[Congressional Record Volume 163, Number 208 (Wednesday, December 20, 2017)]
[Senate]
[Pages S8172-S8175]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  TELECOMMUNICATIONS AND TECHNOLOGY COMPANIES AND CONSUMER PROTECTION

  Mr. FRANKEN. Mr. President, I rise to deliver the second in a series 
of floor speeches that I offer as I close out my time in the Senate.
  This afternoon, I want to talk about Americans' relationship with 
telecommunications and technology companies and what that means for 
their access to essential services and for their privacy.
  When I entered the Senate in July of 2009, then-Majority Leader Harry 
Reid asked me to serve on the Judiciary Committee. I pointed out that 
there are a lot of lawyers in the Senate and that I wasn't one of them, 
but he said he needed Members with my perspective on the committee. I 
wondered how my background could possibly serve me on Judiciary, but it 
did--almost immediately--when in December of that year, Comcast 
announced its intention to acquire NBCUniversal.
  I happened to know a lot about the effects of media consolidation 
because I used to work in media. When powerful corporations are 
permitted to acquire other powerful corporations, it is the American 
consumers who are left facing higher prices, fewer choices, and even 
worse service from their telecommunications providers. I questioned why 
an already powerful company should be allowed to get even bigger and 
thus extract more leverage over consumers and the businesses reliant on 
its platform.
  It was through my work on Comcast and NBCUniversal that I learned 
about the rising costs of internet, phone, and TV services, as well as 
the importance of preserving net neutrality. I also became interested 
in how giant telecommunications companies, as well as ever-evolving 
tech companies, were treating the massive troves of user data they were 
collecting on a perpetual basis.
  I believe consumers have a fundamental right to know what information 
is being collected about them. I believe they have a right to decide 
whether they want to share that information and with whom they want to 
share it and when. I believe consumers have a right to expect that 
companies that store their personal information will store it securely.

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  I also believe all Americans deserve affordable access to high-
quality telecommunications services--services they depend on to 
communicate with the world, get an education, and find a job. I believe 
the internet should remain the open platform for innovation, economic 
growth, and freedom of expression it has always been.
  Perhaps it was the complex nature of these issues or even the 
financial incentive to turn a blind eye, but when I came to the Senate, 
very few Members of Congress were talking about corporate 
consolidation, commercial privacy, or net neutrality--issues that have 
gained much deserved attention in more recent years. Whatever the 
reason for other Members' hesitance, I felt it was incumbent upon me to 
get into the weeds on these issues so I could be a leader in the Senate 
and ultimately address the concerns of ordinary Minnesotans.
  That is why, when the interests of the American consumers have 
clashed with the desires of powerful telecommunications and technology 
companies, I have always tried to put the public first and to fight on 
their behalf by shedding light on corporate abuses and using all the 
tools at my disposal to curb them.
  Again, it is through my work on the Judiciary Committee--and, more 
specifically, my work on media and technology policy--that I believe my 
perspective from my previous career has been of most value.
  Comcast's proposal to acquire NBCU immediately made me uncomfortable 
because I had seen their motives for this deal before. In 1993, during 
my 13th season at ``Saturday Night Live,'' the Big Three networks--NBC, 
CBS, and ABC--pressured Congress to change the rules that had 
previously prevented them from owning any of the shows they aired in 
prime time. The purpose of the rules had been to prevent the networks 
from prioritizing their own shows over others or otherwise harming 
competing programming.

  Unsurprisingly, after the rules were repealed, the networks--contrary 
to their guarantees and assurances they had given Congress--began 
giving the shows they owned preferential treatment. At the time, 
``Seinfeld,'' which aired on NBC, was not owned by NBC and had been 
produced before the rules had changed--was the No. 1 show on 
television, which made the Thursday night timeslot following 
``Seinfeld'' the most valuable real estate on television. I watched as 
shows that eventually wound up in that premium location were all owned, 
at least in part, by NBC.
  So when I became a Senator, one of the first major deals I opposed 
was Comcast's acquisition of NBCUniversal. As in the case of AT&T's 
current bid to buy Time Warner, this deal was about giving one company 
the ability to control both the programming and the pipes that carry 
it. I knew from my time in media that a combined Comcast-NBCUniversal 
would have strong incentives to favor its own programming over that of 
others and restrict competing distributors from accessing that 
programming. I knew these incentives would hurt competing content 
creators, inhibit the free flow of information, and ultimately harm 
consumers.
  Unfortunately, I was not wrong. In the years after its acquisition of 
NBCUniversal, Comcast repeatedly violated the terms of its agreements 
with the FCC and the Department of Justice, favoring its own news 
programming over its competitors in Comcast's channel lineup and 
failing to live up to its promises regarding offering affordable 
standalone broadband, racial diversity in programming--they did not 
live up to their promises there--and online video distribution. Because 
merger conditions are extremely difficult and costly to enforce, 
competition and consumers were harmed in the process.
  Comcast's behavior in the wake of acquiring NBCUniversal was one of 
the major reasons I then opposed its proposal to turn around and buy 
Time Warner Cable a couple years later. It was also one of the major 
reasons I believe that later deal was ultimately dropped after 
objections from the FCC and the Department of Justice.
  For a long time in the Senate, it was a lonely battle. For over a 
year, I was the only Senator to oppose Comcast's proposals to buy Time 
Warner Cable--a deal that would have given the combined company 57 
percent of the broadband market--but advocates and ordinary citizens 
raised their voices, and together we were able to stop the deal.
  Most recently, I have led my colleagues in scrutinizing AT&T's 
proposed acquisition of Time Warner, and I have once again called on 
regulators to move to block the deal for the inevitable harm it will 
cause to competition and consumers.
  I have been proud to lead these efforts, and I leave here in a much 
different environment than when I arrived. I know there are strong 
voices in the Senate that will carry on the fight when I am gone.
  These efforts to slow down and halt media consolidation are part of a 
very important, larger development we have seen in our country. In 
recent years, there has been a resurgence in the American public's--
and, in turn, Congress's--interest in combating corporate 
consolidation.
  When I first entered the Senate, I wasn't sure most Americans 
understood what was at stake when these powerful companies wanted to 
combine. Vertical integration and antitrust laws sounded like obscure, 
almost boring, topics, but more and more Americans are getting educated 
about these issues, and more and more Members of Congress are working 
to get Washington focused on how they affect the lives of real people.
  Just look at the fight for net neutrality. For many of the same 
reasons that I opposed Comcast's acquisition of NBCUniversal, I have 
long supported strong net neutrality rules to ensure that the internet 
remains a level playing field where everyone can participate on equal 
footing, free from discrimination by large internet service providers 
like Comcast, Verizon, and AT&T.
  Net neutrality preserves the internet as the engine for innovation 
that it has always been and allows businesses of all sizes to thrive--
even when they are up against the largest, most profitable 
corporations. Here is just one example I found useful in explaining net 
neutrality:
  In 2005, three guys set up shop over a pizzeria in a strip mall in 
San Mateo, CA, where they launched the now-ubiquitous YouTube. Video-
sharing websites were in their infancy, but these guys already faced 
competition from something that preceded it called Google Video, but 
Google Video wasn't very good. Because of net neutrality, YouTube was 
able to compete with Google Video on a level playing field. The giant 
internet service providers treated YouTube's videos the same as they 
did Google's, and Google couldn't pay them to gain an unfair advantage, 
like a fast lane into consumer homes.
  They were treated the same, neutrally. The content was neutral--net 
neutrality. People really liked YouTube. They preferred YouTube to 
Google Video, and YouTube thrived. In fact, in 2006, Google bought it 
for stock valued at $1.65 billion. That is a nice chunk for three guys 
over a pizzeria in San Mateo.
  It is not just tech companies and small businesses that rely on open 
internet. In a submission to the FCC in 2014, a coalition that includes 
Visa, Bank of America, UPS, and Ford explained that ``every retailer 
with an online catalogue, every manufacturer with online product 
specifications, every insurance company with online claims processing, 
every bank offering online account management, every company with a 
website--every business in America interacting with its customers 
online is dependent upon an open Internet.'' I have repeated this quote 
on the floor and at rallies time and time again over the years because 
I think it perfectly exemplifies the importance of this issue.
  Preserving net neutrality is only controversial for the few deep-
pocketed entities that stand to financially gain without it.
  If FCC Chairman Pai ultimately has his way, we will be entering a 
digital world where the powerful outrank the majority, a world where a 
handful of multibillion-dollar companies have the power to control how 
users get their information, and a world where the deepest pockets can 
pay for a fast lane while their competitors stall in the slow lane.
  For nearly 9 years, I have been calling net neutrality the free 
speech issue

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of our time because it embraces our most basic constitutional freedoms. 
And ironically, the kind of civic participation that has aspired so 
many of us in recent months--and has effected real change, like in the 
fight for net neutrality and the successful efforts to save the 
Affordable Care Act--has depended in no small part on a free and open 
internet.
  In 2015, the FCC's vote to reclassify broadband providers as common 
carriers under title II of the Communications Act didn't just mean good 
things for net neutrality; it also had important implications for 
consumer privacy. It gave the agency the authority and the 
responsibility to implement rules to protect Americans' privacy by 
giving consumers greater control of their personal data that is 
collected and used by their broadband providers. That was a big win. 
Republicans didn't see it that way. One of the first things they did 
this Congress was to repeal those rules, which was a huge blow to 
Americans' right to privacy.
  For my part, I have long believed that Americans have a fundamental 
right to privacy. I believe they deserve both transparency and 
accountability from the companies that have the capacity to trade on 
the details of their lives. And should they choose to leave personal 
information in the hands of those companies, they certainly deserve to 
know that their information is being safeguarded to the greatest degree 
possible. This transparency and accountability should come from all the 
companies that have access to Americans' sensitive information. This 
includes internet service providers like Comcast and AT&T but also edge 
providers like Google, Facebook, and Amazon.
  In 2011, I served as chair for the inaugural hearing of the Judiciary 
Subcommittee on Privacy, Technology and the Law--a subcommittee that I 
founded after it became abundantly clear that our Nation's privacy laws 
had failed to keep pace with rapidly evolving technologies.
  When people talked about protecting their privacy when I was growing 
up, they were talking about protecting it from the government. They 
talked about unreasonable searches and seizures, about keeping the 
government out of their bedrooms. They talked about whether the 
government was trying to keep tabs on the books they read or the 
rallies they attended. Over the last 40 or 50 years, we have seen a 
fundamental shift in who has our information and what they are doing 
with it. That is not to say that we still shouldn't be worried about 
protecting ourselves from government abuses, but now we also have 
relationships with large corporations that are obtaining, storing, 
sharing and in many cases selling enormous amounts of our personal 
information.
  When the Constitution was written, the Founders had no way of 
anticipating the new technologies that would evolve in the coming 
centuries. They had no way of anticipating the telephone, for example, 
and so the Supreme Court ruled over 40 years ago that a wiretap 
constitutes a search under the Fourth Amendment. The Founders had no 
idea that one day the police would be able to remotely track your 
movements through a GPS device, and so the Supreme Court ruled in 2012 
that this was also a search that required court approval. All of this 
is a good thing. Our laws need to reflect the evolution of technology 
and changing expectations of American society. This is why the 
Constitution is often called a living document. But we have a long way 
to go to get to the point where our modern laws are in line with modern 
technology.

  My goal for the subcommittee was to help members understand both the 
benefits and privacy implications of emerging technologies; to educate 
the public and raise awareness about how their data is being collected, 
used, and shared; and, if necessary, to legislate to fill gaps in the 
law. When politics prevented legislation, I repeatedly pressed 
companies--many of them more than once--to be more transparent about 
how they were treating their customers' private information, including 
users' location data, web-browsing histories, and even their finger and 
face prints.
  As consumer awareness has evolved, these companies have taken 
important steps to improve transparency of their use of Americans' 
personal information. But unfortunately, accumulating massive troves of 
information isn't just a side project they can choose to halt at any 
given time; for many of them, it is their whole business model. We are 
not their customers; we are their product.
  Recently, we have seen just how scary this business model can be. In 
October of this year, the Judiciary Committee examined Russia's 
manipulation of social media during the 2016 campaign, and both the 
public and Members of Congress were shocked to learn the outsized role 
that the major tech companies play in so many aspects of our lives, 
based primarily on the mass collection of personal information and 
complex algorithms that are shrouded in secrecy. Not only do these 
companies guide what we see, read, and buy on a regular basis, but 
their dominance--specifically in the market of information--now 
requires that we consider their role in the integrity of our democracy. 
Unfortunately, this fall's hearings demonstrated that they may not be 
up to the challenge that they have created for themselves.
  The size of these companies is not--in isolation--the problem, but I 
am extremely concerned about these platforms' use of Americans' 
personal information to further solidify their market power and 
consequently extract unfair conditions from the content creators and 
innovators who rely on their platforms to reach consumers. As has 
become alarmingly clear in recent months, companies like Google, 
Facebook, and Amazon have unprecedented power to guide Americans' 
access to information and potentially shape the future of journalism. 
It should go without saying that such power comes with great 
responsibility.
  Everyone is currently and rightfully focused on Russian manipulation 
of social media, but as lawmakers, it is incumbent upon us to ask the 
broader questions: How did big tech come to control so many aspects of 
our lives? How is it using our personal information to strengthen its 
reach and its bottom line? Are these companies engaging in 
anticompetitive behavior that restricts the free flow of information in 
commerce? Are they failing to take simple precautions to respect our 
privacy and to protect our democracy? And finally, what role should 
these companies play in our lives, and how do we ensure transparency 
and accountability from them going forward?
  Modern technology has fundamentally altered the way we live our 
lives, and it has given us extraordinary benefits. As these companies 
continue to grow and evolve, challenges like those we have recently 
confronted in the Judiciary Committee will only grow and evolve with 
them. So we must now muster the will to meaningfully address the tough 
questions related to competition, privacy, and ultimately the integrity 
of our democracy.
  I will not be here to ask those questions. I will do what I can to 
find the answers from the outside, but it is my colleagues in the 
Senate who must prioritize them going forward. There is simply too much 
at stake. I know that they will do so with the help of a tireless 
advocacy community and the brilliant minds who have long contemplated 
these incredibly complex issues and ensured that lawmakers pay 
attention. And more importantly, they will do so with the support and 
encouragement of the American people.
  I have witnessed significant highs and significant lows in the fight 
to protect consumers' rights, but the most important lesson I have 
learned along the way is that ordinary Americans can wield 
extraordinary power when they raise their voices. For this reason and 
despite significant setbacks in recent months, I know that it is the 
public's interests that can ultimately prevail.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Lee). The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. SANDERS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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