Why Big Tech Should Fear Amy Klobuchar

The Minnesota senator presents her case for why regulating companies like Facebook and Google is crucial for the future of our democracy.,

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Why Big Tech Should Fear Amy Klobuchar

The Minnesota senator presents her case for why regulating companies like Facebook and Google is crucial for the future of our democracy.

Monday, March 29th, 2021

[MUSIC PLAYING]

kara swisher

I’m Kara Swisher and you’re listening to “Sway.” On Thursday, a trio of titans from tech — Facebook CEO Mark Zuckerberg, Google CEO Sundar Pichai, and Twitter CEO Jack Dorsey — appeared at yet another hearing before Congress. It’s something that’s happened a lot in recent years, and it’s getting tiresome, with little impact on their growing power. But this time, it felt a little different because it was the first time they had been grilled since the January attack on the Capitol, where the hate they had allowed to flow so carelessly over their platforms jumped from the screen to real life. Lawmakers on Capitol Hill experienced the terror in real time. So as Thursday’s hearing at the House Energy and Commerce Committee unfolded, the questions on misinformation around the pandemic, the election, and Silicon Valley’s role in enabling an attempted insurrection felt a little more raw.

^archived recording^ (frank pallone)

And what happens online doesn’t stay online. It has real world consequences. That’s why Congress has to act, because you’re not bystanders. You’re encouraging this stuff.

kara swisher

Of course the billionaires were reluctant to admit any culpability, except for Dorsey, who still hedged in his response to a question from Representative Mike Doyle.

archived recording (mike doyle)

Yes or no. Do you bear some responsibility for what happened?

archived recording (jack dorsey)

Yes, but you also have to take into consideration a broader ecosystem. It’s not just about the technology platforms that are used.

kara swisher

Or is it? That’s the question that Senator Amy Klobuchar has been asking a lot and now has the power to do something about. She’s the chair of the Senate Subcommittee on Competition Policy, Antitrust and Consumer Rights, and she’s gearing up for her own battle against big tech, focused on trying — as she says — to “make antitrust cool again.” In truth, it was never cool. But the former prosecutor from Minnesota is snowplowing on through anyway, taking aim at all of tech’s defenses. That includes pushing for more funding to regulators and government lawyers, the introduction of federal data and privacy laws, and even major changes in the most sacred of protections: Section 230. That’s the law that effectively shields platforms from liability for the content posted on their sites. So I want to know if Klobuchar thought the Capitol attacks will get Washington to start seriously regulating big tech and what she thought of the company’s proposals to hang on to as much of Section 230 as they could.

Mark Zuckerberg is making a pitch for amending Section 230. He’s saying to Congress, hold our platforms accountable for having a system in place for identifying and removing unlawful content, but don’t hold us responsible for mistakes the system might make. Isn’t this quote intermediary proposal something that benefits Facebook, who has the resources smaller platforms don’t institute such a system? And isn’t holding them responsible for the mistakes of the system actually the point?

amy klobuchar

That is the point. And you have — especially when it comes to Facebook — we are basically their data centers. We’re their little profit centers. And they’re learning everything about us to spread it on to the next person and making money off us. They’ve got a responsibility. And by the way, I talked to Jack Dorsey about this, when he had Vine. And what happened there? He was squashed down in his own way, too. So it all seems like they’re all the same, but they’re actually not. And the big guys are the gateways that are controlling so much of our information and what happens to us.

kara swisher

Do you think these companies will be paying for January 6 instead of President Trump, who used these sites as tools to get his word out? Or will they be protected by the immunity that Section 230 provides the platforms?

amy klobuchar

Well, one of the things that we’re looking at right now — and Mark Warner is leading this bill, and Mazie Hirono and I introduced it with him — is what are some sensible exemptions from immunity for Section 230? And we think some of them should be things that are violating the law. We’ve already done it with human trafficking. The Senate actually voted that if you’re putting up stuff to traffic in people, then yeah. You’re going to be held responsible for putting that kind of stuff on your platform. And when I look at these companies — they are the most successful companies. They should be able to hire the people to look at this stuff because hate speech just shouldn’t be out there, especially when it’s fomenting violence like what you saw at the Capitol.

kara swisher

Yeah. Are they culpable in that regard? Or are tweeters like President Trump culpable? Who is culpable in that situation?

amy klobuchar

OK. So let’s start. Square one is the Justice Department is currently prosecuting the people that committed these crimes, the people that invaded the Capitol. Then you go to who funded them, who encouraged them, who incited them. All of that is fair game for a Justice Department investigation. We did an impeachment hearing, of course. That failed. But at least we got the record clear for the American people. Then you go to what tools are they using. And oftentimes, that doesn’t fit in the criminal law. But you have to say to yourself — just as Senator Blunt, Portman, and Peters and I did as we looked at what happened in the Capitol — what are some recommendations to make sure this doesn’t happen again? Of course, we’re focused on sharing of intelligence. We are focused on why didn’t the Defense Department get the National Guard ready. But as a country, technology shouldn’t be dictating our democracy. Our democracy should be dictating how we use technology for good. And that’s just been lacking. There’s been no standards when it comes to misinformation. We couldn’t even get a bill passed that said they have to put disclaimers and disclosures on paid political ads. Whereas broadcast, radio — they have to do that. So, I just think that’s a glaring example of how they’ve said, trust us. We’ve got this. And basically, through several presidencies, several administrations, everyone stood down. And it was at the very end of the Trump administration where we finally got the competition lawsuits, but nothing happened on privacy.

kara swisher

No. Not at all. But do you think the horrific events of that day, on January 6, you were there at the Capitol —

amy klobuchar

Yes.

kara swisher

Do you think the horrific events of that day make for a different tone and impact of these hearings that are happening right now? Obviously, these CEOs have testified before, — many times, it feels like kabuki theater to me — on political bias and election interference. And now you have an example of it. Is the mood different now do you think, in dealing with these large tech companies, because of that event?

amy klobuchar

I think that’s one of the reasons it’s different. And again, I’m glad there are these hearings. I’m doing a series of hearings on consolidation in different industries, including, of course tech. But at some point, just throwing the popcorn against the movie screen isn’t enough. Because we can get soundbites for the day, you can look tough taking on a CEO, but we need action. And I know that David Cicilline, and Jerry Nadler and Speaker Pelosi agree with me. I mean, I know they’ve been working on this. We’ve been working on it together. We need to actually put forth bills, as bipartisan the better. And I think we’ve got some openings there — Senator Grassley and I have the bill to add some resources to these agencies, finally, so they’re not just using duct tape and Band Aids to take on the world’s biggest companies. But we need action. And to me, the events of January 6 is just one of the reasons that things are changing in this country. That was a very visceral moment, where people have now realized that these little chat groups that these insurrectionists had — whether they be the Oath Keepers, whether they be the Proud Boys — they were coordinating. And they were using social media in a bad way to do that. And so it’s on us as a democracy to get a hold of what’s going on in the internet.

kara swisher

You’re one of the sponsors of the Safe Tech Act, which is trying to reform Section 230, as you said, to limit how much protection platforms can claim under it. Now Sundar Pichai from Google doesn’t want to change it at all. Mark Zuckerberg, on the other hand, is making a pitch for amending it. What do you imagine is going to happen here?

amy klobuchar

Well, this will most likely be coming through the Commerce Committee, on which I serve. And I think that as part of privacy work that we have to do, this should be a part of it. And that’s why Senator Warner and Hirono and I put forward this bill. We’re suggesting, of course, there be exemptions for paid advertisements, that there shouldn’t be immunity on those if they can’t check those. I don’t know what they can check — and then for certain types of speech. There are others that believe we should get rid of all of Section 230. And again, we have to balance all that with First Amendment and how we’re going to get this done.

kara swisher

Now are you one of the proponents of getting rid of a completely, or reforming it? I suspect you’re more of a reform.

amy klobuchar

I want to look at reform as a first step.

kara swisher

As a first step. Is there any good argument to be made for getting rid of it? I mean, obviously you’re a lawyer. Liability works in many cases.

amy klobuchar

It is always a possibility that you could look at doing that, but you have to also look at how that interacts with our laws. We have strong First Amendment protections and the like, and you’d have to figure out how it would work with our existing laws. And you’re up against the fact that a lot of the Republicans that have been pushing this have been, I believe wrongly, focused on the fact that they believe that these companies are political in how they choose things, that they are picking and choosing between left and right. And that was a particular favorite of Donald Trump. And that’s just not how I see this. I was actually pleased at our hearing in the Senate that some of the same senators that are saying that stuff actually were focused on the real. And to me the real is, how do we make it easier for content providers to negotiate with the monopoly tech companies? So I’m trying to take some of this– what is, I will agree, hyperpartisan energy from the other side, and put it into some good. And to me, that good is basic changes to our antitrust laws and basic changes to privacy laws, because we’ve reached a moment with these companies where they are so dominant that they can literally hold an entire country, the country of Australia, hostage by just simply saying, we’re going to leave. Good luck. 90 percent of your search engine, we’re out of there. Because we’re not getting what we want. We don’t want to pay for content. That’s what monopolies do.

kara swisher

So you’re referring to a recent shakedown in Australia about whether platforms need to pay news publishers for content that’s posted on their platform.

amy klobuchar

Yeah. And we are — at this moment in time when you see all the misinformation, all the privacy violations, everything that’s happening — it is not divorced from competition. Because you need regulation, yeah. But competition can actually bring in new bells and whistles and products, but not if you don’t have the companies that are motivated to develop them because the big guys buy everything in sight. They buy up the possibility of competition. And in Mark Zuckerberg’s own words, we’d rather buy than compete.

kara swisher

OK. So let’s get to antitrust. First of all, there’s enormous lobbying by these companies, obviously, and the money they’ve spent —

amy klobuchar

Yeah, I think they’re some of the highest employers of lobbyists, yes.

kara swisher

At this moment. And so here you are facing, the way you want to go at it. You talked about refunding the F.T.C. — giving them more money, although that might not be enough. These privacy bills, the reform of 230. But you’ve really focused in on antitrust, and you’ve really been immersed in it. You’re publishing a book next month called “Antitrust Taking on Monopoly Power from the Gilded Age to the Digital Age.” By the way, I got an advance copy. It’s very smart. It’s very big. I say it’s big enough to kill a small dog with, in fact.

amy klobuchar

Please don’t use it for that purpose.

kara swisher

I shall not. I shall not.

amy klobuchar

OK. Thank you.

kara swisher

How do you get Americans to actually read this? This is substantively — I’m not just say large — but it’s a real lesson in where monopoly power has been and where it’s going.

amy klobuchar

So the first thing I did was use cartoons, which I think brings things to life. And there’s a whole history of antitrust cartoons dating to the 1800s and early 1900s. And they’ve been continued today. Secondly, I really tried to personalize it to my life and the life of so many Americans, with my great grandparents coming over to work in the mines, and how they were, basically, the workers for the monopolists, for the James J. Hill. And how they literally and metaphorically built his house. And I think those personal stories, people can relate to. The third thing I did was bring to life the people who’ve been involved in this, like Lizzie McGee, the woman who actually put together the Monopoly board, and the first game of Monopoly, and was basically ripped off by Parker Brothers and the like back then.

kara swisher

Yeah, it was called Landlord’s Game.

amy klobuchar

Exactly, and she did it to take on the monopolies. So I used some history, but then I get to the politics. And I’m in a unique situation as a senator that spent her private sector career taking on monopolies by representing MCI. When I was at a law firm, that was my biggest client. And saw the positive of the breakup of AT&T, where long distance rates went down and cell phones went from big things that barely fit in your briefcase from the Gordon Gekko days of the “Wall Street” movie to now.

kara swisher

Right. And you also started the book with big pharma, which you talked about when you —

amy klobuchar

Exactly.

kara swisher

— were running for president.

amy klobuchar

That was my “aha” moment, when I was simply got a call from a pharmacist in Minnesota and said, what’s happening to these baby heart drugs? A drug called indomethacin for a condition that treats newborn babies’ hearts. And it is proven to work and it’s so much better than surgery. And all of a sudden, the price went up 1,000 percent. Well, it turned out that one company — then Ovation Pharmaceuticals, later sold to a Danish company — had cornered the market. And all of the children’s hospitals and the families with newborn babies with a heart condition end up trying to fix it. And they come to me. I’m a brand new Senator. I bring it up to the F.T.C. commissioners at a hearing. They bring an action. It goes to federal court. With some esoteric reasoning that made no sense, the court throws out the suit and says no. And it ends up that if a U.S. senator and the entire F.T.C. — Democrat and Republican commissioners — cannot take on a company that literally bought both drugs and jacked up the price, something is wrong with our antitrust laws.

kara swisher

What’s interesting is what’s happening now. It’s rooted a lot more in populism and — as opposed to before — in income disparity and how people sort of getting an unfair shake.

amy klobuchar

And you know why. When you have one monopoly company, they can set the wages. So when we think about monopolies, we always think about, well, they can set higher prices, or there’s going to be less innovation, which makes a lot of sense because they don’t have to compete with anyone. But don’t forget one important point. Then there’s no one to go work for that’s competing with that company, because there’s only maybe one or two companies.

kara swisher

Right. So one of the things you wrote is, “Nowhere do modern day competition issues come into sharper focus than today’s big tech companies. Their success and innovation are unparalleled in recent history. No one can doubt that. But at some point, when the sheer size and dominance of companies like Facebook and Google allows them to buyout and scare away their closest competitors, and when the political dominance allows them to put a virtual stranglehold on necessary regulation, change must come.” So you’ve talked about things that didn’t work here. Why do you — they don’t jack up prices. They give you things. They give you dating service. They give you information. They give you maps. And they get all the money and all our information. So why hasn’t the government prioritized any antitrust enforcement against big tech so far?

amy klobuchar

It started out with we were excited, understandably, to have this new growing industry that employed a bunch of people and got us a bunch of cool things. Then it got really complex. And that’s always hard for people to take on, whether you’re in the Congress or whether you’re in the Justice Department. It takes a lot of resources. The next thing that happened, there’s tons of lobbying, And they’re like, oh, we’re great companies. Trust us. We know how to do this. You dumb people in Congress ask dumb questions. You don’t know the difference between this platform and that platform. That was kind of the theme. And I think what happened was, one, lack of enforcement. And this is not just during Republican administrations. Democratic as well.

kara swisher

The Obama administration let a lot of these acquisitions slide by.

amy klobuchar

Yes. And you interviewed — I used this in my book — You interviewed Gene Sperling, who admitted that they should have looked at the purchase of WhatsApp and Instagram, that they should have done things differently now. So that’s the first thing. The second thing is a lack of resources from the career people who actually could do this work. And we’re a shadow of our former selves. Even during the Reagan administration there were more people working at the F.T.C. And so that’s why this important bill — which I think has a chance of going first of all these, because of the strong bipartisan support that I have with Senator Grassley — and he is into this bill —

kara swisher

This is in February, the bill that you put in front of the Senate Committee, which you chair.

amy klobuchar

Yeah, this is changing the fee structure for big megadeals. And it would put about 130 million more into F.T.C. and D.O.J. antitrust enforcement. So that’s another reason. And perhaps the third, you offhand mentioned it, these conservative court rulings. It is true. The Borkean theories that have infiltrated the Supreme Court to the point where in one, over a decade period, they didn’t win one plaintiff’s antitrust case.

kara swisher

You’re talking about Robert Bork?

amy klobuchar

Yes. I’m talking about Judge Bork. And he interpreted that term, consumer welfare, which for so long had been based, actually, in the intent of the Congress with the Sherman Act and the Clayton Act — which was basically, hey, what works for people? Are they better off or not? And he interpreted it to include companies to really focus on efficiency, and to me, it just turned it upside down. And so that’s what the precedent is now. And now, there’s a lot of people starting to question that. There was a recent case before the Supreme Court about Apple, where Justice Kavanaugh actually sided with the more liberal justices. But if we’re going to have this whole thing contingent on waiting for the Supreme Court to change its mind on these interpretations, we’re going to be waiting decades. And so my answer to that, is given that they have driven the interpretation of this law so far in favor of inaction, it’s time to Congress to reinsert itself and, one, with the money to the agencies, two, with the administration appointing good people who are aggressive to these jobs, and then the next part is ours. How can we change the standards to make it easier and to make us as sophisticated as the companies that are messing around with competition policy in this country?

kara swisher

I know you’re saying “making antitrust cool again,” which, by the way, is not cool to say. But you’re saying “competition pol”icy. You’re trying to use that as the term, right? Sort of brand it again?

amy klobuchar

Yes.

kara swisher

Why is that?

amy klobuchar

Rebrand. Because the word antitrust is so hard for people to understand. It sounds like a bad thing. Of course, the word antitrust came out of Teddy Roosevelt and everyone taking on the trusts.

kara swisher

Trust busters.

amy klobuchar

And it’s sort of interesting, because it has the word trust in it. And you can’t really change the laws as they are., but you can change how we describe this. In Europe, they use the term competition policy. Why? I think that’s more positive. I actually want more competition. I was in the private sector for 14 years. I believe in capitalism. But when you look to the roots of capitalism, it was Adam Smith who warned about the standing army of monopolies and their unbridled power. You can’t have entrepreneurship and new ideas and the next best competition to Facebook that maybe actually has better privacy safeguards and bans on misinformation if they buy up everything in sight. You’re not going to get to that panacea of new ideas to be able to solve our problems, because you have monopolies that are controlling the situation.

kara swisher

All right. So some people think this consolidation isn’t the worst thing, that it doesn’t show harm, that consumers are benefiting. How do you answer those people, who say, “Senator Klobuchar, with all due respect, we don’t need to change this. Laws work just fine?”

amy klobuchar

These companies have done some good things. They have given us some good new products. I’m not saying get rid of those products. I’m not even saying completely get rid of these companies, of course. But at some point, you can divest assets. You can break up certain parts of these companies. That’s what happened with AT&T. The former chairman of AT&T actually said they were a stronger company when they came out of it, because they had to focus and compete. In the current Gilded Age, we’ve got Mark Zuckerberg literally saying, and this is one of his quotes about the smaller companies, “these businesses are nascent. But the network’s established. The brands are already meaningful. And if they grow to a large scale, they could be very disruptive to us.” Disruption is good for capitalism. You want that kind of competition. And when you talk about the prices — yeah. The story of monopolies is, they price things low and then once they can, they raise prices.

kara swisher

Or they don’t even need to, because they get other benefits.

amy klobuchar

Or they don’t even need to, or they don’t develop the new products you need, or you only have two grocery stores you can choose from. All of that happens because they eventually take over. And that’s what you’re seeing with the price of insulin and some of the things that happen in the pharmaceutical space. They’ve had a longer time to have monopoly power over certain drugs, and the drug prices go up.

kara swisher

So you have another bill that ups the ante on penalties of violating antitrust law. In your book you note potential punishments, like increased fines, sale of assets, even breakups. This reminds me of Microsoft, the company that famously went through several antitrust battles and which I covered the whole time. At one point, it was ordered to break up but then it didn’t. And the case was settled. It didn’t really have —

amy klobuchar

Well then the judge got kicked off the case.

kara swisher

Yes. Exactly. Was it a mistake not to break up Microsoft? It ended up pretty well in the end.

amy klobuchar

Well, it is where it is right now. They still have monopoly power, gateway. But they have also played, in my mind, some good roles when it comes to detecting hacking and helping on that front. So that being said, I think what’s interesting about this case is it shows how when things span administrations — the Clinton administration in 20 states bring this case, trying to push them to allow more competition in the form of, at that time, Netscape and Java. And ends up, what happens is — when the Bush administration comes in, they actually settle the case out cheap, honestly. And they didn’t end up breaking up the company. But I think what this shows for our current moment in time is, you often have these cases, because they’re so mammoth, spanning presidential administrations. And it can make a big difference in the outcome — to take the Microsoft experience into the now is — these cases were brought under the Trump administration. I think they were brought too late. But I’m glad they brought them. I applauded them when they brought those cases, with the D.O.J. case against Google and the F.T.C. case against Facebook. And in the F.T.C. case especially, coordinating with the attorney generals, doing it after the election made it seem less political. But I’m so glad they were brought under Trump, because then it de-politicizes it, because it makes it under two administrations now. And it makes it much more hefty when they have to take these companies on.

kara swisher

All right. You’ve been a senator since 2007. Is that correct? And the Obama administration didn’t do anything. Did you press them at the time? Why didn’t they do anything?

amy klobuchar

Well, I was — yes. I was questioning in my role on the antitrust — remember it was split. Part of the time, we were in control of the Senate. I chaired for a brief period of time. But a lot of the time, I was only the ranking member. And as Senator Lee and I together questioned some deals, but I also pushed on some of this. I was really concerned about all of the mergers, what was happening. I was obviously concerned about the issues with Comcast, the issues outside of the tech spector. But I didn’t have all the evidence. I wasn’t there in the middle of the F.T.C. or the D.O.J. to know enough about what this meant. In fact, there was something like hundreds of these, and a few of them that I knew about I would ask about. But it was not as much known in this Antitrust Subcommittee as it must have been in the administration.

kara swisher

I guess what I want to know is, why did the Obama administration punt? They really did. That is my words.

amy klobuchar

You’d have to ask them that. But I think part of that was it was deal after deal after deal, and just like the Trump administration waited too long till the end to do it. This has been reflected in administration after administration.

kara swisher

So Republican Senator Mike Lee of Utah has voiced concerns about your antitrust proposal. His is around this issue of consumer welfare, whether there should be one agency to handle all the antitrust action. He’s the ranking member of the Antitrust Subcommittee with you. Where do you two disagree?

amy klobuchar

Well, we have agreed on certain opposition and concerns about a number of mergers. We’ve done things — I remember one time we spent an hour and a half on our own trying to work out the language of the letter about the concerns about a merger. But I’ve been frustrated, and I’ve told him this, because he has been so focused on this F.T.C. and D,O.J., where does their jurisdiction lie? Should we all just have one? I’m like, OK. That’s sort of nice in a law school class to discuss. But we have the biggest companies, basically, allowing for the spread of misinformation, having no privacy controls that are meaningful. We’ve got health tech going out of the window here with things like Halo, and how is people’s personal data protected on Fitbit, something Senator Lisa Murkowski and I have taken on. We have so many issues right in front of us and an opportunity to take on the antitrust laws and do that once in the century change which our country has done over and over again. I’m not going to be stuck on what I consider a red herring issue about where does each jurisdiction lie. I mean, this is real stuff.

kara swisher

Should there have been one agency?

amy klobuchar

I think there was a reason the F.T.C.’s jurisdiction was much broader and it created some check and balance on what the D.O.J. would do, because you have independent commissioners at the F.T.C. And they also do much more with advertising and marketing and things like that. I don’t really have a problem with this. The last thing that I want to do right now is to take away the expertise we have at two agencies. It makes no sense at all.

kara swisher

Right. So your views on antitrust are seen as more centrist though, versus other Democrats like Elizabeth Warren. She’s been very explicit about calling for the breakup of big tech. Do you agree with that characterization? And why not be more, I guess, progressive here if you’re trying to make actual change?

amy klobuchar

I really don’t agree with it because I think that she and I are, in basic ways — maybe we use different words — you know, I’m from the Midwest. I talk a lot about what’s happening from a Midwestern standpoint. But I think that divestiture of assets and breaking off of certain assets that shouldn’t have been acquired in the first place, I think that’s a real remedy that has to be on the table. And I’ve always felt that. I think what I’ve done — just simply because I’m on the committee — I’ve dug deep and said, how could we actually get there? How can we make it easier, give the agencies the tools with the resources and then make the laws more clear?

kara swisher

Well, it’s always good to have Elizabeth Warren around to scare Mark Zuckerberg, because she seems to do it rather well.

amy klobuchar

Exactly.

kara swisher

I don’t think you’re quite as scary to him, but probably should be. So is it time to break up Facebook, or at least force them to sell Instagram or WhatsApp?

amy klobuchar

It is. But we have to do it through the laws. I can’t just decree it and give a speech and it happens to an empty chamber on the Senate floor. You’ve got to use the laws. And that’s why having Merrick Garland in place, who understands antitrust law, who when he was introduced to the country as the A.G. nominee, actually brought up antitrust, with Joe Biden at his side. I think that’s very important.

kara swisher

So that’s a yes.

amy klobuchar

Oh, Yeah. That’s a yes. And I think it’s actually — especially with Instagram and WhatsApp — that’s the best example of that. And especially under the law, when you look at the intent, when you look at say the Zuckerberg emails, it makes it easier to prove those cases and to make clear this wasn’t right. This was not bought for good intent.

kara swisher

All right. What about Google? What’s the best remedy?

amy klobuchar

Right. Well, I think the best remedy with Google is getting at the exclusionary conduct and getting at how they have their ad ecosystem, where they’ve got — they control everything. They control the algorithms. They control — and taking that on, I think, would make a big difference. All you’re trying to do here — you’re not trying to destroy their search engine, which is the biggest one, but you’re trying to allow others to flourish and to get actual competition in place.

kara swisher

Explain exclusionary conduct.

amy klobuchar

Exclusionary conduct is where you basically are so big that you can put your products at the top of the search. You can make sure you own the app stores. So you can make sure that other apps don’t get on there or that they have to pay higher fees to get on there.

kara swisher

So is breaking up the way to do it or to have rules?

amy klobuchar

Breaking up is hard to do, as they say. But breaking up is one way. Yes.

kara swisher

What about Apple? What’s the best remedy there around its app store?

amy klobuchar

Well, we’re going to have– one of our first hearings it’s going to be on the app store, and figuring out how we can make this more fair for competitors and for people who use it. I can say one thing is that there are a whole bunch of companies — small, medium, and large — who are scared of the stuff that’s going on. Why do I know? Oh, they come and tell you behind closed doors. There are a bunch of content providers that think that if they speak out, that then they’re going to get screwed on the way they do the algorithms for their links. And the app store thing is the same, because people don’t want to get hurt, and they don’t want to get —

kara swisher

Hard to break that up though, because there are safety issues.

amy klobuchar

Right. So then you just, you figure out how the charges are, and who gets on, and how you have competitors.

kara swisher

So could that be regulations or agreements or decrees?

amy klobuchar

Stay tuned for our hearing. Yes. The agreements. It’s about the agreements.

kara swisher

Yeah. OK. Amazon. Monopsony.

amy klobuchar

Amazon.

kara swisher

Explain monopsony.

amy klobuchar

OK. So, yeah. It’s a situation where you control, because you are the ones that they buy stuff through. They buy stuff from you. It’s not like — it’s Pepsi, Coke. If they were to combine — and they’re not nor are they intending to — but that would be like a monopoly over your drinks, because they would be what’s called a horizontal monopoly. But when you have all of the people who make stuff having to sell their stuff on one platform as in Amazon, and dependent on them to do that, you start having a monopsony situation.

kara swisher

So in that case, what do you do about something like Amazon?

amy klobuchar

Well, to me it’s another form of exclusionary conduct. And my bill, actually, gets at defining monopsony as one of the problems, and it also gets at this form of exclusionary conduct. And it’s an example of the fact that our laws are not sophisticated right now to be able to handle that.

kara swisher

People love Amazon and they used it heavily during the pandemic.

amy klobuchar

Yes, they did. I mean, that’s true. All these tech companies, for the most part, got richer than ever. [MUSIC PLAYING]

kara swisher

We’ll be back in a minute.

If you like this interview and want to hear others, follow us on your favorite podcast app. You’ll be able to catch up on “Sway” episodes you may have missed, like my conversation with former Facebook Chief Security Officer, Alex Stamos. And you’ll get new ones delivered directly to you. More with Senator Klobuchar after the break. [MUSIC PLAYING]

Digital companies are everywhere. They’re global. Do we need a pan-national entity to force rules around antitrust? When I talk to people in New Zealand and Australia, Europe they say the U.S. does nothing. And these are American companies, in the end, most of them. Is there any way to do this internationally?

amy klobuchar

Yes. Janet Reno actually announced this way back, that we were coordinating, not a body that was coming together, but coordination. And that has fallen off. And I think there has to be more coordination, especially when we’re dealing with China, which is a whole other story when it comes to their idea of competition policy is to promote their state-owned industries and to hack into other systems in other countries. If we work with our allies, and we work better with Europe and with Canada — which has its own competition policy issues — but if we work with all of our allies, we’re going to be a better place in taking on China, when it comes to competition. And get this, when we look at trade agreements, and using that as a vehicle with our allies to be able to take on competition policy, and then of course I’ve done multiple events now and had discussions with Margrethe Vestager over at the E.U. I think before they were just looked at, you know, they were up to bad stuff. And I think now as people’s eyes have opened to all these competition problems, there’s much better coordination with them. When Australia happened with Google, I thought it was actually kind of cool. It wasn’t just Europe standing up and going, whoa. What’s happening over there? That’s not right. People in the U.S. did, too. And the fact that you’ve got Democrats and Republicans talking about it. I just think this is ripe for coordination through trade agreements, and have coordination when it comes to our policies.

kara swisher

The Australian situation is a little more complex as the presence, the nefarious presence of Rupert Murdoch. But nonetheless, these bills are coming. You have the Journalism Competition Preservation Act. This is a bill that would allow them to work together.

amy klobuchar

It allows all the news organizations now including — we expanded it to broadcast, to radio and TV — to be able to join forces over a period of time to negotiate the rates, but also to negotiate what these agreements are. Because Google and Facebook, they get to actually see who’s looking at the links to the news content providers’ articles, and the content providers can’t, even though they are providing the content.

kara swisher

One of the arguments that these companies make is that we have to stand up to China. When I interviewed Mark Zuckerberg, I called it the Xi or me defense. It’s like, Kara, you either have China and Xi, or you have me. And I was like, I don’t like either. I would like — what’s my third choice here in this horrible choice situation? What do you make of that argument? He’s sort of making that argument today in Congress, is we need companies that really spend on this content moderation. So we need to be this big.

amy klobuchar

That would be saying we’re perfect, and so everything is fine here. I think we will forever have big companies. I don’t think we’re going to see no big companies if we’re ever going to be a force in competition. But we’re only a force worldwide if we keep innovating and we keep having the next Facebook, and the next Google, and the new bells and whistles to be able to compete. Because he’s not just saying it, actually. All these companies are using it as an excuse, outside of tech, not to enforce the antitrust laws or do something on monopolies because otherwise we can’t compete with China. I just look at it differently. I look at the history of our country, where time and time again we’ve rejuvenated capitalism, we’ve come up with new ideas. That’s what’s allowed us to be so strong in competing internationally. Not just hiding from within and saying, let’s keep the monopolies we have, and then we’re going to be so much better in competing against China. That’s just not true because if we only have one big company in each area as a gatekeeper, then we are going to end up in the same situation that the Chinese are, because there’s going to be no competition at all. So, I just don’t buy it.

kara swisher

Do you feel the Biden administration is up to this task? Is he a Teddy Roosevelt type of President?

amy klobuchar

I think he has a healthy suspicion about bigness. I think he’s always been someone, you know that guy from Scranton who looks at things —

kara swisher

Yeah. I’ve heard that speech.

amy klobuchar

Really? In terms of regular people. And if you look at things from the terms of regular people, that’s what Teddy Roosevelt, when he rode that antitrust horse into the White House, and back when people had songs, Woodrow Wilson, that they ran on about antitrust– which just seems hilarious right now.

kara swisher

Can you sing one?

amy klobuchar

No. I can’t. He had a campaign song about this. But back then, it was one of the top issues of our time. And I believe that Joe Biden gets it. And the choices he made so far of bringing in disrupters — the very thing that Mark Zuckerberg said he was worried about was disruption to their market — of people like Lina Khan and the F.T.C., and people like Tim Wu in the White House. I think we need this shot in the arm right now, if we’re going to move things, people that actually understand this stuff and are willing not to just accept things as they are and say, “Oh. The courts are so hard. We can’t do this. Oh, we don’t have enough resources.” You’ve got to be able to step back and think what we can do.

kara swisher

Of all the things that you’re scared of that that monopoly brings, what — is it the misinformation in one place, the inability to control it? Is it just sheer power? Is it — what is the thing that scares you the most?

amy klobuchar

January 6. What scares me the most is that we lose our democracy. And I don’t want to be — it sounds like way overwrought especially for sort of a middle, a moderate like myself. But I am scared of it, because people are believing lies and we’re not doing anything to control that. And so all of that contributes to a fraying of our democracy, where extremes start taking over, where people feel like they are just so isolated that they turn to QAnon and things like that. I’m not giving excuses for it, but this kind of stuff is happening right now. A breakdown of institutions.

kara swisher

You were gaining some traction toward the end of your presidential run. How are you looking at it? Do you still think of that or do you feel like being a badass senator really does have power?

amy klobuchar

I love what I’m doing now. I have an incredible state to represent. I’m at the leading edge of two huge issues — voting rights with my chairmanship of the Rules Committee, the Rules Committee in the Senate. People hadn’t really heard it before, but we’re on the front line of looking at what happened in the Capitol, making recommendations, and voting rights. And of course, this battle for the soul of capitalism, this idea that we actually can rejuvenate it again, and that we can make antitrust cool again. Those are pretty fun things to work on. And I think this moment in time, as I stood out there in the inaugural stage launching this inauguration where we recaptured the stage from insurrectionists that were bent on undermining our democracy, on the same stage with the spray paint at the bottom of the columns and in front of the makeshift windows. And I said, “This is the moment in time where our democracy picks itself up, brushes itself off, and goes forward as we always do, one nation, under God, indivisible, with liberty and justice for all.”

kara swisher

Oh, wow.

amy klobuchar

So, yeah. I like my job right now.

kara swisher

When you have that moment where you saw the graffiti on the columns, that this had happened, that a lot of these tech companies ginned it up, President Trump used these platforms, what did you think when you were standing there?

amy klobuchar

I, first of all, was so angry about what happened. On the night of the Electoral College vote, at 4:00 in the morning, it was just Senator Blunt and me and Vice President Pence and the young women carrying that mahogany box with the rest of the ballots walking over through the broken glass to that house chamber. And it was a moment like I have never experienced because I believe so strongly that, above all, we’ve got to stand up for our democracy. And that means looking at every part of this for who is responsible, and how we change things. I’m so when I stood on that stage and looked up at the sky I thought, OK, this is our moment to start again. And for me, this piece of it — the competition policy and the fact that we don’t want to have to give away our democracy to a bunch of tech companies, no matter how successful they are — it’s worth doing everything just to do that, because I firmly believe in our democracy. And for too long we’ve just conceded that. We haven’t given people what they need to be able to make those decisions. And a lot of that has to do with lies that are spreading online. And you just can’t deny that anymore.

kara swisher

I have one last question, a thought. Your book is called “Antitrust,” and now, Secretary Pete Buttigieg wrote a book called “Trust.” Are you guys ever going to agree on anything?

amy klobuchar

No. We actually spent last weekend together. Chasten was out of town helping his parents —

kara swisher

Hanging with Pete?

amy klobuchar

My husband was in Minnesota. Pete and I are good friends. People don’t understand this. You can be rivals on the debate stage and be friends. I hung out with the dogs. We went on a long walk. And he’s really doing well. And yes, the final hilarity is he wrote a book called “Trust.” And I wrote a book called “Antitrust.” So we didn’t even know we were doing it. But there we are. The rivalry never stops.

kara swisher

So it was — one of my favorite parts was you debating each other, because it was sort of Midwest nice, but not really, which was kind of, I don’t believe in Midwest nice, necessarily.

amy klobuchar

Exactly. We were just making our points. We had different points.

kara swisher

Yeah. I get that. Anyway, I really appreciate it. I think the book is great and I promise I will not kill any dogs with it. It’s just —

amy klobuchar

OK.

kara swisher

All right. All right. Thank you, Senator Klobuchar and thanks for the time.

amy klobuchar

Thank you so much, Kara. [MUSIC PLAYING]

kara swisher

“Sway” is a production of New York Times opinion. It’s produced by Nayeema Raza, Blakeney Schick, Heba Elorbany, Matt Kwong, and Daphne Chen. Edited by Nayeema Raza and Paula Szuchman with original music by Isaac Jones, mixing by Eric Gomez and fact checking by Kate Sinclair and Michelle Harris. Special thanks to Shannon Busta and Liriel Higa. If you’re in a podcast app already, you know how to get your podcasts, so follow this one. If you’re listening on The Times website, and want to get each new episode of “Sway” delivered to you with an invitation to Pete Buttigieg and Amy Klobuchar’s next BFF hangout, download any podcast app, then search for “Sway” and follow the show. We release every Monday and Thursday. [MUSIC PLAYING]

Why Big Tech Should Fear Amy Klobuchar

The Minnesota senator presents her case for why regulating companies like Facebook and Google is crucial for the future of our democracy.

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Why Big Tech Should Fear Amy Klobuchar

The Minnesota senator presents her case for why regulating companies like Facebook and Google is crucial for the future of our democracy.

Monday, March 29th, 2021

[MUSIC PLAYING]

kara swisher

I’m Kara Swisher and you’re listening to “Sway.” On Thursday, a trio of titans from tech — Facebook CEO Mark Zuckerberg, Google CEO Sundar Pichai, and Twitter CEO Jack Dorsey — appeared at yet another hearing before Congress. It’s something that’s happened a lot in recent years, and it’s getting tiresome, with little impact on their growing power. But this time, it felt a little different because it was the first time they had been grilled since the January attack on the Capitol, where the hate they had allowed to flow so carelessly over their platforms jumped from the screen to real life. Lawmakers on Capitol Hill experienced the terror in real time. So as Thursday’s hearing at the House Energy and Commerce Committee unfolded, the questions on misinformation around the pandemic, the election, and Silicon Valley’s role in enabling an attempted insurrection felt a little more raw.

^archived recording^ (frank pallone)

And what happens online doesn’t stay online. It has real world consequences. That’s why Congress has to act, because you’re not bystanders. You’re encouraging this stuff.

kara swisher

Of course the billionaires were reluctant to admit any culpability, except for Dorsey, who still hedged in his response to a question from Representative Mike Doyle.

archived recording (mike doyle)

Yes or no. Do you bear some responsibility for what happened?

archived recording (jack dorsey)

Yes, but you also have to take into consideration a broader ecosystem. It’s not just about the technology platforms that are used.

kara swisher

Or is it? That’s the question that Senator Amy Klobuchar has been asking a lot and now has the power to do something about. She’s the chair of the Senate Subcommittee on Competition Policy, Antitrust and Consumer Rights, and she’s gearing up for her own battle against big tech, focused on trying — as she says — to “make antitrust cool again.” In truth, it was never cool. But the former prosecutor from Minnesota is snowplowing on through anyway, taking aim at all of tech’s defenses. That includes pushing for more funding to regulators and government lawyers, the introduction of federal data and privacy laws, and even major changes in the most sacred of protections: Section 230. That’s the law that effectively shields platforms from liability for the content posted on their sites. So I want to know if Klobuchar thought the Capitol attacks will get Washington to start seriously regulating big tech and what she thought of the company’s proposals to hang on to as much of Section 230 as they could.

Mark Zuckerberg is making a pitch for amending Section 230. He’s saying to Congress, hold our platforms accountable for having a system in place for identifying and removing unlawful content, but don’t hold us responsible for mistakes the system might make. Isn’t this quote intermediary proposal something that benefits Facebook, who has the resources smaller platforms don’t institute such a system? And isn’t holding them responsible for the mistakes of the system actually the point?

amy klobuchar

That is the point. And you have — especially when it comes to Facebook — we are basically their data centers. We’re their little profit centers. And they’re learning everything about us to spread it on to the next person and making money off us. They’ve got a responsibility. And by the way, I talked to Jack Dorsey about this, when he had Vine. And what happened there? He was squashed down in his own way, too. So it all seems like they’re all the same, but they’re actually not. And the big guys are the gateways that are controlling so much of our information and what happens to us.

kara swisher

Do you think these companies will be paying for January 6 instead of President Trump, who used these sites as tools to get his word out? Or will they be protected by the immunity that Section 230 provides the platforms?

amy klobuchar

Well, one of the things that we’re looking at right now — and Mark Warner is leading this bill, and Mazie Hirono and I introduced it with him — is what are some sensible exemptions from immunity for Section 230? And we think some of them should be things that are violating the law. We’ve already done it with human trafficking. The Senate actually voted that if you’re putting up stuff to traffic in people, then yeah. You’re going to be held responsible for putting that kind of stuff on your platform. And when I look at these companies — they are the most successful companies. They should be able to hire the people to look at this stuff because hate speech just shouldn’t be out there, especially when it’s fomenting violence like what you saw at the Capitol.

kara swisher

Yeah. Are they culpable in that regard? Or are tweeters like President Trump culpable? Who is culpable in that situation?

amy klobuchar

OK. So let’s start. Square one is the Justice Department is currently prosecuting the people that committed these crimes, the people that invaded the Capitol. Then you go to who funded them, who encouraged them, who incited them. All of that is fair game for a Justice Department investigation. We did an impeachment hearing, of course. That failed. But at least we got the record clear for the American people. Then you go to what tools are they using. And oftentimes, that doesn’t fit in the criminal law. But you have to say to yourself — just as Senator Blunt, Portman, and Peters and I did as we looked at what happened in the Capitol — what are some recommendations to make sure this doesn’t happen again? Of course, we’re focused on sharing of intelligence. We are focused on why didn’t the Defense Department get the National Guard ready. But as a country, technology shouldn’t be dictating our democracy. Our democracy should be dictating how we use technology for good. And that’s just been lacking. There’s been no standards when it comes to misinformation. We couldn’t even get a bill passed that said they have to put disclaimers and disclosures on paid political ads. Whereas broadcast, radio — they have to do that. So, I just think that’s a glaring example of how they’ve said, trust us. We’ve got this. And basically, through several presidencies, several administrations, everyone stood down. And it was at the very end of the Trump administration where we finally got the competition lawsuits, but nothing happened on privacy.

kara swisher

No. Not at all. But do you think the horrific events of that day, on January 6, you were there at the Capitol —

amy klobuchar

Yes.

kara swisher

Do you think the horrific events of that day make for a different tone and impact of these hearings that are happening right now? Obviously, these CEOs have testified before, — many times, it feels like kabuki theater to me — on political bias and election interference. And now you have an example of it. Is the mood different now do you think, in dealing with these large tech companies, because of that event?

amy klobuchar

I think that’s one of the reasons it’s different. And again, I’m glad there are these hearings. I’m doing a series of hearings on consolidation in different industries, including, of course tech. But at some point, just throwing the popcorn against the movie screen isn’t enough. Because we can get soundbites for the day, you can look tough taking on a CEO, but we need action. And I know that David Cicilline, and Jerry Nadler and Speaker Pelosi agree with me. I mean, I know they’ve been working on this. We’ve been working on it together. We need to actually put forth bills, as bipartisan the better. And I think we’ve got some openings there — Senator Grassley and I have the bill to add some resources to these agencies, finally, so they’re not just using duct tape and Band Aids to take on the world’s biggest companies. But we need action. And to me, the events of January 6 is just one of the reasons that things are changing in this country. That was a very visceral moment, where people have now realized that these little chat groups that these insurrectionists had — whether they be the Oath Keepers, whether they be the Proud Boys — they were coordinating. And they were using social media in a bad way to do that. And so it’s on us as a democracy to get a hold of what’s going on in the internet.

kara swisher

You’re one of the sponsors of the Safe Tech Act, which is trying to reform Section 230, as you said, to limit how much protection platforms can claim under it. Now Sundar Pichai from Google doesn’t want to change it at all. Mark Zuckerberg, on the other hand, is making a pitch for amending it. What do you imagine is going to happen here?

amy klobuchar

Well, this will most likely be coming through the Commerce Committee, on which I serve. And I think that as part of privacy work that we have to do, this should be a part of it. And that’s why Senator Warner and Hirono and I put forward this bill. We’re suggesting, of course, there be exemptions for paid advertisements, that there shouldn’t be immunity on those if they can’t check those. I don’t know what they can check — and then for certain types of speech. There are others that believe we should get rid of all of Section 230. And again, we have to balance all that with First Amendment and how we’re going to get this done.

kara swisher

Now are you one of the proponents of getting rid of a completely, or reforming it? I suspect you’re more of a reform.

amy klobuchar

I want to look at reform as a first step.

kara swisher

As a first step. Is there any good argument to be made for getting rid of it? I mean, obviously you’re a lawyer. Liability works in many cases.

amy klobuchar

It is always a possibility that you could look at doing that, but you have to also look at how that interacts with our laws. We have strong First Amendment protections and the like, and you’d have to figure out how it would work with our existing laws. And you’re up against the fact that a lot of the Republicans that have been pushing this have been, I believe wrongly, focused on the fact that they believe that these companies are political in how they choose things, that they are picking and choosing between left and right. And that was a particular favorite of Donald Trump. And that’s just not how I see this. I was actually pleased at our hearing in the Senate that some of the same senators that are saying that stuff actually were focused on the real. And to me the real is, how do we make it easier for content providers to negotiate with the monopoly tech companies? So I’m trying to take some of this– what is, I will agree, hyperpartisan energy from the other side, and put it into some good. And to me, that good is basic changes to our antitrust laws and basic changes to privacy laws, because we’ve reached a moment with these companies where they are so dominant that they can literally hold an entire country, the country of Australia, hostage by just simply saying, we’re going to leave. Good luck. 90 percent of your search engine, we’re out of there. Because we’re not getting what we want. We don’t want to pay for content. That’s what monopolies do.

kara swisher

So you’re referring to a recent shakedown in Australia about whether platforms need to pay news publishers for content that’s posted on their platform.

amy klobuchar

Yeah. And we are — at this moment in time when you see all the misinformation, all the privacy violations, everything that’s happening — it is not divorced from competition. Because you need regulation, yeah. But competition can actually bring in new bells and whistles and products, but not if you don’t have the companies that are motivated to develop them because the big guys buy everything in sight. They buy up the possibility of competition. And in Mark Zuckerberg’s own words, we’d rather buy than compete.

kara swisher

OK. So let’s get to antitrust. First of all, there’s enormous lobbying by these companies, obviously, and the money they’ve spent —

amy klobuchar

Yeah, I think they’re some of the highest employers of lobbyists, yes.

kara swisher

At this moment. And so here you are facing, the way you want to go at it. You talked about refunding the F.T.C. — giving them more money, although that might not be enough. These privacy bills, the reform of 230. But you’ve really focused in on antitrust, and you’ve really been immersed in it. You’re publishing a book next month called “Antitrust Taking on Monopoly Power from the Gilded Age to the Digital Age.” By the way, I got an advance copy. It’s very smart. It’s very big. I say it’s big enough to kill a small dog with, in fact.

amy klobuchar

Please don’t use it for that purpose.

kara swisher

I shall not. I shall not.

amy klobuchar

OK. Thank you.

kara swisher

How do you get Americans to actually read this? This is substantively — I’m not just say large — but it’s a real lesson in where monopoly power has been and where it’s going.

amy klobuchar

So the first thing I did was use cartoons, which I think brings things to life. And there’s a whole history of antitrust cartoons dating to the 1800s and early 1900s. And they’ve been continued today. Secondly, I really tried to personalize it to my life and the life of so many Americans, with my great grandparents coming over to work in the mines, and how they were, basically, the workers for the monopolists, for the James J. Hill. And how they literally and metaphorically built his house. And I think those personal stories, people can relate to. The third thing I did was bring to life the people who’ve been involved in this, like Lizzie McGee, the woman who actually put together the Monopoly board, and the first game of Monopoly, and was basically ripped off by Parker Brothers and the like back then.

kara swisher

Yeah, it was called Landlord’s Game.

amy klobuchar

Exactly, and she did it to take on the monopolies. So I used some history, but then I get to the politics. And I’m in a unique situation as a senator that spent her private sector career taking on monopolies by representing MCI. When I was at a law firm, that was my biggest client. And saw the positive of the breakup of AT&T, where long distance rates went down and cell phones went from big things that barely fit in your briefcase from the Gordon Gekko days of the “Wall Street” movie to now.

kara swisher

Right. And you also started the book with big pharma, which you talked about when you —

amy klobuchar

Exactly.

kara swisher

— were running for president.

amy klobuchar

That was my “aha” moment, when I was simply got a call from a pharmacist in Minnesota and said, what’s happening to these baby heart drugs? A drug called indomethacin for a condition that treats newborn babies’ hearts. And it is proven to work and it’s so much better than surgery. And all of a sudden, the price went up 1,000 percent. Well, it turned out that one company — then Ovation Pharmaceuticals, later sold to a Danish company — had cornered the market. And all of the children’s hospitals and the families with newborn babies with a heart condition end up trying to fix it. And they come to me. I’m a brand new Senator. I bring it up to the F.T.C. commissioners at a hearing. They bring an action. It goes to federal court. With some esoteric reasoning that made no sense, the court throws out the suit and says no. And it ends up that if a U.S. senator and the entire F.T.C. — Democrat and Republican commissioners — cannot take on a company that literally bought both drugs and jacked up the price, something is wrong with our antitrust laws.

kara swisher

What’s interesting is what’s happening now. It’s rooted a lot more in populism and — as opposed to before — in income disparity and how people sort of getting an unfair shake.

amy klobuchar

And you know why. When you have one monopoly company, they can set the wages. So when we think about monopolies, we always think about, well, they can set higher prices, or there’s going to be less innovation, which makes a lot of sense because they don’t have to compete with anyone. But don’t forget one important point. Then there’s no one to go work for that’s competing with that company, because there’s only maybe one or two companies.

kara swisher

Right. So one of the things you wrote is, “Nowhere do modern day competition issues come into sharper focus than today’s big tech companies. Their success and innovation are unparalleled in recent history. No one can doubt that. But at some point, when the sheer size and dominance of companies like Facebook and Google allows them to buyout and scare away their closest competitors, and when the political dominance allows them to put a virtual stranglehold on necessary regulation, change must come.” So you’ve talked about things that didn’t work here. Why do you — they don’t jack up prices. They give you things. They give you dating service. They give you information. They give you maps. And they get all the money and all our information. So why hasn’t the government prioritized any antitrust enforcement against big tech so far?

amy klobuchar

It started out with we were excited, understandably, to have this new growing industry that employed a bunch of people and got us a bunch of cool things. Then it got really complex. And that’s always hard for people to take on, whether you’re in the Congress or whether you’re in the Justice Department. It takes a lot of resources. The next thing that happened, there’s tons of lobbying, And they’re like, oh, we’re great companies. Trust us. We know how to do this. You dumb people in Congress ask dumb questions. You don’t know the difference between this platform and that platform. That was kind of the theme. And I think what happened was, one, lack of enforcement. And this is not just during Republican administrations. Democratic as well.

kara swisher

The Obama administration let a lot of these acquisitions slide by.

amy klobuchar

Yes. And you interviewed — I used this in my book — You interviewed Gene Sperling, who admitted that they should have looked at the purchase of WhatsApp and Instagram, that they should have done things differently now. So that’s the first thing. The second thing is a lack of resources from the career people who actually could do this work. And we’re a shadow of our former selves. Even during the Reagan administration there were more people working at the F.T.C. And so that’s why this important bill — which I think has a chance of going first of all these, because of the strong bipartisan support that I have with Senator Grassley — and he is into this bill —

kara swisher

This is in February, the bill that you put in front of the Senate Committee, which you chair.

amy klobuchar

Yeah, this is changing the fee structure for big megadeals. And it would put about 130 million more into F.T.C. and D.O.J. antitrust enforcement. So that’s another reason. And perhaps the third, you offhand mentioned it, these conservative court rulings. It is true. The Borkean theories that have infiltrated the Supreme Court to the point where in one, over a decade period, they didn’t win one plaintiff’s antitrust case.

kara swisher

You’re talking about Robert Bork?

amy klobuchar

Yes. I’m talking about Judge Bork. And he interpreted that term, consumer welfare, which for so long had been based, actually, in the intent of the Congress with the Sherman Act and the Clayton Act — which was basically, hey, what works for people? Are they better off or not? And he interpreted it to include companies to really focus on efficiency, and to me, it just turned it upside down. And so that’s what the precedent is now. And now, there’s a lot of people starting to question that. There was a recent case before the Supreme Court about Apple, where Justice Kavanaugh actually sided with the more liberal justices. But if we’re going to have this whole thing contingent on waiting for the Supreme Court to change its mind on these interpretations, we’re going to be waiting decades. And so my answer to that, is given that they have driven the interpretation of this law so far in favor of inaction, it’s time to Congress to reinsert itself and, one, with the money to the agencies, two, with the administration appointing good people who are aggressive to these jobs, and then the next part is ours. How can we change the standards to make it easier and to make us as sophisticated as the companies that are messing around with competition policy in this country?

kara swisher

I know you’re saying “making antitrust cool again,” which, by the way, is not cool to say. But you’re saying “competition pol”icy. You’re trying to use that as the term, right? Sort of brand it again?

amy klobuchar

Yes.

kara swisher

Why is that?

amy klobuchar

Rebrand. Because the word antitrust is so hard for people to understand. It sounds like a bad thing. Of course, the word antitrust came out of Teddy Roosevelt and everyone taking on the trusts.

kara swisher

Trust busters.

amy klobuchar

And it’s sort of interesting, because it has the word trust in it. And you can’t really change the laws as they are., but you can change how we describe this. In Europe, they use the term competition policy. Why? I think that’s more positive. I actually want more competition. I was in the private sector for 14 years. I believe in capitalism. But when you look to the roots of capitalism, it was Adam Smith who warned about the standing army of monopolies and their unbridled power. You can’t have entrepreneurship and new ideas and the next best competition to Facebook that maybe actually has better privacy safeguards and bans on misinformation if they buy up everything in sight. You’re not going to get to that panacea of new ideas to be able to solve our problems, because you have monopolies that are controlling the situation.

kara swisher

All right. So some people think this consolidation isn’t the worst thing, that it doesn’t show harm, that consumers are benefiting. How do you answer those people, who say, “Senator Klobuchar, with all due respect, we don’t need to change this. Laws work just fine?”

amy klobuchar

These companies have done some good things. They have given us some good new products. I’m not saying get rid of those products. I’m not even saying completely get rid of these companies, of course. But at some point, you can divest assets. You can break up certain parts of these companies. That’s what happened with AT&T. The former chairman of AT&T actually said they were a stronger company when they came out of it, because they had to focus and compete. In the current Gilded Age, we’ve got Mark Zuckerberg literally saying, and this is one of his quotes about the smaller companies, “these businesses are nascent. But the network’s established. The brands are already meaningful. And if they grow to a large scale, they could be very disruptive to us.” Disruption is good for capitalism. You want that kind of competition. And when you talk about the prices — yeah. The story of monopolies is, they price things low and then once they can, they raise prices.

kara swisher

Or they don’t even need to, because they get other benefits.

amy klobuchar

Or they don’t even need to, or they don’t develop the new products you need, or you only have two grocery stores you can choose from. All of that happens because they eventually take over. And that’s what you’re seeing with the price of insulin and some of the things that happen in the pharmaceutical space. They’ve had a longer time to have monopoly power over certain drugs, and the drug prices go up.

kara swisher

So you have another bill that ups the ante on penalties of violating antitrust law. In your book you note potential punishments, like increased fines, sale of assets, even breakups. This reminds me of Microsoft, the company that famously went through several antitrust battles and which I covered the whole time. At one point, it was ordered to break up but then it didn’t. And the case was settled. It didn’t really have —

amy klobuchar

Well then the judge got kicked off the case.

kara swisher

Yes. Exactly. Was it a mistake not to break up Microsoft? It ended up pretty well in the end.

amy klobuchar

Well, it is where it is right now. They still have monopoly power, gateway. But they have also played, in my mind, some good roles when it comes to detecting hacking and helping on that front. So that being said, I think what’s interesting about this case is it shows how when things span administrations — the Clinton administration in 20 states bring this case, trying to push them to allow more competition in the form of, at that time, Netscape and Java. And ends up, what happens is — when the Bush administration comes in, they actually settle the case out cheap, honestly. And they didn’t end up breaking up the company. But I think what this shows for our current moment in time is, you often have these cases, because they’re so mammoth, spanning presidential administrations. And it can make a big difference in the outcome — to take the Microsoft experience into the now is — these cases were brought under the Trump administration. I think they were brought too late. But I’m glad they brought them. I applauded them when they brought those cases, with the D.O.J. case against Google and the F.T.C. case against Facebook. And in the F.T.C. case especially, coordinating with the attorney generals, doing it after the election made it seem less political. But I’m so glad they were brought under Trump, because then it de-politicizes it, because it makes it under two administrations now. And it makes it much more hefty when they have to take these companies on.

kara swisher

All right. You’ve been a senator since 2007. Is that correct? And the Obama administration didn’t do anything. Did you press them at the time? Why didn’t they do anything?

amy klobuchar

Well, I was — yes. I was questioning in my role on the antitrust — remember it was split. Part of the time, we were in control of the Senate. I chaired for a brief period of time. But a lot of the time, I was only the ranking member. And as Senator Lee and I together questioned some deals, but I also pushed on some of this. I was really concerned about all of the mergers, what was happening. I was obviously concerned about the issues with Comcast, the issues outside of the tech spector. But I didn’t have all the evidence. I wasn’t there in the middle of the F.T.C. or the D.O.J. to know enough about what this meant. In fact, there was something like hundreds of these, and a few of them that I knew about I would ask about. But it was not as much known in this Antitrust Subcommittee as it must have been in the administration.

kara swisher

I guess what I want to know is, why did the Obama administration punt? They really did. That is my words.

amy klobuchar

You’d have to ask them that. But I think part of that was it was deal after deal after deal, and just like the Trump administration waited too long till the end to do it. This has been reflected in administration after administration.

kara swisher

So Republican Senator Mike Lee of Utah has voiced concerns about your antitrust proposal. His is around this issue of consumer welfare, whether there should be one agency to handle all the antitrust action. He’s the ranking member of the Antitrust Subcommittee with you. Where do you two disagree?

amy klobuchar

Well, we have agreed on certain opposition and concerns about a number of mergers. We’ve done things — I remember one time we spent an hour and a half on our own trying to work out the language of the letter about the concerns about a merger. But I’ve been frustrated, and I’ve told him this, because he has been so focused on this F.T.C. and D,O.J., where does their jurisdiction lie? Should we all just have one? I’m like, OK. That’s sort of nice in a law school class to discuss. But we have the biggest companies, basically, allowing for the spread of misinformation, having no privacy controls that are meaningful. We’ve got health tech going out of the window here with things like Halo, and how is people’s personal data protected on Fitbit, something Senator Lisa Murkowski and I have taken on. We have so many issues right in front of us and an opportunity to take on the antitrust laws and do that once in the century change which our country has done over and over again. I’m not going to be stuck on what I consider a red herring issue about where does each jurisdiction lie. I mean, this is real stuff.

kara swisher

Should there have been one agency?

amy klobuchar

I think there was a reason the F.T.C.’s jurisdiction was much broader and it created some check and balance on what the D.O.J. would do, because you have independent commissioners at the F.T.C. And they also do much more with advertising and marketing and things like that. I don’t really have a problem with this. The last thing that I want to do right now is to take away the expertise we have at two agencies. It makes no sense at all.

kara swisher

Right. So your views on antitrust are seen as more centrist though, versus other Democrats like Elizabeth Warren. She’s been very explicit about calling for the breakup of big tech. Do you agree with that characterization? And why not be more, I guess, progressive here if you’re trying to make actual change?

amy klobuchar

I really don’t agree with it because I think that she and I are, in basic ways — maybe we use different words — you know, I’m from the Midwest. I talk a lot about what’s happening from a Midwestern standpoint. But I think that divestiture of assets and breaking off of certain assets that shouldn’t have been acquired in the first place, I think that’s a real remedy that has to be on the table. And I’ve always felt that. I think what I’ve done — just simply because I’m on the committee — I’ve dug deep and said, how could we actually get there? How can we make it easier, give the agencies the tools with the resources and then make the laws more clear?

kara swisher

Well, it’s always good to have Elizabeth Warren around to scare Mark Zuckerberg, because she seems to do it rather well.

amy klobuchar

Exactly.

kara swisher

I don’t think you’re quite as scary to him, but probably should be. So is it time to break up Facebook, or at least force them to sell Instagram or WhatsApp?

amy klobuchar

It is. But we have to do it through the laws. I can’t just decree it and give a speech and it happens to an empty chamber on the Senate floor. You’ve got to use the laws. And that’s why having Merrick Garland in place, who understands antitrust law, who when he was introduced to the country as the A.G. nominee, actually brought up antitrust, with Joe Biden at his side. I think that’s very important.

kara swisher

So that’s a yes.

amy klobuchar

Oh, Yeah. That’s a yes. And I think it’s actually — especially with Instagram and WhatsApp — that’s the best example of that. And especially under the law, when you look at the intent, when you look at say the Zuckerberg emails, it makes it easier to prove those cases and to make clear this wasn’t right. This was not bought for good intent.

kara swisher

All right. What about Google? What’s the best remedy?

amy klobuchar

Right. Well, I think the best remedy with Google is getting at the exclusionary conduct and getting at how they have their ad ecosystem, where they’ve got — they control everything. They control the algorithms. They control — and taking that on, I think, would make a big difference. All you’re trying to do here — you’re not trying to destroy their search engine, which is the biggest one, but you’re trying to allow others to flourish and to get actual competition in place.

kara swisher

Explain exclusionary conduct.

amy klobuchar

Exclusionary conduct is where you basically are so big that you can put your products at the top of the search. You can make sure you own the app stores. So you can make sure that other apps don’t get on there or that they have to pay higher fees to get on there.

kara swisher

So is breaking up the way to do it or to have rules?

amy klobuchar

Breaking up is hard to do, as they say. But breaking up is one way. Yes.

kara swisher

What about Apple? What’s the best remedy there around its app store?

amy klobuchar

Well, we’re going to have– one of our first hearings it’s going to be on the app store, and figuring out how we can make this more fair for competitors and for people who use it. I can say one thing is that there are a whole bunch of companies — small, medium, and large — who are scared of the stuff that’s going on. Why do I know? Oh, they come and tell you behind closed doors. There are a bunch of content providers that think that if they speak out, that then they’re going to get screwed on the way they do the algorithms for their links. And the app store thing is the same, because people don’t want to get hurt, and they don’t want to get —

kara swisher

Hard to break that up though, because there are safety issues.

amy klobuchar

Right. So then you just, you figure out how the charges are, and who gets on, and how you have competitors.

kara swisher

So could that be regulations or agreements or decrees?

amy klobuchar

Stay tuned for our hearing. Yes. The agreements. It’s about the agreements.

kara swisher

Yeah. OK. Amazon. Monopsony.

amy klobuchar

Amazon.

kara swisher

Explain monopsony.

amy klobuchar

OK. So, yeah. It’s a situation where you control, because you are the ones that they buy stuff through. They buy stuff from you. It’s not like — it’s Pepsi, Coke. If they were to combine — and they’re not nor are they intending to — but that would be like a monopoly over your drinks, because they would be what’s called a horizontal monopoly. But when you have all of the people who make stuff having to sell their stuff on one platform as in Amazon, and dependent on them to do that, you start having a monopsony situation.

kara swisher

So in that case, what do you do about something like Amazon?

amy klobuchar

Well, to me it’s another form of exclusionary conduct. And my bill, actually, gets at defining monopsony as one of the problems, and it also gets at this form of exclusionary conduct. And it’s an example of the fact that our laws are not sophisticated right now to be able to handle that.

kara swisher

People love Amazon and they used it heavily during the pandemic.

amy klobuchar

Yes, they did. I mean, that’s true. All these tech companies, for the most part, got richer than ever. [MUSIC PLAYING]

kara swisher

We’ll be back in a minute.

If you like this interview and want to hear others, follow us on your favorite podcast app. You’ll be able to catch up on “Sway” episodes you may have missed, like my conversation with former Facebook Chief Security Officer, Alex Stamos. And you’ll get new ones delivered directly to you. More with Senator Klobuchar after the break. [MUSIC PLAYING]

Digital companies are everywhere. They’re global. Do we need a pan-national entity to force rules around antitrust? When I talk to people in New Zealand and Australia, Europe they say the U.S. does nothing. And these are American companies, in the end, most of them. Is there any way to do this internationally?

amy klobuchar

Yes. Janet Reno actually announced this way back, that we were coordinating, not a body that was coming together, but coordination. And that has fallen off. And I think there has to be more coordination, especially when we’re dealing with China, which is a whole other story when it comes to their idea of competition policy is to promote their state-owned industries and to hack into other systems in other countries. If we work with our allies, and we work better with Europe and with Canada — which has its own competition policy issues — but if we work with all of our allies, we’re going to be a better place in taking on China, when it comes to competition. And get this, when we look at trade agreements, and using that as a vehicle with our allies to be able to take on competition policy, and then of course I’ve done multiple events now and had discussions with Margrethe Vestager over at the E.U. I think before they were just looked at, you know, they were up to bad stuff. And I think now as people’s eyes have opened to all these competition problems, there’s much better coordination with them. When Australia happened with Google, I thought it was actually kind of cool. It wasn’t just Europe standing up and going, whoa. What’s happening over there? That’s not right. People in the U.S. did, too. And the fact that you’ve got Democrats and Republicans talking about it. I just think this is ripe for coordination through trade agreements, and have coordination when it comes to our policies.

kara swisher

The Australian situation is a little more complex as the presence, the nefarious presence of Rupert Murdoch. But nonetheless, these bills are coming. You have the Journalism Competition Preservation Act. This is a bill that would allow them to work together.

amy klobuchar

It allows all the news organizations now including — we expanded it to broadcast, to radio and TV — to be able to join forces over a period of time to negotiate the rates, but also to negotiate what these agreements are. Because Google and Facebook, they get to actually see who’s looking at the links to the news content providers’ articles, and the content providers can’t, even though they are providing the content.

kara swisher

One of the arguments that these companies make is that we have to stand up to China. When I interviewed Mark Zuckerberg, I called it the Xi or me defense. It’s like, Kara, you either have China and Xi, or you have me. And I was like, I don’t like either. I would like — what’s my third choice here in this horrible choice situation? What do you make of that argument? He’s sort of making that argument today in Congress, is we need companies that really spend on this content moderation. So we need to be this big.

amy klobuchar

That would be saying we’re perfect, and so everything is fine here. I think we will forever have big companies. I don’t think we’re going to see no big companies if we’re ever going to be a force in competition. But we’re only a force worldwide if we keep innovating and we keep having the next Facebook, and the next Google, and the new bells and whistles to be able to compete. Because he’s not just saying it, actually. All these companies are using it as an excuse, outside of tech, not to enforce the antitrust laws or do something on monopolies because otherwise we can’t compete with China. I just look at it differently. I look at the history of our country, where time and time again we’ve rejuvenated capitalism, we’ve come up with new ideas. That’s what’s allowed us to be so strong in competing internationally. Not just hiding from within and saying, let’s keep the monopolies we have, and then we’re going to be so much better in competing against China. That’s just not true because if we only have one big company in each area as a gatekeeper, then we are going to end up in the same situation that the Chinese are, because there’s going to be no competition at all. So, I just don’t buy it.

kara swisher

Do you feel the Biden administration is up to this task? Is he a Teddy Roosevelt type of President?

amy klobuchar

I think he has a healthy suspicion about bigness. I think he’s always been someone, you know that guy from Scranton who looks at things —

kara swisher

Yeah. I’ve heard that speech.

amy klobuchar

Really? In terms of regular people. And if you look at things from the terms of regular people, that’s what Teddy Roosevelt, when he rode that antitrust horse into the White House, and back when people had songs, Woodrow Wilson, that they ran on about antitrust– which just seems hilarious right now.

kara swisher

Can you sing one?

amy klobuchar

No. I can’t. He had a campaign song about this. But back then, it was one of the top issues of our time. And I believe that Joe Biden gets it. And the choices he made so far of bringing in disrupters — the very thing that Mark Zuckerberg said he was worried about was disruption to their market — of people like Lina Khan and the F.T.C., and people like Tim Wu in the White House. I think we need this shot in the arm right now, if we’re going to move things, people that actually understand this stuff and are willing not to just accept things as they are and say, “Oh. The courts are so hard. We can’t do this. Oh, we don’t have enough resources.” You’ve got to be able to step back and think what we can do.

kara swisher

Of all the things that you’re scared of that that monopoly brings, what — is it the misinformation in one place, the inability to control it? Is it just sheer power? Is it — what is the thing that scares you the most?

amy klobuchar

January 6. What scares me the most is that we lose our democracy. And I don’t want to be — it sounds like way overwrought especially for sort of a middle, a moderate like myself. But I am scared of it, because people are believing lies and we’re not doing anything to control that. And so all of that contributes to a fraying of our democracy, where extremes start taking over, where people feel like they are just so isolated that they turn to QAnon and things like that. I’m not giving excuses for it, but this kind of stuff is happening right now. A breakdown of institutions.

kara swisher

You were gaining some traction toward the end of your presidential run. How are you looking at it? Do you still think of that or do you feel like being a badass senator really does have power?

amy klobuchar

I love what I’m doing now. I have an incredible state to represent. I’m at the leading edge of two huge issues — voting rights with my chairmanship of the Rules Committee, the Rules Committee in the Senate. People hadn’t really heard it before, but we’re on the front line of looking at what happened in the Capitol, making recommendations, and voting rights. And of course, this battle for the soul of capitalism, this idea that we actually can rejuvenate it again, and that we can make antitrust cool again. Those are pretty fun things to work on. And I think this moment in time, as I stood out there in the inaugural stage launching this inauguration where we recaptured the stage from insurrectionists that were bent on undermining our democracy, on the same stage with the spray paint at the bottom of the columns and in front of the makeshift windows. And I said, “This is the moment in time where our democracy picks itself up, brushes itself off, and goes forward as we always do, one nation, under God, indivisible, with liberty and justice for all.”

kara swisher

Oh, wow.

amy klobuchar

So, yeah. I like my job right now.

kara swisher

When you have that moment where you saw the graffiti on the columns, that this had happened, that a lot of these tech companies ginned it up, President Trump used these platforms, what did you think when you were standing there?

amy klobuchar

I, first of all, was so angry about what happened. On the night of the Electoral College vote, at 4:00 in the morning, it was just Senator Blunt and me and Vice President Pence and the young women carrying that mahogany box with the rest of the ballots walking over through the broken glass to that house chamber. And it was a moment like I have never experienced because I believe so strongly that, above all, we’ve got to stand up for our democracy. And that means looking at every part of this for who is responsible, and how we change things. I’m so when I stood on that stage and looked up at the sky I thought, OK, this is our moment to start again. And for me, this piece of it — the competition policy and the fact that we don’t want to have to give away our democracy to a bunch of tech companies, no matter how successful they are — it’s worth doing everything just to do that, because I firmly believe in our democracy. And for too long we’ve just conceded that. We haven’t given people what they need to be able to make those decisions. And a lot of that has to do with lies that are spreading online. And you just can’t deny that anymore.

kara swisher

I have one last question, a thought. Your book is called “Antitrust,” and now, Secretary Pete Buttigieg wrote a book called “Trust.” Are you guys ever going to agree on anything?

amy klobuchar

No. We actually spent last weekend together. Chasten was out of town helping his parents —

kara swisher

Hanging with Pete?

amy klobuchar

My husband was in Minnesota. Pete and I are good friends. People don’t understand this. You can be rivals on the debate stage and be friends. I hung out with the dogs. We went on a long walk. And he’s really doing well. And yes, the final hilarity is he wrote a book called “Trust.” And I wrote a book called “Antitrust.” So we didn’t even know we were doing it. But there we are. The rivalry never stops.

kara swisher

So it was — one of my favorite parts was you debating each other, because it was sort of Midwest nice, but not really, which was kind of, I don’t believe in Midwest nice, necessarily.

amy klobuchar

Exactly. We were just making our points. We had different points.

kara swisher

Yeah. I get that. Anyway, I really appreciate it. I think the book is great and I promise I will not kill any dogs with it. It’s just —

amy klobuchar

OK.

kara swisher

All right. All right. Thank you, Senator Klobuchar and thanks for the time.

amy klobuchar

Thank you so much, Kara. [MUSIC PLAYING]

kara swisher

“Sway” is a production of New York Times opinion. It’s produced by Nayeema Raza, Blakeney Schick, Heba Elorbany, Matt Kwong, and Daphne Chen. Edited by Nayeema Raza and Paula Szuchman with original music by Isaac Jones, mixing by Eric Gomez and fact checking by Kate Sinclair and Michelle Harris. Special thanks to Shannon Busta and Liriel Higa. If you’re in a podcast app already, you know how to get your podcasts, so follow this one. If you’re listening on The Times website, and want to get each new episode of “Sway” delivered to you with an invitation to Pete Buttigieg and Amy Klobuchar’s next BFF hangout, download any podcast app, then search for “Sway” and follow the show. We release every Monday and Thursday. [MUSIC PLAYING]

March 29, 2021

Produced by ‘Sway’

Senator Amy Klobuchar is trying to hold big tech to account and in the process “make antitrust cool again.” She believes that, because of their size and power, companies like Facebook, Google and Twitter have become a dangerous threat to American democracy.

Of course, the chief executives of those companies tend to disagree (after all, they are incentivized to). On Thursday, Mark Zuckerberg of Facebook, Sundar Pichai of Google’s parent company Alphabet and Jack Dorsey of Twitter appeared before the House Committee on Energy and Commerce to answer for the misinformation on their platforms. Only Mr. Dorsey was willing to take any responsibility for the Capitol attacks — and even he hedged.

On this episode of “Sway,” Kara Swisher and Senator Klobuchar discuss the hearings. They also talk about whether these companies need to be broken up, if the immunity that platforms enjoy as a result of Section 230 of the Communications Decency Act of 1996 should be stripped away, and whether the terror of the Capitol attack will force Washington to get serious about regulating big tech.

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Credit…Illustration by The New York Times; Photograph by Gabriella Demczuk for The New York Times

Thoughts? Email us at sway@nytimes.com. Transcripts of each episode are available midday.

Special thanks to Michelle Harris, Shannon Busta and Liriel Higa.

“Sway” is produced by Nayeema Raza, Heba Elorbany, Matt Kwong and Daphne Chen and edited by Nayeema Raza and Paula Szuchman; fact-checking by Kate Sinclair; music and sound design by Isaac Jones; mixing by Erick Gomez.

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