Is Congress too clueless to regulate Facebook? - The Washington Post

But a closer look at the context reveals that neither Blumenthal’s blooper nor Hatch’s howler was quite what it seemed at first blush. Both senators had made remarks earlier in their respective hearings in which they displayed a solid grasp of the concepts they later appeared to mangle.

More broadly, key members of Congress — and the policy staffers who advise them — have quietly grown more sophisticated in their understanding of Internet platforms over the years, tech policy experts say. As the Senate Commerce subcommittee that Blumenthal chairs prepares to dig in on Facebook again Tuesday, hosting whistleblower Frances Haugen after she came forward on CBS’s “60 Minutes” on Sunday night, anyone who tunes in expecting a cringe-fest might be surprised.

“Though mocking Congress makes good copy, today’s members are light-years ahead of where they were a decade ago in terms of understanding the Internet,” said Alan Davidson, a senior adviser at the nonprofit Mozilla Foundation who has worked for both Google and the Commerce Department.

It was two hours into a hearing on Instagram’s effects on teens’ mental health on Thursday when Blumenthal spoke the words that touched off a thousand TikToks. Peering gravely at Antigone Davis, Facebook’s global head of safety, the chair of the Senate consumer protection subcommittee asked point-blank: “Will you commit to ending ‘finsta’?”

A visibly flummoxed Davis tried to explain that “finsta” is not a Facebook “product or service,” as Blumenthal characterized it in a follow-up. It’s a slang term for a common practice of creating a secretive, second Instagram account. (The term is a mash-up of “fake” and “Insta.”) Some do it so they can interact more privately with a group of trusted friends, a use case that Instagram encourages; kids under 13, who are technically not allowed on Instagram at all, do it to evade the platform’s age restrictions.

Blumenthal’s mix-up, delivered so somberly by the 75-year-old statesman, was wildly amusing to those in the know.(Full disclosure: I was among the mockers.)But it quickly became more than a harmless LOL. To many, it landed as a classic symbol of an aging legislative body trying to regulate something it can’t hope to understand — proof that Congress should just keep its craggy hands off the Internet industry, as it largely has for the past two decades.

That narrative is not new. It coalesced around a similarly viral clip after a 2018 hearing in which Hatch demanded to know from Zuckerberg how Facebook could sustain its business without charging users. And it hearkens to 2006, when the late Sen. Ted Stevens asserted in a speech about net neutrality that “the Internet is a series of tubes.”

Yet on closer inspection, none of those viral moments fully deserved their infamy. The truth, it turns out, is more nuanced than “old man yells at cloud” — and more hopeful than “Congress is too clueless to regulate Big Tech.”

There’s little doubt that Blumenthal suffered, at the very least, a brain fart when questioning Facebook’s Davis about finsta accounts Thursday. He seemed to acknowledge as much in a tweet after the hearing, joking that he wished he’d checked in with his kids before that round of questioning.

An hour before that, however, Blumenthal had accurately defined the term “finsta” and laid out his specific concerns about Instagram’s apparent tolerance — and perhaps even tacit encouragement — of preteens’ fake accounts on the service. “Finstas are fake Instagram accounts,” he said. “Finstas are kids’ secret second accounts.” Granted, that was when he was reading from prepared notes.

Remarkably lost in the kerfuffle was the fact that Blumenthal’s own staff had actually created a finsta themselves in advance of the hearing, posing as a 13-year-old girl as part of their own independent research into how young teens experience Instagram. After following a few accounts related to disordered eating, they found that Instagram was feeding their fake 13-year-old a steady stream of posts promoting extreme dieting and even self-harm. Blumenthal confronted Davis with the findings.

At another point, Blumenthal pressed Davis as to whether Facebook would pledge not to pursue legal action against the whistleblower who is scheduled to testify on Tuesday. Davis’s conspicuously hedged answer led to media scrutiny suggesting Facebook might indeed be planning retaliation.

Such careful preparation and pointed questioning has become increasingly common in congressional hearings on Big Tech and social media, even as some members still misconstrue key points and sacrifice nuance for grandstanding. Thursday’s hearing was an example of how the substance can get drowned out by a single sound bite.

Similarly, at a 2018 Senate hearing on social media data privacy, Hatch had correctly explained Facebook’s ad-driven business model before the infamous clip in which he appeared to be mystified by it — in that case, just moments before. As his spokesman Matt Whitlock later explained to the Deseret News, Hatch’s question about how Facebook makes money was merely intended to elicit on record a response from Zuckerberg as the opening to a more substantive line of questioning.

“It’s ironic to see members of the media use this as an example of Congress being tech-illiterate when it’s in fact an example of media being Congress-illiterate, or worse — willfully ignoring context to fit a predetermined narrative,” Whitlock said at the time.

As for Stevens’s “series of tubes” quote, it was certainly a reductive way to characterize a phenomenon as vast and multifaceted as the Internet. But it’s also literally true, to a degree that the average Internet user may not grasp even today.

That doesn’t mean people are wrong to be wary of legislators’ understanding of technologies that, in many cases, didn’t exist when they were elected to Congress. Even in the most generous interpretations of Blumenthal’s “finsta” question, he would have been pressuring Facebook to implement an identity-verification regime that some privacy advocates believe is dangerously misguided. And while Hatch may have known that Facebook sells ads, his subsequent questions in 2018 evinced lazy thinking about the balance between individual and corporate responsibility for online privacy.

But here’s the thing: Lawmakers don’t just make up laws on the spot. They do so through an arduous process that involves numerous drafts of policies crafted by staffers, some of whom have genuine expertise on the relevant topics, and with input from outside experts. (There have been some concerted pushes to address Congress’s tech deficit.) The resulting legislation can still be flawed in all kinds of ways — a 2018 law aimed at curbing online sex-trafficking is a recent example of what many critics see as a failed attempt at Internet reform — but those flaws generally aren’t the product of any one lawmaker’s momentary misunderstanding of a given product or feature.

“The notion that members of the Senate Commerce Committee don’t really understand the mechanics of these various platforms is probably correct,” said Paul Barrett, deputy director of the Stern Center for Business and Human Rights at New York University. “But they don’t necessarily understand how nuclear weapons work either. Yet they pass legislation that bears on our nuclear defenses and offenses.”