My Testimony on Behavioral Advertising: Post-Mortem

On Thursday I testified at a House hearing about online behavioral advertising. (I also submitted written testimony.)

The hearing started at 10:00am, gaveled to order by Congressman Rush, chair of the Subcommittee on Commerce, Trade, and Consumer Protection. He was flanked by Congressman Boucher, chair of the Subcommittee on Communications, Technology, and the Internet , and Congressmen Steans and Radanovich, the Ranking Members (i.e., the highest-ranking Republican members) of the subcommittees.

First on the agenda we had opening statements by members of the committees. Members had either two or five minutes to speak, and the differing perspectives of the members became clear during these statements. The most colorful statement was by Congressman Barton, who supplemented his interesting on-topic statement with a brief digression about the Democrats vs. Republicans charity baseball game which was held the previous day. The Democrats won, to Congressman Barton’s chagrin.

After the opening statements, the chair recessed the hearings, so the Members could go to the House floor to vote. Members of the House must be physically present in the House chamber in order to vote, so it’s not unusual for hearings to recess when there is a floor vote. The House office buildings have buzzers, not unlike the bells that mark the ends of periods in a school, which alert everybody when a vote starts. The Members left the hearing room, and we all waited for the vote(s) to end, so our hearing could resume. The time was 10:45 AM.

What happened next was very unusual indeed. The House held vote after vote, more than fifty votes in total, as the day stretched on, hour after hour. They voted on amendments, on motions to reconsider the votes on the amendments, on other motions — at one point, as far as I could tell, they were voting on a motion to reconsider a decision to table an appeal of a procedural decision of the chair. To put it bluntly, the Republicans were staging a kind of work stoppage. They did this, I hear, to protest an unusual procedural limitation that the Democrats had placed on the handling of the appropriations bill that was currently before the House. I don’t know enough about the norms of House procedure to say which party had the better argument here — but I do know that the recess in our hearing lasted eight and a half hours.

These were not the most exciting eight and a half hours I have experienced. As the day stretched on, we did get a chance to wander around and do a little light tourism. Probably the highlight was when we saw Angelina Jolie in the hallway.

When we reconvened at 7:15 PM, the room, which had been overflowing with spectators in the morning, was mostly empty. The members of the committees, though, made a pretty good showing, which was especially impressive given that it was Thursday evening, when many Members hightail it back home to their districts. Late in the day, after a day that must have been frustrating for everybody, we sat down to business and had a good, substantive hearing. There were no major surprises — there rarely are at hearings — but everyone got a chance to express their views, and the members asked substantive questions.

Thinking back on the hearing, I did realize one thing that may have been missing. The panel of witnesses included three companies, Yahoo, Google, and Facebook, that are both ad services and content providers. There was less attention to situations where the ad service and the content provider are separate companies. In this latter case, where the ad service does not have a direct relationship with the consumer, so the market pressure on the ad service to behave well is attenuated. (There is still some pressure, through the content provider, who wants to stay in the good graces of consumers, but an indirect link is not as effective as a direct one would be.) Yahoo, Google, and Facebook are household names, and we would naturally expect them to pay more careful attention to the desires of consumers and Congress than lower-profile ad services would.

Witnesses have the opportunity to submit further written testimony. Any suggestions on what I might discuss?