Leah Millis / Reuters

Last week on Radio Atlantic, after Mark Zuckerberg testified before Congress for the first time, Atlantic executive editor Matt Thompson posed a question: Who can tame Facebook? Self-regulation hasn’t been effective; just ask the 87 million people whose data was compromised by Cambridge Analytica. Staff writer Rob Meyer and senior editor Gillian White discussed how Congress could regulate Facebook, and today, we’ll share their answers, including off-air ones that aren’t in the episode. (Here’s how you, as a Masthead member, can listen to the episode ad-free.) Then, on the heels of the 50th anniversary of the Fair Housing Act, Matt reflects on how the potential for housing discrimination on Facebook reveals limits to what regulation can accomplish.

—Karen Yuan

PS. In the coming weeks, we’ll be rolling out the beta version of a new Masthead discussion forum that isn’t hosted on Facebook. Email me at kyuan@theatlantic.com if you’d like to be a beta tester. To those who have already emailed me: Thank you! I’ll be in touch soon.

What Could Congress Do to Regulate?

By Karen Yuan

Regulation, even of a technologically complex company such as Facebook, is certainly possible for Congress. The paths Congress might take to regulating a company like Facebook depend in part on what type of business Facebook is considered to be. Here are a few routes to regulation that Gillian and Rob discussed—and some roadblocks that diminish the appeal of these approaches.

  • The Federal Trade Commission could decide Facebook is in violation of its consent decree. In 2011, Facebook made a consent decree with the FTC, which required Facebook to be transparent with users about their privacy practices. But in 2015, Facebook didn’t inform the FTC about the Cambridge Analytica data breach. “I don’t believe that we necessarily had a legal obligation to do so,” Zuckerberg said in his testimony before Congress last week. If the FTC decides Facebook violated the decree, the company could face fines of over $1 billion.

  • The Department of Justice could decide Facebook is running afoul of antitrust law. If the DoJ determines Facebook is a monopoly power that dominates its market in a harmful way, then it could regulate the company on antitrust grounds, breaking it up into parts—such as a social networking part, an advertising part, and a data-collecting part. Is Facebook a monopoly? It’s hard to say, and hard to know the impact if it were, Gillian pointed out. “There is no other entity that does exactly what Facebook does,” Gillian said.

  • The Federal Communications Commission could decide Facebook is a media company that needs regulation. Many companies that build on advertising are treated as media companies. If Facebook were considered a media company, then the FCC, which regulates all other types of broadcast media, could have authority to regulate its ad practices, or force it to become interoperable with other social networking sites. The latter happened in 2001 with AOL Instant Messenger—the FCC required AOL’s video-chatting services to be able to exchange information with competitors’ similar services.

  • Congress could create a new agency to regulate all big tech companies. Facebook isn’t alone in its massive data intake from users. Google, Amazon, and Microsoft also profit off of user information; this powers a significant part of the business models of these companies. So “perhaps it would make sense to have a specific authority set up,” Rob said, “that is able to look at what these networked technology companies are doing.” This overseeing agency could then delegate different agencies to regulate different parts of the companies.

What Stands in the Way of Regulation?

  • The wrong regulations could prevent potential competitors from ever gaining a foothold in the market. If Congress decides Facebook is a utility, for example, then it could decide “there will always be something like Facebook,” Rob said, “and it will be our one social network.” New regulatory burdens could entrench the company’s monopoly by making it prohibitively expensive to compete with it—and making it impossible to grow like Facebook grew.

  • Congress and the administration are currently in a deregulatory mood. A bank deregulation bill recently passed in the Senate, and last year, the FCC voted to deregulate the internet. Meanwhile, the Trump administration has put in place a ban on agencies imposing new net regulatory costs on companies. An agency regulating Facebook would need constitutional authority from Congress in order to operate, but “Congress has a problem with actually making action,” Rob said.

  • Regulation typically comes after a period of innovation, when a technology’s potential harms become apparent. “There is a lag,” Gillian said. “It's often not until there's a problem that regulation is thought of.” That game of catch-up is happening now with Facebook. It’s hard to really define exactly what Facebook, and its peers, are doing, and it’s hard to regulate something undefinable. What’s more, while we are still grasping how to define Facebook, the company will continue to evolve, and any rules would need to adapt in turn.

Facebook and the Fair Housing Act: How Discrimination Gets Disrupted

By Matt Thompson

Among the unpleasant innovations that have accompanied the rise of Facebook, one almost has to admire the way the network has enabled old-fashioned American housing discrimination to enter the 21st century. The Fair Housing Act turned 50 last week, and from its formative days, discriminatory landlords have engaged in a decades-long effort to skirt the law’s protections against racism in real estate. That effort, including its latest, Facebook-enabled incarnation, offers a concise illustration of how one of the most potent, destructive forces in American history continues to evolve alongside our technology.

When the Fair Housing Act came into effect, a new mythology was born alongside it. According to this myth, housing discrimination was a pernicious problem in America mostly until 1968, the year of the law’s passage. Then it became illegal, and America began the slow and steady process of undoing the ill effects of redlining—the federally enforced system that helped give rise to residential segregation—and white flight. Students of history would instantly recognize the flaws in this mythology: The Fair Housing Act may indeed have outlawed housing discrimination in the U.S., but not only have politicians thwarted its enforcement at every turn, but also the tools and resources allocated for that enforcement have consistently been unequal to the task. So discriminating landlords didn’t go away; they just adapted.

In 1973, five short years after the law’s signing and decades before he would become president, Donald Trump made his first of countless appearances on the front page of The New York Times, after the Department of Justice sued him for violating the Fair Housing Act. A former rental agent at a Trump building later told the Times that Fred Trump, the president’s father, had instructed him to take a black would-be renter’s application, and "put it in a drawer and leave it there.” One of the Trumps’ building superintendents from that era "testified that multiple Trump Management employees had instructed him to attach a separate piece of paper with a big letter ‘C' on it — for ‘Colored' — to any application filed by a black apartment-seeker.” Whatever the Trumps were doing, state investigators had found that, by 1967, "out of some 3,700 apartments in Trump Village, seven were occupied by African-American families.”

After filing a countersuit against the government, which was thrown out, the Trumps eventually signed a consent decree that required them to provide weekly reports to the New York Urban League listing vacancies in their properties. That decree did not, however, require them to make any admission of guilt in the matter, a fact Trump noted boastfully in The Art of the Deal.

Over the years, in New York and elsewhere, it became impractical to turn away black renters altogether. But again, housing discrimination didn’t go away; it merely evolved. Consider, for example, a recent study conducted in 28 metropolitan regions by the Department of Housing and Urban Development. In more than 8,000 different exchanges, HUD had two researchers—one white, one not—inquire about available rental and sale properties at different buildings. "Both ... told real estate agents that they had about the same income, assets, and employment,” wrote NPR’s Gene Demby. "Both testers were greeted politely and given appointments to look at properties. But whites were told about and shown more units. They were also more likely to be offered lower rent than their testing partners.”

This was real-estate racism at its most ingenious—white supremacy with a smile. If you were a black would-be renter at one of these discriminatory policies, you’d have a nice, courteous visit to a property. You’d never know that the rental agent showed you fewer units, or quoted you higher prices for them. It requires a massive, 28-region study to suss that out.

Which brings us to today, and back to Facebook. In 2016, journalists at ProPublica found that the platform made it easy for racist realtors to exclude black and brown users from seeing their real estate ads. Facebook vowed to use AI to protect against this type of discrimination, but when the ProPublica team tried again last November, their discriminatory housing ads were approved by the platform within minutes. It would be very difficult for the HUD to replicate a version of its 28-region study to figure out if this sort of housing discrimination was happening on Facebook, because the platform would have to share much more data than it currently does about the ads that are being bought and sold.

Let it never be said that the age of American ingenuity is over. Algorithmic housing discrimination on Facebook. What will they think of next?

Today’s Wrap Up

  • Question of the day: If you could wave a magic wand to regulate Facebook, what rules would you put in place?

  • What’s coming: On Wednesday, we look into the problems with families. What happens when the interests of the family come into conflict with the interests of the individual?

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