After years of escalating scandals, Congress is looking for ways to crack down on the size and power of tech companies like Facebook and Google. On the Democratic side, Sen. Elizabeth Warren (D-MA) has taken the lead by calling for new antitrust regulations that would break up the companies and usher in a new era of anti-monopoly action. Republican concerns have been harder to pin down, often veering off into deplatforming conspiracies or conflicting theories of free speech, but no less aggressive.
Sen. Josh Hawley, a Missouri Republican, has emerged as a surprising Republican voice on those issues. The youngest working lawmaker in the Senate, Hawley has taken a lead on the ongoing investigations into Facebook, joining with Sens. Ed Markey (D-MA) and Richard Blumenthal (D-CT) in February for a letter probing the company’s teen data collection practices, and penning legislation with Democrats that would extend more rigorous privacy protections for children. He’s also been outspoken in calling for changes to Section 230 of the Communications Decency Act, often seen as the central legal protection for online platforms.
On February 28th, The Verge sat down with Sen. Hawley at his temporary office on Capitol Hill. Hawley and his staff currently work in the basement of the Dirksen office building with other junior senators as they await a more permanent place to set up shop. Despite the temporary nature of the office, Hawley was surrounded by reminders of his home state, including a map of Missouri and its state flag.
This interview has been edited for length and clarity.
Over the past two years, Congress has worked to build out federal data privacy legislation, particularly after Facebook’s Cambridge Analytica scandal. What do you think is the right path forward when it comes to privacy?
“We’re trying to figure out what a property right in data actually looks like”
I think that the whole gamut should be on the table for what it looks like. First of all, what would it look like to toughen up the disclosure requirements? With what these companies currently disclose, what Google in particular currently discloses, consumers don’t have any idea what has been collected. There’s also consent. Are consumers given the chance to meaningfully consent? And maybe I have consented, but now I want all of my data back and I want it all gone. Or I want all my kids’ data back or for it to all be gone. I think those are all things that we ought to look at.
From a legal perspective, we’re trying to figure out what a property right in data actually looks like. These companies are taking that data. It is very valuable. You would think it belongs to the consumer, but that’s really the discussion we’re having. Who does it belong to? It’s time to start assigning the property rights and building up a legal regime around it.
Over the last decade, a consumer’s data has become much more valuable. But consumers don’t necessarily realize it. If you think about these familiar applications like Gmail and Facebook, to the user they look about the same as they did 10 years ago. But the cost to the user is much higher now because those companies are collecting and extracting incredible amounts of personal and private data, and the users have absolutely no idea. They haven’t been informed about it. They haven’t had the option to meaningfully consent.
“Every parent in America is concerned about the privacy of their children’s data.”
You’ve spoken a lot about children’s privacy. Just last month, the FTC penalized the app Tik Tok with a record-setting $5.7 million fine for violating the Children’s Online Privacy Protection Act (COPPA). Do you think there are any meaningful changes to COPPA that should be made?
I think it’s a great place to begin, because a lot of folks can agree that children are different than consenting adults. So let’s start with children. Every parent in America is concerned about the privacy of their children’s data. It’s so much more urgent than it was when COPPA was first passed. The landscape has changed so dramatically. As the father of a six-year-old and a four-year-old, I am paranoid not just about what my children see online, but what is being taken from them. The profile that is taken and built from them will be used to track them and direct the markets around them for the rest of their lives.
Speaking of the FTC, the Commission recently announced a new task force aimed at enforcing anti-monopoly standards. Lawmakers have criticized the FTC for not being as tough as it should be in the past whether that’s due to leadership or a lack of resources. Do you think they’re capable of following through with this new program?
I’m hopeful. I think it’s a really good sign. We’ve been seeing signs that Facebook could see some sort of FTC enforcement activity soon, and I’m hopeful about that, too. I’ve been vocal in criticizing the FTC and past actions toward Facebook and Google. I thought they were pretty weak. So I’m glad to see some outward signs here of them getting a little more serious and a little tougher. It was interesting to see that they’re going to go back and look at previously approved mergers. I think you’re seeing a pretty significant shift in tone from the Department of Justice, too.
A lot of people took that to mean Facebook could be forced to spin off Instagram and WhatsApp. Do you think that’s a good idea? Or have they done a good enough job integrating the services?
I think Facebook is an extremely creepy company. I don’t know if they’ve done a good job with anything. I’m not a very big fan.
We need to have a discussion, though, about what antitrust looks like when applied to the tech world. Our antitrust laws and our antitrust doctrine in the courts are not really developed to talk about this. So we’ll have that discussion in the courts. It should probably also happen here [in Congress]. You have to think about privacy. You have to think about competition. You have to think about speech bias. I mean, these companies are so huge and their influence is so massive that any action impacts huge parts of society and law.
What drew you to tech policy originally?
As attorney general, I heard from so many parents who were concerned about their children’s privacy, or about what their kids see online, or about the profiles these companies build on their children online and keep forever. I’m a parent of young children. I have two little boys. So for my wife and I, and for the folks that I talked to as attorney general, that was really such a felt concern.
I have been concerned about monopoly in the marketplace for a long, long time. One of the things about the big tech issue is that it touches so many different concerns. You’ve got the privacy concerns. You’ve got the economic, competition concerns. You’ve got the bias and speech concerns. You put all of that under one umbrella. These companies are so big, so powerful. It really is, I think, one of the great defining issues of our day.
At William Barr’s confirmation hearing last year, you were one of the only senators who brought up his position on antitrust enforcement, especially as it relates to these big tech companies. But you’ve shown a particular interest in this policy area for a while. In 2017, you prompted an antitrust investigation into Google as Missouri attorney general. What drove you to pursue that antitrust suit with Google?
“Bias really does have an effect.”
You have to understand, in my first few months as attorney general, there was the Equifax data breach, which we investigated. Then there was another major breach some months later. So many folks around the time said to me, “I didn’t realize that this kind of information was even out there.” And of course, for Google and Facebook, there’s far more information. So we started taking a very hard look at what these companies are collecting. What are they telling consumers? Are they giving consumers an opportunity to opt in or out meaningfully? Then you get to their anti-competitive conduct, and that’s what led me ultimately to launch formal investigations of both Google and then Facebook.
I’m really proud of the fact that we were the first law enforcement agency, certainly the first attorney general’s office, to launch a full-scale antitrust, consumer protection, and data privacy investigation into Google. The reaction when we did it was this horrified gasp. A lot of folks on my side of the aisle had concerns. “Whoa, look what is going on here,” they said, “these companies are too big to do this to. They will slap you. They will hurt you.” But now, there are more and more states joining in. Right now, there’s a multi-state working group among the attorneys general as it relates to technology companies. Two years ago, that was unthinkable.
You and other members like Sen. Ted Cruz (R-TX) have been concerned about viewpoint discrimination against conservatives on platforms like Facebook and Twitter, but almost no Democrats share those concerns. Do you think this should play a big part in the antitrust push?
Conservatives ought to be concerned about the bias that the dominant online social media platforms are exercising. And increasing numbers of actual, real, normal people who use those platforms today feel that they are experiencing biased viewpoints. That’s a real thing and the reason it matters is these companies are so big. These platforms are so powerful and the control over the information flow to consumers of these platforms so significant that bias really does have an effect. Some research suggests that the bias in Google’s algorithm and Facebook’s algorithm could influence the results of the election. That’s a big deal for a democracy.
Part of the problem is that companies are allowed a lot of discretion in how they moderate, with existing laws like Section 230 of the CDA protecting them from liability over moderation decisions. In plain terms, the law lets them make their own decisions about what to allow on their own platform. Would you want to limit that protection?
“People say, ‘Well, where would you draw the line?’ Well, First Amendment law has drawn this line for a long time.”
Section 230 is significant because it is such a broad exemption from traditional liability. It’s a really sweet deal. It’s allowed these companies to get really, really big and it was supposed to be pro-competition and pro-innovation. But it’s allowed a lot of these mega-companies to get really big, really rich, and really powerful and to avoid competition. And it has allowed these companies to exert editorial influence without being subject to the usual controls on editorial activity.
So I think we need to look at Section 230. I think we need to consider what reforms need to be made there in order to prevent viewpoint discrimination. We’re not talking about stopping speech that advocates crime. American law has long had ways of dealing with that in a First Amendment context. What we’re talking about is when these platforms exert editorial control to shut down political speech that they don’t like. And there’s no recourse, in part because of 230.
The concern is that, once you start tinkering with Section 230, it would lead to even more censorship, directed by the government instead of the platforms.
The problem is that the dominant platforms are engaging in censorship now, there’s just no recourse. People say, “Well, where would you draw the line?” Well, First Amendment law has drawn this line for a long time. We’ve thought through this for literally more than a century now. So, the line-drawing problems are not as difficult as folks make it sound. The law has developed clearly what’s the difference between speech that is illegal, and therefore protected, and then viewpoint speech.
Much of the recent antitrust pressure has come from progressives like the Open Markets Institute or Elizabeth Warren. Some conservatives see it as government overreach, using regulatory agencies to interfere with private business. Why don’t you see it that way?
I dispute that it hasn’t been a part of conservative values. If you believe in the free market then you’re not a monopoly. You have to be for free, open, fair competition and that’s what we’re talking about here. Monopoly control of markets that is anti-competitive, that keeps new competition out, that is not pro-free market. That is not something as a part of conservatism that I’ve recognized.