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The House Democrat Taking On Silicon Valley

Cicilline is an unlikely leader of a bipartisan coalition. He’s a feisty combatant for the left on Fox News and a pugnacious tweeter. That morning, he had written on Twitter that the Republicans at the impeachment hearings were asking questions that were “absolutely bonkers,” adding, “I’m half-expecting to hear them bring up the grassy knoll…

Cicilline is an unlikely leader of a bipartisan coalition. He’s a feisty combatant for the left on Fox News and a pugnacious tweeter. That morning, he had written on Twitter that the Republicans at the impeachment hearings were asking questions that were “absolutely bonkers,” adding, “I’m half-expecting to hear them bring up the grassy knoll or jet fuel melting steel beams next.” This month, during the debate over Iran, he wrote that there are “real questions about whether the president knows what he’s doing.” But for his Silicon Valley investigation, he’s drawn unexpected allies to his side, not just Rep. Jim Sensenbrenner, the Wisconsin moderate who is his Republican counterpart on the subcommittee, but top Judiciary Republican Doug Collins and Rep. Matt Gaetz, both fervent Trump allies who have harangued Cicilline and his Democratic colleagues over impeachment.

“I’m very encouraged that we might be able to unite the populist right and the populist left,” Gaetz said in the early days of Cicilline’s investigation. He still counts himself a supporter of the effort.

Perhaps one reason for the strange bedfellows is Cicilline’s willingness to take on his fellow Democrats, as well as Republicans, for abdicating their responsibility—in his view—to rein in the Big Four over the past two decades. The party in Shaw was to celebrate the release of Matt Stoller’s book Goliath, which grew out of a widely discussed Atlantic article about how corporate Democrats “killed their populist soul.” Giving speeches alongside Cicilline at the event were Faiz Shakir, Bernie Sanders’ presidential campaign manager; and Rohit Chopra, a Democratic Federal Trade Commission commissioner who has strongly criticized his own agency for what he sees as its inadequate approach to Silicon Valley. Cicilline called Stoller, a staunch proponent of more stringent antitrust enforcement, “an inspiration,” and thanked him for telling such an “important story.”

But Cicilline has also drawn allies because his investigation is regarded as scrupulous and serious, something Congress does not always have a reputation for these days.

As the investigation has rolled along, Cicilline’s questions have gotten more precise.

Why, exactly, did Facebook decide to cut off Twitter’s Vine video app’s access to its data caches?

What percentage, exactly, of Google searches point users to sites Google owns?

How, exactly, does Amazon decide which vendors get featured its prime real estate “buy boxes”?

Who, exactly, inside Apple can listen to the things we say to Siri?

And so people are watching closely to see where David Cicilline’s high-tech investigation ends up, which he says he expects to happen sometime in the next few months. Will it do anything to reset how Washington copes with Silicon Valley? Or will it turn out like much of the anger being directed at the Big Four by political leaders: a loud, attention-getting exercise that only underscores how little Washington has done to check the enormously profitable and powerful tech industry?

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Unlike the Federal Trade Commission, Cicilline can’t issue fines. Unlike the Justice Department, he can’t bring criminal charges. He can’t single-handedly pass new laws. He needs the blessing of his committee chairman, New York’s Jerry Nadler, just to issue subpoenas. What he can do, and has done, is to convene high-profile hearings, inscribe evidence extracted from the tech companies into the public record, and turn his office into a safe space for those frightened by the Big Four. But that doesn’t mean that Silicon Valley’s critics haven’t invested a great deal of hope in what David Cicilline does next.

“It’s been decades since Congress has undertaken an investigation into a sector like this. You have to go back and look at the ’40s, ’50s and ’60s,” said Stacy Mitchell, co-director of the Institute for Local Self-Reliance, an advocacy group fighting against economic concentration that has emerged as one of the most prominent critics of the tech industry in Washington. Mitchell testified before Cicilline’s subcommittee in July.

Anyone who recalls the widespread mockery of the questions posed to Mark Zuckerberg when he testified before a couple Senate committees in 2018 knows that this isn’t even a dirty secret in Washington: Nobody, from lawmakers to regulators to reporters, really and truly understands how companies like Facebook, Google, Amazon and Apple, work, day in and day out. So Cicilline says he wants to lift the hood, and then describe in intricate detail to the rest of Washington exactly how the engines of Silicon Valley work.

And that, the thinking goes, could lead to changes in the country’s long-standing antitrust laws or compel competition regulators to act.

Cicilline has held five public hearings so far, but those close to the probe say that he and his staff are also doing crucial behind-the-scenes work with companies that fear testifying in an open hearing room and whose grievances could serve as key evidence in future legal cases against the Big Four.

One top executive from a tech-sector firm would discuss Cicilline’s inquiry only anonymously, writing in an email: “We are greatly encouraged by the Chairman’s work, and the expertise of his staff. To ensure the investigation has the maximum impact, we hope he will provide strong and specific protection against retaliation for companies that have the courage to come forward.” (The Big Four companies all say they don’t engage in such retribution.)

As Cicilline sees it, Washington has been too deferential to tech for too long. He describes himself as seriously underwhelmed, for example, by the FTC’s July settlement with Facebook over data privacy complaints, including the $5 billion fine he and other critics have called largely inconsequential for a company of Facebook’s enormous resources.

Even so, the investigation needn’t be antagonistic, Cicilline insists. He got on the phone with top tech company executives, including Apple’s Tim Cook, back when he started his investigation, he says, just so their firms’ first experience with the subcommittee wouldn’t be at the other end of a subpoena or document request.

Still, he says, the relationship between Washington and Silicon Valley does need to change.

“These big technology companies have sort of been the golden boy or girl of the American economy,” says Cicilline, sitting at the head of a conference table in his second-floor Rayburn House Office Building office in July. An Apple Watch was strapped to his left wrist.

To Cicilline’s left sat Slade Bond, a long-time Judiciary Committee staffer who serves as the subcommittee’s chief counsel. Absent was Lina Khan, a lawyer who wrote a landmark 2017 Yale Law Journal article called “Amazon’s Antitrust Paradox” and is perhaps the closest thing to a rock star in the tech-meets-antitrust world. She often sits behind Cicilline at hearings. Her hiring in March was taken as a sign by many in the antitrust world that Cicilline was serious about wielding his new powers.

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“This smell is not the normal smell of this office,” says Cicilline by way of greeting, at the start of an interview. He’d just sprayed himself for poison ivy. “That’s what happens when you do your own yardwork,” he says. “I don’t recommend it.”

Compactly built, deeply tanned and typically clad in conservative suits paired with a colorful tie, Cicilline has the vibe of the hard-charging lawyer he was before he entered politics. Born in 1961 in Providence, Rhode Island, with a father who was a lawyer who represented East Coast mafioso, Cicilline attended Brown University—where he started up a chapter of College Democrats with John F. Kennedy, Jr., before heading south to D.C. to attend Georgetown University’s law school.

In 2002, he was elected mayor of Providence, the first openly gay mayor of a U.S. state capital. He served until 2010, when, this being New England, his fortunes were shaped by another Kennedy: Patrick, Sen. Ted Kennedy’s youngest, who announced that he was retiring from his Rhode Island seat in the U.S. House of Representatives. Cicilline ran and won a close race.

And in the decade since, Cicilline has climbed the Democratic ladder. He now holds a post in the Democratic House leadership, as chairman of his party’s policy and communications committee.

He has a sharp edge, and on cable news or the hearing room dais, he can come across as impatient with ambiguity, disdainful of those who disagree with him—whether it’s a witness before him or a TV host. “Maria, that’s just not true!” he once shouted at Fox News’ Maria Bartiromo to contest a point on tax policy. To an Amazon attorney in July he thundered, “I remind you sir, you’re under oath.”

But again and again, in interviews with colleagues, friends and former staffers, Cicilline is described as charming, funny, caring, generous, warm, trustworthy, thoughtful, the life of the party. Ciciline has “a delightful personality,” said Rep. Annie Kuster, a New Hampshire Democrat. “Most people [in Congress] are either very serious and, frankly, kind of grumpy, or they swing to the gadfly—always cheerful but never really digging in,” Kuster said. “David has struck a balance that I admire and try to emulate, of being friendly but doing serious work.”

When in Washington, Kuster, Cicilline and several other members of Congress stay in an apartment building in Washington’s Navy Yard neighborhood, where Cicilline held a recent debate-watching party, with about five dozen attendees. He is, Kuster said, “reliable on the potluck.”

Cicilline came into office nearly ten years ago with little real background, or interest, in tech or antitrust, as he now admits. He joined the subcommittee when, he says, Nadler told him to try something new. When he started doing the homework on economic concentration, he started to appreciate the stakes of having a handful of big companies dominating Silicon Valley.

As for any more personal experience with the perceived threat posed by the Big Four, Cicilline points to this: His path to the mayor’s office was smoothed, as a 41-year-old member of the statehouse, by the corruption conviction of Mayor Buddy Cianci, whose misdeeds were documented by the Providence Journal.

Like other local newspapers, the Providence Journal has struggled of late, a decline that Cicilline and others attribute, at least in part, to what the “digital duopoly” of Facebook and Google has done to the journalism business, sucking up advertising dollars that, the thinking goes, should go instead to publications like the ProJo.

“This is about access to trustworthy and reliable news and information,” says Cicilline in his office. “If we lose that, I think we put our democracy in real peril.”

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Baked into Cicilline’s criticism of Washington’s failure to, as he sees it, establish any sort of guardrails during Silicon Valley’s historic rise into an economic, political, and social powerhouse is the fact that while much of it was happening, Democrats were in charge.

It’s a critique heard in some segments of the left of late, where some critics argue that the Obama administration was distracted when it came to tech, whether by Silicon Valley’s fundraising prowess, or a genuine belief in the information revolution as a force for enormous good, or the rise of ISIS, or the Great Recession, or the prospect of future job offers out west. White House press secretary Jay Carney joined Amazon after leaving the White House, senior presidential adviser David Plouffe went to Uber, and other administration officials ended up in places like Facebook, Airbnb and Square.

Elizabeth Warren now leads a small but vocal coalition of Democrats who argue that the time has come, right now, to break up companies like Facebook, an argument that hasn’t been heard much in the tech industry since the 1990s-era antitrust investigation of Microsoft. Other Democrats, though rattled by everything from Cambridge Analytica’s role in the 2016 presidential election to online shopping’s apparent effect on Main Street, aren’t ready to go that far. Some even suggest that naming and shaming companies you don’t like before the end of a congressional or agency investigation sounds very much like something Donald Trump would do.

And Trump, to be sure, has done just that, issuing mostly unsubstantiated claims that the Big Four are endemically biased against conservatives in ways that are manifested in their products. Those thoughts are also voiced by some of the Republican caucus’ most vocal members, like Sens. Josh Hawley of Missouri, Marsha Blackburn of Tennessee and Ted Cruz of Texas. But the libertarian wing of the right recoils at the idea of Washington interfering with the free market, or, shudder, rewriting the country’s antitrust laws to target companies that politicians don’t like. And that thinking influences a broad swath of Republicans who are wary of Silicon Valley for its power and cultural influence but blanch at the idea of Congress jumping to the conclusion that this or that private company is irredeemable.

Cicilline—who argues that the break-up talk is getting ahead of things—has largely managed to maintain this fragile coalition, which agrees that Silicon Valley’s power is worrisome but sharply disagrees on what, if anything, to do about it. So far.

“He’s asking important questions to try to get a sense of what the real issues are,” says Justin Brookman, an Obama-era FTC official who is now the director of consumer privacy and technology policy at Consumer Reports. “It’s not as simple as, ‘Let’s break them up all.’ It’s a bit more involved than that.”

Near the start of December, reports started circulating that Warren was drafting legislation to ban so-called mega mergers involving multibillion-dollar companies—and that she was working on it with Cicilline. The news called into question Cicilline’s insistence that he would propose antitrust reform laws, if any, only after he completed his investigation.

Asked about the reported collaboration, Cicilline said he and Warren haven’t had direct talks on any such bill, but left open the possibility that his staff and hers might have had informal discussions.

The rumors of Cicilline’s would-be alliance with Warren didn’t publicly cost him any members of his ad hoc coalition, but the odds are good that the weeks or months until he wraps his investigation will involve not just hearings and document requests but a careful navigation of the political minefield before him.

If Cicilline manages to hold together the coalition he’s assembled while also reaching some politically palatable but powerful conclusions—that, for example, regulators have been left no choice but to crack down on personal-data-based business models, or that Congress has been compelled by events to overhaul the country’s antitrust laws—Cicilline has the chance to leave a lasting mark on Washington.

That’s exactly what his critics are afraid of.

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“You can’t just ignore facts that don’t prove your presupposed conclusions. That’s not how ‘investigations’ work,” says Carl Szabo. “Especially from the Judiciary Committee? We should be better than that.”

On a warm Friday in October, sun streamed in the window of Szabo’s K Street offices, decorated with thick books on telecommunications law, a LEGO R2-D2 and framed mock patent applications of heavy machinery from the “Star Wars” universe. Szabo is the outspoken vice president and top lawyer for Silicon Valley’s most aggressive lobbying presence in Washington: a group called NetChoice, which counts Facebook and Google among its members.

Szabo’s job is to say what the tech companies don’t want to be seen saying themselves, which, in this case, is that Cicilline is unfairly targeting them. That he isn’t after going after bad corporate behavior but simply taking scalps from some of the highest profile companies in the world. That, despite his declarations that he is keeping an open mind, the result of his investigation is a foregone conclusion. Cicilline, the argument goes, is convinced there’s no competition left in the tech industry. Says Szabo, ever heard of TikTok?

Cicilline’s investigation won’t add up to much of anything, Szabo insists, because there’s no there there. The worry, though, is that he adds his powerful voice to the “cacophony of people complaining about technology”—many of whom, Szabo argues, are motivated, somewhat perversely, by the desire to get their name in headlines smack up against mentions of Facebook, Google and the rest. “I think the whole reason we’re even talking about these groups is because of SEO,” or search engine optimization, Szabo said.

And Cicilline has sometimes given ammunition to those who believe that he’s in it for the headlines and that he’s being vindictive when he’s not enjoying it all a bit too much.

During his investigation’s second hearing, in July, he got into a back-and-forth with a witness from Amazon, associate general counsel Nate Sutton, over how the company uses the shopping data it collects to decide its own product offerings. “You do collect enormous data about what products are popular, what’s selling, where they’re selling,” Cicilline said. “You’re saying you don’t use that in any way to promote Amazon products?”

Sutton attempted to testify that offering house brands is a common practice among retailers, and, what’s more, that Amazon uses data only in the aggregate to inform its retail decisions, not insights gleaned from individual sellers. This is when Cicilline demanded a clarification and declared, “I remind you sir, you’re under oath.”

Days later, Cicilline sent a letter to Sutton’s boss at Amazon saying he was “troubled” by the lawyer’s testimony. Nor did Sutton’s fellow witnesses, from the rest of the Big Four, get off easy. Cicilline’s chiding note to Facebook said that company’s witness “claimed he was unfamiliar with basic facts” about the business.

Cicilline returned to the topicin mid-September, when he fired off letters to the companies asking scores of questions about their operations. The letter to Amazon had 158 separate requests for information, including on its contested use of seller data.

While waiting for answers, Cicilline tweeted out a news story detailing Amazon’s tweaking of its search algorithm to benefit its own offerings, adding, “Lying to Congress is a serious crime with serious consequences”—an unusually combative move during an open investigation.

Cicilline can be said to have won the round—eventually. When Amazon responded to Cicilline’s information request, its technical answers were interpreted by some to award the points to the congressman. Read a CNBC story on the matter, “Amazon admits to Congress that it uses ‘aggregated’ data from third-party sellers to come up with its own products.”

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Ciciline has said his investigation is on track to wrap early this year. One possible outcome: The report it produces ends up so hard-hitting that it alienates centrists—including the Republicans rounding out his bipartisan coalition. With Washington so utterly divided, that would make his subcommittee’s work easy to dismiss as yet one more exercise in partisan point-scoring. The news cycle would move on nearly instantaneously, and with it the rest of Congress.

Another possible, even likely, outcome: that his investigation keeps its bipartisanship while avoiding a call for sweeping reforms, and thus also gets ignored in a political landscape that doesn’t register anything other than full-volume declarations of misdoings. The news cycle would move on nearly instantaneously, and with it the rest of Congress.

Or, Cicilline’s subcommittee could write the most exquisite report, laying out a path forward for the future of technology in the United States that strikes a perfect balance of preserving the public good while fostering innovation—and it gets ignored by a Senate that has shown little interest in rethinking antitrust rules and which is at the moment utterly consumed by the fight over whether Donald Trump should be removed from office.

All that makes Cicilline’s chances for fundamentally revamping the country’s antitrust laws or resetting regulators’ approach to Silicon Valley slim. But as Cicilline sees it, it’s too important a battle to stop waging.

For years, says Cicilline, people in Washington like him let Silicon Valley run wild. “I think they’ve been more familiar with letting them go, letting them flourish—just sitting back and watching,” he says. “I think we’ve reached a point now where we have a responsibility to do more than that.”

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