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Bringing Capitol Hill to the Valley - What we learned from Zuckerberg's testimony to Congress

Mark Zuckerberg prepared for his testimony before the Senate and the House Energy & Commerce Committee as though expecting to face hostile opposing counsel, not Facebook users and concerned colleagues. His notes—leaked, ironically, by a press photographer when left open on his table during a bathroom break—show prepared language to address calls for his own resignation, and for compensation for users whose data was improperly shared, though these topics were not raised during questioning. Despite readily agreeing to Senators’ characterizations of Facebook as an American company, with a responsibility to its American users, and promising to work together with legislators to codify principles and regulations that “make sense”, Zuckerberg stopped short of proposing specific regulatory measures. Although he voiced his support of the Honest Ads Act, when asked whether he would return to Washington to aid its passage, Zuckerberg demurred, first offering the time of someone on his team instead, and then noting that he doesn’t “come to Washington too often.” The implications, both that he doesn’t need to (Senator Graham pointedly questioned whether Facebook was a monopoly, and its massive success has arisen largely without either regulation or political favors; Facebook’s campaign contributions are paltry both compared with its revenue and with the contributions of other, more heavily-regulated industries, like oil and gas) and that he doesn’t want to, revealed a relationship between Facebook and lawmakers with distance, shading from incomprehension to distrust to antagonism, on both sides.

Many of those watching the hearings noted the Senators’ and Representatives’ clunky and repetitive lines of questioning, their difficulty at choosing the precise terminology to communicate the technological gist of their inquiries, and the inability of a five-minute oral format to properly convey—and convey strictly enough to reign in a witness looking for a question’s easiest possible interpretation—the nuance in, for example, the points made by Senators Blunt and Wicker about Facebook’s cross-platform tracking between a device hosting a logged-in Facebook app and a device registered to the same user but lacking the Facebook login. When asked for clarification, the lawmakers frequently revised their questions to address narrower points, or to add ambiguity; taking advantage of these opportunities, Zuckerberg reiterated talking points that Facebook doesn't sell data, and that users are in control of the content that they upload. While technically true, these points elide the nuance that Facebook sells access to users and categories of users that is based on data about those users, and that such access allows the collection of further data; and that while users can delete their shared photos and status updates, Facebook retains internal profiles based on users’ activity, social graph, and other interactions that cannot be deleted, or even viewed for the most part (at least, until GDPR takes effect for European users).

One could imagine both representatives with a more thorough understanding of, or better coaching in, the technological practices in play, who would thereby be able to more quickly and incisively pin Zuckerberg down; even so, when faced with a direct question about Facebook’s tracking or storage practices, Zuckerberg nearly always deferred to his team and promised to follow up later. One could also imagine a more collegial relationship between Facebook and Washington DC, in which representatives would have discussed their questions with Zuckerberg and his team at greater length, and perhaps behind closed doors, and could use the testimonial hearing format to place prior agreements and understandings on the record.

Based on the questioning in both hearings, one of Zuckerberg’s objectives seemed to be avoiding the conclusion that Facebook violated its 2011 FTC consent decree when it failed to provide notification of Cambridge Analytica’s improper data handling. While a broader objective may be to avoid an American version of GDPR, Zuckerberg repeatedly expressed willingness to work together on regulation, and indeed regulation for a company like Facebook could serve to lock in its dominant position rather than to bolster the ability of new social network challengers, as Facebook’s resources make it better able to comply with regulatory demands. While users’ consent to the platform’s business model and free provision of photos and status updates were invoked both by Zuckerberg and by Senator Hatch who paternally scolded any users who were unaware that a free service has to monetize in other ways (“Senator, we run ads,” Zuckerberg noted smugly), Zuckerberg also acknowledged, when faced with the hefty text of Facebook’s privacy agreements, that he did not expect that all users would have fully read the agreements before clicking through them. In a departure from earlier statements of company strategy, Zuckerberg also noted that there will always be “a version” of Facebook that is free to use, opening up the possibility that there will, in the future, be “a version” that is not, and that might come with greater privacy or more control over data collection. Zuckerberg’s claim that users value targeted ads, or at least prefer them to untargeted ones, is actually controversial, even according to market research surveys, and part of the anger over Cambridge Analytica’s improper data collection is the inability for users to predict, or limit, how data collected today will be used tomorrow, or to whom it will be or remain available next year.

Whether posturing or honest self-exploration, Facebook’s apparent openness to exploring regulation should be taken as an opportunity by policymakers, both to craft regulation that may need to be complex—to cover the myriad ways in which data can be collected and mixed, and to ensure that a savvy company can’t avoid both compliance and detection—and to forge a closer relationship between the tech giant and its community representatives. That may require Zuckerberg visiting Washington a little more often, and it will also require the acquisition of more technological knowledge and expertise by legislators and their staff, which may require them to visit Silicon Valley more, too.

-Allison Berke