Feelings Don’t Care About Your Facts: How Tech Policy Became A Culture War Issue
By Taylor Barkley, Director, Technology and Innovation at Stand Together and Parker Kobayashi, Research Assistant at Stand Together Trust
Many ‘tech policy debates’ no longer focus on policy. Instead, these debates focus on tribal allegiance. What one tribe sees as censorship another sees as necessary to save democracy. Everyone is incensed, constantly. Issues like antitrust, privacy, telecommunications policy and network management, and intermediary liability were once the province of wonky conferences. Now, cable talking heads opine on these issues and they fill politicians’ stump speeches.
It is hard to pinpoint exactly when this change occurred, but it seems to have evolved over the last four to six years. No matter when it began, a few things are clear; Political sniping has eroded the seriousness of these debates. Issues that involve nuance and tradeoffs have been reduced to binary choices. We’re either told that “Big Tech” is the root of all evil or humanity’s last hope. And the politicization of tech policy has undermined the trust that is necessary to grapple with these issues.
Daniel Rothschild, executive director of the Mercatus Center at George Mason University, offered a framework for thinking through this transition in a conversation with Coin Center’s Jerry Brito. He said that tech policy has moved from low policy to high policy.
High policy is the front-page news. It is fodder for politicians to debate. High policy is a proxy fight about the cultural status of different groups. By way of example, Rothschild points to Second Amendment rights. He argues that Second Amendment rights are only superficially about policy; more fundamentally, they are about different groups’ place in society. “Broadly speaking, the Right wants to say [owning a gun] is a relatively high-status thing, it’s acceptable, and the Left wants to say your lifestyle is unacceptable, you can’t be doing this kind of thing, and to make gun ownership a low-status activity.” Because the goal is to lower another group’s status relative to your own, high policy is always zero-sum: the only way someone can win is if someone else loses.
Low-policy debates do not make the front page. Often those topics do not make the paper at all. Low-policy is in-the-weeds-discussions and requires specialized knowledge that make for bad cable news segments. Crucially, low policy often results in positive-sum solutions. All stakeholders can come out of the debate better off.
Has tech really moved to high policy?
Largely, yes. Beginning in the latter years of the Obama administration, major political figures on the left and right started to regularly blame “Big Tech” for many of society’s ills. But what began during the Obama years only accelerated more recently. Indeed, major political events from just a few years ago seem almost unrecognizable today. In October of 2015, amidst the Republican presidential primary, Issie Lapowsky authored a piece for WIRED that would be laughed at if published today. Her title: “It’s Time for the GOP Candidates to Finally Debate Tech.” The piece bemoaned the lack of tech policy discussions during the myriad GOP primary debates. After all, tech was growing in importance. “Politicians like tech companies, not only because they paint a rosy picture of the future, but because they’re among the top job creators in the country,” she wrote. “And yet, if you were judging by any of the first three debates of this election seasons…you would never guess just how influential the tech industry is. Amid talk of ISIS, Mexico, climate change, and the ethics of private email servers, the debates so far have been light on any mention of tech policy.”
Here are a few examples of tech policy’s move from the realm of low policy to high policy:
- Section 230 used to be largely unknown. It was the background law that makes users responsible for their actions online and allows the hosts of user-generated speech to set rules appropriate for their communities. In the past two years, Section 230 has jumped to high-policy, with the then-President of the United States angrily tweeting about Section 230 at least 40 times.
- Antitrust is no longer the purview of lawyers, economists, and a few wonks. Instead, public officials make it the focus of major campaign events and leverage it to threaten media executives. Weaponizing antitrust to curry political favor is not new, but that practice has been constrained for decades and often confined to private conversations.
It is not just that these two issues have moved from low policy to high policy but that the shift has resulted in a conversation that is increasingly removed from the underlying substance. Political leaders complaining about Section 230 are often vexed about underlying editorial choices that tech companies make about what speech to allow on their services. This editorial freedom is protected by the First Amendment. Similarly, complaints about ‘monopolies’ regularly ignore any need to consider what markets the alleged monopolists dominate. Rather, ‘monopoly’ is simply used to mean large, powerful, and disliked.
This political elevation of tech was most succinctly captured during a 2019 Senate Judiciary Committee hearing entitled, “Stifling Free Speech: Technological Censorship and the Public Discourse.” Senator Ted Cruz (R-TX) used his opening remarks to criticize the assembled tech executives, claiming and arguing that a lack of transparency into companies’ decision-making gives “big tech the power to silence voices with which they disagree.” Right after Cruz concluded, Sen. Mazie Hirono (D-HI) admonished the executives for failing to remove enough content from the internet such as anti-vaccine conspiracy theories, hate speech, videos of mass shootings, and other forms of repugnant speech.
In 2016 Senator Elizabeth Warren (D-MA) asked in a speech delivered at New America whether tech companies had become too big to fail. CNN’s Hope King noted at the time “Warren has been shifting her ire from Wall Street to Silicon Valley lately. It’s a particularly interesting time for her to do this since she’s on the shortlist of Hillary Clinton’s VP candidates.” Warren would go on to make attacking ‘bigness’ and tech a centerpiece of her failed 2020 presidential campaign. Warren is hardly the only Democrat to elevate tech as a political matter. House Speaker Nancy Pelosi, upset that an edited video of her continued to circulate on the internet, placed an unreturned call to Facebook CEO Mark Zuckerberg, met with a prominent Facebook critic, and gave her blessing for a House Judiciary subcommittee to launch a probe into whether tech companies held too much power. That subcommittee would go on to hold a series of widely publicized hearings, elevating the profile of its chair and key staffers.
There are clearly important public issues at stake in tech, but how these issues are debated matters. Assessing the state of speech online, the allocation of liability to different participants, the structure of new markets, and other similar questions is not easy. These are complicated topics. But where these discussions take place can tell us a great deal about their substance. In many cases, hauling high-profile executives before Congress is not done in service of fact finding, it is done to perform for cameras. Campaign trail speeches are given because they are believed to be good politics. All the tactics above reflect a belief by a variety of political actors that denouncing ‘tech’ will win them popular support.
But tech policy debates did not begin in 2015. The effort to reclassify broadband services under Title II of the Communications Act was a major public debate that included a high-profile video by President Obama in 2014 urging the FCC to pursue reclassification. In early 2012 there was an internet “blackout” by major websites to protest a new set of copyright bills. Though these fights were major developments at the time, they were blips. These policy debates became notable precisely because discussions of technology policy were so rare; that tech issues did breakthrough was, itself, news. One would not expect politicians of either party to have telecommunications regulation or copyright law as the basis of a stump speech. Indeed, one would not expect that today. The shift to high policy is rarely actually about the policy. It is about what a political leader seeks to signal to their movement and groups.
There are clearly topics of real policy significance that do not attract this level of popular attention. The future of the US-EU privacy shield agreement and the status of transatlantic data flows will shape the internet experience for hundreds of millions of people. The choices that financial regulators make about cryptocurrencies effect billions of dollars-worth of value. Reforming the overly broad Computer Fraud and Abuse Act would help to curb the overcriminalization of federal law that can give prosecutors an unfair advantage. Congress has increasingly taken steps to conduct oversight of the government’s own use of data on American that raises real civil liberties concerns. Frankly, most of what the FCC regulates, which almost never makes front-page news, will help determine what types of connectivity and the technologies that enable that interconnection are available for future generations. The argument here is not that everything in tech has become high policy. Rather, the argument is that, previously, anything ‘tech’ was low policy. That is no longer true. Tech has now become a tribal value to fight over like guns, immigration, or other “culture war” issues.
It is worth asking whether low-policy debates are preferable. Perhaps there is a democratic legitimacy that comes from a broader public being engaged these previously dull debates? Where this theoretical claim fails is that it misunderstands the purpose of high policy. High policy is a zero-sum game. New information is only useful if it can be weaponized against ‘the other side.’ Information that supports the tribe’s position is weaponized; information that undermines that status is explained away, excused, or ignored. In high policy, feelings do not care about your facts. Trust between groups is not just difficult in a world of high policy, its antithetical to the purpose. These myths often involve ‘tech’ as a principal villain.
In low-policy debate, by contrast, a shared set of facts is possible. This does not guarantee a perfect outcome, but it does make positive-sum outcomes a possibility. New information can be introduced and wrestled with. For example, the shift in spectrum policy from politically directed “beauty contest” allocations to allocation via the use of auctions has undoubtedly improved outcomes for Americans — improving the tenor of that debate along the way. It is the combination of a broad base of existing knowledge coupled with the pressure from new facts that allows knowledge to improve over time. Michael Polanyi described this process as a republic of science.
It is not just that the tenor of these debates have been better in the past, but that the era of tech policy from the early 1990s until a few years ago was a period of low policy and brought the United States immense success. As Adam Thierer has argued, the United States has been and remains the primary home for the world’s innovation. The United States has become the global technology leader. As of mid-2021 half of all “unicorns” (companies valued at $1b+) were based in the US. A 2021 assessment by the Boston Consulting Group of the world’s most innovative firms had US firms leading the top five spots and 27 US companies out of the top 50 overall. In 2021, it was estimated that the internet sector accounted for 12% of the U.S.’s GDP and grew seven times faster than the rest of the U.S. economy during the past four years. It is doubtful that this economic growth would have been possible had the policy debates that shape what is possible had taken place with tech bandied about as a high -policy debate. This worry is related to the well-documented institutional failures in American governance, but it is distinct. It is not just that policymaking at the federal level, especially Congress, has become dysfunctional. It is that high policy further encourages the problem that Yuval Levin documents in his recent book, A Time to Build, for individuals to perform on top of institutions they are a part of rather than being shaped by them.
What would it take to return to tech as low-policy?
There is clearly demand for tech as high policy. Politicians thrive on attention and there has been plenty of attention devoted to tech. The Economist first coined the term “techlash” in 2013 and it made the Oxford English Dictionary shortlist for 2018’s word of the year. There is a strong incentive for politicians, activists, and the media who cover tech issues to seek the spotlight. Those incentives include the ability to generate news coverage, energize supporters, raise money, and garner attention for your own work.
When Texas Attorney General Ken Paxton launched a high-profile antitrust investigation of major companies it garnered national media attention — attention his campaign used to launch a fundraising campaign. As Reuters reported, “Texas Attorney General Ken Paxton has been critical of Google. In a fund-raising email last month, he said Texans ‘are put at risk’ by the company, ‘whose executives clearly display anti-conservative and anti-Republican bias, subtly controlling what Americans see when they search for information about national political issues.’” The Washington Post announced in a press release that its technology coverage saw a 40% growth in readership in 2020 and so it planned to expand its coverage, adding eight new positions. As David Cho, business editor at the Post, made clear, the symbiotic relationship between political action and media coverage necessitated this expansion, “The need for this expansion is clear. News surrounding big technology companies and their role in society is becoming more urgent as lawmakers seek to regulate a rapidly expanding industry.” These examples are not atypical. High policy is good for business.
Shortly after his election, President Trump’s former campaign manager, Steve Bannon, said he wanted to regulate Google and Facebook as public utilities. As the Trump years wore on, President Trump regularly authored Twitter outbursts aimed at “tech” in general and particular companies, and even held a ‘social media summit’ to complain about perceived biases. The effort eventually culminated in a splashy executive order “targeting” social media companies that ultimately had little substantive effect. But substantive effect is not the point of high policy. President Trump and his surrogates in Congress, like Senator Josh Hawley (R-MO) and Senator Ted Cruz, regularly attacked “big tech” on the campaign trail. Indeed, one week before the 2020 election the President’s congressional allies forced the CEOs of four major technology companies to testify at a hearing. Like other similar hearings, the goal of the event was to give political leaders a stage on which to angrily question and denounce the business executives.
It is easy to see how President Biden might continue down the path laid by Donald Trump. Pick out prominent firms, declare them to have done wrong, then launch an investigation. Encourage Congressional allies to author messaging bills aimed at pressuring firms to make choices you would prefer. In short, the mix of demagoguery and jawboning that has worked for politicians on the left and right. But if President Biden wants his administration to engage with the difficult questions raised in tech policy debates, rather than simply campaigning around them, an entirely different approach is needed.
Perhaps the most important thing the Biden Administration can do is try to make the issue boring again. That would mean asking Congressional allies to forgo introducing messaging bills and to stop using Congressional hearings to yell at CEOs. Rather, there is an opportunity to dig into dull but important legislative issues. Take federal privacy legislation, for example. Meaningful privacy legislation would need to grapple with the tradeoffs between values that are in tension with each other. Limits on the commercial use of data by private firms often chills access for academic researchers. Limits on the commercial use of data by private firms can also create tensions with efforts to promote additional competition in those markets.
Privacy is hardly the only “hot” area of tech and telecom policy where the temperature could be turned down. Public discussion of Section 230 seems to become further detached from the underlying issues the longer it goes on. Politicians and the media who cover this issue frequently make basic factual mistakes about the law, its effect, and the implications for proposed changes. The New York Times’ frequent errors on Section 230 and ensuing corrections has become a recurring joke. Members of Congress are even worse, regularly introducing bills that are blatantly unconstitutional and divorced from the reality of how technology works. Indeed, many of those bills ignore the reality that even without Section 230 constitutionally protected speech and editorial choices that members of Congress dislike would still be permitted. While there are signs some members of Congress are ready for this conversation to grow up, those discussions tend to be the exception.
President Biden is not the only actor here. Other politicians at all levels of government face a similar choice: work on the substance or campaign on the politics. But the President is uniquely positioned to change the tenor of the debate. Often a President can change the tenor of a topic by focusing his attention elsewhere. For now, the Biden Administration has made clear its focus is combatting the coronavirus pandemic and dealing with its economic consequences. Other topics have been identified as important too, notably not tech. The choice to focus elsewhere is a helpful start but how the Administration staffs up and chooses to engage will be telling. To restore trust, the most important thing all political leaders can do is to give up ‘the issue’ to make progress.
As the transition from tech in the final years of the Obama Administration to now makes clear, the nature of tech debates can change dramatically over time. Tech as high policy is still relatively new. It is possible that high policy could continue to dominate American political debates but that a different foil could take tech’s place. The recent flurry of attention around GameStop demonstrates how quickly attention might shift to financial services. In years past, immigration, guns, or something entirely new might take center stage. Less attention for tech might not return it to low policy, but it might make the high policy less powerful.
At the risk of making a prediction, I am skeptical that tech debates will diminish in prominence or return to low policy. There are strong incentives for a wide variety of participants in this ecosystem to keep these topics engulfed in a culture war. High-policy debates energize their participants. For tech beat reporters, it is an opportunity to ‘make the front page,’ cover an exciting story, and perhaps go on a cable news segment to discuss the topic. For politicians, tech policy as culture war means an endless stream of op-eds, media interviews, high-profile hearings, and fundraising emails. For the activist groups involved, more prominent ‘fights’ mean more engagement, coverage, and opportunities to fundraise. For the lawyers and lobbyists, high-profile threats mean job security. Indeed, resolving a high-policy debate is counterproductive for each of these groups. Each of these actors benefit from the diminished trust and continued “debate.”
As tech issues enter the high-policy realm, innovation and entrepreneurship in the United States will suffer. Policymakers pushing for aggressive regulatory action against tech companies and making these firms the target of their political campaigns will dissuade creative individuals from working in the tech sector and make it more difficult for innovators to bring new products to the American public. While politicians may benefit from elevating tech into the political and popular discourse, Americans will lose out on exciting new types of innovation.
