Proving Amazon ‘lied’ to Congress is easier said than done, legal experts say
Lawmakers are threatening to issue a criminal referral against Amazon for potentially misleading or lying to Congress about its business practices — but convincing federal prosecutors to take up and act on the case would be a tall task, legal scholars said.
Members of the House Judiciary Committee’s antitrust panel on Monday said recent reporting that the tech giant gave its own products preferential treatment on its search engine and used vendor data to launch copycat goods “directly contradicts” its executives’ past testimony.
In 2019, for instance, a top official testified that Amazon does “not use any seller data” to compete with vendors and that its search engine uses the “same criteria” to evaluate which products to show users, regardless of who produces them. Jeff Bezos, then the CEO, testified in 2020 that while Amazon policy prohibits using individual seller data to launch new products, he couldn’t guarantee the rule had never been violated. (Bezos owns The Washington Post.)
Rep. Pramila Jayapal (D-Wash.), who pressed Amazon on the matter in 2019 and joined others in doing so again Monday, said recent reports make clear company leaders lied.
A Counsel for Amazon told me that the company does NOT, “use any specific seller data when creating its own private brand product.”— Rep. Pramila Jayapal (@RepJayapal) October 18, 2021
Reports have revealed that was a lie: they DO access and use data on third-party sellers. Amazon must be held accountable.https://t.co/rKjNl4JTAH
While lawmakers’ latest moves dramatically raise the stakes in the legal standoff with Amazon, it will be hard to convert into tangible action.
Criminal investigations and charges for perjury at the federal level — the worst-case scenario for Amazon — are exceedingly rare, according to Richard Painter, a former White House ethics lawyer under President George W. Bush.
The Justice Department “adheres to a quite high threshold for opening up investigations of criminal perjury, much less prosecuting,” he told The Technology 202.
Lawmakers would need to lay out and substantiate claims the company intentionally lied rather than relying on the Justice Department “to do the investigating for Congress,” he added.
Amazon said in a statement Monday that its executives did not mislead the committee and that reporting calling its practices into question was “inaccurate.” But the company declined to say if it will comply with House lawmakers’ request for additional “exculpatory evidence” that they say is needed to stave off a potential federal criminal referral.
Stuart Green, a professor at Rutgers Law School, said if the company doesn’t bite on lawmakers’ offer to “correct the record,” it could come back to bite it, especially if a referral for a criminal investigation or prosecution has bipartisan backing.
“If they stick by their guns and all or some of the Republicans joined in the referral, then I would say that … you might see a prosecution, and that would be something to see,” he said.
A bipartisan group of five lawmakers signed onto the letter Monday pressing Amazon CEO Andy Jassy to “corroborate the prior testimony and statements” to Congress, including the top Democrat and Republican of the House’s antitrust panel. Lawmakers also had bipartisan support when they similarly suggested Amazon misled the panel on the same issue last year.
Painter said one of the reasons the bar for launching a federal investigation is so high is that officials at agencies like the DOJ don’t “want to get involved in a political situation where the company isn't telling Congress what Congress wants to hear.” Bipartisan support could help alleviate those fears.
Another hurdle for lawmakers could be proving that any misrepresentation or falsehood by Amazon adversely affected Congress’ fact-finding efforts. If they already obtained the information through other means, Green said, it could make their complaints moot.
“It's not like a court proceeding where … a police officer gives false testimony and the result is that some person goes to prison,” he said.
The biggest question of all may also be one of the simplest: Who knew what, and when?
If lawmakers press the case that one of Amazon’s leaders lied to the committee, they may have to stick the landing on the argument that the person knew what they were saying was wrong and had actual knowledge that they were being intentionally misleading.
Lawmakers wrote Monday that recent reporting at best “confirms that Amazon’s representatives misled the Committee” and at worst “demonstrates that they may have lied to Congress.”
“The distinction between merely misleading and actually lying marks the distinction between what would constitute perjury and what would not,” Green said.
On the other hand, while Bezos sidestepped part of the issue last year by saying he couldn't “guarantee” no one at Amazon had broken its policies, the company could have a harder time arguing that given the latest reporting.
A recent Reuters investigation found that Amazon has engaged in a “systematic campaign of creating knockoff goods and manipulating search results to boost its own product lines.”
“It certainly does make it harder to prove that he didn't know,” Green said of Bezos.
Our top tabs
A Facebook whistleblower warned U.K. lawmakers about how the company handles fake accounts
Former Facebook data scientist Sophie Zhang told a U.K. parliamentary committee that a top Facebook executive told her that the company did not have “unlimited resources” to go after fake accounts outside the United States, Western Europe and major foreign adversaries, Time’s Eloise Barry reports. She also sharply criticized company structures for rooting out fake accounts and enforcing rules.
“At Facebook, the people charged with making important decisions about what the rules are and how the rules are getting enforced are the same as those charged with keeping good relationships with local politicians and governmental members,” Zhang said. This “creates a natural conflict of interest.”
Facebook spokesman Andy Stone said the company has spent $13 billion into security and safety efforts. Since 2017, it has taken down more than 150 networks from more than 50 countries, he said, arguing that the company's “track record shows that we crack down on abuse abroad with the same intensity that we apply in the U.S.”
Zhang's testimony came a week before Facebook whistleblower Frances Haugen plans to testify before the committee.
Facebook fired Zhang in August 2020 for poor performance after she focused too much on finding the campaigns on the network and not enough time focusing on company management’s priorities, the Guardian reported.
A member of Congress who focused on telecom issues is retiring from the House
Rep. Mike Doyle (D-Penn.), a 14-term congressman, will not run for reelection. Doyle chairs the House Energy and Commerce Committee’s communications and technology subcommittee. Doyle has touted investments in rural broadband and efforts at the Federal Communications Commission to boost broadband connectivity.
Doyle is a supporter of “net neutrality,” the idea that Internet providers should treat traffic equally. He has also been a critic of major technology companies. Doyle recently backed a bill that would make them liable when algorithms recommend harmful content. He also criticized technology companies for their role in the run-up to the Jan. 6 Capitol riot. The riot “started and was nourished on your platforms,” he told the companies’ chief executives in March.
One of the country’s largest television companies is down after a ransomware hack
The cyberattack hindered television broadcasts by Sinclair on Sunday and Monday, CNN’s Sean Lyngaas and Brian Stelter report. The conservative media giant is responsible for more than 180 television stations across the United States.
Sinclair began investigating the incident Saturday, the company told investors. The following day, the company determined that some “servers and workstations” were hit by ransomware. “Certain office and operational networks were disrupted,” the company said, and “data also was taken from the Company’s network.”
The hack “has caused — and may continue to cause — disruption to parts of the Company’s business, including certain aspects of its provision of local advertisements by its local broadcast stations on behalf of its customers,” Sinclair said.
It’s not clear how long the cyberattack will affect the company. “The reporters who spoke with CNN said they have not been told of any timetable for getting back to normal,” Lyngaas and Stelter write.
Rant and rave
Facebook posted five tweets about journalists “finishing up a coordinated series of articles based on thousands of pages of leaked documents.” Reporters reacted. Bloomberg Businessweek's Max Chafkin:
Writer Maya Kosoff:
The New York Times's Ryan Mac:
i think the only way to solve this is to release all of the millions of documents, thank you— Ryan Mac 🙃 (@RMac18) October 18, 2021
Inside the industry
- SaMee Harden, who worked as a privacy and data policy manager at Facebook, has joined the Office of Personnel Management as a White House Fellow.
- New York City’s chief technology officer, John Paul Farmer, speaks at an Aspen Institute event about broadband inclusion on Wednesday at 7 p.m.
- The Federal Trade Commission discusses the privacy practices of Internet service providers at an open meeting on Thursday at 1 p.m.
- Alondra Nelson, deputy director for science and society at the White House Office of Science and Technology Policy, participates in a Brookings Institution event on technology equity on Thursday at 2 p.m.
- House Veterans' Affairs Committee Chairman Rep. Mark Takano (D-Calif.) discusses law enforcement algorithms at a Brookings Institution event on Oct. 25 at 3 p.m.