Cognitive capture is a subtle art. But, if you follow the money long enough, it will lead you straight through the revolving door between Washington and Silicon Valley, whereby Google, Facebook, and others regularly hire influential former government officials who then move in and out of business and policy circles, pushing tech-friendly notions like the idea that privacy is somehow a civil liberty infringement, or that cheaper prices should be the key metric for consumer goods, or that addictive technologies are actually good for kids.
Google isn’t the only firm with a revolving door, though it has had a substantial one over the past few years. Plenty of other tech companies have aspired to this sort of influence. Uber, for example, hired David Plouffe, the man who helped Barack Obama reach the White House, to run its communications and political work in 2014. Following Plouffe’s hiring, Uber picked up better lobbyists, academic research to back up its positions, and an endorsement from Mothers Against Drunk Driving.16
Facebook, too, has hired dozens of former politicos to join its lobbying operations, including Jeff Sessions’s former legislative director Sandy Luff, Nancy Pelosi’s former chief of staff Catlin O’Neill, and longtime John Boehner aide Gary Maurer. The Facebook and Google revolving doors are especially alarming given that politicians are customers of the two companies, in the sense that the social media and search sites have been such a huge part of campaign efforts on both the right and the left (more so with every passing election).17
As academics Daniel Kreiss and Shannon McGregor documented in their paper “Technology Firms Shape Political Communication: The Work of Microsoft, Facebook, Twitter and Google with Campaigns During the 2016 U.S. Presidential Cycle,” this is work that’s been going on for some time now. Not only do such companies sell their services to political campaigns (making loads of money in the process), but they also actively shape campaign communications, acting as “quasi digital consultants…shaping digital strategy, content, and execution.”18 Far from being neutral platforms or even just traditional media players, Big Tech has moved into the political consultant space, becoming “active agents in political processes.”
“The Biggest Kingmaker on Earth”
While far from the only tech company engaged in a massive campaign for Washington mindshare, it was Google, whose executives visited the White House more than any other corporation’s during the Obama years, that had by that time become “the biggest kingmaker on this earth.”19 How they have wielded that influence underscores the way in which money in politics has completely distorted our economy, undermining both competitiveness and public trust in institutions.
Consider the issues of data privacy and antitrust, for example. One of the major turning points for Google on those issues was the acquisition in 2007 of the ad network DoubleClick, which was the leading firm that helped advertisers and ad agencies decide which websites would be best for hosting their ads. As Steven Levy writes in In the Plex, “the DoubleClick deal radically broadened the scope of the information Google collected about everyone’s browsing activity on the Internet.”20 Competitors and regulators alike questioned the deal, which eventually went through, in large part because Chicago School thinking didn’t really leave any room for a good antitrust argument against it (despite the fact that it would allow Google to essentially control the vast majority of advertising online). But Google questioned it, too, at least in terms of the ramifications for its own bottom line. Larry Page and Sergey Brin were at first reluctant to combine the data and information that could be harvested via cookies on its own platform with what could now be garnered via DoubleClick (which was, of course, now a part of Google itself). But eventually, under pressure to grow, the company relented. Thanks to the merger, “Google became the only company,” writes Levy, “with the ability to pull together user data on both the fat head and the long tail of the Internet. The question was, would Google aggregate that data to track the complete activity of internet users? The answer was yes.”21
While Google had long promised users that it would ask their permission if it ever used their data for anything other than the purposes for which they’d given it (that is, for whatever individual search, or email, social media, or map functions they’d signed up for), it had begun combining and selling all the data it had on users to the highest bidder. So much for worrying about “advertising and mixed motives,” as Page and Brin had put it in that not-so-long-ago 1998 paper in which they fretted about the way that a search engine funded by targeted advertising might possibly do harm. The new way of handling user data wasn’t clearly in violation of U.S. law, but it wasn’t exactly transparent, either, and as it turned out, parts of the Google effort did violate the U.S.-EU Safe Harbor Framework, which governed how data could be transferred between the two regions. This was a fact that became evident after Google launched its short-lived social networking service, Buzz, in 2011, and came under fire for the way in which it was combining and releasing user information.22
In March 2011, the FTC issued a complaint and consent order requiring Google to change the way it handled data; it directed the company to get explicit consent from users before disclosing such data to advertisers (or any third party).23 Yet less than a year later, in a blog post, the company boasted that it would “treat you as a single user across all [its] products, which will mean a simpler, more intuitive Google experience.”24 A nonprofit watchdog group, the Electronic Privacy Information Center (EPIC), filed a complaint calling on the FTC to disallow this consolidation of personal information and shortcut around privacy.25
A raft of user lawsuits predictably followed. But the courts were unable to compel the FTC to enforce its own action, and over the next few years, the company touted the ways in which it was combining and monetizing surveillance across a broader number of apps, platforms, and devices, even claiming it would soon be able to track conversations involving store visits and phone calls.26 After more complaints, in 2012, the company paid out the largest FTC civil penalty ever to settle charges that it had exploited a loophole to bypass the privacy settings of Apple’s browser Safari and had tracked users of the browser, while giving the impression that they weren’t being monitored.27
Here, it’s important to point out that for years in advance of these actions, Google had been quietly lobbying behind the scenes for support on its positions. That involved, as per usual, throwing a lot of money into universities, think tanks, and nongovernmental groups that might eventually be called on to back those positions publicly. In a 2019 Wired piece looking at the way in which Google influences the conversation in Washington, Georgetown law professor Marc Rotenberg, the president of EPIC, noted that Google did exactly that after EPIC filed complaints about the company’s acquisition of DoubleClick in 2007 and Nest in 2014. “Money buys silence,” he said. “Google doesn’t need the experts to agree with them. They only need them to look the other way.”28
As for the regulators themselves, it’s hard to argue that they were fully doing their jobs. Large fines as the cost of doing business had become status quo for Big Tech, just as they are for Big Finance. Silicon Valley was learning that it could simply shell out cash from its growing coffers, and regulatory problems would go away. It was no secret that the people who were supposed to look out for citizens’ interests were essentially unable or unwilling to effect any real change in corporate behavior. In fact, in many cases, it seemed that the interests of the companies and the policy makers were quite closely aligned. As one Senate aide ruefully put it to me during the reporting of this book, “Google was Obama’s Halliburton.”
As Google’s influence in the Obama White House grew, the company developed a growing interest in the controversial subject of a big report on the future of the Internet written by a commission chaired by Google VP Marissa Mayer that was released by the White House in 2009.29 The paper advocated for “net neutrality,” a term coined in the early 2000s by the academic Tim Wu, who
has since become a vocal Big Tech critic.
Net neutrality was at the heart of a growing divide between the digital giants and major telecom companies over “open-access” policies. The Big Tech platform players supported net neutrality legislation that prohibited network providers such as AT&T, Verizon, and the like from charging more to prioritize certain kinds of content. Google, for example, wanted to make sure that Comcast couldn’t run more Hulu content than YouTube content if Hulu was willing to pay more. It was essentially a corporate fight for turf. But Big Tech lobbyists and policy makers cleverly branded it as a fight for the little guy.
Net neutrality came to be understood as shorthand for the idea that everyone—rich and poor, the start-up and the multinational conglomerate—should be able to use the Internet on a level playing field. Liberals in the United States supported the idea for obvious reasons of social equity. But some conservatives, as well as some members of the business community, argued that it would prevent the Internet providers from properly monetizing their investments in broadband (which they, not Google and its ilk, were making). It was a fair point. After all, the telecom companies building the twenty-first-century digital highway have single-digit profit margins, while the likes of Google and Facebook—which simply have to wait for someone to upload a cat video and then sell hyper-targeted advertising against it—have profit margins in the high double digits.
What was lost, of course, was the middle ground. Certainly, it makes sense that individual Internet users should pay the same data rates, regardless of the content they were consuming. There should be no rich-poor divide for citizens online. There’s also no reason that the rights of individuals should be a casualty of turf wars among big corporations. Simply set different rules for individuals versus large companies. And yet, Big Tech–funded groups like the Electronic Frontier Foundation (which certainly has many good civil liberty intentions behind what it does, but also receives millions in funding from the net giants that have been the largest corporate beneficiaries of net neutrality) have argued vociferously that cable providers shouldn’t be able to charge, say, Google or Netflix a bit more for all the massive downloading of video done via those sites, and that more power for the Internet service providers would squash innovation on the Internet and unfairly penalize small businesses. A number of critics would argue that Big Tech companies themselves are a bigger risk to innovation than the telecom companies, in large part because of the network effects that make them natural monopolies and enable them to become ever more dominant and able to squash competition in myriad ways.
In 2015, the FCC issued the Open Internet Order, which allowed the tech companies to do just that. It forced the cable companies to offload the costs of “freedom” to users, one result of which has been a slowdown in broadband deployment, particularly in rural areas.30 A few years back, Google itself tried to increase penetration in underserved areas in various parts of the United States, but slowed efforts after it found that laying fiber was much harder and less profitable than monetizing personal data via targeted advertising.31
In 2017, the FCC under President Trump rolled back net neutrality rules. House Democrats, in 2019, passed a bill reinstating the rules and are keen to make this an important election issue. But there has yet to be a clear and honest debate about whose interests are really being looked after—consumers’ or big companies’—on both sides.32 Telecom critics have argued that since the rollback in 2017, big cable companies have not actually invested more in the capital spending that they promised to make to improve networks.33 That’s a very fair point, and one that calls into question some of the original telecom arguments around net neutrality (though there are plenty of other reasons to slow capital spending right now, like the risk of a looming recession and controversy over 5G rules and regulations). But it’s also true that broadband speeds have increased since 2017, and there doesn’t yet seem to be any sort of two-speed Internet, or rich-poor divide in terms of how quickly you can download those cat videos.34 The point here is that this fight isn’t really so much about public interest as it is relative corporate welfare.
Net neutrality is one area in which the public debate over an issue that is central to our economy and civic society has been captured. Patents, as I covered extensively in chapter 5, is another. Over the past few years, I’ve heard disparate complaints from a variety of quarters—from start-up biotech firms, semiconductor and electronics firms, clean-tech companies, data analysis groups, universities, and innovators working on the Internet of things, as well as some of the venture capitalists that invest in these areas—that the patent system and the debate about how to structure it has been hijacked by the interests of the largest tech firms in the country. Indeed, the only ones who seem not to be complaining about the current system are Google, Apple, Intel, Cisco, and other Silicon Valley giants.
While they all have their own patents to protect, their business models, which involve products that include hundreds or even thousands of bits of intellectual property, tend to do better when there are fewer patents to deal with. But small and mid-sized software and hardware suppliers, as well as life sciences companies, have different business models—ones that live or die on the ability to protect a handful of patents, and thus monetize their years of investment. They believe that the patent pendulum has swung too far. (A bipartisan group of members of Congress as well as the current head of the U.S. Patent and Trade Office feel that it probably has, though they’ve had trouble getting too much traction for those ideas.)
Big Tech would, of course, disagree. But the point here isn’t that this is a one-sided debate, but rather how easy it is for the largest corporate interests to change the game to suit themselves in ways that damage the economic ecosystem as a whole. There are any number of other areas we could look at that would illuminate the way in which Big Tech has bought out the public debate, from regulation of self-driving cars to public surveillance to antitrust to copyrights. But to be fair, oftentimes, the advantages leveraged by Big Tech come down to legal inertia as much as active lobbying for loopholes. In the absence of smart regulation, the industry continues to benefit from rules that were set down decades ago, when modern tech companies were just getting off the ground.
In fact, many of the key laws that govern digital commerce (which, increasingly, is most commerce) were crafted in the 1980s and ’90s, when the Internet was an entirely different place. Consider Section 230 of the Communications Decency Act, which gave technology companies exemption from liability for what people do and say on their platforms. In 1996, when this law was crafted, no one could have predicted that it would come to serve as a legal loophole for companies like Backpage.com that deliberately created—and profited handsomely from—a platform for online sex trafficking. On August 1, 2017, a bipartisan group of senators, led by Democrat Claire McCaskill of Missouri and Republican Rob Portman of Ohio, introduced legislation that would create a carve-out in section 230 for tech firms that knowingly facilitate sex trafficking, meaning they could be held responsible for that. The bill was called SESTA, the Stop Enabling Sex Traffickers Act. It was the rare piece of legislation that everyone, it seems, could get behind—except the largest tech companies and their industry lobbying groups, who were concerned that it would open a Pandora’s box of legal issues for them.35
So, they decided to fight it. These groups had the rough copy of the bill for months before its introduction, yet refused to offer edits during its crafting. “We did our due diligence, met with the tech community on a bipartisan basis for months, and yet they offered no constructive feedback,” said Kevin Smith, a spokesperson in Portman’s office. The tech companies made it clear that amendment to 230 was a no-go, and even suggested a number of (weak) alternatives, like tougher criminal laws. As Noah Theran, a spokesperson for the Internet Association, a trade group that represents Google, Facebook, and other companies, told me at the time, “The entire Internet industry wants
to end human trafficking. But there are ways to do this without amending a law foundational to legitimate Internet services.”
As one might imagine, this attitude didn’t make for very good press for the industry, particularly after New York Times columnist Nicholas Kristof’s piece decrying Google’s use of lobbying power to push back against legislation that would crack down on sex trafficking.36 Finally, Facebook, which was looking to build some goodwill following months of pressure over its role in the 2016 election manipulation by Russia, caved and decided to endorse the bill. The Internet Association eventually caved, too. Google remained quiet, perhaps because of a damning Consumer Watchdog report that outlined the way in which it had, over a long period of time, been covertly fighting against congressional efforts to close the CDA 230 loophole, despite the effects on sex trafficking.37 Two other key lobbying groups, the Consumer Technology Association and NetChoice, also continued to oppose the legislation.38 The law, which was a no-brainer, eventually passed.
But the industry continues to try to find backdoor ways to reverse or circumvent it, such as through the renegotiation of trade deals.39 The Electronic Frontier Foundation challenged SESTA’s constitutionality, despite proof that it helped reduce sex trafficking and online crime.40
To be completely fair here, the EFF’s worries about the slippery slope of censorship are legitimate. They weren’t wrong to be concerned about the notion of platform firms being asked to police the Web given that, as their policy director, David Greene, told me in 2018, “they are so terrible at it.”41 You can certainly see it from both sides. But leaving things as they are isn’t really a solution, either. These problems aren’t going away—and indeed, both the current lack of liability that the platform firms enjoy and the fact that they aren’t particularly good at moderating problematic content underscore the fact that a new regulatory framework for the digital economy is desperately needed. And yet, because politicians—not to mention nonprofit think tank experts, academics, and even some journalists—have been so cognitively captured by the usual Big Tech narrative, that hasn’t yet happened.
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