On Wednesday, Congress was treated to the unfamiliar sight of very smart people, speaking with nuance, about platform regulation. The occasion was a hearing titled “Platform Transparency: Understanding the Impact of Social Media,” and it was an opportunity for members of the Senate Judiciary Committee to consider the need for legislation that would compel large platforms technologies to make themselves available for study. by qualified researchers and members of the public.
One such piece of legislation, the Platform Transparency and Accountability Act, was introduced in December by an (ever so slightly) bipartisan group of senators. One of those senators, Chris Coons of Delaware, led Wednesday’s hearing; another, Senator Amy Klobuchar of Minnesota, was also present. Over the course of a deliciously quick hour and forty minutes, Coons and his assembled experts explored the need to require platforms to disclose data and the challenges of compelling them to do so constitutionally.
To the first point – why is it necessary? — The Senate called Brandon Silverman, co-founder of the CrowdTangle transparency tool. (I interviewed him here in March.) CrowdTangle is a tool that allows researchers, journalists and others to see the popularity of links and posts on Facebook in real time and understand how they are spreading. Researchers who study the effects of social media on democracy say we would benefit immensely from having similar insight into the distribution of content on YouTube, TikTok and other huge platforms.
Silverman eloquently described how Facebook’s experience of acquiring CrowdTangle only to find it could be used to embarrass the company made other platforms less likely to take similar voluntary steps to improve public understanding.
“Above all, the biggest challenge is that in the industry right now, you can just get away with it without doing any transparency,” said Silverman, who left the company now known as Meta in October. . “YouTube, TikTok, Telegram and Snapchat represent some of the largest and most influential platforms in the United States, and they offer almost no functional transparency in their systems. And as a result, they avoid almost all the scrutiny and the criticisms that go with it.
He continued, “This reality has industry-wide implications, and it has often led to conversations within Facebook about whether or not it’s better to do nothing, because you might easily get away with it.”
When we hear about what’s going on at a tech company, it’s often because an employee like Frances Haugen decides to disclose it. The overall effect of this is to paint a very selective and patchy picture of what’s going on inside the biggest platforms, said Nate Persily, a Stanford Law School professor who also testified today.
“We shouldn’t have to wait for whistleblowers to whistle,” Persily said. “This kind of transparency legislation is meant to empower outsiders to get a better idea of what’s going on inside these companies.”
So what would the legislation currently under consideration actually do? The Stanford Policy Center had a good recap of its main features:
*Allows researchers to submit proposals to the National Science Foundation. If the NSF backs a proposal, social media platforms would be required to provide the necessary data, subject to privacy protections that could include anonymization or “clean rooms” in which researchers could review sensitive materials.
*Gives the Federal Trade Commission the power to require platforms to regularly disclose specific information, such as ad targeting data.
* The Commission could require platforms to create basic research tools to study what content is successful, similar to the basic design of CrowdTangle, owned by Meta.
* Prevents social media platforms from blocking independent research initiatives; researchers and platforms would benefit from a legal safe harbor related to confidentiality issues.
Much of the focus on tech platform regulation to date has found members of Congress attempting to regulate speech, both at the individual and corporate level. Persily argued that starting with this kind of forced sunlight instead might be more effective.
“Once the platforms know they are being monitored, it will change their behavior,” he said. “They won’t be able to do certain things in secret that they have been able to do until now.” He added that platforms would likely change their products in response to scrutiny as well.
Alright, alright, but what are the trade-offs? Daphne Keller, director of the program on platform regulation at Stanford, said Congress should carefully consider the types of data it asks platforms to disclose. Among other things, any new requirements could be exploited by law enforcement to circumvent existing limits.
“Nothing in these transparency laws should change Americans’ protections under the Fourth Amendment or laws like the Stored Communications Act, and I don’t think that’s the intention of anyone here.” she declared. “But clear drafting is essential to ensure that the government cannot effectively circumvent the limits of the Fourth Amendment by exploiting the unprecedented surveillance power of private platforms.”
There are also First Amendment concerns about this kind of platform regulation, she noted, pointing to the failure in court of two recent state laws designed to force platforms to broadcast speech. who violate their policies.
“I want transparency mandates to be constitutional, but there are serious challenges,” Keller said. “And I hope you put some really good lawyers on it.”
Unfortunately, at every Senate hearing, a little Ted Cruz has to fall. The Texas senator was the only participant on Wednesday to use up his allotted speaking time without asking a single question of the experts present. Cruz expressed great confusion as to why he had relatively few new Twitter followers in the days before Elon Musk said he was going to buy him, but he got many more after the news broke. acquisition.
“It’s obvious someone flipped the switch,” the Texas Republican said. “The governors they had on who said the ‘silent conservatives’ were overthrown. This is the only rational explanation. (I know the word “governors” is used unconventionally here, but I listened to the tape five times and that’s what I heard.)
The real explanation is that Musk has a lot of conservative fans, they came back to the platform when they heard he was buying it, and from there Twitter’s recommendation algorithms kicked into gear.
But right here, I have to sympathize with Cruz, for all the reasons today’s hearing was called in the first place. In the absence of legislation requiring platforms to explain in more detail how they work, some will always believe in the dumbest possible explanations. (Especially when those explanations serve a political purpose.) Cruz is what you get in a world with only voluntary transparency from platforms.
That said, we should always keep our expectations in check – there are limits to what platform disclosures can do for our discourse. It seems entirely possible that you could explain exactly how Twitter works to Ted Cruz, and he wouldn’t understand you or willfully misunderstand you for political reasons. And even people who seek to understand recommender systems in good faith may not understand the explanations at the technical level. “Transparency” is not a panacea.
But… is it a start? And seems far less burdensome than many other proposed tech regulations, many of which find Congress trying to regulate speech in a way that seems unlikely to survive First Amendment scrutiny.
Of course, where other countries hold hearings as a prelude to passing laws, in the United States we usually hold hearings Instead to pass legislation. And despite some Republican support for the measure — even Cruz said it looked good to him — there’s no evidence it’s gaining any particular momentum.
As usual, however, Europe is far ahead of us. The Digital Services Act, which regulators reached agreement on in April, includes provisions that would require large platforms to share data with qualified researchers. The law is expected to come into force next year. And so even if Congress falters after today, transparency is coming to the platforms one way or another. Here’s hoping he can begin to answer some very important questions.