On this episode of Recode Decode, Ron Wyden, the senior U.S. Senator from Oregon, talks with Recode’s Kara Swisher about regulating the internet and protecting America’s elections from both hackers and disinformation peddlers.
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Below is the full transcript of the conversation. You can read a more condensed, lightly edited version here.
Kara Swisher: Today I’m really excited to talk to Senator Ron Wyden. He serves as the senior United States senator for Oregon since 1996, and before that was in the House of Representatives, where I met him, starting in 1981. Recently, he’s been focused on a lot of tech issues including election security, consumer privacy, and the repeal of net neutrality. Senator Wyden, welcome to Recode Decode.
Ron Wyden: Good to be with you!
So we met a long, long time ago in the AOL days, in the ’90s, if you recall.
I remember. And you know what’s striking about it, back then those early ISPs, for example, I was a big defender of those early ISPs because they were the people that we really thought connected the little guy to the internet.
Now, as has been the case with so much of the field, it’s dominated by the big guys, the big cable ...
As they are wont to become. So let’s talk about those early days. The reason I recall you so well is because there was the Communications Decency Act, there was all kinds of things that you were involved in. You were one of the few Congress people that understood tech or had at least some insight.
The more you learn, the less you know.
No, that’s not true.
That’s my principle.
That’s not true. That’s not true. But what got you interested in tech? Because you were one of the few and there were... Markey, I guess? I’m trying to think who was around that was particularly...
The way it happened, Kara, is I was Oregon’s first new United States senator in more than 30 years.
Right. But you were a Congressman before that?
I’d been a Congressman, out of the Portland Metro area, but then I represented the whole state. And I said, “Look, I am going to fight like crazy to promote forestry,” that’s what I was speaking about on the floor. And I also said, “We gotta get into some new things.” And I found, for example, when I got to the Senate, the only person who really knew how to use a computer was Pat Leahy. And I said, “This is a natural for us, small state in the west, in between California and Washington. We can really excel in a whole host of areas in technology.”
And you had Intel.
And what I found was a lot of things people were looking at doing either called for using brick-and-mortar kind of approaches for this whole new digital space or were presenting a cure worse than the problem. And, for example, the way we got into Section 230, which I think now is the foundation of internet jurisprudence, is people said, “Hey, these websites and blogs, people are going to get held personally liable for something posted on the site.”
And I said, “I don’t know everything about it,” but I said, “Nobody’s going to invest in social media.” So we came up with an approach, Section 230, that was about creating a shield, so as to not have these early entrepreneurs, you know, clobbered by frivolous stuff. But also a sword to deal with irresponsible conduct. And we can stop there because part of the reason the companies are in so much trouble is that they haven’t been using the sword.
Right, exactly, so we’ll get to them in a minute. So you started to do that, and you started to work on all sorts of internet things. When you look back to the involvement of political figures, I think it was very helpful in the early days. Between you, Gore, all the others were really supportive of this industry and very much brought the United States to the forefront in owning innovation, really, across the globe for a very long time now.
Yeah, I mean the early days of the net were so exciting because the feeling was, what this was all about, is creating policies that help consumers and encourage innovation. And I mentioned how ISPs now are very different; there are people trying to derail net neutrality, trying to sell off people’s browsing history, all this kind of thing. And the same is true of the tech companies. You know, back then there was a lot of innovation — of course, there still is. But big tech today seems, primarily, about clicks, monopolies and then monetizing at all costs. And I think that’s why they’re in a lot of trouble.
Right, they’re in trouble. But back then the government, I’m trying to give you credit, the government was very critical to getting them to where they are. By giving them protections under the law, by investing, by turning over the internet itself to these commercial interests.
Well, we were operating under the assumption that it made sense to promote rights and responsibilities. The rights were the shield and the responsibilities were, you know, the sword. And what the companies have done, whether it’s 2016 or Alex Jones, shows that they really haven’t dealt much with the responsibilities. And let me just lay out where I am with Alex Jones…
Right. Okay, let’s start first with the broader picture is that these companies, they grew enormous through all kinds of help and their own innovation. And then when they get there, they don’t want to take the responsibility. You know that’s been my drum I’ve been beating on, the responsibilities that they have. Let’s start with each of the things. Before we get to Alex Jones, can we get to Cambridge Analytica and election security first, if you don’t mind?
Yeah! This really drove home what the consequences are of a private company — Facebook — not being responsible. You know, people had their rights violated, we continue to find out how users are being harmed as a result of all the things that came out post-Cambridge Analytica. But also it is a huge issue as it relates to election security. I have a major piece of legislation now, PAVE, would require paper ballots and risk-limiting audits. But if you have a Cambridge Analytica, it’s really bad for national security because people can take all that information and use it to try to target constituencies.
Do you think it’s because these internet companies weren’t regulated, that you all should have anticipated that this was the possibility? Or that you’re now sort of cleaning up afterwards?
My sense is that in those kind of early days — and we all remember the excitement of it — net companies were doing important work in health care, in education, in finding jobs. People were essentially asleep at the switch, as it related to the relationship between the sword and the shield. What I tell the companies now — and by the way, the companies don’t come around very much to people like me anymore. In the beginning, they always did but right now they’re saying, “Hey, Ron’s really going to take us on.” And I’ve told them point blank I said, “Guys, if you don’t use the sword, you are going to lose the shield.”
Right, okay. So with election security, what is happening now in Congress? And what is the possibility that anything is going to actually pass?
Well, what I’m doing is I’m pulling out all the stops. Taking on these voting machine companies that have behaved incredibly irresponsibly. And they’re responsible for essentially teeing up the votes for at least 40 million people, and perhaps more. And to give you an idea, because you’re a Times contributor, how irresponsible they are: The major voting machine company, ES&S, lied to the New York Times about a crucial question. We had begun picking up reports that they had installed remote access software in their products.
So they could deal with it, right?
And what I said is, “That is about the most irresponsible thing you can do in cybersecurity. The only thing that’d actually be worse is leaving the ballot boxes on the street corner in Moscow.” They lied to the New York Times about them doing it. They said they hadn’t, then they had to admit they did. And the voting machine companies have basically been above the law. If I had my way — and I don’t have the power now in the Senate — we’d subpoena ’em and we’d put them under oath to talk about what they’re doing, because I think that this is really undermining our democracy.
So what I’m trying to do — and the next few weeks are going to be crucial because the Senate Rules Committee is working on a bill — is pass something called the PAVE Act. And basically, just two things: Require the availability of paper ballots and require that we have audits at the end of the election.
At the end of the elections. And what about the money that’s been allocated to work on this? Now, it hasn’t been spent, it’s not been a priority, and I want to get into what the companies should be doing and what you think they’re doing.
The money is one of the best ways in which the federal government, with the framework we now have, the legal framework for conducting elections, can actually generate reform. As you know, the Founding Fathers envisioned that elections would be primarily local in nature. So what everybody’s gonna say is, what’s the federal nexus? So the pot of money and my hope is that this will be a principle going forward, should be, “Hey, states, you don’t have to take any of this money if you don’t want to! But if you do we are going to require that we do more.” And a lot of machines, I guess, they’re just going to scan a scan. They’re not going to let people really see that their vote is what they intended.
Their vote is their vote, thank you.
And what is the responsibility of the social media companies? What kind of pressure can you put on them to ... because essentially, these were not hacked. With machines, you’re talking about the possibility of hacking. In this case, these platforms were used for exactly the way they were built. They weren’t particularly hacked.
Yeah. The social media companies basically got outed in 2016. And since then, practically every single thing they’ve done has been either a bizarre idea or not really doing much of anything that’s actually gonna help people.
So tell me about that.
I mean, there is in this dark period some things we can actually look to. I’m trying to follow the opportunities for downranking because I think that might create a light at the end of the tunnel. But unless these guys are gonna be serious about using the part of 230 to get after people who behave irresponsibly, then I think they are looking at the changes they aren’t gonna like.
Such as? What changes?
Oh, well, Mark Warner lays out his plan and that is really sweeping, kind of stuff. I mean, you know, I’m a libertarian. Or somebody, excuse me, I’m somebody with a libertarian streak.
Okay, all right.
And, I’m a First Amendment fan. But I’m really concerned about some of these things that look like they might be prior restraint and the like. What I wanna see is, I wanna see the companies step up. And that’s why I mentioned Alex Jones, because ...
All right, we’re gonna get Alex Jones in the next section.
Well, it’s apropos of this as it relates to elections. Is Alex Jones and election tampering is really what Section 230 is all about. Let’s just kinda walk through the Alex Jones and the election kind of issue. I mention I got this libertarian streak, First Amendment defender. But when you have somebody who calls the parents of murdered kids liars, then claims that their kids don’t exist, then you have blown past the bounds of common decency, and platforms need to take the slime down. The same is true in terms of the election.
Tech companies are under scrutiny. There’ll be hearings soon around all kinds of issues. They had the Twitter, Facebook, Google, they’ve already been on Capitol Hill. Mark Zuckerberg’s been on Capitol Hill.
I wanna get into your assessment of how that went in a minute, but let’s talk about the Alex Jones thing in more detail. Because everyone’s had ... initially they were very much against doing anything about it. I had podcasts with Mark Zuckerberg where he talked about allowing this stuff to go on. Then they made a switch, removing Alex Jones from the platform. So did Google, so did around YouTube, so did others. Twitter has held firm. Talk to me about the difficulties of dealing with stuff like that. Because there’s First Amendment issues, then there’s not freedom from consequence of what you say, too.
Well, I think what the Alex Jones case shows, we’re gonna really be looking at what the consequences are for just leaving common decency in the dust. That to me — and I’ll have some more to say about it, as you know I’m working on a privacy bill. I think that the heart of it has gotta be citizens controlling their private data, I think there’s gotta be real transparency, there’s gotta be consequences for misusing someone’s data. But this goes right to the heart of the real value of Section 230.
I guess, if people wanna say, “You know, we oughta just have the government start dictating...” By the way, one of the most stunning aspects of the last couple of days is to see conservative politicians, people like Kevin McCarthy and Ted Cruz, they are essentially saying that the government should run private companies, the government should dictate to private companies what they’re doing. I’m sure it’s very popular with their base, but doesn’t happen to be the right thing. And I think that there’s a much better model that was bipartisan that really relates to what I call rights and responsibilities, that was what Section 230 ...
What rights do you think that they should have now? How do you assess their reaction to, just let’s use Alex Jones as the example, how do you access their reactions to him and the changing nature? I do think at some point Twitter is gonna throw him off the platform, my guess is they’re preparing that.
What I’ve been disappointed in is how long it took, and how they really are not looking at fleshing out a policy. What’s hard in this area is tech is so dominant in our life that it is sort of the ultimate in ad hoc policy making. Something goes on on Tuesday, Congress folks come back with their policy on Wednesday or Thursday, the history is that that’s usually not very good. That’s what leads us to SESTA and FOSTA and PIPA and SOPA and all these acronyms that were bad policies. What I’ve said to them in the few conversations we’ve had, we haven’t had many, is, “What you really wanna do is see if you can build around a core set of values.”
Yeah, I talked about that.
That’s what I was saying. I very much enjoyed your article where you said, “Hey, it’s not just about a bunch of laws, you can have a crate full of laws, if you don’t get your values right.” And so, what I’m gonna be trying to do in my legislation is to really lay out what the consequences are when somebody who is a bad actor, somebody who really doesn’t meet the decency principles that reflect our values, if that bad actor blows by the bounds of common decency, I think you gotta have a way to make sure that stuff is taken down.
So that’s a hornet’s nest with the people. The idea of what they take down, who decides. There’s a lot of people uncomfortable with tech companies deciding these things. I think they do already, by downgrading them. I think they’re already doing a version of that, they’re already making decisions. Why do you think they’re resistant to it? I know they’re resistant to being called media companies, I think that’s precisely what they are, media companies have responsibilities.
Yeah, individually odd monopolies, too, because there’s so many of them.
They are, they are monopolies, and these people that were innovators at the beginning and trying to give consumers a fair shake now seem to be interested in monetizing at all costs.
So, by the way, if we were talking about really horrible pornography, I think they would have moved pretty quickly to deal with it. I think it’s also worth noting that, with respect to Alex Jones, there are probably a thousand accounts out there that are as bad as Alex Jones.
Right, right, absolutely. So what do they do? Because they aren’t public entities. Like, the government is restricted to what it can do around the First Amendment, but these are private companies, they’re public companies, but they’re companies. What has happened here? I asked Mark Zuckerberg this, I called him a nation state. He’s like, “No, we’re just a company.” I’m like, “But you kind of operate like a nation state.” How do you then manage that from a government point of view when these companies have such enormous power and you don’t really want them to be making these decisions? At the same time, you want them to be responsibly monitoring their platforms.
We wrote the rules of the road. You were talking about the 1990s when ISPs were small. I think most of that body of internet jurisprudence makes a lot of sense. I mean, what we said on taxes, our 10,000 taxing jurisdictions, we don’t want every small taxing jurisdiction to take a bite out of new entrepreneurs, we basically said you couldn’t discriminate, we talked about Section 230. Digital signatures, nobody ever heard of them and now you race through a real estate contract with digital signatures. I think most of that body of law made sense.
Let me give you an example. Actually, I was coming over here juggling all the subjects, and I say here’s one I think Kara would be interested in. You know Backpage?
Which was really a celebrated example of something people didn’t like, there were congress hearings, Rob Portman, you know, everybody.
Yeah. I’m somebody who spent a lot of time legislating against the abhorrent sex traffickers. You know how Backpage was essentially busted? They were busted under existing Section 230 law. The reason we had problems is because law enforcement didn’t move aggressively enough and quickly enough. And after a while everybody said, “Oh, we can’t do anything about it, let’s go pass this really flawed law, SESTA and FOSTA,” which in my view is gonna take the worse guys ...
Explain that for people who don’t know.
Yeah, this is basically the law that, in effect, lifts Section 230 and allows for the prosecution of sex traffickers. I think what it’s going to do is drive the really bad guys to the dark web. These are places where you can’t get to with a search engine. I keep telling people, everybody interviewed me about Backpage, I said, “Hey, you might wanna take a look here, because before you pass this really flawed bill which has ex post facto provisions and all kinds of other things that are troubling, take a look at the fact that the one thing out of this debate that was really beneficial is we got federal law enforcement to get going, get serious, and they busted Backpage, while Section 230 was still the law of the land.” In other words, SESTA and FOSTA didn’t do it, it was existing 230 law.
And, by the way, when we had SESTA and FOSTA on the floor, I offered an amendment that said the focus ought to be to get more prosecutors, and some of the people who hollered the most on the Republican side about how terrible this was, they wouldn’t vote to deal with what the heart of the problem is, and that has been inadequate federal law enforcement.
Right, enforcement. So, where do you ... With the companies coming to Congress, the last Mark Zuckerberg hearing was not the most illuminating, I think. I don’t know. What were your thoughts on that?
I think that that’s right.
I’m being kind.
Yeah. I’m not gonna criticize my colleagues, and ... You know, the point is these are really technical, detailed issues. I’ve brought some examples today, in terms of ... You know, cybersecurity. I mean, the government is just basically comatose in terms of cybersecurity. So what we did in our office is basically said we’re gonna push the Pentagon and the NSA to encrypt their unclassified emails. They finally did that, starting this month.
Let me tell you something. Foreign governments can really weaponize unclassified information. We went after LocationSmart, we went after Securis. These are shady companies buying people’s data. Stingrays, SS7s. My website was the first to be encrypted. I think it is a continual battle to try to take issues like these — which are very technical, probably aren’t known to lots of members of Congress — and say, “Hey, guys. This is why we really need some major cybersecurity reforms.”
I mean, the Trump people, from a personnel standpoint, they’ve unilaterally disarmed. They got rid of their cybersecurity expert. The passed legislation a couple years ago, I was down on the floor talking about CISA, the cybersecurity ... and all that was was a big bailout for the companies. Gave them a big handout, so that they didn’t have any liability. Then you have a captured FCC, where Ajit Pai lied to Brian Schatz and I. He basically lied about the lie. So, what you do is, you fight on a variety of these fronts, and look for opportunities, maybe ...
But is Congress equipped to do that? Because you’re saying if they’re comatose on all these different issues, from net neutrality ...
That’s why I said the agencies.
Agencies, yeah. But also Congress. There’s new hearings coming up with Facebook, Google and Twitter. Are these gonna be any better or are these just show trials, essentially, that lead to nothing?
Well, I think they’re important hearings. I personally think that the Intelligence Committee has missed the single most important issue, which is the follow-the-money issues. Because what we’re supposed to be all about is counterintelligence, and following money is counterintelligence 101. You know, because if you want to compromise somebody, you do it through money. But I do hope that at this hearing we particularly will be able to get out the election security questions, because I am very concerned about where things are for both 2018 and 2020.
I think the voting machine people are still in the driver’s seat. They have a coalition with the secretaries of state. I admire the secretaries of state. They’ve got a hard job. But, I mean, every time we try to say, “Let’s cut to the heart of what’s needed ...”
Of the technology problem.
Yeah, “To make it possible to have a safer election” — which are paper ballots and real audits — “Oh, my goodness, way too complicated! Too much expense!”
Senator Wyden, if the Democrats do take over the House, what do you imagine will happen? Besides millions of subpoenas going out.
Let me tell you what I’m working on. I want to make it clear ... In the new privacy bill that I’m working on, if you are misusing consumer data and harvesting people’s information wrongly, I want to come after you.
And I want real transparency on how people’s data is being used, and I want consequences if a company loses or abuses somebody’s data. And one part I was thinking about mentioning with you ... You know, data breaches are not just about losing a bunch of business records. You put people’s whole lives into the hands of criminals and spies and scammers.
Right, right, right.
And then it’s also a national security issue, which is what we were talking about.
So what do you expect? Are Democrats ... You know, it seems to me that Democrats used to be so close with the tech companies. Now, they aren’t so much. I think tech companies are more worried about Democrats than Republicans, for sure. Although they’re certainly worried about Republicans in different ways, in terms of them complaining they don’t get enough access, essentially.
We’ll have to see. But if the Republicans pick up this stunning argument that we’ve been talking about — Kevin McCarthy and Ted Cruz — that the government should take control of private companies, and dictate how they operate ... I’m telling you, that will be a real opportunity for Democrats like myself, who believe in the First Amendment, who have a libertarian streak, to show this will just be a disaster for America.
Mm-hmm, for America, if they don’t get to ... Of course, their complaint is that they don’t get to speak. The generalized complaint of conservatives is that they’ve been shadowbanned. There’s all kinds of allegations of not being able to have their say.
But you’ve pointed out in your own articles, they come up with these new terms to get everybody all ...
All scared. I think they did pretty well in the last election.
Yeah, and they also never seem to shut up. I don’t think anyone seems to shut up on the internet, whatever party you happen to be in. So, what do you imagine ... You don’t think there’ll be more onerous regulations, or regulations at all? When you look at Europe, for example, they’re quite far down the road, compared to this country.
We’ve got to pass a privacy bill that ensures that people get to control their own data. They get real transparency. There are consequences. I want paper ballots and audits for the 2020 election. Look at what we’ve seen in the last couple of days. I said a month ago, a month or six weeks ago, that Donald Trump seemed to be on his way to creating an enemies list in terms of national security advisers. And I say that to your listeners, I disagreed with John Brennan on lots of stuff. I was the one who took him on when he spied on the Intelligence Committee’s files. But I think this idea that they’re moving to put together some kind of list is really ... It’s not just Richard Nixon, but it’s gonna compromise national security.
All right, so what else might be passed?
Well, I want election security.
All right. Privacy bill, election security.
And I want to make sure that as we work through the 230 issues we don’t walk away from something that I think has been of great benefit to this country. My wife the other day said, “I read, dear, that you created a trillion dollars’ worth of value in the private economy.” She owns the Strand Book Store. She said, “Well, I’ve never seen any of it.” I said, “If you did, it just goes to show, a blind squirrel’s gonna find an acorn.” I think we got a lot of good done in this. And what I’m gonna do is, I’m gonna tell the companies, “Ya better start using this sword, because if you don’t, everybody ...”
We’re gonna stick it to you, basically.
Yeah. Everybody’s gonna say, “You had it good for a while, and you’re gonna have to do more.” I want to close so we’ve got a fourth point.
I want to get right this question of what happens in an Alex Jones case. It’s something I’m working on and I’m gonna put in my bill, to define what happens if you go beyond the boundaries of what I call our shared value of basic decency.
All right, but which is hard to define. Last question. I know you have to go. Your aides are going crazy outside. What would you do, if you had Alex Jones on your platform? If you were running?
Down. For the reasons I’m talking about. He violates the core principles of basic decency that I’m going to ... In a very complicated area, a very difficult area. It’s why I listed all those cybersecurity things. People were laughing and said, “Ron Wyden told us how to swipe right on Tinder, and he’s protecting people’s privacy.’ I said, “Well, the point is those are all small, techy things. But hopefully they’ll light a fire, and get people more serious…”
Down, says Ron Wyden.
Down. All right. Senator Wyden, thank you.
Let’s do it again.
It was great talking to you. We will. There’s a lot to talk about.
This article originally appeared on Recode.net.