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Knowledge Gap Hinders Ability of Congress to Regulate Silicon Valley

Beyond the typical political gridlock that has stymied action in Congress, technology and the companies that sell access to it are particularly protected.

The Facebook hearings this week revealed a vast knowledge gap between Silicon Valley and the nation’s capital, where lawmakers struggled to grasp how the technology works and which problems — misinformation, sharing of data to third parties or political biases coded into algorithms — needed to be addressed.

Inaction does not reflect a lack of will so much as a failure of expertise.

“It’s the first time I’ve seen an issue where everybody seemed to be on the same sheet of music,” Senator Lindsey Graham, Republican of South Carolina, said Thursday.

If Congress does not follow through with new rules for internet companies, “we’ll look like a bunch of idiots,” Mr. Graham added.

Avoiding that dunce cap will be difficult. Lawmakers will confront Silicon Valley’s powerful new lobbying establishment. Facebook, Google, Amazon and Apple now hold the biggest corporate lobbying budgets in Washington and spent a combined $49.7 million in 2017 on direct lobbying, which does not include their outside lobbying trade groups, up 24 percent from the previous year. They have hired top privacy experts into their lobbying troops to defeat privacy and other internet laws.

Facebook has said it would embrace some regulation, with Mr. Zuckerberg saying this week that rules for internet companies were “inevitable.” But he also indicated that it would have to be the “right” regulations, and he was not willing to commit on the spot to several ideas posed by lawmakers.

The hearings spurred new momentum for the introduction of privacy laws. On Thursday, Senators Amy Klobuchar, Democrat of Minnesota, and John Kennedy, Republican of Louisiana, introduced legislation that would allow consumers to opt out of getting tracked on a site. The bill would also mandate simpler privacy policies.

One new bill would restrict data collection of students using classroom technology, and another would require companies to get permission before collecting and sharing user data. That would move the United States closer to rules about to take effect next month in Europe. An earlier bill would mandate more disclosure on Facebook advertising purchases.

Mr. Zuckerberg said this week that the company would make tools for the European privacy rules available for all users, but Facebook has not specified if stronger privacy would be the default for global users. Other internet and online advertising firms have criticized the European rules known as General Data Protection Regulation as onerous.

Nevertheless, the creation of any regulations in coming months is doubtful. Most lawmakers said in the hearings that they were concerned about privacy and foreign interference on social media during the 2016 election. But several Republicans also expressed anxiety over regulations that could slow the growth of Silicon Valley, a beacon for the American economy.

“These are tough ones. Privacy versus innovation versus security versus freedom — these are always tough questions,” said Senator Jeff Flake, Republican of Arizona. He said he would most likely support the political ad disclosures bill but added, “When we step in, are we always late?”


Senator John Kennedy, Republican of Louisiana, left, and Senator Lindsey Graham, Republican of South Carolina, as Mr. Zuckerberg testified this week before the Senate Judiciary and Commerce Committees.

Leah Millis/Reuters

This week, Senator Richard Blumenthal, Democrat of Connecticut, introduced the Consent Act, which would require companies to get permission before tracking and sharing data. But even he pointed to Washington’s short attention span. Companies like Facebook, he said, would try to stand in Congress’s way.

“They will try to make it more complex than it is,” he said.

“The question is timing,” Mr. Blumenthal added, pointing to the difficult midterm elections in November and the desire by many legislators to do as little as possible until then. “This session, everybody says, is over as far as serious legislating is concerned.”

Mr. Graham, who said regulations were necessary, also acknowledged the pitfalls of moving too fast.

“I’d hate to be the senator that killed an effort to have reasonable regulation,” Mr. Graham said. But, he conceded, “You really need to know what you are signing up for.”

Beyond the short term, the hearings may have laid the foundation for broader privacy regulations in coming years, analysts said. The most likely action to follow Mr. Zuckerberg’s grilling is the passage of a bill that requires financial disclosures of political advertising on social media, a law similar to broadcast television and radio political ad disclosures.

Narrow regulatory ideas could gain momentum that prevent online location tracking, strengthen privacy protections for children and teens and require stronger disclosures for data breaches. But the government’s light hand on Silicon Valley will continue for some time even as the European Union prepares to enact comprehensive privacy rules that limit data collection and push companies to ask permission before sharing information about users.

Even if seats in the House and Senate shift after the midterm elections, any privacy laws would be at least a couple of years away, said Paul Gallant, a technology policy analyst at the Cowen Group.

“If Democrats win the House in November, the chances of legislation would rise, although a likely Republican Senate would still make passage an uphill battle,” Mr. Gallant said.

A big problem is the lack of technological expertise in Congress, and the informational imbalance with the tech companies’ lobbyists.

In 2011, tech lobbyists blanketed the Senate Judiciary Committee after former Senator Al Franken, Democrat of Minnesota, introduced a geolocation privacy bill.

Internet firms brought in engineers and deployed their outside lobbying groups to warn lawmakers that Mr. Franken’s bill was dangerous and technically flawed, said Alvaro Bedoya, a former staff member for Mr. Franken who is now the executive director of the Georgetown Center for Privacy and Technology.

Another obstacle to action is a disagreement on regulatory priorities.

Indeed, Mr. Graham identified a grab bag of problems that he wanted addressed with Facebook, most of which are not being addressed by any current legislative proposals.

He mentioned terrorism content, Facebook’s “monopoly” and political bias as regulatory targets. At Mr. Zuckerberg’s hearings on Tuesday and Wednesday, other lawmakers brought up data breaches, foreign interference and censorship, particularly of the pro-Trump internet personalities Diamond and Silk.

“I want somebody to look at how they set these machines up, not just for Facebook, but other people, to make sure that the algorithms are not being politically motivated,” Mr. Graham said.

The lack of technological knowledge was glaring. Members mostly comprised lawyers or former business people, and many are just getting acquainted with social media, artificial intelligence, autonomous self-driving cars, drones and other technologies that they are charged to oversee.

Diversity in government has become a platform issue for Brianna Wu, a former software designer who is running for the 8th House district in Massachusetts.

Ms. Wu watched Mr. Zuckerberg’s hearings and was struck by the basic lack of knowledge members had in how the site works, such as the business model of ad-supported websites and how messaging apps like Facebook’s WhatsApp works. Before the hearings, many of the members brought in technology experts from academic institutions to prepare them for Mr. Zuckerberg’s appearance.

“Most people can understand why guns are a threat,” she said. “With technology, people don’t understand fundamentally what the threat is. That is a threat to democracy.”

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News credit : Nytimes