addiction. The more you come back to their products and the longer you stay, the more money they make—both through the advertising you’re shown, and the detailed data tech companies gather on your behavior while you’re there.
Moreover, Big Tech is ubiquitous. Kids have immediate access to the online world nearly everywhere, regardless of what their parents say. Schools are setting up Chromebooks and YouTube accounts for students, consenting on behalf of parents. What Big Tech is showing to kids, and how they’re maximizing exposure of their product to children, needs far deeper examination.
So, too, does the internal research on user behavior, algorithmic manipulation, and how Big Tech maximizes rewiring our brains for profit. As the digital world becomes inescapably entangled with the analog one, it is impossible simply to avoid these platforms, especially as they affect how we engage with the economy. This fact alone gives Congress a prevailing interest in knowing how these companies may be reshaping our psychology.
In the early 1990s, investigations into Marlboro’s internal documents revealed the tobacco companies targeted children and conspired to hide damaging evidence in ways that a federal court later declared to be racketeering. If Big Tech is even engaged in half of the obfuscation effort that the tobacco companies engaged in, there are huge public policy ramifications that must be addressed.
Uncover and map Big Tech’s funding to nonprofits, the use of those nonprofits for pro-tech lobbying, and funding to universities. Big Tech is infamous for its massive lobbying muscle in Washington, where these companies regularly outspend the defense-industrial complex to try and manipulate the policies meant to govern them. But less well understood is the shadow influence of Big Tech and the institutions and academics of public policy formation.
Big Tech spreads money throughout Washington, with six-figure gifts going to supposedly non-partisan think tanks, academic institutions, and universities, many of whom testify before Congress without disclosing their affiliation. At a minimum, all congressional committees should begin mandating that witnesses detail the annual funding amounts they receive from all corporate entities, including from tech companies.
Examine Big Tech’s strategy to acquire competitors. Facebook notoriously operates under a “copy, acquire, and kill” strategy for nascent competitors. Google is being sued by the Department of Justice and state attorneys general for anti-competitive practices both through exclusionary contracts and bundling, and in the digital ad market. Antitrust lawsuits are one thing, but as Congress seeks oversight of the market, they need answers on the internal deliberations of the companies which appear, in many cases, to be seeking predatory dominance over mere “robust competition.”
Congress should subpoena relevant documents, emails, and testimony related to merger and acquisitions strategy. They should also look for any evidence as to whether these companies erect barriers to entry for smaller competitors, examine how network effects entrench dominant firms to the detriment of easy market entrance, and scrutinize if and how data monopolies exclude meaningful competition.
If Congress wants to protect and promote a marketplace that benefits consumers and affords equal access to small competitors, they have a vested interest in understanding how the current market is working.
Map exactly what the tech companies do with user data. Tech companies are data companies. They offer “free” services in exchange for extremely detailed profiles of users, which inform future advertising and product design, and can be repackaged and sold to data brokerage firms (or the government) for profit. There is no federal digital privacy law in the United States currently, nor are there federal laws governing the exchange of private user data, or any laws that protect the user in the exchange.
This is one of the more complicated areas of policy and one tech companies are more than willing to obscure—it’s how they make their money, after all. They have no incentive to be forthcoming with Congress on what goes on behind closed doors. That is why a select committee must compel these answers in the granular detail that will inform detailed and effective policy.
Uncover how often Big Tech companies assist the U.S. and foreign governments with surveillance and intelligence-gathering requests. Tech companies are many things, but they are, fundamentally, the most sophisticated digital and communications surveillance firms that the world has ever seen. Governments around the world have been leveraging this power for years.
In 2013, Edward Snowden revealed the extent to which U.S. tech companies were cooperating with the National Security Administration to let the agency harvest voice recordings, emails, photos, and whatever else they wanted on platform users, all in secret. More recently, the Biden administration has not been shy about demanding detailed records from the tech titans as it relates to the spread of “misinformation,” including the nature of the speech and users promoting it.
How often and what type of information these companies provide to intelligence agencies should be an area of study for Congress, and should inform policy parameters for what these companies are required to share and disclose with their users. This is also true of how these companies cooperate with foreign governments, particularly if they are assisting those governments in suppressing any ethnic groups.
It’s The People’s Turn to Decide
America has always celebrated the innovation that makes us world leaders in the technology revolutions that power the globe. But when innovation begins to change the structure of our markets and the nature of how we live together, our self-government (Congress, not the bureaucracy) has always stepped in to set the rules.
We want to rule the emergent technology, rather than having it rule us. We are at that point with Big Tech. Congress must get serious about obtaining answers needed to inform a comprehensive policy response. Republicans should lead the way.
This is a commentary published with the author’s permission. If you wish to submit a commentary to Texas Scorecard, please submit your article to submission@texasscorecard.com.
