A troublesome realization has dawned on the big technology companies: In the near future, Congress will impose regulation on them. This prospect has spurred companies to preemptively draft privacy legislation, to jump in front of whatever more draconian measures politicians might devise.
Big Tech is shrewd to move first. Congress has been quick to vent anger against Facebook and its ilk, but it hasn’t yet developed policy that might channel its rage. Senator Mark Warner is an exception to this slow-footedness. This summer, he circulated a white paper that laid out a comprehensive critique of these companies, and it named names: Google, Facebook, Amazon, Apple, and Twitter.
His paper argues, “The speed with which these products have grown and come to dominate nearly every aspect of our social, political and economic lives has in many ways obscured the shortcomings of their creators in anticipating the harmful effects of their use.” Warner followed a fairly sweeping diagnosis with a lengthy compendium of potential solutions to curb the proliferation of misinformation and propaganda, to protect the privacy of users, and to preserve a competitive marketplace. He explored the possibilities of imposing European-style privacy regulations and allowing those defamed on social media to bring cases against tech companies under state tort laws.
I met with Warner in his Senate office to discuss his thinking. Warner comes from tech. In the ’90s, he earned a fortune as an investor in hugely successful telecommunications companies. He dresses the part. When I entered his inner sanctum, he was wearing blue jeans and Allbirds, the famously favored footwear of the Google co-founder Larry Page and the former Twitter chief Dick Costolo. And, of course, he wore an Apple Watch on his wrist. Unlike other senatorial dens that are crammed with home-state kitsch and stodgy neoclassical touches, Warner’s maintains an ostentatiously minimalistic look: A giant abstract canvas hovers above his tidy desk.
Before we chatted, Warner issued a self-deprecatory warning: “I have a tendency to zig and zag in conversation.” He said his style of thinking aloud didn’t always translate well to paper. Our exchange, below, has been edited and condensed for clarity.
Franklin Foer: In the public’s mind, you’re a pro-tech centrist. Yet you’ve come up with a fairly sweeping critique of Big Tech. Was there a trigger point that shifted you?
Mark Warner: I still believe myself to be a very tech-friendly policy maker. But I was rubbed the wrong way by the arrogance of the technology companies and the presumption that they knew what was best for everyone. There was this whole idea: You policy guys just shouldn’t worry. We’re a lot smarter. We’ll take care of things. And particularly as we got into the social-media era, there was an infatuation with some of these companies in [Silicon] Valley in the Obama administration. But even in the Obama years, I was starting to see some of what I thought was the dark underbelly.
Foer: What did you see?
Warner: Well, I saw from my three girls, from my own family’s basis, the almost addictive tendencies of devices. I saw how an unedited public square often allowed extremist voices to connect with other extremists in a way that multiplied their volume, far beyond what they actually represent. I saw the proliferation of bots manipulating political conversation. And then there was also a point when I got pretty pissed off. I was seeing evidence of foreign intervention on the social-media platforms. I’ve met with Mark Zuckerberg a half-dozen times, decent enough guy, but there was such an arrogant kind of response to complaints: “Anybody who’d say that doesn’t understand.”
Foer: Were you seeing foreign intervention before the election itself?
Warner: I wasn’t seeing it actively. You heard rumors.
Foer: Did you bring those rumors to Zuckerberg before the election?
Warner: No. And I think there was also this kind of arrogance among Democrats about tech in the campaign, since Obama had been such a tech guy. In 2008, we smoked [the Republicans]. There was more equality between the presidential campaigns in 2012. But when it came to tech, there was a gross underestimation of the Trump campaign’s savvy.
Foer: Let’s start with the public square. At the core of so much unhappiness with the internet is its toxicity. But then we’re in such complicated territory. Speech is running through these platforms. How do we think about cleaning them up without sacrificing core liberal values?
Warner: In the late ’90s, when these platforms were being created, Section 230 of the Communications Decency Act made a lot of sense. Platforms were neutral; they were just a way to have information flow freely into the public square. We couldn’t hold the platforms responsible for that free flow. But somehow, by around 2016, more than half of the American people were getting their news from Facebook, let alone social media at large. Suddenly, that 1990s framework might not be exactly right.
The social-media companies fight any changes to Section 230 as if it will provoke the complete destruction of the public square. Obviously, that is not the case. Because there have been changes. There have been changes around child pornography. And you can’t print how to make a bomb. Most recently, we’ve imposed restrictions around sex trafficking.
Some of my colleagues have been very active in this space. I don’t want to steal their ideas. But perhaps there is a decency doctrine that might be industry-administered. Or is there some kind of mechanism we could impose that would say, if you don’t have some kind of self-cleanup, there will be legislative changes?
Foer: Isn’t there a danger of a slippery slope, where the government gets involved in regulating speech?
Warner: But with foreign influence, we couldn’t get Congress to move. The companies have finally started to self-regulate with paid political advertising. But we’ve really not moved beyond that.
Foer: Why, as we make these initial forays into regulating this space, shouldn’t we start to worry about threats to speech?
Warner: We’ve had pretty vigorous debates within published-news organizations, within traditional edited publications about what constitutes acceptable speech. It hasn’t limited free speech. And, of course, you can’t scream “Fire!” in a crowded theater. How far should we go down the path of regulating these spaces? I think you can have that debate without seriously undermining the public square. And I think the companies are starting to realize it is in their self-interest to be part of this discussion. Look at the number of people, particularly younger people, who are bailing on these platforms because of the preponderance of bots and this disproportionate screeching on either end of the political spectrum.
Foer: Isn’t it a fiction to claim that tech platforms are a public square? Because, in reality, there’s so much invisible manipulation and editing that shapes discourse on them?
Warner: Yeah. And I think there is another false premise that most people have not fully understood. They think these services are all free. They’re not free. They are taking your personal information, which gives them value to then sell to advertisers. But where’s the transparency about the price of this exchange? I mean, there’s less price transparency on the internet than there is in health care. And look how screwed up that market is.
Foer: I just came back from Europe and the European Union has new privacy rules, the General Data Protection Regulation (GDPR). It’s supposed to create transparency. But as I navigated the web from Europe, what I saw is a patina of responsibility, accountability, and transparency, but also massive amounts of bureaucracy. All these things that are supposed to be easy are actually quite hard for users.
Warner: One hundred percent. GDPR, I think, went over the top. And it did layer on too much of a bureaucratic structure, and not in a user-friendly way. We’re still relatively early in implementation, so will there be improvements? Maybe. But that’s one of the reasons I’m still open to market-based solutions.
Foer: I’m skeptical of market-based solutions. Listening to the tech executives and the way that they’ve dissembled, it’s hard to trust them to self-regulate.
Warner: Agreed. But here’s my concern: that there may be so much clunkiness with GPDR that it becomes a proxy for old-style government regulation.
Foer: What type of old-style government regulation do you fear?
Warner: There’s a normal process for a regulatory agency to make a rule. By the time you make a rule, the technology’s passed it by. So here’s an idea. I even put it in the paper. Is there an analogy, and it’s not by any means perfect, to the securities world? Finance has lots of complexity. But you do have an entity like FINRA. The Financial Industry Regulatory Authority is an industry-run group that self-regulates. It is literally a first line of defense, more minimal than the Securities and Exchange Commission. I think you will need a government backstop. But is there a way to think about the first line of defense, a set of rules that might not necessarily be government regulation, but the industry policing itself? And I’m not sure that would work, but it would be something to think about.
Foer: When senators took a lot of heat for the Facebook hearing, I actually thought they did a pretty decent job.
Warner: The first one?
Warner: You’re a minority of one.
Foer: You know better than me. But take finance or air-traffic control, both very complicated things. When you hold hearings on them, you’re going to seem like a generalist, right? It’s hard to be a senator and be an expert on complicated systems. And yet we find some sort of way to regulate those systems. The finance example seems to me a pretty good one. There might be many problems in the way we regulate finance, but we also find ways to make the world safer for investors and consumers.
Warner: And clearly we have not limited innovation in finance. One of my concerns in this: that we set an American regulatory regime, or an American/European, or even an American/Western regime. Most of these companies now, the main leaders, are American. And we hobble them. Then these Chinese entities that aren’t constrained by these restrictions take the market, steal the market—with even worse perversions in terms of privacy or government manipulation. I would also make a critique of some of the tech companies that, because of their desire to break into the Chinese market, are willing to sacrifice the family jewels.
Foer: Should we be putting greater pressure on these companies to not go into China, given the risks?
Warner: I think there needs to be a higher-level conversation warning the companies, so they can’t later claim, “Well, we didn’t know.” And I think there are serious questions when you have American companies doing joint intellectual development around AI products in a country like China. We didn’t see the American military-industrial complex doing joint nuclear-bomb development with the Soviet Union.
Warner: We just passed a defense budget of $713 billion, biggest one ever. China has a defense budget of roughly $150 billion. China is spending the difference between the two budgets on AI, quantum computing, 5G—a series of other areas where we should be taking the lead. We’re buying the world’s best 20th-century military. But in the realm of cyber and disinformation, our competitors are already our peers, if not better.
What we saw in 2016, and what we’ve seen recently, is what I would call “first-stage manipulation.” You suck in an individual based on a traditional phishing expedition. But I see a second stage. This is where you have a hack like the cyberpenetration of the credit agency Equifax. A foreign entity or someone comes in, amasses a huge amount of personalized information. They contact us with data that would clearly make us respond, because it is our personal information. We will be greeted with a fake video of a trusted individual, whether it is a politician, a market maker, or a CEO. And then you’ve got the possibility of mass chaos.
Warner: From a governmental standpoint and from a platform-company standpoint, people will acknowledge that possibility, but nobody’s doing enough to prep for that world.
Foer: Why are we so slow-footed when it comes to protecting ourselves in this sort of way?
Warner: The Kauffman Foundation has pointed out since about 1990 that 80 to 85 percent of all net new jobs have been created by start-ups. Now, not all start-ups are technology based, but the start-ups that have captured our attention are the Facebooks and Googles. So this has been a job creator. It has been a job creator that’s also captured the imagination of the Millennials and the younger generations. Not only the Valley and the tech companies disdain regulation, but frankly there’s been our own kids’ disdain. A sense that government and politicians don’t understand it. And it has been a tenet of the Republican Party that you don’t regulate. Regulation by nature is bad. And that’s until everything hits the fan and then you—
Foer: But it did hit the fan!
Warner: And we’re still only talking, not acting. Back to my paper, I think there are still coalitions to be built here. I know, Frank, you’ve got antitrust ideas. I’m not convinced those are the right solutions yet. I am also concerned about competition from China. And perhaps there is a way that market forces can come in and help get us some of our goals. And that’s where price transparency comes in.
Foer: But you talked about some of the errors that you witnessed. And there’s so much carelessness when it comes to the management of the public square, the management of data. Why not establish countervailing powers here? The companies have operated with impunity because there’s no sense that they’re ever going to be held accountable.
Warner: I think there is a recognition that the beast is awakening in terms of the government. There’s going to be an outcry, and we’re one event away from a reaction, maybe an overreaction, from the government. You’ve already got Europe acting on GDPR, and you have California starting to act on questions around identity and bots. So I think they’re realizing going back to the old days isn’t going to work. Some of the older incumbents in tech are starting to get that they’ve got to change.
Foer: Let’s talk about Amazon. You have this very, very dominant firm that is going to be setting the agenda for the future of work. How do you think about Amazon?
Warner: I think that you have traditional product companies where the ability to invent a better product always exists. With Amazon, you have a company that’s less about product; it’s more just incredibly successful execution skills. Plus a lot of data. Compare that to Facebook and Google: Is there ever an ability to really break up their market dominance? Even if you’ve got a better app, you can never match them on data. Look at the number of companies that are going public within technology right now. It has dramatically declined. If you look at the app world, your whole plan is an exit to Facebook and Google. I’m not sure that’s the healthiest ecosystem.
Foer: It feels like the Democratic Party, which, as you said, was asleep with these issues for a very long time, is starting to awaken. There will be a big debate about where the Democratic Party positions itself in relationship to the market.
Warner: It’s going to be fascinating from just the pure political end to see those who rightfully question the size and power of any large company, to see how far they’re willing to go, particularly if they’re talking about a 20th-century toolbox of policies to use against them. Especially if you contrast that to the normal affinity the vast majority of Millennials and younger generations still have for these companies.
Foer: So you think there’s a risk that the Democrats overshoot and alienate Millennials by being too tough on tech?
Warner: Yeah. I’ve done a lot of work and thinking around the future of work. I’ve convened sessions where I’ve brought companies and advocates to talk about the gig economy. Some of my Democratic colleagues’ reaction was, “Oh, this episodic work-on-demand is horrible. We need to think about this whole issue in the context of 20th-century labor, classic labor classification, and try to move everybody back into it.” And one of my other colleagues, on the younger side, stood up and said, “Before we go against all of these new companies and try to turn this into a 20th-century battle, every one of you senators needs to go back and ask your whole staff how many of them use Airbnb or Uber or Lyft.” This was about three years ago. And I think there’s concern that if somehow you simply look at 20th-century solutions, you can appear anti-future, anti-tech.
Foer: You’re an expert on the abuse of data and the ambiguity of surveillance. Are there ways in which your own relationship to technology has shifted as you’ve started to analyze these questions? Are there devices that you won’t allow into your house?
Warner: I actually know more than even most because of the nature of being on the Intelligence Committee. So I’ve gotten better in terms of personal cyber and tech hygiene. But frankly, I’m not as good as I should be. I have not taken the Alexa completely out. We have it mostly turned off; we have it mostly unplugged. We have not gone cold turkey on some of the tools, but I’m safer on how I use them. And it’s one of the reasons why I’m still very frustrated, especially as we move into Internet of Things–connected devices. I have the most recent estimate: We’re about 20 billion connected devices now; we’ll be at 500 billion within a decade. We’re creating all these devices right now, but with minimal security built in. It’s just insanity.
Foer: It’s a hacker’s delight.
Warner: Guaranteed hacker incomes.
Foer: So about nine months ago, when Al Franken was still in the Senate, he invited me to his office because he had read my book. And he was comically wringing his hands about how as soon as he gave a speech taking on these companies, they were going to come at him. Is there a cost to politicians tangling with these companies?
Warner: There’s clearly been a reluctance to take them on. I think because I’ve got some tech background, they haven’t viewed me as a total adversary. I’ve tried not to constantly demonize them. And I’ve said, “If you leave it to us, we’re going to screw it up. So come work with us.” They clearly all realized how annoyed I was—and a huge number of members up here—when they failed to acknowledge the Russian intervention. And in their first eight or nine months of dealing with the controversy, their response was pathetic. All of them. But I’ve not felt the political price yet. The jury’s out.