This week’s hearings on Capitol Hill with Twitter’s Jack Dorsey and Facebook’s Sheryl Sandberg were far less contentious than they might have been. More importantly, lawmakers were far better prepared than they had been when questioning Mark Zuckerberg earlier this summer. That meant that despite Alex Jones showing up to create a scene in the hallway, the hearings were relatively boring and quite productive, raising a number of important, issues including free speech on platforms outside the U.S., rules governing aspects of platforms like Twitter’s verification, and technology like deepfakes and encryption.
A surprise announcement from DOJ, however, could undermine that progress.
Although the hearings were short on solutions, lawmakers clearly gained an appreciation of the difficulty in crafting regulations for rapidly evolving and increasingly complex digital platforms. For their part, Sandberg and Dorsey got a close up look on the issues important to lawmakers when it comes to tech.
That’s a great start. Ultimately, although tech executives and lawmakers may not see eye to eye on everything, on the issues that matter most to national security including disinformation campaigns and privacy breaches, Wednesday’s hearings demonstrated that there is plenty of common ground and a willingness to cooperate on new solutions.
Unfortunately, what might derail more functional relationship between government and tech is the Department of Justice. Perhaps eager for a piece of the action but a little late to the game – or simply the latest attempt from Jeff Sessions to demonstrate loyalty to the president – DOJ issued a warning that technology companies may be “intentionally stifling the free exchange of ideas” and that DOJ would meet with state attorneys general over concerns.
In a prepared statement Justice Department Spokesperson Devin O’Malley said that he had listed to the questions asked of Facebook and Twitter executives but that the DOJ would be taking further action: “The attorney general has convened a meeting with a number of state attorneys general this month to discuss a growing concern that these companies may be hurting competition and intentionally stifling the free exchange of ideas on their platforms.”
To start with, and this seems to be something that senators questioning the commitment of Facebook and Twitter to free speech also miss: these companies have no obligation to be a free and open forum. In short, despite the comparison to their platforms as “digital town squares,” this isn’t the case nor should it be. These are private companies, interested in selling adds, retaining users and representing shareholders.
Moreover, it’s quite clear what DOJ is looking at when it comes to tech companies. Without more concrete legal standing, DOJ could very well be engaging in, to borrow Trump’s terminology, a witch hunt. Far from upholding the First Amendment, the result of such an investigation would actually infringe on the rights of those companies. The First Amendment does not mandate the private companies create a public forum, but it does protect those companies from government direction of how to disseminate news or political opinion.
On antitrust charges hinted at in the statement, DOJ might have better luck, although the U.S. has much narrower laws than the European Union which hit Google with a $5 billion fine for anti-competitive practices earlier this summer.
But by taking out or breaking up tech companies that have already voluntarily pledged to work with lawmakers won’t make digital communications more secure and would make public-private partnerships, of the kind needed to combat nefarious cyber meddling and hacking, much more difficult.
This latest salvo in the on-going, and, often ill-informed, debate on free speech and social media, is misguided at best and undermines the productive discussion begun on Capitol Hill that seemed to open doors to tech companies and lawmakers working together rather than engaging in a partisan debate fueled by presidential dislike.
