Congress Can Crack Down On Tech Companies, But It Can’t Do Much To Their Algorithms

“Congress is not going to legislate an algorithm.”

Within an hour of the House Intelligence Committee’s Wednesday hearing with Facebook, Google, and Twitter, Rep. Adam Schiff, the committee’s ranking member, made a crucial point.

"Congress is not going to legislate an algorithm,” Schiff told BuzzFeed News in an interview off the house floor shortly after the hearing's’ conclusion.

The three companies were called to Washington the first week of November after admitting their services had been exploited by a Kremlin-linked effort that successfully inflamed political and cultural divisions in the US ahead of the 2016 presidential election. In one shocking case, the Russians used Facebook to spark dueling pro and anti-islam rallies in the same place at the same time; Hundreds attended.

But in a single sentence, Schiff, a top leader of the US government’s investigation into Russia’s chaos campaign, dismissed any notion that legislators would pass laws that might restrain the massive computational engines that power Facebook’s feed, Twitter’s timeline, and Google’s search.

Said Schiff, "Some of this may be beyond our regulatory reach.”

Though members of Congress were fierce in their excoriation of Facebook, Google and Twitter this week, their reprimands are not as toothy as they might sound — something Schiff readily conceded. Any law forcing Facebook, Google, or Twitter to change the way they rank information would likely be a clear First Amendment violation, going against the amendment's stipulation that Congress can’t impose freedom of speech restrictions. In the unlikely event such a law were to pass, Supreme Court precedent going back 40 years would make it very hard for it to stick. If regulatory measures are put in place as a result of the hearings, they may be be severely restrained.

For more than 40 years now, there’s been legal precedent that will make it difficult for Congress to do anything too severe to these companies. The precedent was set in 1974 when the Supreme Court struck down a Florida state law requiring newspapers to give politicians equal space free of charge when editorials or stories were written about them. That case, Miami Herald v. Tornillo, saw political candidate Pat Tornillo, Jr. argue that newspapers were so powerful in their economic heft and distribution, that they should be forced to give all sides space to air their views. The court acknowledged their dominance, but still said that the law couldn’t force them to alter their content.

Like the newspapers of the 1970s, Facebook is today an unrivaled distributor of information. But no matter how much influence the company has, the Tornillo case on the makes it unlikely Congress will ever be able to legislate its News Feed, Duke Law School professor Stuart Benjamin told BuzzFeed News.

"It’s hard to see how the Court would permit government control over what Facebook sends to its users."

"It’s hard to see how the Court would permit government control over what Facebook sends to its users," Benjamin said. “In Miami Herald v. Tornillo, the Court acknowledged the arguments that concentrated ownership of newspapers and broadcasters ‘place[d] in a few hands the power to inform the American people and shape public opinion.' But it unanimously held that newspapers couldn’t be forced to carry content they didn’t want."

To get to a point where the courts could even rule on a law, Congress would have to write one, and the legislative body’s ability to draft a coherent bill is in question. Congress still struggle to understand internet basics, with some members requesting the definition of “impression,” a well-established unit of online audience measurement. As members grilled Facebook on how little it understands what’s taking place inside its own platform, they drove home a another point too: if Facebook doesn’t fully understand its innards, how could they?

“We only have a dim understanding of how the technologies work,” Schiff said, noting lawmakers would like to deepen that understanding.

There is some legislation circulating that’s meant to limit the bad stuff taking place on these platforms. A new transparency-focused bill, the Honest Ads Act, is making its way around the Senate. But even these relatively simple bills come with the potential for unintended consequences, and so they’re not flying through congress with the speed of, say, the healthcare bill.

“When platforms don’t know what to do, the legally over-cautious response is to go way overboard on taking things down just in case they’re illegal,” Daphne Keller, Director of Intermediary Liability at Stanford University’s Center for Internet and Society, told BuzzFeed News. “My worst case scenario legislation would be some vague obligation for platforms to make sure that users don’t do bad things.”

Still, pressure from Congress is getting these companies to self-regulate. Facebook and Twitter have pledged greater transparency around political advertising, with both implementing measures to expose so-called “dark posts,” or targeted ads that can’t be seen by the general public. And simple laws like the Honest Ads act, which requires political advertisers to say who they are, could still get passed. But that will likely be the extent of it.

As he stood off the House floor getting ready to vote, Schiff recapped a number of serious problems facing the tech companies — from foreign governments injecting inflammatory content to the pervasiveness of fake news. A lot more oversight is needed, he said, but what comes after that isn’t yet apparent. “The only bright light I can see is the requirement of disclosure of political advertising,” Schiff said. “The rest are going to be really tough problems to sort out.”

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