Senate hearing flashes signs of action on regulating tech

Senators showed glimpses of agreement Tuesday on what regulations they think are needed to rein in social media companies — even finding some small common ground with the CEOs of Facebook and Twitter.

But partisan disagreements over how the companies handled the 2020 elections dominated the four-hour hearing with Mark Zuckerberg and Jack Dorsey, showing that lawmakers are still fundamentally at odds over how companies should police some of the most controversial content on their platforms.

Here are POLITICO’s top takeaways from the Senate Judiciary Committee’s hearing:

CEOs float updates — but not an overhaul — for tech's legal shield

The CEOs of Twitter and Facebook expanded on their recent calls for Congress to consider updating a 1996 law known as Section 230 that protects them and other online companies from lawsuits over the user content they host or remove. But they stopped short of endorsing more sweeping changes.

Asked by Judiciary Chair Lindsey Graham (R-S.C.) if they support a “reform” of the law, both Zuckerberg and Dorsey said they do. The tech moguls offered suggestions for new requirements lawmakers could impose, such as mandating that companies publicly post their content policies. They first raised some of those ideas at a Senate Commerce Committee hearing in October.

But both Dorsey and Zuckerberg rejected calls to revoke the legal shield altogether — as both President Donald Trump and President-elect Joe Biden have proposed for much different reasons. The CEOs also warned that even more targeted proposals could make it harder for smaller companies to compete in the market.

In his written testimony, Dorsey went a step further, explicitly urging Congress not to create new carve-outs to the Section 230 immunity, something Senate Judiciary lawmakers on Tuesday indicated they plan to continue to pursue.

Congress in 2018 overwhelmingly passed a measure that poked a hole in that immunity in cases where companies "knowingly" enable sex trafficking. Lawmakers have since floated similar carve-outs, which Dorsey objected to.

Dorsey wrote that “amending the law solely through carve-outs will inevitably favor large incumbents with vast resources who may willingly embrace such changes as it would leave only a small number of giant and well-funded technology companies.”

All sides agree: More transparency is needed, pronto

Republicans, Democrats and even the Silicon Valley chiefs found one area of agreement: Tech companies need to be more transparent about what their content policies are and how they enforce them.

“We’ve got to find a way to make sure that when Twitter and Facebook make a decision about what’s reliable and what’s not, what to keep up and what to take down, that there’s transparency in the system,” Graham said in his opening remarks.

Zuckerberg even suggested creating a “regulatory framework” where companies must publish transparency reports that show how effective they’ve been at enforcing their rules.

That didn’t satisfy all the lawmakers, though. Sen. Ted Cruz (R-Texas), an outspoken critic of Twitter and Facebook, pressed both CEOs to answer in writing how often their companies have “blocked” posts by Democrats and Republicans in the past three federal elections.

After Dorsey said Twitter would “certainly look into it,” Cruz accused him of using “lawyerly double-speak” to dodge the question. Zuckerberg said he wasn’t sure Facebook had such data, but that it would follow-up with Cruz’s office.

“I’m going to take that as a ‘yes,’ and Twitter, we’ll see if that’s a ‘yes,’ or, ‘transparency is bogus and we don’t intend to provide it,’” Cruz shot back.

Conservative bias claims pervade the conversation (again)

There was no way for Tuesday’s hearing to pass without a partisan tug-of-war over allegations of political bias.

Republicans, especially those close to Trump, have insisted that social media platforms censor conservative points of view. Increased efforts by Facebook and Twitter to label misleading posts from the president and his backers fueled even more of those accusations Tuesday, even as Democrats accused the companies of allowing Trump to spread falsehoods about his reelection defeat.

“It's dismaying listening to the questions from our Democratic colleagues, because consistently the message from Senate Democrats is for Facebook and Twitter and Google to censor more, to abuse their power more, to silence voices that Senate Democrats disagree with more,” Cruz said.

“That is very dangerous if we want to maintain a free and fair democracy,” he continued.

But Democrats did not back down. They have pressured social media companies throughout the election to more rigorously fact-check political posts and ads, and to block disinformation before it goes viral.

“You've been called before the Senate committee so my Republican colleagues can beat you up over claims that your platforms are supposedly biased against conservatives,” Sen. Mazie Hirono (D-Hawaii) told Dorsey and Zuckerberg. “The fact of the matter is that these allegations are completely baseless."

“The way I see it, this hearing is a transparent effort by my Republican colleagues to work the refs,” she added.

CEOs acknowledge misinformation missteps

Republicans came to Tuesday’s hearing armed with examples of social media posts that the companies labeled or restricted, calling them evidence of a broader campaign to censor conservatives. While the executives denied political bias, they also were quick to acknowledge missteps.

“Unfortunately when we handle millions or billions of pieces of content a day, while we strive to do as well as possible and be as precise as possible, we will make some mistakes,” Zuckerberg said after Sen. Mike Lee (R-Utah) asked him why anti-Biden ads describing the now president-elect’s views on abortion were blocked.

Lee also pressed Dorsey on Twitter’s since-reversed decision to suspend the account of Customs and Border Protection Commissioner Mark Morgan over a tweet touting the effectiveness of the U.S.-Mexico border wall. Twitter initially found that it violated policies against hate but overturned the decision on appeal.

"There was a mistake and it was due to the fact that we had heightened awareness around government accounts during this time,” Dorsey said.

While companies can make mistakes, Lee argued, Silicon Valley harbors a bias against conservatives. The Morgan incident is an example of social media companies "taking a very distinctively partisan approach and not a neutral one to election-related content moderation,” he said.

Sen. John Cornyn (R-Texas) was one of a number of senators who raised questions about the companies’ decisions to restrict the distribution of a disputed New York Post article based on leaked documents allegedly belonging to the president-elect’s son Hunter Biden. Dorsey said that move, too, was a mistake and that the company has since updated its policies.

No respite for tech, even in a divided Congress

Some of the legislative threats facing the tech industry might diminish if Republicans retain control of the Senate, given the parties’ sharp divides on some of the problems they want Congress to address. But lawmakers on both sides made it clear that their scrutiny of the industry isn’t going away.

Graham and Sen. Richard Blumenthal (D-Conn.), who are leading a bipartisan effort to revamp Section 230, pledged to press ahead with that push in the next Congress. And Blumenthal floated more sweeping action, raising the specter of even a “possible repeal in large part” of the statute.

The session also showcased the breadth of concerns on Capitol Hill about the companies’ conduct.

Sen. Amy Klobuchar of Minnesota, the top Democrat on Judiciary’s antitrust subcommittee, grilled Zuckerberg about allegations that the company has snatched up emerging competitors in violation of federal antitrust laws. Sen. Thom Tillis (R-N.C.), head of Judiciary’s intellectual property subcommittee, pressed the tech moguls to commit their companies to testifying at a December hearing on the topic. And a broad cast of lawmakers voiced concern about the pervasiveness of social media addiction, particularly among young children.

Plus, Democrats and Republicans said they will be watching how the companies handle political content in advance of two crucial Senate runoffs in Georgia in January.

“This election in Georgia could determine in fact which party controls the United States Senate,” Blumenthal said. “I’m concerned that both of your companies are in fact backsliding.”