Klobuchar: After Haugen testimony, ‘the switch flipped’ on legislating big tech

When I commented at the opening of my phone call with Senator Amy Klobuchar that things were “getting interesting” in the realm of tech regulation, she responded as if I’d just uttered an understatement the size of a Facebook server farm.

The testimony of Facebook whistleblower Frances Haugen appears to have changed the politics of tech regulation within Congress, causing a coalescence of ideas on what Congress should—or can—do. Haugen shared documents with the SEC that she charged showed, among other things, that Facebook knew its Instagram service was harming adolescent girls’ well-being, yet did little to stop it. (Facebook disputes that assessment.)

Reigning in Big Tech has become the rare issue in the capital that isn’t quickly derailed by spasms of hyper-partisanship. Protecting kids also has this effect, making Haugen’s revelations even more powerful. Tech regulation is resonant with constituents, too, and yet Congressional hearings have become less about sassy sound-bite exchanges with tech executives, and more about searching questions into the inner workings of tech’s worst habits and the business models behind them.

Antitrust reform–one of several major legislative approaches to regulating Big Tech–is Klobuchar’s domain as chair of the Senate Judiciary antitrust subcommittee. I spoke to her about the aftermath of the Haugen whistle blow, tech lobbyists, the problem of regulating algorithms, government inaction on privacy, and about her major new antitrust bill (cosponsored with Senator Chuck Grassley), the American Innovation and Choice Online Act, which empowers state and federal agencies to sue big marketplace operators like Amazon for favoring their own products.

(The interview has been edited for length and clarity.)

Fast Company: I watched the Frances Haugen hearing, and it almost seemed like a turning point in the effort to regulate tech, but this week I’m wondering how did it all land? What will the takeaways really be in the Capital?

Senator Amy Klobuchar: I think that one of the things that changed last week, even beyond just Facebook, is that for so long my colleagues have been hearing from the tech companies and their legions of lobbyists, “Trust us, we’ve got this,” and it’s just so hard to lift up the hood and figure this out. I do believe the main obstacle has been the ease of not doing anything when there’s lobbyists and money being thrown around versus the difficulty of having to take on all the tech companies who are either telling you you’re stupid or you’re misinformed.

I think that the switch flipped, and part of it is because it’s about kids’ issues and part of it is because momentum has really been growing over the last year about some more action and there were a lot of signs to this—the bipartisan support for Lina Khan [who Congress confirmed to lead the Federal Trade Commission], and the hearing we just had for [Jonathan] Kantor [Biden’s progressive nominee to lead the FTC’s antitrust division].

The fact [is] that usually things go so far along partisan lines. And they weren’t in the hearings that we’ve had in the Judiciary [committee] on things like big data and the app stores, where you could hardly tell the difference in about 90% of the questions between if someone was a liberal Democrat or conservative Republican. And the public [has] had it after seeing their kids get more and more hooked on these platforms during the pandemic.

It seems like much of the discussion has turned to the issue of whether the government should, or can, get into the business of regulating algorithms that harm consumers. Why can’t the government pass a privacy bill that puts limits on the personal data that can be fed into the algorithms in the first place?

[Washington Democratic Senator] Maria Cantwell has a very good bill [The Consumer Online Privacy Rights Act (COPRA)], which was unveiled in 2019 [and cosponsored by Klobuchar]. Getting bipartisan privacy legislation has been being negotiated over the last few years in the Commerce Committee. I think that would make a major difference with these platforms, given that we know that when Apple asked their customers, “Do you want to opt in to sharing your data or not?” 75% said no to having their data shared.

It is clearly time to do something about algorithms. They have so much influence over so many aspects of our lives. As we’ve seen from the documents that Ms. Haugen made public, they can cause real harm. So we need transparency. As we get that transparency and see other work, I think we pretty much know it’s the most polarized content [they’re amplifying]. It’s amplifying bad speech that wouldn’t be protected in other ways. It’s amplifying misinformation or hate speech. . . . It’s not an easy thing to get at, but the first piece of it has to be to make the algorithms transparent.

So those are the privacy and algorithmic transparency pieces. How do your efforts in antitrust reform play into the wider solution?

It may not be intuitive right away why it could be helpful, but it’s actually a bigger, structural, long-term change, because you need regulation plus competition. What competition would do well, especially while the regulation is going into place, is [create] new platforms that have more bells and whistles to protect kids, stop misinformation, and stop some of the privacy violations that are going on. That creates another product you can go to, and that’s what has been severely lacking with these dominant platforms in so many areas.

Wrangling marketplaces

Your new bill for regulating Amazon and other marketplaces seems to empower federal and state enforcers to sue big tech companies. Why doesn’t it empower regular citizens to sue big tech companies?

The thing that I think sometimes gets forgotten is when the FTC and DOJ [Department of Justice] bring these lawsuits, they can bring in a lot of money for the government, and so they often pay for themselves. So I think that putting the emphasis on these agencies is a good one. I would have been open to a private right of action, but this is how the bill was negotiated, and I still think it’s pretty strong.

Did you work with Lina Khan and others at the FTC when you were putting together this bill to talk about what they would need in the way of enforcement?

I’ve talked with her about concepts before at her hearing and on her own, but we didn’t work hand in hand with the administration or the words. This was negotiations between Senator Grassley and myself. This was . . . a long quest I’ve had for the last month of getting a number of senators [to sign on]. I thought that was really important to have the usual people like [Senator Richard] Blumenthal (D-CT) on, but also we have [Senators] Mark Warner (D-VA) and Lindsey Graham (R-SC) and Dick Durbin (D-IL). So it just shows that the support for this, doing something about antitrust in tech, is broadening.

Those are some big-name cosponsors, but I did notice that your ranking member in Senate antitrust isn’t one of them. Any ideas about why Senator Mike Lee (R-UT) didn’t sign on?

He has traditionally had issues with the FTC. Anything to do with the FTC, sometimes he is not a big fan of it. So we’ll continue to work on it and talk to him about different issues that he has. He’s been really interested in the issue. He’s the one that held the hearing on the self-preferencing and exclusivity, and it was a really great hearing last year. So you know, even though he may not be on this bill, he has been a leader on this issue.

When these new tech antitrust lawsuits come up, the courts seem to focus on the narrow question of whether some business practice or merger immediately benefits consumers, instead of taking a more nuanced look at what it might do to competition among market players. Is that going to continue to be a barrier to winning these antitrust cases?

[You] need to clarify the laws, because when Senator Sherman and Mr. Clayton wrote their bills [the 1890 Sherman Act and the 1914 Clayton Antitrust Act] many years ago, there was no internet. There was no Amazon or Facebook or Google or Apple. And the laws have been very strictly construed by conservative judges, making it really hard to meet the moments of our time.

I believe this bill takes the spirit of antitrust law from hundreds of years ago, and it’s true to that spirit. I truly believe that when you have such dominant platforms, and in the words of Mark Zuckerberg they’d rather buy than compete, you don’t allow the private market to develop the bells and whistles. We’ll never know if Instagram could have done different things on their own when it came to misinformation or kids’ protection. We’ll never know because Facebook bought them, and there are numerous examples like that on every platform.

So, part of the solution in addition to regulation has got to be unleashing the power of capitalism to allow for competitors to be able to develop different products that the public will gravitate to. Part of [antitrust] is price, but it’s not always price. It’s also about other things that are positive benefits to consumers like their privacy, like no misinformation, like no mean stuff their kids see.