If you’ve ever had an 18-inch satellite dish, you’ve enjoyed the work of Senator Ed Markey.
Sen. Markey (D-MA) was there in 1992 as a US Representative when the Cable Television Consumer Protection and Competition Act was passed, which regulated cable service pricing, increased competition, and, in his eye, birthed the 18-inch satellite dish.
He was there when the Telecommunications Act of 1996 significantly amended the original Communications Act of 1934, which intended to open up competition in the telecommunications industry even further.
He has been a proponent of net neutrality, first proposing a bill in 2005.
Lately, he has been addressing the consumer technology problems highlighted during the pandemic, including the lack of access to broadband at home in rural areas, an education gap with children due to limited internet access, and a threat to privacy with the introduction of contact tracing.
Sen. Markey sat down for an interview with Verge editor-in-chief Nilay Patel and policy reporter Makena Kelly to discuss these issues, his proposed solutions, and... becoming a meme on this week’s episode of The Vergecast.
This transcript has been lightly edited for clarity.
Nilay Patel: Senator Ed Markey, welcome to The Vergecast.
Sen. Ed Markey: Thanks for having me on.
NP: It’s an amazing time to talk to everyone. Everyone’s at home. How are you handling being at home, quarantining, and then managing the business of being a senator?
Yeah, it’s an adjustment. I mean, Zoom is now going to be like Q-tips or Oreos or Coke: it’s just going to be a one-word thing, and you just have to adjust to it. And I don’t think people are going to be fully moving back to their old life. “Try it, you’ll like it.” That’s what’s happening. I think people realize that finding a traffic jam to go into a meeting downtown and then finding a parking spot, having to meet and then going home, and blowing a half a day when you could do the whole meeting just as well with the same people.
And I think that’s coming to be a realization for people who just didn’t really want to give up the old world. But since this has been forced them to, I think that we’re going to see a big change after we get through this in terms of how people relate to their place of work. And I just think it’s inevitable.
And it was something, by the way, that we were talking about in the hearings in the 1990s when I was the chairman of the Telecommunications Committee and passing those three big bills back in the 1990s that moved us from narrowband to broadband. We had all the hearings about telehealth, telework, and all of that back in 1994, ‘95. But it’s taken — in a way — the pandemic to now open people’s eyes to the potential that these technologies provide for them to deal with what they felt were unavoidably pressure-packed, in-person meetings with things that can now be accomplished with Zoom.
So I’m adjusting to it. And now I’m busier than I’ve ever been. Because with Zoom, there’s no being late. It’s got to start right at 3:30! We got to have the meeting. We got to have the call. We have everybody on. Or as in real life, you can kind of “I think I’ll go get my cup of coffee over here. I think I’ll just finish this chat with this other person in the outside room.”
But now it’s something that I’ve adapted to. I had never used Zoom. But I think hundreds of millions of other people have done the same thing.
Makena Kelly: Right. And what you’re talking about, a lot of these little moments, we’re finding ourselves having you spending a lot of time on all these devices. But also, you’ve kind of become a meme. There was this photo that went around of you in these old Jordans outside playing basketball. Maybe you can tell me a little bit about those shoes.
Well, when I was growing up, I really, really, wanted to be a Boston Celtic. And my mother used to say that she was going to donate my brain to Harvard Medical School as a completely unused human organ. And it’s because of the three hours, four hours a day, I would spend down the park just playing basketball so I could make the team in high school and just sit there on that bench. And I just practiced, practiced, and practiced.
And if my mother was ever asked, “Where’s Eddie?” She would say, “Down the park.” She thought that I should be studying calculus and trigonometry more fully than I was the geometric angle of a basketball shot off to the side of the backboard. But that became my life, playing basketball.
And in Congress, we have a free throw shooting contest every year, and I hit 47 out of 50 free throws! And I wanted to say, “Hey, Ma! Ma, it finally paid off. Ma, I’m at a free throw shooting contest in the House of Representatives.” But I’ve got these Airs here and—
NP: He’s got the shoes with him.
MK: He’s holding up the shoes.
And there it is, I just took it off my foot because that’s what I wear now when I’m home doing the Zooms. And they took a picture of me wearing these Airs, and they’ve become famous.
NP: You’re a meme!
400,000 people have clicked in to see these shoes, and we have all of my kind of young supporters all doing variations of the Air Revolutions that I have here. So yeah, it’s taken on a life of its own. But to a certain extent, it’s who I am. It’s an extension of me. It’s my identity. I never did master calculus, but free throw shooting, three-point shooting, yeah I did. I never had the vertical or the horizontal game to go with it. But if I was open with my shot, it was going to go in.
MK: As all good memes should be, it’s authentic, right?
This has a life of its own. I think there’s more young people every day who are just taking this and turning it into something that is — from my perspective — a gift back to me because that’s how I feel about basketball.
When I was growing up, the Celtics won the title every single year. And so I just wanted to be one of them, more so than even being a center-fielder on the Red Sox. So to be given a little bit of recognition for that limited skill, which I had — which was to shoot free throws — it kind of means the world to me. And I have a basketball court here in my backyard. And I actually was doing a shooting contest with Enes Kanter of the Celtics two weeks ago.
And on the first round, he was in Chicago shooting, I was here. And we each did it. We took 10 shots apiece. First round, I hit nine out of 10, he hit eight out of 10. Second round, he hit eight out of 10, I hit seven out of 10. So we called it a draw, we won a game apiece.
But for me, I mean, my goodness, I’m free throw shooting with a Boston Celtic while I’m talking about [President Recep Tayyip] Erdogan in Turkey being a serial human rights abuser and the need for us to be able to stand up as a country for the human rights of people inside of Turkey, which is where the family still lives for him. And so it was just a great honor for me to be able to do that with Enes Kanter, just a great citizen of the world.
NP: I feel like I could definitely spend the next 45 minutes talking about The Last Dance with you. I’m not going to do that. I want to very badly, but I’m not going to do that. We’re a tech site. We brought you here to talk about broadband.
You are a meme, so that’s important. You’re connected to the internet through this image of you wearing the Jordans. You wrote the National Broadband Plan in 2008. You have a new updated approach of that called the National Broadband for the Future Act of 2020. Tell us what that is.
So back in 2009, I was able to include a mandate that the Federal Communications Commission had to lay out a broadband plan for the United States of America and to do it in every single sector: agriculture, transportation, industry, energy, education, health care. What’s the plan? How are we going to deploy and use broadband in the future?
That plan is kind of the blueprint for what we’ve become in terms of the broadband relationship to the American people. With this new broadband bill that I’ve introduced, the call for a new plan is to look at it in the context of the coronavirus and in the context of how we’re seeing a telescoping of the timeframe in which it’s going to take for us to move more rapidly to this new era where the gaps are.
We know that 42 million Americans just don’t have access to real broadband. We know that 12 million kids in America right now don’t have access. So there’s a big homework gap, which is opening up between those 12 million kids and the kids who do have broadband at home. And we don’t want there to be an education gap — and, as a result, an opportunity gap, which opens up in America for the next generation because of this lack of access.
We actually don’t know how long it’s going to take for us to fully come out of this coronavirus crisis that we’re in. And it could have a profound effect upon kids more than anyone else in the long run because of how it’s going to be impacting their education.
So it’s in every area again, but let’s take a relook at all these things in light of what we’re now experiencing, what’s likely to unfold, and then put in place the policies that help us to best advance a broadband agenda for everyone in our country.
NP: The context in 2008 was obviously the Great Recession. For a long time, I thought that was going to be one of the formative moments in my life. Obviously, the scale of that curve has changed with the pandemic. But coming out of the Great Recession, we wrote some big plans — how are we going to change things for the future? We’re at a big inflection point again now. What did you learn from that process in ‘08 that you’re bringing to this one?
Well, I think it is that people still don’t think as much about the broadband capacity in our country, how integral it is, how transformed our economy is, our lives are. The coronavirus is really making it clear to everyone the extent to which that has happened. Back in 2008 and 2009, what I was trying to do was to lay out where all of this was then and where it could go if we put in place policies, which encouraged technological deployment in each and every one of the sectors of the American economy.
Today, I see it almost as the tipping point, where we’re fully into the broadband era now because of the coronavirus. And I don’t think we’re going back. I think that everything has changed. I think we did telehealth in the past, but I think we’re really going to do telehealth in the future. I think we did remote learning in the past, but we’re really going to be doing remote learning now. I think we had work at home in the past, we’re really going to have work at home in the future.
So let’s do the study. Let’s understand what has to happen so that everyone in our country can be a beneficiary of it because we’re no longer going to be moving incrementally. We’ve just made a wholesale leap. Everyone is adjusting to it. And now let’s see what the implications are. I was talking today to Harvard Pilgrim Health, to the Tufts Health, to Blue Cross Blue Shield: 98% of their employees are still home, and that would have been unthinkable. But they’re still doing all their work to make sure that these insurance companies are still providing services to people.
I think for them and for many people, there’s going to be a complete reevaluation of what’s going on. And I think, if we are wise, we’ll have a real plan that the federal government can construct a way of thinking through that the Federal Communications Commission takes the lead and lays out a thoughtful way in which people can be thinking about these issues in the years ahead.
And then what is the responsibility of the federal government to make sure that we’re putting the assets out there so that we don’t leave behind the smallest businesses or the poorest individual or the person that’s out in rural America so that everyone is a part of this complete revolution, which is going to very, very rapidly move to a completion.
NP: You brought up the FCC. That’s the agency I think of when I think about broadband in terms of regulation, in terms of deployment, in terms of management. This particular FCC — Ajit Pai’s FCC — they have very much favored a hands-off approach. I think he would even call it a hands-off approach, a “light touch” regulatory approach. In practice, what that has meant is he only asks for voluntary commitments from the carriers.
He has abdicated most of the agency’s regulatory ability and oversight ability and even things like broadband maps or data collection or transparency reports about network management are left to the discretion of our ISPs. Is that something that we actively need to change, or has he proved everybody right that that’s how it should go?
Well, I think the proof is in the pudding. Now, we look at all the gaps that exist in our society at the height of the coronavirus. So that’s the debate that I had with him over net neutrality. I introduced the first net neutrality bill 15 years ago, essentially after the 1996 Telecommunications Act passed, where I was the principal Democratic author.
Net neutrality was actually baked into the personality of the internet, right? Nondiscrimination is the kind of another way of saying net neutrality. So if you’re a young entrepreneur, you got a new idea, you’re online, you don’t have to pay homage to the broadband companies. If you’re a smaller voice and you just want to get your point of view out there for democracy purposes, you can do so. So net neutrality is just a way of saying, “Here are the rules, here are the regulations, and here are the things that people can rely upon to make sure that the broadband carriers don’t discriminate against you.”
Ajit Pai obviously took those rules off the books, after the Obama administration had put them on the books at my urging, my strong urging. And in that area and in other areas, yeah, the FCC takes this, as you’re saying, “light touch” approach, which is in many instances, no touch at all in terms of consumers or competitors to the broadband companies, in terms of ensuring that there is a full deployment of all of these technologies in a way that benefits everyone in our society.
After we get through this pandemic and we look back, we’re going to realize that broadband has become the equivalent of water or electricity for people. They have to have it. They can’t operate without it. And anyone who doesn’t have it is going to be left behind or severely impeded in terms of their ability to fully participate.
So from my perspective, this FCC must be replaced with a new FCC, with a Biden FCC, that more fully reflects the Obama FCC, Tom Wheeler as the chairman, that was more activist on privacy, more activist on net neutrality, more activist on ensuring that there is full access for children and for adults to access the internet.
NP: Let me just push back on that a little bit. I think all of our listeners know that I’m extremely pro-net neutrality, but the pushback is, “Hey, nothing went bad. Nothing went wrong. We’re all more dependent on the internet now. You still have free access to services. We don’t see the tiered pricing. We don’t really see that much paid prioritization. We don’t see throttling. There’s a lot of bundling like AT&T is going to bundle its streaming service.”
All that’s happening, but the really bad stuff didn’t happen. And the ISPs are still spending money, and the core of the network has held up in America, even though there has been this surge of demand. Do you think that is an appropriate counter-argument? Does that hold water with you?
Well, I guess what I would say is because it was in court for so long, that the ISPs were careful. They didn’t want to give any evidence that they were doing anything wrong while it was in court. And that’s a position I would take if I were them. I wouldn’t be doing anything that was bad. I’d be saying, “Look, no problem! Look, we’re still deployed.”
But again, they were still deploying at the same rate under the net neutrality regime of [former FCC chairman Tom] Wheeler as they’ve ever been. The evidence wasn’t there that they were being harmed by it. But there was plenty of evidence in the past that they were harming smaller companies when we didn’t have net neutrality as a formal rule on the books at the Federal Communications Commission in order to protect competitors and consumers.
So we’ll wait. We’ll see here what happens going forward, but I have full confidence in the broadband companies’ inability to resist temptation and to revert to their previous personality, that was the reason why net neutrality was needed in the first place.
MK: Right. I kind of want to track back to what we were talking about before when it came to the homework gap. This is something I’ve done a lot of reporting on recently. And when I talk to school districts in even urban cities like San Antonio, there are kids with their parents driving to buses parked around the city every night to hook up their computers because sometimes they have Chromebooks. And if you have a Chromebook, you need to have an internet connection to even use it most of the time.
You’ve been very supportive of the E-Rate program. And for our listeners at home, the E-Rate program is basically the FCC’s primary program when it comes to connecting schools and students to the internet. You have a plan that just came out recently that would bolster the E-Rate program with billions of dollars to kind of get kids and schools connected.
Yeah. When we were doing those big telecommunications laws in the 1990s and I was the lead Democrat, yeah, the cable companies wanted to get into telephone. Telephone companies wanted to get into cable. Long distance wanted to get into local phone and into cable. Everyone wanted to get into other people’s business, but they didn’t want anyone in their business.
What they wanted me to do, and what I wanted to do, was break down all the monopolies. Everybody can do everything. One big free for all. The cable companies, telephone companies, you can provide video service, internet service, phone service, long distance, everybody can do everything. And I knew that that was going to unleash a broadband revolution. It had to because everyone was going to have all these additional zeros and ones that they were going to be trying to send out through their systems. That’s your opportunity to get something good.
And so what I said to them was “I want a program called the E-Rate or the Education Rate, where every time someone’s making a phone call, there’s a little, little tax on it. And that just goes into a fund. And that fund then provides the funding so that in Roxbury or Harlem or South Central LA, those kids have access to the internet on their school desk.”
And the reason I knew that was that I had gone over to the Beebe Junior High School, which is where my cousin Mary taught math — the math gene runs through the female side of my family — and she taught math at the Beebe Junior High, and she had me over there and she had a computer in her classroom, and there were like 25 kids who were all huddled around it while she was doing a problem.
And at the end of it, I asked the kids “How many of you have a computer at home?” and like five of the kids raise their hand. I was in Malden, [Massachusetts]. I’m still in Malden right now. I’m still in the same blue-collar house that I grew up in — and five kids raised their hand. Well, I didn’t have to worry about the kids from Newton or Brookline or Westchester or Larchmont. They were going to be taken care of. They already had a computer at home. And it was already building a huge advantage for those kids against the kids who come from blue-collar and poorer communities.
When I was a kid, if you took your books home — my father was a milkman — you could compete against the school superintendent’s son or daughter. You can do it. Just study hard. But increasingly, there’s a technology gap, a digital divide, which is what we called it back then, a digital divide, and we have to close it. That’s what this program was intended to do.
Because I had learned from my cousin Mary, the math teacher in junior high school, that kids who had always been as smart as the kids in the suburbs as long as they studied hard were now not going to be able to compete to get into the college of their choice, the job of their choice because they wouldn’t have the technological skill set.
That was kind of the origin of the E-Rate. I built it into a bill in 1994. And then that passed the House but was killed in the Senate. But then we built it into the 1996 Telecommunications Act, and it’s now spent $54 billion to provide access for poor kids to the internet in their classroom.
But now, as you’re saying, kids are now home. And once again, you say, “Oh my goodness, all these kids — 12 million of them — they don’t have the same access as the kids out in the suburbs.” So what I’ve done is I’ve introduced a bill that has every one of the Democrats with me — I have 45 Democrats on with me — saying that we should add $4 billion to the program to provide the help for all these kids at home to make sure they get the Wi-Fi and other technologies they’re going to need so that they can keep up.
They might be in situations at home where there’s five kids and one device and no broadband. And they all have to study. And mom and dad, they also have to use the device. So how are we going to deal with this? These kids are going to wind up with real issues with regard to how they’re going to view their place in the world if we don’t make sure that that money is there to provide them full access.
So that’s what my bill will do. It’s to deal with this issue, and I am. I look at the issue of these kids right now, and we need to make sure that there’s going to be mental health access provided, that we’re going to be dealing with all of the issues that could come up from being in isolation. But you don’t want to compound it by having a homework gap.
These kids can be competitive but with no place to go. And some kid who’s not as talented just sprints ahead and getting kind of the plaudits for doing so well during the crisis, coming back like there was nothing that was missed. And these other kids are going to come back left behind, and we just can’t allow that to happen.
So that’s what I’ve done, introducing that bill, organizing all of the Democrats with me, and we’re going to fight hard to get that money into the next coronavirus package because this is going to go on for a long time.
MK: And a similar measure has been introduced in the House and even just earlier this week. Ajit Pai, the chairman, seemed onboard for that kind of change in the law. Because currently, in the E-Rate program, any money has to go toward schools and libraries and can’t fund those children at home under these new circumstances that we’re all just trying to figure out how to do it now. It’s a completely new world.
But again, I wish that he had been more generous in his interpretation of the law. And I urged him at the time to do so. The intent was to get kids access to a technology for their education, and clearly, the education in that classroom has now moved to the dining room and the kitchen. And I just felt that he should, with the FCC, have interpreted it that way and we would already be a long way toward solving this problem. But that notwithstanding, our bill has $4 billion in it. We’re going to fight very hard to make sure it gets to the kids who need it.
NP: Tell me about the mechanics of that bill. You’ve got an extra $4 billion. Do you want to give that directly to parents and students? Do you want schools to issue Chromebooks? Do you want to give it to AT&T, and AT&T is going to “cross our heart and hope to die,” they’re going to give access to people? How do you want that to work?
Well, obviously, I wish that AT&T and Comcast and others were doing all this for free during the crisis — making sure everyone gets hooked up, making sure everyone has access to it. But ultimately, it’s an FCC program. Right now, we send the money back to the cities and towns. They get a lump sum of money, and then they can use it in order to make sure that the needs in their unique community is taken care of.
So that’ll be different in a small town of 5,000 people than in a big city. But I think we’d have to use the same methodology and then just make sure they get the funding. And now for them, how do you use this in order to make sure that kids have the Chromebooks or the Wi-Fi or whatever else they might need in order to be able to take advantage of the program.
NP: How does that play into something like the Universal Service Fund that the FCC also has? We had [FCC commissioner Jessica] Rosenworcel on the podcast a few weeks ago, and she made the point, “Look, America was able to get electricity in every home. America was able to get landline telephones in every home.”
Somehow, we have left broadband behind, even though carriers promised us over and over again that we’re going to do it. It would be great if the E-Rate money could help kids get Chromebooks and Wi-Fi. But if they don’t physically have a connection, they’re still in the gap. They’re still driving to parking lots. They’re still waiting outside of school buses. How do you solve that problem quickly? Because that, historically, is not a fast problem to solve.
Right. Well, I think when you go back and you see that the Federal Communications Commission was created after FDR took over, and it was all part of how is everyone going to get telephone service in the United States, universal access. How do we make sure that we develop a national economy and that’s universal access? Well, that was the ‘30s.
And I think we’re coming up to another FDR moment here in 2021 when Joe Biden is president. And to a certain extent, we’re talking again, about a new broadband plan for the country. We’re just being realistic about what we have to get done here to make sure that we’re using the governmental resources that we have in a way that provides resources to those who need it the most.
And I think that we will be in that position because a lot of the people who were there back in the ‘90s when we were putting together our new telecommunications policy are the same people who are advising Joe Biden right now, the very same people. And so I’m very confident that we will have a big vision for what is possible in the future.
NP: It feels like pinning everything on the election is hopeful. It’s great. I understand why you’d want to do that. But this is happening now. And one of the things I’ve seen is there is kind of a renewed bipartisan emphasis on the problem. [Sen. Roger] Wicker is saying, “Okay, we need to actually think about broadband deployment.” He is a Republican from Mississippi. He is not usually one for the government to provide services in this way. There does seem to be a little bit more bipartisan energy around things like rural broadband, the homework gap. Is there something that can get done before an election and a huge shift in power?
Well, again, I’m hopeful that we can do that. I’m hopeful. I think that these problems are going to be even more exacerbated in red states, which tend to be more rural. I think that they’re going to be the ones that really see an impact in terms of the lack of accessibility. And again, it was bipartisan back in 1996 when we passed it for the first time. And I think the same thing has to be true here, that we’re going to need red state senators who realize the necessity of having this technology deployed.
And in fact, there’s a funny little story. I did the 1992 law, which created the 18-inch satellite dish. We didn’t have 18-inch satellite dishes before the 1992 law. So 35 million people now have the 18-inch satellite dish. But we had to give the satellite dish access to CNN and HBO, and those companies didn’t want to do it. The cable companies didn’t want to provide access to the programming to 18-inch satellite dish, and I needed to do it so that everyone — no matter where they were in the more rural parts of the country or in densely populated cities where people might not have access to affordable cable.
The interesting thing was George Bush, the first George Bush, he vetoed the bill. Well, who was my ally? Well, my ally was Jack Danforth, Republican from Missouri, Orrin Hatch from Utah. Why? Well, because they have huge rural areas! President Bush wasn’t understanding this problem! And so he vetoed it, and they all voted to override his veto, and that’s the only veto override of the four years of the first Bush administration. He vetoed 35 bills, and 34 vetoes were sustained by the Republicans, and one was not because it was a technology issue.
There’s a politics of technology aspect to this. And I think it’s going to unfold — even as you mentioned Senator Wicker, my good friend from Mississippi — that they can see it. They can see the broadband disparities. They can see the lack of deployment. They’re hearing it from their own mayors, from their own constituents. So I kind of think we’re back to an 18-inch satellite dish issue where once people see it, and they say, “I could have access to that, and the cable company’s not going to be coming all the way out here, one more mile with their wire to reach my house. And they never will, so only the 18-inch satellite dish solves my problem.” Well, I think we’re going to have the same thing for broadband. Because I think that those rural areas are more in Republican than Democratic states, and it will give us a coalition where we can move forward successfully.
NP: By the way, the AT&T satellite dish you keep referencing, I feel like our audience might be a little younger. That’s a satellite dish that DirecTV and Dish network used to build their companies, right? That’s what you’re talking about?
Exactly, which really didn’t exist, right?
NP: NFL Sunday Ticket is a very compelling political issue, my friend.
You’re welcome. And if you want to get the NBA picture... so you’re welcome. Glad to do it. And again, you want to create competition so that these companies all say, “Oh my goodness, if they’re doing that and we don’t do it, then we’re going to lose customers.”
I think that there’s a rural component of this — the broadband issue — that’s very powerful. And if we talk about an infrastructure bill this year — the president has been promising an infrastructure bill for three and a half years, I’m on the infrastructure committee — that we’re going to build in a big, big piece, tens of billions of dollars for broadband deployment. Because that stuff you can do, you can see where the need is, you can put people to work, and I think that’s something that we can include on a bipartisan basis.
NP: The satellite dish comparison actually brings up a kind of a big philosophical way the United States has thought about broadband competition, which is we have “facilities-based competition” — that’s the technical phrase — where the DSL provider is going to run copper wires and the broadband provider is going to run a coax wire, and they’re going to compete at that level instead of the way that it works in Europe, where there’s a shared fiber line and different service providers can use it.
Okay, well, cable won running away, right? Nobody wants DSL. They’ll want cable broadband because it’s faster. They all want fiber because it’s faster. Right now, potentially what’s coming up is 5G deployments. I have a lot of thoughts about this, but people argue 5G is going to take away the cable monopoly. And you’ll see AT&T directly compete with the Comcasts of the world. Do you see that playing out as a new front of competition, or is it still necessary to do the wireline internet competition and regulation that we’ve been talking about for years now?
Well, I’m a technological agnostic. I have no idea. Back in 1996, people were saying, “Well, with broadband, there’s going to be so much information out there. There won’t even really be broadcast television by the year 2010. It’s all going to be gone.” That’s what they were all saying about the future as they were predicting the future.
It would be okay, in other words, for ABC to buy NBC, wouldn’t make any difference in the long run because there’s going to be so much information out there, it wouldn’t make any difference. What I always said was, “Why don’t we wait and see if we still have ABC, CBS, NBC in 2010, then we’ll decide how to change the rules if it’s necessary.” But let’s not anticipate changes that these prognosticators think are going to happen and change the rules before it happens.
I’m a kind of a belt and suspenders kind of a guy in politics. 5G, great, show us what you got! Show us what you do. Love to see it. Let me know when I got it in my hand. Let me see what additional stupendous benefits that we’re going to have. But is it going to be, in other words, the difference between a black rotary phone and an iPhone? I don’t know.
Is it going to be the difference between this flip phone that I have that was a 1996 technology and this iPhone — which is like an Apollo mission computer in your pocket? Or is it going to be more like, “Oh, Apple announced the most recent iPhone,” and tries to market you to dump the one from just two years ago? I don’t know the answer to that and no one else does either. I hope it does. And if it does, we can change the rules.
NP: Do you buy the idea that it’s a race to 5G? And if so, what happens if we come in second? I ask everybody this question. I’m very curious for your answer.
I’m just going to come back again saying, yeah, we should be first. We should always be first. America should always have a plan. And the plan should be to be first. And that’s what the laws that I got the opportunity to co-author in the 1990s all did. We move rapidly. In 1992, it was the 18-inch satellite dish. 1993, I was able to move over 200 megahertz of spectrum for the third, fourth, fifth, sixth, and seventh cellphone license. That’s what moved us from analog to digital. That’s what moved us from 50 cents a minute to 10 cents a minute. And then ultimately, all that spectrum is what Steve Jobs could look at.
I know that because we had a plan and on top of that was the 1996 Telecom Act where we broke down all the monopolies and let everyone do what they wanted. We had a dot com bubble by the year 2000, but I would just call it kind of a “broadband bubble.” We get it. Everyone had it. Some companies lost. Pets.com didn’t make it. We’re sorry about pets.com, we’re sorry. There were a lot of losers. Amazon wins, and there were 500 other people in the same space, they did not. Who cares, right?
From the perspective of the country, what you wanted was a broadband revolution. Well, we want a 5G revolution. We want to plan. We want to be first if we can be first. But it has to be something that’s articulated at the highest levels of the federal government.
Believe me, when I met with Al Gore and Bill Clinton in the White House in the ‘90s, they knew what they wanted to accomplish in terms of a broadband revolution. I’m not sure those conversations are going on in this Oval Office. I’m just not sure as he’s watching Fox News and figuring out what the latest tweet is.
He’s interestingly powerful because of the ‘96 Telecom Act. He can tweet. He can Facebook. He can have his own little narrow slice of Fox cable news. All of it is all possible because of that revolution. Not that he knows it, but that’s kind of the reality.
I guess a long way around is saying, yeah, it’d be good to be first. But at the same time, there’s still a big debate out there as to whether it’s incremental or it’s geometric in terms of the differences it’s going to make in our society.
MK: We’ve just spent all this time talking about how to get people online. But a lot of your work in the Senate over the past couple decades has been work on privacy, too, and what we do once we do get people online. Just last week, you voted no on the Patriot Act, FISA Reauthorization Bill. Why did you cast that vote?
Well, among other things, it gives the federal government access to everyone’s browsing history. I mean, how’s that necessary without going to a judge and saying, “That person over there is someone who we suspect of doing something. Can you give us an ability to crack in and get that information?” Or “We just did it on an emergency basis. And now we’re coming to you, but we felt that it was urgent.” Much less kind of across the board access to everyone’s browsing history. Does that make any sense whatsoever?
Back in 1996, the last provision that got knocked out was something that I had built into the House version of the bill, which was a privacy bill of rights for all Americans across all technology platforms. And because you can see we were going to go broadband, so let’s build in the privacy upfront. That was the last thing that the Republicans in the Senate demanded be taken out.
And what that bill pretty simply said was, number one, you have a right to knowledge that information is being gathered about you. Secondly, you have a right to notice that it’s being reused for purposes other than that, which you unintended. And third, you have a right to say no. Knowledge, notice, no. That was kind of frightening to the big companies.
They got that knocked out last night, 11th hour, got knocked out. I was able in 1998 to create a children’s privacy bill of rights for kids 12 and under. I could get that done. And that’s still the law. That’s called the Child Online Privacy Protection Act. That’s my law from 1998, and we need to upgrade that up to 16 in my opinion because we can now see the invidious impact that it has among 13-, 14-, and 15-year-olds.
But what’s also happening here is that it’s a replay of the debates that we used to have back in the mid-’90s as to whether or not the FBI should have unfettered backdoor access to everyone’s computers and that everyone’s computer that they purchase should automatically be kind of FBI-ready. Well, we’re just replaying that right now.
NP: That’s not a sticker anybody wants.
No, I agree with you. Okay, so the privacy and security it’s like it’s the government doing or is it a private sector company. But either way, we’ve got American rights here, privacy rights. It should be bipartisan. The libertarian right and the liberal left should be able to agree on this. Stay out of my life unless there’s a reason. And the reason should be that there’s a court-obtained warrant to kind of gain access to this information. You just shouldn’t be able to blast through and take all of our information.
So yeah, I voted no. And again, this is a Dickensian quality to the internet. It’s the best of wires and the worst of wires simultaneously. It can enable. It can ennoble. It can degrade. It can debase. And so, obviously, the companies always go, “Look at this! This is great! Look what we can provide you! Sign up right now! Get this new service!” And then when you say, “Well, how about some privacy?” “Oh, you have no idea how hard that would be. Oh, my god. You just don’t know how complicated that would be.”
And the same thing is true for the government. Well, under the ostensible guise of protecting our liberties, they compromise them. They put all of this information in a situation right now where they can browse people’s browsers, and it’s just not right. I absolutely cast a very, very, very strong no on that bill.
NP: The Patriot Act happened in 2001 after 9/11, another moment that I thought would be the defining and formative moment of my life — and it certainly is one. But I remember the debate then was: is the Patriot Act is temporary? We are now into 2020, and it just does not seem to be temporary. There is a similar debate happening around contact tracing, which we will need to do as a country in order to reopen safely.
Apple and Google are building a contact tracing exposure notification facility into their operating systems. Actually, the first version just hit iOS yesterday as we’re talking. There’s some pushback, “Hey, we actually need to collect more data from these phones to make it effective.” And it seems like another inflection point in privacy where in order to reopen safely, we’re going to need some data from phones in some fashion to do effective contact tracing. Do you think it’s the same kind of moment as with the Patriot Act, where we’re going to make this concession now because it seems like an emergency and it might last forever?
Again, you have to build in safeguards upfront. The health care crisis is something we have to deal with. But the long-term privacy concerns of all Americans is also very important. I played a big role in constructing HIPAA, the health privacy laws for the country, back in the 1990s. And again, that was all part of kind of the technological change, which was making it possible to have information about the health of all Americans aggregated in ways it never was able to be aggregated before.
When I was a boy, you go to see Dr. McDonald. The nurse for Dr. McDonald will go over to the cabinet, unlock the cabinet, pull it out, go to “Markey, Eddie,” pull up your file, and then the nurse would hand it over to Dr. McDonald, and only Dr. McDonald, and that nurse knew my health care, right?
Now everyone says, “You know what’d be great, and so we just had one big computer somewhere that knew everything that was in everybody’s health care file that was always in these little cabinets that doctors all across the country guarded with their life.” This is another one of these moments.
I guess what I would say to you is, we have to make sure that any information, which is gathered in order to do the contact tracing, has strong privacy and security protections built around it so that the information is not able to be compromised or, again, reused for purposes other than that which had been originally intended.
And so in the name of fighting one crisis, another problem gets created — a big problem. And it’s kind of a hidden problem that people don’t focus on immediately because, as you’re saying, they focus on the issue of the day. But I’ve put out a 10-point program for what should be in a coronavirus-related contact tracing program so that we use these traditional principles of data minimization to make sure that we don’t see a wholesale compromise of the health care privacy of all Americans. And that could very easily happen. We’re just seeing it in the FISA debate with regard to browsing information.
So I don’t think people should think for a second that it couldn’t be easily made just a part of our culture if we allow it to happen without any questions asked.
NP: Are you satisfied with the proposal you’ve seen from Apple and Google around their system?
I think it’s still evolving. I think they’re trying to respond to criticism. Hopefully, they will. I mean, we’re in contact with them out of my office and talking to them about our concerns. And hopefully, we can reach kind of an agreement with regard to the protections, which should be put in place. I’m still working toward that goal.
NP: One of the things that’s really interesting to me about it is Europe does have the GDPR. They have a much stronger privacy regime because of it. And you are seeing European governments like the French government push back against Apple and Google and say, “We actually need more,” which is a total reversal of the French government’s attitude toward Google historically. Do you see a similar sort of reversal happening here? We have not had a great privacy regime. And now, we suddenly have one because we’re worried about these companies collecting data.
And California has adopted a version of that. And I don’t think that California version is going away. I think that the more people learn about these technologies, the more privacy they’re going to want. And what usually then happens is then another liberal state says, “We’re going to pass a law.” Then another liberal state says, “We’re going to pass a law.”
And then finally, the companies all come in and they say, “We need a national law. We need to preempt, preempt all of the privacy laws in these individual states.” And then you say to them, “Okay, what’s the standard?” Well, their first inclination is to point to the weakest state and say, “That should be the law.”
And you go, “No, no, no. We’re not preempting California in order to put in a state’s privacy protections, which are weaker. You have to say we’re going to have the strongest protections but for the sake of uniformity, they’ll be in all 50 states because you’re already doing business in Europe and the large companies in the United States. If that’s what you want, then come to us. We’ll cut deal with you. We’ll preempt, but it’ll be up here with a very, very high standard that people can rely upon.”
And I think they’re still kind of working that through. They’d like to see if maybe there’s some way that they might make it a weaker standard. But if they can’t do it with Donald Trump as president and with Mitch McConnell as a majority leader in the Senate, then it’s not going to happen because people will just revolt if you take away their privacy protections.
MK: Over the last couple of weeks, though, we’ve seen a lot of Republicans authoring op-eds, lamenting the fact that some Democrats are asking for specific concessions in a national privacy law. They want to have that preemption clause in there. And for our listeners, that’s getting rid of all those, what could be weaker or even stronger, laws at the state level. But they’re also asking for a lot of the proposals from Democrats have had to do with a private right of action.
If you could sue these companies — if they do violate whatever privacy rights we decide people have in the future — is it Democrats having a hard time coming to terms with a private right of action? Are these things with Republicans? Do we see a national privacy law coming into place anytime soon?
Yeah, I think it’s a larger issue for many of the companies that they just don’t like the idea that their business model is based on the compromise of our privacy. It’s taking our information and selling it to advertisers. I mean, that’s the business model. The whole idea here is antithetical to them, and it goes back to them killing my Privacy Bill of Rights in 1996. That was so they could create this business model. And now, they’re in the perfect form of their business model.
As Democrats, we’re just going to be pushing them to make sure that we have from my perspective opt in, from my perspective a super-duper Privacy Bill of Rights for kids up to 16 with a right to erase, with a right to say to the company, “Just erase this stuff about like 13-year-old daughter. I don’t know what she was thinking about, but we don’t want it to come up on her college application. We don’t want it to come up when she’s applying for a job sometime.” Let’s give immunity to these kids. Let’s give kids the right to be young, the right to grow up, the right to make mistakes.
That’s what kind of we’re saying across the board that we just need to be realistic about how pervasive this intrusion is. But again, last week’s FISA vote was not helpful to me. Because that was unnecessary. That was gratuitous. We would go along with you saying, “We got a warrant. We want to go through that person’s browsing account. We think that person is a heinous individual who has committed a crime or is potentially going to commit a crime.” That’s fine. But this wholesale compromise of people’s privacy is just now increasingly a part of the culture.
Wired magazine had that famous cover back in 1995 “Privacy: get over it, you don’t have any.” That’s kind of the motto of the federal government and the private sector. So getting a deal on privacy, it’s not going to be easy, not going to be easy because it has to be strong enough that people get the protections which they’re going to need.
NP: As we talk to the CEOs of the big companies, the Zuckerbergs, we just talked to Sundar Pichai, one of the points that Mark Zuckerberg, in particular, makes a lot is: “At least this is an American company. And I need to be this big, Facebook needs to be this big, Google needs to be this big, to export American values. And if you don’t let us operate at this size and regulate us at this scale, what you will see is Chinese companies take over the global internet.”
One of those companies, for example, is TikTok, which is enormously popular among teenagers in this country now. They just hired the former head of Disney streaming service to be their new CEO. They’re obviously bulking up here. Do you see that as an actual solid argument that we need to basically regulate the American internet giants into place to keep out sort of particularly Chinese interference with their apps and services and they’re going to collect data in totally different ways?
Well, if I heard what you just said, you said his argument is we need Facebook to be big so that we can export American values, and one of those values will be that we compromise your privacy on a minute-to-minute basis. I’m not sure that’s an American value that we want to be exporting. I think that we want to be thinking more like the Europeans and the Californians, and then win on who we are. We have to have the strength of our own convictions that the American values are the best values.
And you can’t compromise to a lowest common denominator because you feel that there’s some kind of marketplace disadvantage to you. You have to have just the confidence in your own ideas and your own ideals. And that’s my hope for our internet industry, that they realize that that’s really what makes us great. And the Chinese have a plan, and we need our own plan. But it should be an American plan with American values. Ultimately, that we will be able to convince the rest of the world that we are right. That would be my answer.
And I would say that it would be good if Facebook stepped up and just said, “Here’s what the Privacy Bill of Rights should be in America for everyone 16 and under.” Just be the leader. “Here’s the proposal. Here’s what we want. Here’s what the proposal should be for privacy for adults as well.” And I think, to a certain extent, that would then become something that was American born, bred, and ultimately marketed to the rest of the world.
So no. My answer is no. We don’t have to compromise who we are. We have to be more like us. In order to beat the Chinese, we have to be more like us. We have to stand up for what we believe in. We can already see that China wanted to be part of the WTO, but not part of the WHO. Well, there’s a responsibility as trade and tourism increases.
If you’re going to be a part of that, that you then have to notify the world right upfront that there’s a health care crisis coming. They don’t want that responsibility.
NP: There is an enormous conversation in this country about reopening, getting back to work, lighting up the economy again. What is your position on that, and what does the Senate need to do to actually make that happen outside of the sort of patchwork approach that we’re seeing right now?
It’s not a question of when we open. There is no date. It’s only data, not a date. It’s not when we open. It’s how we open. So you can’t open without massive testing. You just can’t. And we don’t have it. We can’t open without massive contact tracing. We don’t have it. We can’t open without massive amounts of personal protective equipment for everyone in every workplace that’s effective. We don’t have it.
So I think we have to be very cautious. We have to follow the science. We don’t want to have a boomerang effect where people move too fast in too many areas of our economy, and then we just wind up right back where we started because we had a lack of caution.
From my perspective, we can do it. But it’s only if we put in place all of those protections, which we know are going to be necessary. And also then ultimately be realistic that, until we find a treatment or a virus — and we hope it happens soon — that we’re not going to have a normal and that we’re going to have to be careful.
And again, as I said to you, when Pilgrim Health and Tufts have 98% of their employees at home that you can say, “Go back to work.” But if people are looking at it objectively, they’re not going to go back unless they’re sure that they’re safe. And that’s testing, contact tracing, and personal protective equipment. And it’s still not there in sufficient quantities. That’s when we will start to see the recovery.
NP: Well, Senator Markey, thank you so much for the time. That was a great conversation. We’ll have to have you back soon.
Thank you. Thanks for having me on. I loved it.