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Hon. Tom Malinowski (D-NJ-07)
Congressman, United States House of Representatives
Director, Democracy and Tech Initiative, Digital Forensic Research Lab, Atlantic Council
ROSE JACKSON: Mr. Malinowski has dedicated his career to the fight for human rights. He’s served as a speechwriter and foreign policy staffer to Secretaries of State Warren Christopher and Madeleine Albright, as well as for President Bill Clinton. He led Human Rights Watch’s advocacy work for a decade, fighting to end the Bush administration’s use of torture and working to uplift the stories of activists around the world. During the Obama administration, the congressman served as the assistant secretary of state for democracy, human rights, and labor, and in that capacity as my boss. (Laughs.) Now in Congress, Mr. Malinowski has taken an active role in seeking to shape the conversation around tech governance.
Congressman, thank you for joining us.
REPRESENTATIVE TOM MALINOWSKI: Thank you, Rose. As I recall, you were my boss, but we can have that debate elsewhere.
ROSE JACKSON: (Laughs.) I tried. I don’t know that I was as good at that. (Laughs.) And now you are in Congress.
REPRESENTATIVE TOM MALINOWSKI: Yes, it does seem like I am. I’ve got this pin to prove it.
ROSE JACKSON: That’s how everyone knows.
Well, I want to dive right in because I know we don’t have a ton of time for this conversation, and I’m really grateful to you for giving your time to the stage. I think it’s appropriate because you’ve been so steeped in the human rights community and the global conversation around these issues. And I’m curious, just to kick us off, how have you seen technology changed that work over time? I’m thinking of, you know, the stories I used to hear about during the time, for instance, of the Khmer Rouge, where people said you can’t believe the stories of those pesky refugees; what’s happening in Cambodia, what you’re being told, is wrong. And today, certainly with millions of cellphones trained on every event, that looks a little bit different. And I’m curious, for you, what does that mean for the practice of defending human rights and changing policies globally?
REPRESENTATIVE TOM MALINOWSKI: As your question suggested, it means that we know a lot more than we did before. There is a vast quantity of information coming out of even those societies where governments try to control the dissemination of information. It’s harder to hide things, and that’s a good thing. And for many years we, I think, assumed that the proliferation of simple technology in the hands of ordinary people to record events would be an unmitigated good for human rights and the advancement of democracy. I think we’ve also now in more recent years learned that it’s more complicated than that, that more information does not necessarily mean more agreement around the truth. And so I don’t know if we’re better off or worse off, but it’s certainly a very different world than when I started.
ROSE JACKSON: Certainly. I’m thinking to your time, then, at the State Department, which was in some ways the early days of public officials using Twitter. So it was a little—a little bit of the Wild West. And I wanted to chat a little bit about what that was like coming in as a senior official with both the official capacity of public statements and speeches and diplomatic talk, and simultaneously having a Twitter account where someone could ping you a DM in the middle of the day. What did that do to change how you approached diplomacy itself?
REPRESENTATIVE TOM MALINOWSKI: It gave—it gave me and us a way to communicate that was much more direct, much more immediate, a little less bureaucratic, because it didn’t have to get run through ninety-three different layers at the State Department, and it gave people around the world a chance to communicate directly with me and with other senior officials in the State Department.
We had problems brought to our attention by activists in closed societies by DM, as you recall. So yeah, we were learning to use the technology and we tried to use it responsibly, and it definitely made life different for me even then than for—you know, than it would have been for a diplomat even ten years before.
ROSE JACKSON: Certainly. Do you—I don’t know if there are any examples that you want to talk through. I’m thinking about a time in Ethiopia where the secretary of state was getting ready to head to Ethiopia at a time that there was, certainly, closing civic space for journalists and opposition.
Are there any particular examples like that or others that come to mind as being kind of a moment in history that felt a little different?
REPRESENTATIVE TOM MALINOWSKI: Yeah. Well, we were DMed by, actually, some—an activist in Ethiopia about a journalist who had been imprisoned just as Secretary Kerry was on his way there, and it worked. That resulted in the secretary of state raising the case of this imprisoned journalist and, ultimately—not right away, unfortunately, but ultimately, the journalist being released from prison.
So, again, it was a very immediate way to communicate, whereas in the past, you know, that person would have had to try to get a meeting at the US embassy. That might have endangered them to be seen doing that. In any case, much more time consuming, much more cumbersome, and here they could just direct message an assistant secretary of state in Washington.
ROSE JACKSON: Absolutely. So to turn a little bit towards the present day, you’ve joined Congress and jumped right into debates on tech governance, including through a bill that you recently introduced. How do you think your time working within the human rights community globally and focused on these questions internationally has informed your approach to the conversation here in the United States?
REPRESENTATIVE TOM MALINOWSKI: Well, I got to tell you, my approach has evolved quite a bit. My attitudes have become a bit more complicated. I think when I was starting out as a human rights activist and then when we worked together at the State Department, again, I was focused overwhelmingly on trying to get more tech into more hands around the world, defending the idea of internet freedom, which I still believe in greatly, freedom of speech online and as little government regulation of the online world as possible, because we were pushing back against the Chinese government and the Russian government and authoritarian regimes around the world who wanted to censor and control the internet.
I think we’ve seen, in our experience in our own country in the last few years, that this is actually a much more complicated question. I’m no less of a champion of freedom of speech online than I was, but I’m very, very deeply disturbed by what social media has done to our democracy, democracies around the world, and how it has really become much more of a tool for extremists within our society and authoritarian regimes and a way more effective tool for them than it is for anybody else because of how American companies have designed these social networks, designed with algorithms that amplify the most extreme information that are built around the—around the goal of keeping users glued to their screens for as long as possible and learning over time that what keeps us addicted to our screens is not complicated, nuanced, truthful information but whatever reinforces our preexisting biases and hatreds and fears.
Without that, I’m not sure if you’d have the Rohingya genocide in Burma. Without that, I’m pretty sure you would not have had the January 6 assault on the United States Capitol and all of the propaganda and misinformation that we’re still struggling with and struggling against in the United States. So what we’re trying to do is, without messing with the First Amendment, we’re trying to remove some of the total protection from liability that big tech companies have, social media companies have when they write algorithms, software that amplifies, recommends content that leads to a real-world harm, like an act of terrorism or a violent hate crime, because we want to incentivize these companies to design their networks more responsibly.
ROSE JACKSON: Yeah. I mean, it’s interesting that you raise the example of genocide in Myanmar and other conflicts elsewhere, because when we were at the State Department, so much of the focus on what we sometimes called repressive tech was about the intentional use of technology on the part of a government to suppress a population, and we’re now talking about trying to ferret out the impact of algorithms or other aspects of technology on societies, whether used by governments or other bad actors.
How did you decide to focus on the liability question in the United States? And when you were focusing on that, were you thinking about what that might mean for communities in other countries or looking at it from specifically an American context?
REPRESENTATIVE TOM MALINOWSKI: Well, I’m always thinking about the impact around the world; everything we do sets a precedent. And it’s why I would be very—even if the First Amendment—(laughs)—allowed it, I would be very, very loath to see Congress try to regulate speech on Facebook, speech on YouTube. It’s not for us to say to these companies what they can and cannot allow. It is entirely up to them. But the liability protection that we have in our laws, under Section—the now famous, or infamous, Section 230 of the Communications and Decency Act, is a purely American construct and it’s not required by the First Amendment, it’s not required by human rights law that we have one industry in America that is completely protected from liability for what its users post on their websites. New York Times doesn’t have that protection. Fox News doesn’t have that protection. Facebook does. So I think putting social media on a slightly more even playing field, I don’t think that sets a precedent that the Chinese or the Russians or the Venezuelans can use. The problem in those countries is not that the companies lack protection from liability, it’s that they face censorship and outright persecution.
So that’s one reason we chose the approach. Again, it allows us to solve a uniquely American problem through a change in a very recent American law, without setting a precedent that authoritarian governments can use to shut down free speech on the Internet.
ROSE JACKSON: As you talk about that process, I’m reminded of another policy issue that was inherently both domestic and international that we worked on a bit during the State Department but you’ve carried forward engagement on in your time in Congress, and that’s anti-corruption. And I’m wondering if you think there are lessons to be taken from the very long process of building bridges between different communities that each had a shared reason to be concerned with the growth of kleptocrats’ ability to hide their ill-gotten gains in the United States and the U.K. and other countries and finally getting to the point where legislation was passed last year. What do you have as advice for a community of people that want to find a way for a common approach where the United States, for instance, has the ability to make changes that will have significant impact for billions of people around the world?
REPRESENTATIVE TOM MALINOWSKI: I think, just very simply, that to be effective in Washington in changing policy, getting legislation passed, it’s always best to work in coalition with others. The bill that you’re referring to was the Corporate Transparency Act. It was—it’s a law that requires disclosure of the real owners, the true owners of every company that’s registered in the United States, because in the past you could basically set up an anonymously owned company, and who was doing that? It was kleptocrats, human-rights abusers, drug traffickers, criminals, tax evaders. And if you think about that list I just gave you, that’s a lot of different issues. If you’re concerned about loss of tax revenue to the US Treasury; if you’re concerned about fighting drugs and crime around the world, trafficking in weapons, trafficking in people; if you’re concerned about human rights abuses and the attacks on democracy by authoritarian leaders around the world; all of those issues have this one thing in common, and that is that the bad guys in each column, in each category, are making a lot of money illicitly and using shell companies to hide it. And so all those communities came together and built a coalition of Democrats and Republicans—who had very different reasons for voting for that bill, but together they constituted a majority.
ROSE JACKSON: Absolutely. I think, you know, it’s interesting to think right now we’ve had for the last four days fifty-something panels with 114 people from around the world, some of whom are antitrust experts and others focused on privacy issues and others on content and online harms, on and on and on and on. And if often feels very similar to the experience of the beneficial ownership conversation and the corruption conversation for the reason that you—that you say. I’m curious, as you are approaching a lot of these issues in the US Congress, are you finding that there is a coalition growing and a greater appetite for approaching the question about how we govern technology in the world from this more systemic approach? And if not, what do you think is the most exciting thing that’s happening in moving forward a more positive approach to, I guess we could say, democratic tech?
REPRESENTATIVE TOM MALINOWSKI: Yeah. Well, obviously, the most exciting thing is my bill, Rose. That’s an easy question.
ROSE JACKSON: (Laughs.) That was a softball. (Laughs.)
REPRESENTATIVE TOM MALINOWSKI: I don’t know if we’ve coalesced quite yet. I think most people on the Hill, when they think about what’s wrong with big tech, they’re still just thinking about content questions. And you know this gets partisan, right? So some of my Republican colleagues are all up in arms because they think big tech is censoring conservatives and how could Facebook and Twitter kick off Donald Trump. And so they’re, you know, on a tear that we got to—we got to stop censorship, and of course that then leads to censorship. It leads to government telling private companies what they can and can’t allow on their platforms.
And then a bunch of us are trying to shift the conversation a bit away from content, which is really not up to the United States government and I think in a way beside the point, because there’s always going to be bad stuff posted on the internet. Like, you can’t stop people from saying bad things. We want to try to shift the focus more towards the company—the way in which these companies design their networks, the algorithms, the systems that decide—that determine what information about the world each and every person on this planet sees. That’s a hugely important thing, but it’s harder to see. It’s harder to understand because it’s much more technical. It requires opening up the hood of the car and understanding the engine that makes it run.
But we’ve made some progress in shifting the conversation to that subject and getting people to start thinking about solutions. And here, then, you know, there are a lot of different problems in society that people care about that are related to this. There is violent extremism in the United States and the riot on January 6. There’s the growing polarization in our politics that so many of my constituents are concerned about. Why can’t we talk to each other anymore? Why are families being split apart because they can’t have a political conversation or even agree on what’s real anymore? We see these issues around the world. I mentioned the Rohingya genocide, the rise of extremist movements in every part of the world, the strain that every democracy is feeling. There’s not one explanation for these problems, but the evolution of big tech and the fact that most people in the world now get their news through social media is a big part of the explanation for a lot of these disparate problems.
And so we’ve tried to offer a solution that brings people with these disparate concerns together. And so I’m excited about that, and that we’ve offered something concrete, not just rhetorical.
ROSE JACKSON: Absolutely. So you mentioned the topic of democracy, so I wonder if we can turn towards what I found to be an interesting shift in the last few years where perhaps in the past there was kind of a conversation about global democracy and then there were domestic politics in the United States. And I think in some ways the events of January 6 and the preceding four years forced a lot of Americans to have to think about what made a democracy in the United States durable and functional. And the kind of impact of that is that now the foreign policy conversation seems to include a little bit more of a connective tissue, where anything that we talk about—whether that is the impact of tech globally—has to tie back to what’s happening here in the United States.
So I’m curious, as the Biden administration announced during the campaign, actually, that there was an intention to hold a summit for democracy in the early years of his tenure, what you think can be accomplished with that and what value you think there is to rallying the world around the concept of democracy and updating the understanding of what democracy looks like in a digital age.
REPRESENTATIVE TOM MALINOWSKI: So Biden’s been very clear that he sees a contest between democracy and authoritarianism as being the defining issue in the world right now. And so that’s a pretty bold statement and a bold—and a big challenge for his team to meet, to devise policies that are consistent with it. And I think this democracy summit, it is—it is based on a recognition that if the United States is going to do its part to win this contest, we’ve got to be aligned with others around the world who share our values. That one country alone, even as powerful as America, can’t do this by ourselves.
So they’re going to have a democracy summit, or several summits. I’m not exactly sure how it’s going to work. The question in my mind is whether this is going to be just a typical meeting at or around the UN that leaders go to and give speeches at, in which case I’m going to probably tune out in about five minutes. Or is it going to be an action-forcing event, where governments are told, you can come and you can join if you make real commitments to actually tackle these issues that we’ve been talking about?
Corruption is one of them. Like, if we’re going to have an alliance of democracies countering authoritarianism, we’ve got to make sure that there is no safe harbor in any of our countries for the proceeds of kleptocracy. And that we have strong anti-corruption and transparency rules ourselves, because we need to set a good example.
On tech issues, we—you know, we want to be different from China and Russia in every possible way. And that means absolutely respecting freedom of speech online and offline. That also means healthy regulation to make sure that these virtual spaces where we’re having most of our political debates aren’t designed to amplify falsehood and extremism in the way that they are right now.
And finally, you know, another tech issue we haven’t talked about that would be very appropriate for discussing in a coalition of democracies is making sure that our companies and our governments are not complicit in the export of technology to dictatorships that is then used to conduct mass surveillance and persecution. And this is—this is a mostly unregulated space right now. And it needs to be much better regulated in the United States and by our allies. And that’s something I’m working on right now with the Biden administration.
ROSE JACKSON: That’s excellent to hear. Feel free to say no, but I’m curious if you want to preview a little of what your hopes are for making progress on the question of surveillance tech. It is certainly a tricky one, and one that I remember when we were at the State Department was something of really significant concern, seeing the impact it had on activists in some of the most vulnerable situations. Do we have some exciting things to look forward towards? Or is this really trying to set the agenda for how we approach the work?
REPRESENTATIVE TOM MALINOWSKI: I hope so. You know, there—one of the things we need, and I have approached the administration with great specificity on this, we need to have real export controls on specific items. And “item” is, I think, a legal term of art here, that could be dual use, that can be used in some cases for perfectly legitimate purposes, but in the hands of a dictatorship like China are potentially going to be used to conduct mass surveillance. And you know, that could be servers. It could be facial recognition technology. It could be spyware. These things are often—(laughs)—in many cases produced by companies in the United States staffed by former employees of our intelligence community who bring their expertise to the private sector, and this stuff should not be out there, sold to the highest bidder on the free market without some controls.
So we’ve submitted to the administration a list of items that we think should be subject to greater controls. We’ve also been—we’re pushing legislation that I’m hoping will be part of the China package that is moving through the House alongside the Senate China bill that will require the State Department to maintain an effective blacklist of foreign companies that sell this kind of surveillance tech to authoritarian states so that American pension funds and investors know that these companies are doing this terrible thing.
So we’re just beginning. Again, it’s a totally unregulated space, but we’re asking the obvious questions and making some very specific proposals to the administration that I hope they’ll act on.
ROSE JACKSON: Thank you so much for sharing that. I wonder, as we come towards the end of our conversation, as I mentioned in the beginning, you know, you were a speechwriter, which in some ways is really the person in a foreign policy space that tries to set the narrative argument for the vision and foundation of the policy work that’s moving forward. And as you alluded to, the Biden administration has set this up as a real competition between democracies and autocracies and the ideas that underpin them, and I wonder if you wouldn’t mind taking us out with your thoughts on where you think that battle goes. What’s at stake? What does the world really look like? And how do we come out of this with the open societies that I think most of us watching today hope to live in for many, many years to come?
REPRESENTATIVE TOM MALINOWSKI: There’s a lot at stake, and obviously there’s a lot at stake for smaller countries on the periphery of China and Russia. They don’t want to live in a world in which big dictatorships can bully them and impose their rules and values. Obviously, there’s a huge amount at stake for the citizens of these authoritarian states and also for Americans, because increasingly great authoritarian powers like China and Russia aren’t respecting international borders. I mean, the Chinese are trying to bully American companies to censor their employees. They are threatening Americans of Chinese descent that their families back home or in their original or ancestral home will be hurt if they—if they exercise their free speech rights inside the United States. We’ve had exiled dissidents, of course, living in the United States and in Western Europe kidnapped, murdered, harassed, intimidated by authoritarian states. So there’s a lot at stake for us.
I also think there is—you know, contests can be constructive. They can sometimes lead us to do stupid things, but they often inspire us to do big and great things. The Cold War is a great example. We did some stupid things motivated by this competition that we had with the Soviet Union, but if not for that competition we probably wouldn’t have built the interstate highway system. We probably would not have put a man on the Moon or resolved the great civil rights questions of the 1960s in the way that we did. There was a constant motivating factor for America to be better, stronger, and more a reflection of our professed values because we understood that we needed to be better in order to win that contest.
And so my hope is—and I think—I think President Biden shares this—is that this contest can be a good motivator for us, whether that means tackling climate change, whether that means dealing with injustices in our own societies that undermine our claim to more leadership around the world, or taking on some of these new issues so that America is the leader in the model on privacy, on transparency, on fighting corruption, on maintaining appropriate regulation of the online world without undermining our commitment to freedom of speech. We got to be in every way different and better than our adversaries, and sometimes having those adversaries, being in the contest, it is what a country like ours needs to get our butts into gear. So I hope we do.
ROSE JACKSON: It’s a good motivating message for us to get our butts into gear as a community of democracies around the world. I just want to thank you for taking the time and coming to speak with us and for the work that you’re doing to tie the agenda of human rights activists and small d democrats around the world together to, hopefully, build a stronger, safer, more rights-respecting world.
So thank you again, and we hope to see you back here for future 360s and events.
REPRESENTATIVE TOM MALINOWSKI: Thank you, Rose. You’re doing great work.
ROSE JACKSON: Thanks.