Highlights From Senate Facebook Hearing

Facebook CEO Marc Zuckerberg escaped from the five-hour Senate hearing relatively unscathed.  Below are the highlights and fallout from today’s hearing.

Zuckerberg’s Opening Statement

The Facebook CEO continues to argue that mistakes were made because of Facebook idealism.

Senator John Thune (R-SD)

“After More Than a Decade of Promises, Why Should We Trust Facebook?”

Commerce Committee Chairman Thune opened the hearing with the $10,000 question – Facebook has been apologizing for a decade, why should we believe you now.

Senator John Kennedy (R-LA)

“Your User Agreement Sucks”

Senator Kennedy has shown a knack for hammering home an obvious point that others duck.  In a recent confirmation hearing for a district court appointment, Kennedy laid bare the nominee’s inexperience by pointing out his lack of trial or courtroom related experience.

Here Kennedy hits Zuckerberg over Facebook’s approximate 3,500-word terms of service, which is a mere postage stamp compared to the iTunes agreement which once totaled over 20,000 words and was converted into a graphic novel.  One thing that may come out of this debate is the need to create templates for website and privacy disclosures.

Senator Dick Durbin (D-IL)

Zuckerberg Values His Own Privacy

Senator Dick Durbin threw a curve ball at Zuckerberg that forced him to acknowledge his value for his own privacy, in ways that may be inconsistent with the platform he runs.

Senator Lindsey Graham (R-SC)

“Is There an Alternative to Facebook?”

Senator Graham pushes Zuckerberg on whether or not Facebook is a monopolist.  He also pushes them on their terms of service as “this ain’t working.”

Senator Kamala Harris (D-CA)

The Decision Was Made Not to Contact Users

Facebook’s own Senator, Kamala Harris, grilled Zuckerberg over his failure to report the use of consumer data by Cambridge Analytica to its users.

Senator Ted Cruz (R-TX)

“I’m Not That Familiar with the Specific Provisions of the Law”

At the end of the hearing, Senator Cruz and Zuckerberg got into a heated exchange, as Senator Cruz tried to argue that Facebook had a political bias.  What was interesting was that when Cruz cited Facebook’s immunity under Section 230 of the Communications Decency Act (CDA230), Zuckerberg professed ignorance of the very law that is the lynchpin of its business model.

Senator Patrick Leahy (D-VT)

Why Couldn’t Rohingya Hate Speech Be Removed Within 24 Hours

The former Judiciary Committee Chairman and most senior Senator, grilled Zuckerberg on its role in promoting genocide against Rohingya in Mynamar.

Senator Sheldon Whitehouse (D-RI)

Can Users Amend the Facebook Terms of Service?

Senator Whitehouse is going to the question of whether the Facebook agreement is one of adhesion – a “take it or leave it” agreement that cannot be negotiated.  Courts sometimes refuse to enforce these provisions.  I sometimes include a clause that these terms are binding unless you offer separate terms which are accepted in writing by the client.  This almost never happens, but the one time it does it provides a defense to a claim that the agreement is one of adhesion.

Winners and Losers

Winners: Facebook Investors

A strong day in the market for Facebook.

Winners: Internet Memes

Where do I begin . . .

Losers:  Congress

Many are criticizing the Senators at the hearing over their lack of familiarity with Facebook and their failure to deliver the “grilling” promised, while also letting Zuckerberg pass off tough questions to his team to respond to at a later date.

Loser: Facebooks PR / Congressional Relations Team

Leaving behind talking points was a major faux pas.