Decoding California AG Xavier Becerra's battles with Silicon Valley

California’s Democratic Attorney General Xavier Becerra is positioned to be a powerful potential adversary of the country’s biggest technology companies over their handling of user privacy, election interference, competitors and more — both because of the size and strength of the state Department of Justice he leads and because companies like Facebook, Google and Apple sit in his own backyard.

In a meeting with reporters and editors in the POLITICO newsroom this week, Becerra, who spent nearly 25 years in Washington as a member of the House of Representatives, discussed how he’s approaching investigating tech, his thoughts on existing antitrust laws and what he’s telling his old colleagues in Congress.

KEEPING THE FACEBOOK PROBE UNDER WRAPS MEANT LEVERAGE
“I wouldn't have announced the Facebook investigation had we not had to go to court. We didn't announce it until the day we had to go to court. But what's interesting is, we've been doing it for 18 months, not two months. And every time I got asked, ‘so why aren't you doing something with Facebook?’ I would have loved to have said, ‘Hey, by the way, we are doing something with Facebook.’ But it's better for us not to.
And by the way, Facebook did give us information over these last 18 months. Had we announced that we were investigating Facebook 18 months ago, I guarantee you right now we’d we be in court asking the court to help us get a lot of information that we already got because they would have clamped down. Because if they now know we're officially going after them through some kind of public action, I think they would have said, ‘Okay, we're now adversarial.’
… We've been waiting too long to get responses that we believe Facebook could have easily given us — information that they readily have that they just weren’t giving. And we didn’t want them to think they could just play that game with us. They knew that we were not happy. It was up to them. They forced our hand.”

California is one of a small handful of states not to publicly join a pair of sweeping multi-state antitrust investigations into Facebook and Google. That’s driven chatter as to Becerra’s motivations in not joining dozens of his fellow attorneys general in a public declaration of accountability for tech giants.

Days after that speculation hit the pages of the New York Times, Becerra revealed that he was already 18 months deep into investigating Facebook’s privacy practices and was suing the company for, he maintains, failing to comply with his office’s request for documents as part of that probe.

Becerra says the surprise reveal has nothing to do with scrutiny over the multi-state probes. Instead, he argued in his POLITICO sitdown that keeping quiet about his own case for a year and a half allowed him to work with Facebook to extract information about how it operates — but that he had no choice but to bring the matter into court, and therefore the public eye, when the company stopped coming to the table. (Facebook's vice president of state and local public policy Will Castleberry said last week the company has “cooperated extensively with the State of California’s investigation,” including providing “thousands of pages of written responses and hundreds of thousands of documents.”)

HE'S NOT SORRY FOR FUNDRAISING OFF HIS FACEBOOK SUIT
“My campaign staff is probably going to do an email saying I just met with POLITICO ... It’s just something that on the campaign side, you're essentially telling people what you're doing: ‘Help me out.’ That’s life in this lane. To be attorney general — you’ve got to win an election to be attorney general. But it has no relationship to what we’re officially doing … I didn’t announce that we were doing the Facebook investigation so I could send out an email.”

One day after his office announced its Facebook investigation, Becerra’s campaign sent out a fundraising email promoting the move. “Xavier sued Facebook,” read the subject line on at least one version of the email, which went on to say, “Big Tech is no longer an infant. These corporations are running at Olympic speed. It’s time for the industry to be treated as an adult.”

Becerra wasn’t alone in that approach. Texas’s Republican attorney general, Ken Paxton, has also fundraised off his own tech investigations. But it feeds into critics’ complaints that the U.S. technology industry has become a useful punching bag for American politicians, with politics as much as public policy fueling their growing ire towards the companies. Becerra’s explanation: campaign fundraisers are going to do what campaign fundraisers are going to do. Becerra is next up for re-election in 2022.

HE'S STILL MUM ON WHETHER CALIFORNIA IS SECRETLY PART OF THAT SPRAWLING GOOGLE PROBE
“You definitely don't know if we’re in or out. There’s no way for you to know if we’re in or out, just as folks definitely thought we were not doing anything with Facebook and we’re definitely doing something with Facebook. Some states announce their activities right off the bat. We typically don’t.”

Neither Becerra nor his spokespeople will say whether he’s joined the ballooning investigation by 50 U.S. attorneys general into tech giant Google — or has launched his own. Becerra stuck to that during the interview, even though the multi-state probe’s lead investigator recently appeared to suggest California is sitting out that inquiry.

“You would have to ask Attorney General Becerra,” Texas Attorney General Ken Paxton, who is spearheading efforts to investigate Google’s dominance in search and digital advertising, told POLITICO in September when asked why California was not participating. The state was one of only two, along with Alabama, not listed as involved in the investigation. Paxton added, “It's a little harder when the companies are headquartered in your state to be a part of that. But that would be a question you would have to ask him.”

Becerra’s refusal to disclose any possible involvement in that investigation — or whether he has launched his own probe of Google — has made him an outlier among law enforcement leaders and has left onlookers wondering what he is up to. The remarks mirror his decision to, until recently, keep the state’s months-old investigation into Facebook a secret.

Unlike with the Facebook inquiry, however, law enforcement officials have given no indication that undisclosed states are participating in the Google probe, adding intrigue to Becerra’s cryptic responses.

THE COUNTRY'S COMPETITION LAWS ARE OUT OF STEP WITH SILICON VALLEY
“We're dealing with laws that were enacted at a time when antitrust really involved railroads, steel companies. It was a different generation and a different type of industry. It's just a different world. And part of the conversation is, how does today's antitrust law interact with today's new industries? And are you able to really find a way to see the congruence in running our laws to protect competition and consumers with this new industry, these new industries, that operate and look very different from the old industries that were here before. And that's part of the consideration in all this examination of what folks consider antitrust activity.”

The nation’s aging antitrust laws are increasingly posing a challenge to enforcers looking to rein in modern industries that were created decades after their enactment. Becerra said that’s been a key point of contention in the debate over competition in the technology sector. That argument has been picking up steam in Washington including, critically, on Capitol Hill, where the House Judiciary Committee is conducting a broad review of tech competition.

Rep. David Cicilline (D-R.I.), whose subcommittee is leading the probe, has suggested a revamp of federal antitrust laws may be in order to address the challenges posed by the online marketplace and Silicon Valley giants like Facebook, Google, Amazon and Apple. The panel is set to issue recommendations for policy prescriptions that could look to do just that sometime next year.

Becerra’s point is not limited to antitrust. Many of today’s most pressing tech policy battles have Washington grappling with how laws put in place before the advent of the internet apply to a broad array of issues, from personal privacy to civil rights and beyond.

HIS MESSAGE TO CONGRESS ON DATA PRIVACY: 'WATCH AND LEARN’
“Do no harm for those states that are there. Don't undermine what we’re doing. Watch and learn. Take the best from what those of us who are doing this are doing, whether it’s the Europeans, whether it’s California, whether it’s some of the other states that are looking to get into this. And then let's work together. We're going to need to have this be universal. It's going to have to apply to more than just California
...In this particular space, California’s moved. Others will move. And what we hope is that they'll watch and learn, work with us, partner with us. But please, do no harm. Don't tell our consumers that they're going to lose protections simply because we decide to provide a blanket of protection that's less hardy than what we’ve done.”

Becerra told POLITICO he’s meeting with leaders on the Senate Commerce and House Energy and Commerce committees during this latest D.C. swing and bringing with him that message to “do no harm” — to state privacy standards, that is — as the lawmakers look to enact new online privacy rules at the federal level. And he said he’s hoping Congress will learn a thing or two from California’s legislature, with its landmark data privacy law going into force in a matter of weeks, as well as from the European Union, which has enacted its own sweeping privacy protections.

Becerra’s Hill talks are notable given California’s outsize influence over the debate on data privacy in Washington. Democrats and Republicans in Congress have been at odds over whether a national privacy law should override state standards like California’s, which have loomed over congressional negotiations. Republicans insist that any privacy bill must preempt state laws, but Becerra said during the sit-down that he’s warning key negotiators against advancing legislation that could dilute consumer protections afforded under California’s law.

Steven Overly contributed to this article.