Questions on Market Power & Discrimination for Tech CEOs Testifying Before Congress

On July 29, the CEOs of four major tech companies—Amazon’s Jeff Bezos, Apple’s Tim Cook, Google/Alphabet’s Sundar Pichai, and Facebook’s Mark Zuckerberg—will testify before the U.S. House Judiciary Antitrust Subcommittee to discuss the market power of online platforms.

Of the subcommittee’s 13 Members, four belong to the Congressional Black Caucus (including subcommittee Vice Chair Joe Neguse).  All of the subcommittee’s Members, however, should be concerned that the market power of the platforms facilitates discrimination against Black communities and others, and ask questions to probe into this issue. The subcommittee Members should consider how market power limits product quality, consumer choice, and investment in innovation to develop tools that stop online discrimination.

Market Power as Facilitating Online Discrimination

Digital platforms utilize algorithms that optimize engagement in their effort to draw traffic away from other sites and keep users engaged. Content that generates the most engagement tends to be hate speech, disinformation, and sensationalist stories designed to sow discord. When the platforms err on the side of engagement and eyeballs and fail to invest in systems to adequately prevent voter suppression, hate speech, employment discrimination, housing discrimination, white supremacy, and other discriminatory content, problems arise. Many users may not have a choice to go to another platform to connect with their friends or to stream a video from a collection of 1.3 billion videos. Similarly, many price-sensitive advertisers at small businesses and nonprofits may not have a choice to work with a different platform to reach their intended audience in a cost-effective manner.

To address these issues in the hearing, Members could ask:

• Mr. Pichai (Google), as you know, Google’s Keywords Planner helps advertisers determine which search terms to associate with their ads. When researchers recently entered the term “Black girls” into the Keyword Planner, 47 percent of the suggested terms returned were flagged by Google’s pornography filter as “adult ideas.” But when researchers typed in “white girls,” none of the keyword suggestions returned were labeled as pornographic. Where is the competition that forces Google and YouTube to proactively find and correct these algorithms, rather than defaulting to engagement and ad revenue and simply fixing the problem when the news media uncovers it?
• Mr. Zuckerberg (Facebook), as you know, hundreds of Facebook’s advertisers boycotted Facebook in July due to Facebook’s inadequate handling of online discrimination. In response, your vice president for public affairs Nick Clegg said “We’ve made huge strides… But, you know, on an average day, there are 115 billion messages sent on our services around the world, and the vast, vast, vast majority of that is positive.” As NYU business professor Scott Galloway asked, isn’t Mr. Clegg’s defense an admission that Facebook is too large to safely manage? Is Facebook too big to protect users from online discrimination?
• Mr. Zuckerberg (Facebook), in response to the recent #StopHateForProfit campaign, you reportedly indicated that the boycott is more of a “reputational and a partner issue” than an economic one, that large advertisers who participated in the boycott make up only a small share of Facebook’s revenue, and that “all these advertisers will be back on the platform soon enough.” If you don’t believe that small, medium, and many large advertisers have another choice to reach particular consumers in a cost-effective way, where is the competition that forces Facebook to invest more to develop systems to prevent discrimination on its platform?
• Mr. Pichai (Google) and Mr. Zuckerberg (Facebook), what percentage of your company’s annual revenues do you invest in stopping online discrimination against Black communities?
• Mr. Pichai (Google) and Mr. Zuckerberg (Facebook), it is wonderful that your companies offer products that consumers of all financial backgrounds can use without paying money.  When consumers get products not because they are paying money but because they are providing their attention and their data, however, the question of which other products the consumer would turn to if a platform increased the financial cost of the product is less relevant. When consumers get services because of their attention and data, how should we define markets? In these situations, how can regulators determine if consumers have adequate choices of alternative platforms if consumers feel as though their current platform is not adequately preventing discrimination on its platform?
• Mr. Pichai (Google) and Mr. Zuckerberg (Facebook), do you believe that civil rights laws apply to your companies? Specifically, do the Civil Rights Act of 1964 and the Fair Housing Act of 1968 apply to your companies?  When third-party advertisers pay your companies money for ads and your companies use your targeting and delivery algorithms in ways that either intentionally or effectively steer employment ads and housing ads away from Black and Latino users, do you believe that Section 230 of the Communications Decency Act gives your companies immunity from liability under the Civil Rights Act and the Fair Housing Act? Mr. Zuckerberg, if you do not believe Section 230 immunity is this broad, why did your company argue the contrary in 2017 in Onuoha v. Facebook?[1]  Was it wrong back then?
• Mr. Pichai (Google), Mr. Cook (Apple), and Mr. Bezos (Amazon), as you know Facebook has recently engaged in an independent civil rights audit, and Airbnb has done a similar audit in the past. While the audit revealed challenges at these companies, Facebook and Airbnb deserve credit for actually conducting credible independent audits. Have any of your companies ever done independent civil rights audits? If so, what were the results?  If your companies have not done audits, why not?

Addressing Systemic Bias in Employment, Contractors, and Leadership

While the hearing will focus on antitrust issues, it also provides an opportunity to discuss other important issues upon which the companies have outsized influence due to their size, such as the lack of Black people in technical and leadership roles. While African Americans make up 13% of the U.S. population, they make up a smaller percentage of the leadership at Google (2.6%), Apple (3%), and Facebook (3.4%). Amazon reports that 8.1% of its “management” is African American.

To address issues of diversity among leadership, employees, contractors, and others in the hearing, Members could ask the following to all tech CEOs:

• Recent articles have suggested that tech companies often do not place Black employees in roles at the appropriate level of seniority or pay them on par with their peers. Talk about how you are ensuring this does not happen at your company, or how you are working to address the inequities that may have already occurred.
• Many tech companies received significant tax breaks. How have any of those funds been used at your company to expand Black participation in the tech workforce?
• Given the rise of the gig economy and other types of part-time and contingent working models that tech companies profit from, how are you approaching the portable benefits discussion to ensure better safety net options for Black workers?
• What percentage of your supplier spending is with African American businesses? What responsible supplier practices is your company adopting to increase participation from smaller Black-owned businesses and providers?
• With remote work on the rise, what are your company’s strategies to identify talent in Black communities to expand access to jobs and opportunities?
• As automation continues to accelerate even more in this digital-first world due to COVID-19, how are you addressing the displacement of and new opportunities for Black workers? What investments are you making in infrastructure (broadband access) and digital adoption (digital upskilling for new jobs/pivots)?

Members could ask the following questions to particular CEOs:

• Mr. Pichai (Google), since David Drummond’s departure, what is the diversity of the Alphabet/Google c-suite? I noticed that you have committed to increasing Black leadership by 30 percent by 2025. This is great news. My question is how will you accomplish this goal? Google’s overall Black numbers have not really moved in years – talk to us about how this is a realistic goal.
• Mr. Pichai (Google), there’s a Bloomberg article from July 9 that reports that Google campus security singled out Black and Latinx employees. Since then you have banned the “badge checking” policy. That’s good news. The article says that Black employees still don’t feel psychologically safe. Tell us how you plan to address that.
• Mr. Bezos (Amazon), your U.S. employee base is 26.5% Black, many of whom are essential workers. That’s good. But recent reports have reported that your company has fired several employees who spoke out about working conditions, including one Black employee in New York who led a protest in March. Your lawyer counseled you to discredit the employee’s complaints by characterizing him as “not smart or articulate.” How do you ensure that your employees have adequate measures to express concerns about safe working conditions amid the COVID-19 pandemic? How do you ensure that bias is not used to minimize legitimate concerns from your employees?

[1] See Notice of Motion & Motion to Dismiss First Amended Complaint for Defendant at 2, Onuoha v. Facebook, Inc., No. 16-cv-06440-EJD (N.D. Cal. Apr. 3, 2017) (“Advertisers, not Facebook, are responsible for both the content of their ads and what targeting criteria to use, if any. Facebook’s provision of these neutral tools to advertisers falls squarely within the scope of CDA immunity.”). The Justice Department rejected this argument.  United States’ Statement of Interest at 7, Onuoha v. Facebook, Inc., No. C 16-06440-EJD (N.D. Cal. Nov. 16, 2018); see also Statement of Interest of the United States of America, Nat’l Fair Hous. All. v. Facebook, Inc., No. 18-cv-02689-JGK (S.D.N.Y. Aug. 17, 2018). In 2019, Facebook settled several legal actions and agreed to make significant changes to prevent advertisers for housing, employment, or credit from discriminating based on race and other protected characteristics.