Sen. Mark Warner on regulating the platforms: 'There is more we can do'
Senator Mark Warner is discussing the federal regulations he believes are needed for internet companies when the phone cuts out.
For anyone else, a dropped call is probably just a bad connection, but when Warner calls back, he says in his case it could be evidence of the “bad guys” listening in. The Virginia Democrat has reason to be suspicious. He inhabits a Washington where the director of the FBI and the head of national intelligence services are saying the government and U.S. citizens are still vulnerable to cyberattacks from foreign adversaries—including Russia, China and Iran.
The interference in the 2016 election is perhaps Warner’s biggest motivation for scrutinizing Facebook, Google and Twitter, making Silicon Valley reform a policy priority. Even in light of Congress’ long history of uncovering corporate malfeasance—tobacco, oil, banks—the shortcomings of the internet platforms have sometimes been shocking, Warner says. He points out that in 2016, just after the election of President Donald Trump, Facebook CEO Mark Zuckerberg said it was a “crazy idea” that the social network had an impact on the result. Warner calls statements like that “stunning.”
Warner and his colleague, Senator Deb Fischer, a Republican from Nebraska, co-sponsored the DETOUR Act, which addresses “dark patterns,” the subtle ways internet platforms prod consumers into clicking “OK” on online prompts that ultimately erode their privacy. The bill is just one sliver of a much larger agenda that Congress and regulators are pursuing, with potential solutions ranging from breaking up Facebook to holding platforms responsible for the content that appears on their services. (Until now, they have been granted immunity under the Communications Decency Act of 1996.)
Ultimately, the internet could be facing the most significant government-enforced changes since Facebook was founded in 2004, and those regulations could alter the way tech companies and advertisers deploy data to target consumers.
In an interview during his commute from the Senate chambers to the Senate Hart Office Building—which includes a ride on the intra-Capitol subway train—and in another follow-up phone call, Warner weighed in on everything from the threat of foreign interference in elections to breaking up Facebook to Chinese social media to, well, UFOs.
These conversation took place before the the Federal Trade commission approved a $5 billion settlement against Facebook last Friday following an investigation into the Cambridge Analytica data scandal. It has been edited for length and clarity.
There is legislation and regulatory action under consideration in Washington that would guide the practices of tech companies. What do you think the impact will be on the ad industry?
Digital advertising is overwhelmingly controlled by these platforms, in a level of concentration that we’ve never seen before. Anything that affects the platforms is going to affect the advertising industry.
These platform companies were glorified for a decade now by both political parties, everyone, and there was a dark underbelly that crept up that no one wanted to acknowledge, because everyone was doing well. The bloom is off the rose. And so now the challenge becomes: How do we maintain innovation but recognize that these companies use literally millions of dollars to find ways to manipulate users? I mean consumers, citizens, are saying “enough is enough, we have rights to some of this data. We are not pawns to be manipulated.”
You’ve said you don’t want to destroy the Facebooks of the world because China has big companies, too. Do they raise privacy concerns?
Social-media companies in China work in concert with the government. A world dominated by social media companies from China would not be a great result, but that doesn’t preclude America taking action, Europe taking action, other countries taking action, to protect their own consumers.
The Russian interference in 2016 sparked your concern about social-media companies. Why was that the stepping-off point that led to all these new lines of inquiry into subjects like “dark patterns”?
Our regulatory agencies have been a little asleep at the switch, but there is massive ability, in a very cheap and effective way, for a foreign power to interfere in our elections. And then for the social-media companies to, at least at first, deny that there was any manipulation involved at all is still one of the more stunning statements of any business leaders in modern [times].
Over the past two years, Facebook and Google executives have come to Washington and argued they didn’t know much about how their services were being abused.
They were either naïve or they lied.
And about two years ago, you said they weren’t being upfront about everything. Are they now?
Their underlying business model is to get more data to be able to create a more robust product that they can sell to advertisers so that advertisers can better target users. So, you’re asking the companies to rethink their basic business model. So far what they’ve said is, “We’re happy to have some regulatory framework,” but when push comes to shove they have not come to the table with much. It’s not anywhere close to a meaningful set of reforms.
Do bad political ads and online disinformation remain threats?
Don’t take my word for it. Take the director of national intelligence and the head of the FBI. They’ve both said Russians and others will be back because it’s cheap and effective.
Have you found Facebook and Google to be hiding anything now that you’ve been investigating for two years?
For the first year, they were very slow to really screen for the fake accounts. And if I’m going to give them the benefit of the doubt, it took them awhile for their tools to sort this out. I think they picked up as these things became evident, that Congress was not going to go away, that this attention was not going to go away, that they really needed to take this issue seriously.
They said, “OK, we’re going to be willing to help” work on our so-called Honest Ads Act, [which would require] the same kind of disclosure on online political advertising as you have in TV and radio. But they were at first unwilling to move beyond straight candidate ads to issue-related ads, so there are disclosure requirements on issue-related ads. They finally got around to that, but they dragged their feet.
Do you not think they’re operating in good faith?
For them to say, “Well, it’s hard,” I don’t buy that. These are companies that are the world’s most sophisticated in terms of making user experiences easy if they want to make them easy. So I think they’ve been slow on that.
What can you do about these dark patterns?
This stuff is pretty sophisticated, but it can be identified. What we’ve got is legislation that would prohibit it and particularly some of these tools that are used to take advantage of children. We’ve said, “OK, let’s prohibit this type of activity.” But rather than leaving the first line of defense being the FTC, a government bureaucracy that may move slowly and so forth, we’re saying, “OK, let’s go ahead and create an industry panel that will determine what ought to be prohibited. And if the industry panel doesn’t do a good job, we’ll default to the FTC.”
The industry always seems to say they want regulation, but when it comes down to it, what they want is self-regulation.
They realize that self-regulation on privacy, things like the ability to find out what data is being collected about you, or what I think is important, finding out what that data is worth or the ability to have some of your ... [the call drops and Warner dials back]
Oh no. Hello?
I’m not sure why [that happened], unless the bad guys are trying to listen in.
You’ve got those?
I have my phone screened on a pretty regular basis to make sure there aren’t bad guys.
Well, let’s talk about countries that try to listen in like China. There are popular apps, like TikTok, that can come from any country. How big a concern is that? Won’t China just have easy access to vast amounts of consumer data when they’re operating with 100 million U.S. users?
Yes, well that’s why I don’t want to unduly regulate some of these American platform companies because they can simply be replaced by Chinese or Russian or other platform companies that would provide no consumer protections or no privacy laws. So it is trying to strike the right balance. But I’ve got to tell you if the platform companies aren’t willing to come to the table, then I think you have to be willing to keep other options at least on the table.
Like a break-up? We’ve heard others call for that. WhatsApp, Instagram, those are big Facebook properties.
Yeah, you could see each of those being separate companies. I mean they were all separate companies at one point.
Google dominates the ad industry. It controls the auctions of every publisher and it can make every advertiser use its ad software because it has the best data. A lot of publishers are concerned that it can do whatever it wants with its ad auction. It can direct ads away from certain sites to its owned and operated sites. How much of that is coming up as an issue in the regulatory actions we’re going to see?
All of that is coming up. It’s one of the reasons I just don’t get why the companies are not more willing to kind of come to the table. Because you can end up with a lot more draconian policy actions. Some of these suggestions I have around data portability or interoperability or dealing with dark patterns or data valuations, they are a little bit more subtle than bringing a sledgehammer. But if we don’t have smart approaches, you’re going to end up with the sledgehammer.
Mark Zuckerberg said the other day that the federal government hasn’t done enough to make sure Russia isn’t attacking our systems. It can’t all be on Facebook. Is he right?
There is more that we can do, and it would help if we had someone in the White House who would acknowledge that this is an ongoing threat instead of constantly dismissing it. The fascinating thing is you’ve got Trump’s own director of the FBI and his own director of national intelligence who have both said the Russians are still at it and they will continue to be at it. Yet we’re not helped when the current occupant of the White House tries to pretend that this threat isn’t real.
But I do think at a certain level the cooperation has gotten better. And in this area, I want to give Facebook some credit for this being a much higher priority than it was obviously three years ago, and in 2018 we did a better job.
I saw that you were briefed on UFOs, so I have to ask: Does anything suggest a possibility we’ve had visitors?
I’m not going to comment on any of the specifics of the brief. I am going to say, though, [I’m concerned with] anything that interferes with pilot safety, which I think about a lot because of the pilots who fly out of Naval Air Station Oceana in Virginia. I hope we will figure this out. I give the Navy a lot of credit for taking on this issue because it does deal with pilot safety. I think the chances are quite high that we’ll figure this out.