Government pressures tech behind the scenes, says former Facebook employee. It’s called jawboning.

It’s something government officials on both sides of the aisle are known to do: pressuring tech platforms to bend to their will, aka jawboning. But the line between persuasion and coercion, or even censorship, can get murky.

Last week, the Supreme Court heard arguments from two states alleging that the Joe Biden administration illegally coerced social media companies into blocking conservative content. Matt Perault, now with the University of North Carolina at Chapel Hill’s Center on Technology Policy, says jawboning happened all the time in his former job, working in policy at Facebook. The following is an edited transcript of his conversation with Marketplace’s Lily Jamali.

Matt Perault: So there’s lots of educational, informational communication that occurs between tech platforms and the government. And I think that’s largely a positive thing. And I think most people think that that falls on the constitutional permitted side of the line. The question is, when does it shift from education or information or advising or persuasion into coercion? And I think that’s really what’s at the root of the questions on the case.

Lily Jamali: So as you have said, you spent nearly a decade on Facebook’s policy development team. And you’ve been pretty blunt about how you were jawboned by the government while you were there “repeatedly and routinely.” How so? What are some examples that you remember?

Perault: Yeah, so this was every day. It was Republicans, it was Democrats. It was not just the U.S. government, it was foreign governments as well. And so in a post that Katie Harbath, who used to work at Facebook, and I wrote for the Knight First Amendment Institute, we went into a couple of different examples. One of them had to do with the use of data directly by campaigns to segment voters. And that data could be uploaded to a platform like Facebook through a tool that we had called Custom Audiences, and advertisers could then use it for targeting. And Katie was told by one particular representative’s office that they really wanted to ban that practice. So they were hoping to exert pressure on tech companies to ban the use of a tool like that. There are other cases as well, like there was a lot of interplay back and forth between [Democratic U.S. Rep. and former House Speaker] Nancy Pelosi and platforms related to a video that made her look like she might be intoxicated, and that video had been manipulated. And there was a lot of pressure around how companies would handle that content. Facebook kept that video up. And subsequently, Nancy Pelosi made comments about antitrust cases and tax breaks for platforms and how those things would be in question. And there was not a direct connection between those two things. It wasn’t that she was saying, because you left this up, this is the kind of action that we will take. But I think from, from the experience of someone being on the public policy team, you knew that those threats were there. And you knew that the government had lots of tools at its disposal, ranging from not just passing legislation, not just initiating cases, but also calling hearings or tweeting or issuing press releases. There are a lot of things that government officials could do to exert pressure.

Jamali: Can I ask you, did Nancy Pelosi’s office ever outright ask you to take that video down?

Perault: That wasn’t my role at the company at the time, so I can’t speak to it specifically. But those kinds of interactions were routine. Again, I think we could have filled this post that we did for the Knight Institute, we could have filled it with lots and lots of examples. Bipartisan examples, international examples, domestic examples. It was so routine that I thought of it as the way that public policy at a tech company worked.

Jamali: Yeah. And is it your position that the subsequent comments that she made about tech’s role in our country and sort of how they should be treated in terms of tax breaks, etc., that that was in retaliation for Facebook not taking the video down?

Perault: I have absolutely no idea about that. But I think the point is that, whether those comments were made explicitly or not, when you work at a platform, you think of the possibility of those repercussions every day for everything that you do. And to some extent, I think that’s appropriate, like government officials will take action against platforms when they think that they are behaving poorly. And some of that is what we expect the government to do. The question in jawboning is, when does government coercion and government threats, when does that end up circumventing the protections of the First Amendment? And we have processes for the government to initiate rules and to affect content that people see. Government can use the legislative process, or they can use regulatory rule-making or they can initiate cases, and those are all transparent processes that are democratic channels in the sunlight that people can see and react to. And then there can be public debates about those issues. The challenge I think about jawboning is that it is outside of public view, it’s in the darkness. And it’s when government officials are leaning on people who work at tech platforms, often not the [Meta CEO] Mark Zuckerbergs of the world, but people who are further down the rungs of the public policy team who see their job as trying to do good work with government officials, and pressure in those circumstances can really be acute and challenging.

Jamali: Now, even as somebody who has been on the receiving end of this jawboning at a huge tech company, you argue that there are some benefits to the practice. Talk me through them.

Perault: So I really think the educational and informational component of this is really important. And there are lots of ways that government and platforms work really constructively around hard and important issues, like election disruption or various different law enforcement-related issues. And that kind of communication I think is really important. There were several justices who pointed to communication that I think would be of that type in the course of the argument, and I think it’s really important to preserve. We already have some data points that because of the lower court rulings in this case that there’s been more of a hands-off approach between the government and platforms and between some researchers and platforms and the government on these issues. And I think that’s a negative thing. We want to really be clear about permitting some kinds of conduct and communication that is informational and educational. I think that’s beneficial for the government and beneficial for the platforms.

Jamali: Yeah, you also argue, “Dialogue can sometimes be productive when it occurs outside of the spotlight.” You say, “Sunlight is undoubtedly a disinfectant,” referencing the Justice Louis Brandeis quote. But you say it can also burn important nuances out of discussion.

Perault: Yeah. I think that there are times where public decision-making can make things more difficult. And I actually feel like I experienced this at Facebook too. There was a point in my time at the company where leaking became much more prevalent. And so issues that I think merited intense debate outside of the spotlight, where a range of different solutions might be floated, including potentially some unpopular ones, that process was short-circuited sometimes by having things just instantly go into the public domain, where I think decision-making can be more difficult. And this is actually recognized in government law around transparency, where there’s respect for deliberative process. So documents that are used to help formulate decisions can at times be kept out of the public eye. And I think that is an important thing that there are types of jawboning or types of educational and informational communication that I think is important, and doesn’t necessarily have to be public, and to some extent might be more educational and more informative if it can be done properly through private channels.

Jamali: Yeah. Well, I’ve been wondering why you have felt compelled to talk about this now.

Perault: So there is a narrative about the experience of what it’s like to work at tech companies that doesn’t align with the experience that I had. And that doesn’t mean that the other narrative is incorrect. I’m not criticizing an alternative narrative. But for me, it has been important to try to give voice to what I experienced. And “jawboning” is actually a term that I learned long after I understood the concept. So when I was still at Facebook, and I was, like, thinking about doing academic work, I was thinking about the kinds of issues that I might want to work on. And I actually wrote a note to myself to write about indirect pressure that governments put on tech companies that circumvented the democratic process. It was really exciting to me to write something about that because it was so much a part of my experience. It seems so odd to me that the First Amendment would block the government from initiating legislation through the democratic process, but then could exert all this pressure in these other ways that could achieve the same effect. And so when I learned of the term, and when this case started making its way through the judicial process, it felt important to me. And I don’t want to speak for Katie, but I think it’s important to the both of us to give some voice to not just the legal and policy mechanics of it, because neither of us are First Amendment scholars. It’s not our area of expertise. That wasn’t how we wanted to come into the discussion. What was important to us was thinking about how people who work in these situations actually experience this on a day-to-day basis. And it felt like, given the experience that we had, that was something that was important to give voice to.