There is yet another tech hearing today in Congress. On the face of it, that’s a good thing. Our elected leaders holding corporate leaders accountable. CEOs being chastened.

Facebook CEO Mark Zuckerberg, Alphabet/Google CEO Sundar Pichai and Twitter CEO Jack Dorsey are expected to testify on Section 230—the provision that allows them to keep immunity over user-generated content while moderating it. Contrary to the common misunderstandings, it doesn’t mean they can’t moderate or take down content, or that they have to be neutral. If anything, it frees them to be less neutral while retaining immunity from liability.

But who am I kidding, right? The content of the act isn’t going to be the main star of this.

In reality, it’s likely not going to be that important. Instead, it’s almost certain to turn into another round of the legislators playing the referees, the executives themselves, rather than policy-making by the people we had elected to be referees—the legislators. And the balance is all wrong: it’s the companies, not the legislators, that hold more power.

First, if we were to address the substance: The actual fight here is only partly about speech. Yes, it’s true: being de-platformed by these three big players can effectively knee-cap a player from the public sphere. That’s true especially when the platforms act in concert, which they tend to do—because they are not profiles in courage, but prefer the protective effect of herding.

After being kicked-off these platforms, the influence and the grift potential of Milo Yiannopoulos and Alex Jones has plummeted, even though they are, of course, perfectly able to post elsewhere on the internet. The issue here is as much about platform dominance as it is about Section 230: nobody would really want an Internet where any platform moderation meant loss of liability, but this also it wouldn’t be this big a deal if Facebook, YouTube and Twitter weren’t so dominant.

Second, we are fighting over attention as much as speech. We lived in a world in which mass attention was mediated through the mass media, was necessarily public and not largely uniform. Everyone saw the same thing on the same media. Now we live in a world mediated by a few giant understaffed companies, individualized based on data collected on the individual user and not visible to the public, except as these platforms deign to let us know. Who is being shown what? How much? Why? We have little idea. These companies have our attention, and it’s a longer story why (though I’ve long-written about multiple parts of it: the business model, the network-effects, the power of sociality, the preferential-attachment dynamics (meaning winner-takes-more, which often evolves into winner-takes-almost-all)) and they’re selling it to advertisers—that’s how they make money—so they must keep us users on those sites. The crisis is a crisis of attention more than a crisis of speech. In many ways, rarely in human history has it been possible to speak more, to more people, with such ease.

Ironically or not, this has made a form of censorship easier, one based on meddling with attention and credibility. This is covered in-depth in my book, available as creative commons copy here. I also wrote in a Wired cover story a few years ago:

The most effective forms of censorship today involve meddling with trust and attention, not muzzling speech itself. As a result, they don’t look much like the old forms of censorship at all. They look like viral or coordinated harassment campaigns, which harness the dynamics of viral outrage to impose an unbearable and disproportionate cost on the act of speaking out. They look like epidemics of disinformation, meant to undercut the credibility of valid information sources. They look like bot-fueled campaigns of trolling and distraction, or piecemeal leaks of hacked materials, meant to swamp the attention of traditional media.

This isn’t completely new to free-speech conceptualization. It resembles the ‘heckler's veto,’ in some sense: if everyone is allowed to yell over all speakers all the time, or to intimidate them from speaking, or hurl an avalanche of accusations at them at such a rate that nobody can make sense of anything, the speaker can no longer be heard. We need to pay attention to the more traditional speech aspects of this debate, as deplatforming is a real thing with consequences. That doesn’t mean it is always illegitimate, but it is a potent tool too important for a few CEOs to wield without accountability.

All that has to be in the context of an attention-focused approach to free speech and a healthy public sphere. As I said, we are not without any guidance, but all this is complicated by the lack of transparency from these giant companies. All our past media fights happened about things we could see, by definition: they were mass and publicly broadcast. Even direct-mailing was mass and easily-made public. Comparisons with a few letters people got with today’s microtargeting and engagement environment cannot be serious—though they are sometimes made in defense of the silly position that today’s environment “is just more of the same.” Yes, the same impulses of the past are at play now, but the conditions are vastly different.

Back to playing the referees. These few companies are operating in such a large number of countries, with so little staff, that they can hardly keep up, and instead they respond mostly to public pressure (from places their leaders and employees care about) and credible legislative threats—which means threats from the US and Europe. And that’s what’s been going on in most of these hearings: posturing and battering, in an attempt to better play the referees. Senator Ted Cruz (R-TX) is tweeting out memes that resemble WWF challenges rather than policy stances. The president blurts out “Repeal 230” whenever it strikes his fancy, even issuing incoherent executive orders. Leading right-wing commentators wave around threats—regardless of their relationship to any reality.

Tellingly, in the past month, the platforms have gotten a little tougher on both the president and misinformation from the right. Why? They’re reading the tea-leaves just like everyone else. In the run-up to the 2016 election, strategically-battered by the right, starting with a non-scandal around trending topics, they had a very light hand, if any, when dealing with the misinformation that washed over their platform. They likely thought, along with most of the rest of the country, that Hillary Clinton was going to win. They didn’t want to attract more conservative ire when they could just wait until the election to do something about misinformation, if ever. Now, sensing that the Democrats are in a position for legislative wins, they appear more willing to be more aggressive. That’s not to say that their few leaders don’t always convince themselves that whatever they do is the right thing, at the moment. That’s how everyone in power often thinks. People believe their own justifications.

But the problem is just that. With just weeks to go until the election, Facebook decided to block any new political ads unless they were already in place by this Monday. That’s a mess, of course. Is this the right thing? (I personally don’t think so, but what does it matter?) Who does it advantage? (Who knows, but likely incumbents more than challengers). What’s important is that this decision is illegitimate. One person—Mark Zuckerberg, who holds unilateral power through his voting stock--should not be in a position to make such consequential decisions, without oversight. Meanwhile, the FEC, the body that is supposed to oversee all this, has no quorum. This failure is ours.

Ironically, one of the goals of legislators in these hearings is to generate short videos that they can use in their ads placed on broadcast media--the ads will also be placed on these platforms, to the tune of many millions of dollars.

We should stop asking questions of these men and start giving them answers. The only way to do this is to make these questions into what they actually are: political questions. That’s where we have to debate everything from the dominance of few social media companies over the public sphere to the problem of regulating attention in an age of information glut. These companies don’t look like traditional monopolies, and our laws haven’t caught up with what they actually are. We aren’t in an era of scarcity of speech, but the opposite. Our laws don’t reflect that, however.

So, I’ll read the transcript of the hearing. Maybe there will be some good questions asked. But we don’t need to keep up these charades. We need to start getting our act together, as a society, so we can tell tech companies what to do.

Of course, the challenge is that these tech tools further break our public sphere and our politics, making it harder to fix all this. But that’s where we are.There is no avoiding this dilemma. I don’t want to hear another apology, another ‘we will do better’ promise from any CEO. The real problem is that these men testifying today have emerged as unelected, unaccountable referees of our public sphere,.Until we address that, until we take back our power as the public, we will be left with more rounds from the World Wrestling Federation.

Insight

The Problem With (All) The Tech Hearings