The tech titans go (virtually) to Washington

Like the old tale of the blind men describing an elephant, Wednesday’s congressional antitrust hearing with the heads of Google, Apple, Amazon, and Facebook differed dramatically according to your perspective. The Wall Street Journal said the six-hour hearing showed that there was room for compromise between the way Republicans perceive the technology giants and the way that Democrats do. But Slate and a number of other outlets pointed out how most of the Republican members of Congress spent their time talking about alleged bias by Facebook and YouTube aimed at conservatives (something for which there is absolutely no evidence) rather than antitrust. The Verge’s Casey Newton said the “lunatic whipsawing between companies, issues, and conspiracy theories” made the hearing feel like a social media feed, and not in a good way: “Every question shouted, every answer interrupted, nothing truly ventured, and very little learned. Polarized and polarizing.” (Newton also said that, in the end, he came away “mostly heartened” by the idea that Congress might finally be prepared to do its job as an antitrust regulator.)

Part of the problem—as with the elephant—was that the hearing was just too massive, sprawling, and unfocused. As Binyamin Appelbaum of the New York Times pointed out, each of the tech companies should probably have had its own hearing, since the antitrust issues that apply to each one are very different. (Will Oremus of One Zero said sources told him the technology companies themselves pressed for a hearing with all four, as a way of muddying the waters. If true, then their attempt was successful.) Even at six hours, once you subtract the grandstanding and irrelevant questioning by people like Republican Matt Gaetz—who seemed most interested in whether the companies shared what he called “American values”—or the sad spectacle of Rep. Sensenbrenner asking Zuckerberg why Facebook took down a comment from Donald Trump Jr. (something Twitter did), there wasn’t much time for more than one or two questions about actual anticompetitive behavior.

The fact that there were even a few of these was held up by some as a triumph—Prospect.org called it “The Triumphant Return of Congress”—something that says a lot about just how low expectations are when it comes to these kinds of hearings. And yes, it was better than the one where Facebook was asked how it made money and Zuckerberg responded, as if speaking to a toddler, “Senator, we sell ads.” (On Thursday, the day after the hearing, the company reported that its revenues rose to $18 billion in the most recent quarter.) One of the stars of the day was Rep. Pramila Jayapal, who came equipped with voluminous notes, including some of the 1.3 million documents that Congress has accumulated over the year or so this antitrust investigation has been underway. She pinned Zuckerberg with questions about his acquisition of Instagram, including emails that showed he was planning to build a competitor if the company didn’t sell, and the CEO could only stammer, “I’m not sure what you mean by threaten.” She also asked some tough questions of Amazon, including pressing chief executive Jeff Bezos on whether the company used internal sales data to launch competing products. (Bezos said this is against the rules, and he’s looking into it.)

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There were other interesting tidbits that came out of the testimony and were directly related to antitrust, although they were arguably lost to most amid the barrage of interruptions and senseless questioning from some members of Congress. For example, Zuckerberg admitted that Facebook cut off Pinterest’s access to its API because it was a social media competitor, but didn’t cut off Netflix’s access. As antitrust expert Hal Singer pointed out on Twitter, “discriminatory refusals to deal are illegal under the antitrust laws.” Tim Wu, the Columbia law professor who coined the term “net neutrality,” noted that the purchase of Instagram, which seemed clearly designed to take out a potential competitor, could also be illegal under current antitrust laws, since it is “a violation of the Sherman Act to buy out a direct competitor and protect a monopoly.” Although there are those, including Alec Stapp of the Progressive Policy Institute, who have argued (with some justification) that the concern about the Instagram purchase suffers from “hindsight bias,” since virtually no one saw Instagram as a competitor at the time it was acquired, when it had only thirty million users and zero revenue.

For all of the congratulatory pieces about how hard-hitting Congress was with its questioning, however, or how the hearing showed that Republicans and Democrats are finally on the same page about the need to take action, very few pointed out that there is a conspicuous lack of information about what exactly Congress should do about any of this. And that’s because antitrust law for the past forty years or so has focused on consumer harm when it comes to measuring anticompetitive behavior, and there is precious little evidence of consumer harm stemming from any of the behavior Congress is so concerned about—at least in the way that harm is usually defined. All of the tech titans provide their services for free, and they all argued quite convincingly that no one is forced to use any of their websites. Therefore, the impact of the hearings “will be limited by antitrust laws that were created a century ago and that are imperfect for corralling internet firms,” as the New York Times put it.

Some experts—including those we spoke to for a discussion series on these issues on CJR’s Galley platform last year—argue that the concept of harm under antitrust laws should be defined more broadly, so that things like invasion of privacy would count. But until laws are changed, it’s going to be very difficult to apply that kind of standard, which makes all of those hard-hitting questions (all three or four of them) seem somewhat moot.

Here’s more on the tech hearings:

• Airing of grievances: Mike Masnick of Techdirt pointed out in his analysis of the hearing that the absurdity of some of the questioning was revealed when several Republican lawmakers talked about how they were furious at Facebook and YouTube for removing a video promoting hydroxychloroquine (the one with the doctor who believes that some diseases are caused by demons), while Democrats were upset that Facebook didn’t take it down fast enough, and that more than twenty million people saw it before it was removed. Masnick also noted that the hearing involved “very little discussion of actual antitrust. There was plenty of airing of grievances, however, frequently with little to no basis in reality.”
• Sleekest of all: The Markup has a breakdown of the lines of questioning directed at each of the tech firms, and according to a scorecard from The Verge, Apple arguably got off the lightest of any of the companies in the hearing, if only by volume of questions: Tim Cook got just thirty-five, compared to fifty-nine for Bezos, sixty-two for Zuckerberg, and sixty-one for Google CEO Sundar Pichai. The New York Times had a live-blog of the hearing, and the Washington Post’s fashion critic wrote about it as well, saying Pichai “was the sleekest of the lot in both appearance and setting. He wore an elegant charcoal suit and matching tie and was well-framed behind a desk that sat in an office that looked like it had been inspired by the West Elm catalogue.”
• Destroy mode: Wired magazine looked at the documents about Facebook’s pursuit of Instagram, including a message that Matt Cohler—venture capitalist, Instagram board member, and former Facebook employee—sent Instagram cofounder Kevin Systrom after Zuckerberg had expressed an interest in buying it. “Will he go into destroy mode if I say no?” Systrom asked. Cohler replied, “Probably.” Gilad Edelman of Wired gave the hearings a B-minus: “With the notable exceptions of Republicans Jim Jordan and Matt Gaetz, who relentlessly flogged the hobbyhorse of supposed anti-conservative bias on the tech platforms, the committee proved that this is a serious and legitimately bipartisan investigation. But the hearing also illustrated how complicated the cases against these companies are, and how difficult they are to make in the brief soundbites that form the basic currency of American political debate.”

Other notable stories:

• The Department of Homeland Security has compiled “intelligence reports” about the work of American journalists covering protests in Portland, in what current and former officials called an alarming use of a government system meant to share information about suspected terrorists and violent actors, according to the Washington Post. Over the past week, the department’s Office of Intelligence and Analysis has disseminated three Open Source Intelligence Reports to federal law enforcement agencies and others, summarizing tweets written by two journalists—New York Times reporter Mike Baker and Lawfare editor Benjamin Wittes—and noting they had published leaked, unclassified documents. Wittes wrote on Twitter that he is considering legal options.
• The Nation says that it has internal documents that show the Department of Homeland Security recently instructed employees on how to arrest journalists and expose them to crowd suppressants like tear gas without being legally liable. It also delineates which legal protections are not extended to “normal protestors,” the Nation report says. The document tells DHS officials how to interpret a temporary restraining order issued last week by US District Judge Michael Simon in response to a lawsuit filed by the ACLU alleging that DHS officers had been attacking journalists in Portland. 
• Google, Facebook, and other digital platforms could be forced to pay hundreds of millions of dollars in fines if they fail to comply with a media bargaining code released by Australia’s competition regulator on Friday, The Guardian reports. The Australian Competition and Consumer Commission was asked to develop the mandatory code in April after negotiations between the digital platforms, the ACCC, and media companies stalled, and media companies experienced a sharp fall in ad revenue due to covid-19.
• Steve Calabresi—cofounder of the Federalist Society, a professor of law at Northwestern, and a staunch conservative who called the investigation led by Robert Mueller unconstitutional—wrote in the New York Times that Donald Trump’s tweet about potentially postponing the election was “fascistic” and “is itself grounds for the president’s immediate impeachment again by the House of Representatives and his removal from office by the Senate.”
• The Oregonian says it has even more documentation to support a previous story from 2019 about the Pac-12 conference signing a deal with the Los Angeles Times that promised to steer $100,000 in advertising to the paper in return for coverage of the conference. The paper now says that it has “internal communications from both the Pac-12 and Los Angeles Times that reveal new details of the partnership.” The Pac-12, which long denied there was a formalized agreement, for the first time now acknowledges it signed a contract to provide advertising revenue to the Times, according to the paper. “Emails, memos, and a human resources grievance show how the Pac-12 promised special access for the LA Times reporter and how the partnership set off alarm bells inside the news organization.”
• A mandatory Pentagon training course sent to the entire force and aimed at preventing leaks refers to protesters and journalists as “adversaries,” according to a report from Politico. The briefing is part of a fictional scenario designed to teach Defense Department personnel how to better protect sensitive information. The course, which was created originally for a select group of officials in 2010, is part of Defense Secretary Mark Esper’s force-wide effort to improve “operational security,” or opsec, and clamp down on leaks, Politico says.
• Josh Benton of the Nieman Journalism Lab has written an open letter to the new chief executive of the New York Times, Meredith Kopit Levien, asking her to “do more to help save local news in the United States.” Among other things, Benton asks the paper to share some of its ad-targeting data: “The Times has invested a lot of time and resources into developing a robust set of first-party data that will let advertisers target any of 45 distinct audience segments, and those slices are only going to get thinner and more numerous. Could you find a way to extend that data umbrella to high-quality local news organizations?”
• Nina Berman writes for CJR about the freelance photographers who have been covering the protests in Portland, and some of the dangers they have faced in doing so. “Numerous photojournalists covering the Portland protests have reported bodily injuries from munitions and chemical weapons, as well as direct physical assaults. Increasingly, such violence directed at journalists seems inevitable—a matter of when, not if—as President Trump deploys federal agents to install his version of law and order.” Mason Trinca, a freelance photographer who has covered the protests for the New York Times, says, “They have been shooting a lot more aggressively, a lot more flash-bangs.”
• The Philadelphia Public School Notebook is joining forces with Chalkbeat, a nonprofit news organization with a national reach, to launch Chalkbeat Philadelphia. According to a statement, the two nonprofits started thinking about a partnership years ago when Notebook cofounder and former editor Paul Socolar and Chalkbeat’s cofounder and CEO Elizabeth Green talked about industry concerns and goals. “We always saw the potential synergy because our programmatic work is so aligned, and we found ways to be supportive of each other’s work,” says Socolar. “The organizations are working to accomplish similar missions. The timing to partner formally seems right now.”

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