In the 2018 Congressional hearings of Facebook CEO Mark Zuckerberg, Sen. Orrin Hatch (R-UT) illustrated a lack of expertise around digital business models when he asked how Facebook could sustain a business in which users don’t pay for their service. After being told that the social media platform is essentially supported by ads, Hatch was derided by many news outlets for his perceived disconnect with technology. He was nonetheless resolute on social media following the hearing, claiming that his central argument still stood and that his main concern was a very real one: the Cambridge Analytica scandal illustrated that Facebook had not been transparent. From the hearing:
Nothing in life is free. Everything involves trade-offs. If you want something without having to pay money for it, you’re going to have to pay for it in some other way, it seems to me. And that’s what we’re seeing here. And these great websites that don’t charge for access, they extract value in some other way. And there’s nothing wrong with that, as long as they’re being upfront about what they’re doing.
In my mind, the issue here is transparency. It’s consumer choice. Do users understand what they’re doing when they access a website or agree to terms of service? Are websites upfront about how they extract value from users or do they hide the ball? Do consumers have the information they need to make an informed choice regarding whether or not to visit a particular website? To my mind, these are questions that we should ask or be focusing on.
This context is only somewhat helpful to Sen. Hatch’s case. Whereas the questions pertaining to Facebook’s terms of service and transparency more broadly are important ones, Hatch takes some liberties with the fundamental assumptions around digital services trade-offs. If businesses offering a free tier of service always find a way to extract value from end users (whether monetary or data-driven), stricter terms of service and clarity around data-sharing will not instantly reduce users’ suspicion around corporate practices. This also raises the issue of regulation. If lawmakers have trouble articulating their reservations around the impact of new and emerging technologies, it doesn’t inspire widespread trust they can set the parameters for digital activity.
But the inability of lawmakers to ask questions more thoughtfully is only half the problem. Congressional representatives and staffers receive opinions from a wide range of sources including think tanks, lobbyists, and academic institutions. This is not an ideal situation. It’s not sufficient for lawmakers to receive a wide array of industry knowledge according to Zach Graves, the Head of Policy at the Lincoln Network, a tech nonprofit. Members and staff also lack the proper knowledge to choose which experts to consult and receive advice from. Graves argues that the choices are not always neutral: “A lot of these experts have other motives. Think tanks have donors and ideologies, and having worked in that space for a while, the quality of work is very inconsistent.”
As a result, the current debate is just as much about the issue of Congressional independence as providing regulators with a wider array of technical material. With the continued decline in congressional staff pay over the past few decades, the main source of technical or scientific knowledge is increasingly originating from corporate lobbyists. Google disclosed that it spent a record $21.2 million on lobbying the U.S. government in 2018 alone, which comes alongside increasing scrutiny into issues like user privacy, data security, taxation, or anticompetitive practices. When lawmakers start to consider whether and how they should regulate tech companies, they should probably not be reliant on lobbyists for an overview of the relevant technical terminology.
Education and accountability
In his last interview in May 1996, renowned American scientist and educator Carl Sagan made his views on science and government very clear, bemoaning both anti-intellectualism among lawmakers and its potential for taking off across society at large; from Charlie Rose:
CS: There’s two kinds of dangers. One is what I just talked about, that we’ve arranged a society based on science and technology in which nobody understands anything about science and technology – and this combustible mixture of ignorance and power, sooner or later, is going to blow up in our faces. I mean, who is running the science and technology in a democracy if the people don’t know anything about it?And the second reason that I’m worried about this is that science is more than a body of knowledge. It’s a way of thinking; a way of skeptically interrogating the universe with a fine understanding of human fallibility. If we are not able to ask skeptical questions to interrogate those who tell us that something is true, to be skeptical of those in authority, then we’re up for grabs for the next charlatan, political or religious, who comes ambling along. It’s a thing that Jefferson laid great stress on. It wasn’t enough, he said, to enshrine some rights in a constitution or a bill of rights. The people had to be educated and they had to practice their skepticism and their education. Otherwise, we don’t run the government. The government runs us.
Grim view, but not inaccurate. Sagan was lamenting in particular the recent loss of the Office of Technology Assessment (OTA), which from 1972-95 evaluated a range of technology issues and provided Congress with information and policy proposals on the impact of new and emerging technologies. At the time, the OTA had three divisions: energy, materials, and international security; science, information, and natural resources; and health and life sciences. In this time, it produced approximately 750 reports on a wide array of subjects, from the United States banking system and telecommunications to genetic engineering, climate change, and even space-based weaponry.
Although the OTA was created as a bipartisan agency, some Republican lawmakers viewed it as “duplicative, wasteful, and biased against their party,” according to Science magazine. In 1995, the office was defunded (and essentially abolished) by House Speaker Newt Gingrich, who said in a radio interview that he felt the OTA had been “used by liberals to cover up political ideology with a gloss of science,” and he “constantly found scientists who thought what [the reports] were saying was not accurate.” This is largely anecdotal. In all likelihood, the advice being offered on key scientific or technological issues ran counter to the party’s ideology, which would prove inconvenient.
To curb the influence of lobbyists on lawmakers and contend with increasingly nuanced technology issues, presidential candidate Sen. Elizabeth Warren (D-MA) on September 27th proposed its revival. Members of the House have previously called for the OTA to be reinstated, but Warren’s proposal differs in two important ways. First, she argues that lawmakers’ reliance on corporate lobbyists only partially reflects vested interests. It should instead be attributed, per Warren, to a largely successful “decades-long campaign to starve Congress of the resources and expertise needed to independently evaluate complex public policy [issues].” Warren also proposes a modernization of the OTA to deal with increased partisanship and allow for greater focus on interdisciplinary issue areas.
There are several considerations to this proposal. If the OTA were to be reintroduced, it would have to amend its prior structure and priorities in light of the radical transformations in both the digital and scientific space over the past two decades. One clear example of this is environmental; the IPCC has reported that carbon emissions need to be cut approximately in half by 2030 to meet the scale and ambition of mitigating the effects of climate change. But it also applies to lawmakers who struggle to ask questions around more technical concepts, like end-to-end encryption, algorithmic bias, or location tracking.
It’s also not clear what the role of the reinstated OTA would be. Agencies like the Government Accountability Office (GAO) have taken a more prominent role in the past few decades, made clear by the recent creation of the Science, Technology Assessment and Analytics (STAA) group. Its stated role is varied, from providing in-depth reports to policy makers to auditing STEM programs at federal agencies, or even creating an “innovation lab” focusing on exploring and deploying analytic capabilities and emerging technologies. With more programs and groups trying to fill the void left by the OTA, Congress is lacking a singular authoritative source of objective facts.
It should be noted that bringing back the OTA is also not a catchall solution to educating lawmakers; from Grace Gedye in the Washington Monthly:
The other half [of the problem] has to do with the overall congressional workforce. The Gingrich revolution not only wiped out the OTA; it also decimated congressional staff ranks, and their numbers have never fully recovered. That’s a major reason why Congress has become so dysfunctional. Staffers shape what information their bosses get, take meetings with interest groups, and participate in important negotiations. But congressional staff these days tend to be young, low-paid, and thinly spread — And those with technology backgrounds are as uncommon as, well, flip phones. To deal with an ever more technologically complex world, Congress needs a critical mass of staffers who bring science and tech experience to the table.
Any actual fix to the Congressional knowledge deficit must include provisions on improving the conditions of staffers. Having access to an abundance of reports is helpful, but only when staffers can use them to advise policymakers – most of whom have no background in STEM fields. Currently, staffers in Congress are not being paid according to the General Schedule which, coupled with a consistent decrease in their pay over the past two decades, makes the private sector a far more appealing option. This would also contribute to reducing Congressional dependence on the policy teams from Amazon, Google, or Facebook.
Lobbyism’s fair market value
Although Warren has been accused of overstating the market power of companies like Facebook and Google, it is nonetheless clear that a large portion of all Internet traffic goes through sites owned or operated by a small number of tech firms. This raises concerns around the degree of Congressional independence from tech firms given the current federal antitrust investigations being conducted by the Department of Justice (DOJ) and the Federal Trade Commission (FTC) into anti-competitive practices.
If lawmakers are receiving key technical terminology from corporate lobbyists, their ability to critically assess whether antitrust law is being violated diminishes significantly. In my piece on Microsoft, I discussed how many of the decisions made after the antitrust battles from the late 1990s came down to basic definitions, like the distinction between an ‘upgrade’ and a ‘product’. The absence of the OTA was certainly felt in the eventual settlement between Microsoft and the Department of Justice, which a number of states argued failed to curb the company’s anti-competitive practices; from the New York Times:
In a broad reading of the appeals court decision, appropriate remedies might include forcing Microsoft to put its Internet explorer browser in the public domain, require Windows to include Java technology created by a competitor, and to remove other middleware products like Microsoft’s media player and instant messaging software from Windows. In recent weeks, Microsoft rivals urged the Justice Department to include such sanctions in any settlement deal.
Yet the Bush administration adopted a narrower reading of the appeals court decision — more in line with the position of the Microsoft legal team and some legal experts. The appeals court decision did express a reluctance for having the judiciary meddle in software design decisions, though it also found that Microsoft had illegally “commingled” code when it bungled its browser with Windows.
Had the OTA existed during the Microsoft investigation, it’s not immediately clear that the outcome would have been any different. But the ruling, deeming Microsoft an unlawful monopolist that leveraged its dominance in personal computing to the detriment of its competitors, seemed like it might warrant a larger penalty – one potentially amounting to a breakup of the company. The concern is whether lawmakers are becoming more reliant on information from these firms’ legal and policy teams, and if so, how entrenched they are in Congressional proceedings.
Bill Pascrell Jr., a representative of New Jersey’s 9th Congressional District who supports the OTA’s revival, says in the Washington Post that Congress is currently “like an abacus trying to decipher string theory.” While critics to the bill may point to institutional corruption, rooting out regulatory capture isn’t unattainable nor indecipherable – especially when Congress is given both the capital and the staff to make educated policy decisions.