Lawmakers seem confused about what Facebook does — and how to fix it

Is Facebook a monopoly? Does Mark Zuckerberg think it has a liberal bias? Why am I suddenly seeing chocolate ads all over Facebook? Do I have as many friends as I think I do? Is Facebook spying on the emails I send via WhatsApp?

Those were just some of the questions senators asked of the Facebook founder and CEO during a hearing on Tuesday. It was the latest evidence that regulating Facebook will be complicated for Congress: Policymakers seem all over the place on what the biggest problem with Facebook is — that is, if they understand what it does at all.

Zuckerberg, 33, fielded questions from 44 senators at a joint hearing before the Senate Judiciary and Senate Commerce, Science, and Transportation committees on Tuesday. He apologized, yet again, for Facebook’s bad behavior and sought to clarify what the platform has done, is doing, and will do to rectify the situation. He on multiple occasions declined to give specifics or said he would have his team get back to lawmakers with answers.

But it wasn’t really Zuckerberg’s behavior that was most attention-grabbing. If anything, the executive sought not to make news. More notable were the questions senators asked, which were, at times, inconsistent or confused about basic topics.

“How do you sustain a business model in which users don’t pay for your service?” Sen. Orrin Hatch (R-UT) asked Zuckerberg early on in the hearing.

“Senator, we run ads,” Zuckerberg replied.

The hearing was supposed to be about social media privacy and the use and abuse of data. That Facebook’s business model is based on free ads using that data was a basic underlying concept.

Some of the questions were … weird

Some of the lines of questioning senators from both parties pursued demonstrated they aren’t exactly the most tech-savvy bunch, aren’t entirely clear on how Facebook works, or maybe have just never used the platform. Or they included some colorful anecdotes about their own social media use.

Sen. Roy Blunt (R-MO) revealed he was the first lawmaker who had his “Facebook address” printed on his business cards from the Senate print shop and that his son is a fan of Instagram. He went on to ask Zuckerberg whether Facebook collects user data through “cross-device tracking”; the executive said he would get back to him on that.

Sen. Bill Nelson (D-FL) revealed that after “communicating with my friends on Facebook and [indicating] that I love a certain kind of chocolate,” he “all of a sudden” started receiving ads for chocolate. “What if I don’t want to receive those commercial advertisements?” He went on to press Zuckerberg about Facebook’s advertising practices and how it helps advertisers target users.

Some on Twitter were quick to point out the group of senators questioning Zuckerberg weren’t exactly digital natives — the average age of the lawmakers at the hearing was 62, and the median age of the chairs and ranking members of the two Senate committees holding the hearing was nearly 80.

But it wasn’t all older lawmakers who seemed a bit confused. Sen. Brian Schatz (D-HI), 45, repeatedly asked Zuckerberg whether Facebook could see emails he sends on WhatsApp, which Facebook owns. You don’t send emails via WhatsApp, and WhatsApp is encrypted, meaning it can’t be accessed by outside parties.

Senators often don’t have special expertise in the topics they write laws about — that’s why they have dozens of staffers and aides — and one of the reasons they hold hearings is to learn more. But regulating Facebook means grappling with complicated questions, such as what type of responsibility the company has for content on its platform, how reasonable it is to expect it to know all of its users and customers, and how to balance the free enterprise that has fueled the internet’s takeoff with legislation reining it in. Many of the lawmakers’ questions suggested they’re still trying to understand the basics of how the platform works.

Senators seem to agree they want to fix something about Facebook. They just have no idea what.

If you asked each of the 44 senators at Tuesday’s hearing — let alone the entire group of 100 — chances are you would get a different answer from each about what exactly the problem with Facebook is. The hearing was, at least in theory, supposed to be about Facebook’s data privacy practices and the Cambridge Analytica scandal. But lawmakers’ questions were all over the place, as many tried to get in a moment for their favorite issues, and even illuminating queries sometimes didn’t get much follow-up.

Sen. Lindsey Graham (R-SC), in a particularly sharp line of questioning, asked Zuckerberg if Facebook has a monopoly on the kind of service it provides. “If I buy a Ford and it doesn’t work well and I don’t like it, I can buy a Chevy,” Graham said during Tuesday’s hearing. “If I’m upset with Facebook, what’s the equivalent product that I can go sign up for?”

Sen. Dick Durbin (D-IL) pressed the executive on privacy in an attempt to make the point that he appears to value his own privacy and not necessarily that of his users. “Would you be comfortable sharing with us the name of the hotel you stayed in last night?” he asked. “If you’ve messaged anybody this week, would you share with us the names of the people you’ve messaged?”

Both lines of inquiry might have been strong had they been sustained. But each senator of the 44 senators was given five minutes to talk, and they talked about a lot of different things.

Conservative Sens. Ted Cruz (R-TX) and Mike Lee (R-UT) were determined to out Facebook as having a liberal slant. Sen. Ben Sasse (R-NE) wanted to talk about college kids being too sensitive to offensive speech and tech addiction. Sen. Maria Cantwell (D-WA) brought up Peter Thiel’s data firm Palantir. Sens. Roger Wicker (R-MS) spent part of his time discussing with Zuckerberg the difference between internet service providers — the “pipes” of the internet — and the apps such as Google and Facebook on top of it.

Sen. Amy Klobuchar (D-MN) brought up specific potential rules and regulations — the Honest Ads Act, which she and other lawmakers put forth in October to institute new rules on political ads, and the idea of requiring companies to inform users of a data breach within 72 hours, which is in a European law that is about to be instituted. Sen. Richard Blumenthal discussed the Consent Act, new legislation that would put restraints on data collection by Facebook, that he and Sen. Ed Markey (D-MA) put forth on Tuesday.

Hatch asked Zuckerberg what sorts of legislative changes he would recommend to help solve the Cambridge Analytica problem, and Graham asked if he would submit some proposed regulations.

“There’s always the danger that Congress’s response will be to step and overregulate,” Hatch warned.

“Regulations can ... cement the dominant power,” said Sen. Dan Sullivan (R-AK).

Zuckerberg struggled to answer Graham’s monopoly question, explaining that Facebook does indeed have competitors but that they fall into different categories based on different services. He repeatedly proclaimed to be in favor of some sort of regulation of Facebook but demurred when asked for specifics. He often said his staff would get back to lawmakers with details and acknowledged that Facebook had previously underestimated the breadth of its responsibility but wants to do better.

As easy as it is to laugh off lawmakers’ confusion about Facebook or look down at their muddled lines of questioning, it’s also understandable. Plenty of people have a very limited notion of how exactly Facebook’s business works, what happens to their data, and what they can do to increase their privacy. (On that note, Vox’s Jen Kirby has a good explainer on Facebook data questions you might be afraid to ask.)

Still, Tuesday’s hearing exemplifies just how hard regulating Facebook will be. Lawmakers and regulators have a range of options to choose from, including a major fine from the Federal Trade Commission, new federal legislation, state-level action, and even revising a federal statute that ensures platforms aren’t responsible for the content posted on them.

But if we can’t agree on the problem, it might be hard to agree on the solution.

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