Further Reading, Other Developments, and Coming Events (25 January 2021)

Further Reading

• “‘Law unto themselves’: the Australian battle to curb Facebook and Twitter’s power” By Paul Karp — The Guardian. This piece contextualizes the proposed policies coming out of Canberra that are setting the pace for the western world.
• “Malwarebytes said it was hacked by the same group who breached SolarWinds” By Catalin Cimpanu — ZDNet. A third United States (U.S.) cybersecurity firm revealed it has been hacked as part of the massive SolarWinds hack carried out by Russia’s security services. FireEye and Microsoft were apparently successfully penetrated, while another firm, CrowdStrike, reportedly fended off penetration. This is likely not the last domino to fall.
• “India plans foreign investment rule changes that could hit Amazon” By Aditya Kalra and Krishna N. Das — Reuters. India may follow the lead of other nations like the United States (U.S.) and the People’s Republic of China (PRC) in changing foreign investment laws to protect its domestic companies. This would seem to be aimed at Amazon and Walmart’s jockeying in India’s e-commerce market. The Ministry of Commerce & Industry confirmed it is working on foreign direct investment changes, the second since December 2018, but declined to speak to the substance of the rules.
• “Facebook Said It Would Stop Pushing Users to Join Partisan Political Groups. It Didn’t.” By Leon Yin and Alfred Ng — The Markup. This media outlet has assembled a group of volunteers who allow their Facebook feeds to be tracked and analyzed. And, contrary to Facebook’s claims, they have continued to allow political groups to be recommended even after vowing not to allow this practice to continue in the wake of the election and the 6 January insurrection. However, Facebook may have conveniently and cleverly set up their system which allows groups to label themselves as civic or political with a number of clearly political groups self-identifying as civic. And so, when this inevitably was noticed, Facebook can say and is saying with a straight face, we changed our policy.
• “The Capitol rioters kept posting incriminating things on social media. Unsurprisingly, they were mocked — and arrested.” By Travis Andrews — The Washington Post. It continues to boggle the mind that the mob that swarmed the United States Capitol furnished the only evidence that has resulted in arrest through social media posts.
• “Biden’s policies on technology” By Tony Romm, Elizabeth Dwoskin, Faiz Siddiqui, Eli Rosenberg, Cat Zakrzewski and Rachel Lerman — The Washington Post. This presents a good survey of the policy backdrop for the Biden Administration’s goals, but these analyses consistently underestimate how difficult getting legislation through an evenly divided Senate will be.

Other Developments

• The Senate confirmed former General Lloyd Austin as the new Secretary of Defense who will have responsibility for national security aspects of cybersecurity, data security, surveillance, artificial intelligence, and other technology realms.
• President Joe Biden named new acting heads of the Federal Communications Commission (FCC) and Federal Trade Commission (FTC), suggesting he will nominate different people to head those agencies. FCC Commissioner Jessica Rosenworcel is now the acting chair as is FTC Commissioner Rebecca Kelly Slaughter at her agency. However, they may have the chance to head their agencies for some time as the current discussions over how power will be shared in the Senate seems to be slowing down confirmation hearings with Democrats still not getting the gavels of committees. Additionally, the pending impeachment trial of former President Donald Trump will also likely slow confirmations to a crawl. And yet, both agencies would be deadlocked at 2-2, likely blocking any significant policy pushes.
• In a blog posting, former British Deputy Prime Minister and current Facebook Vice President of Global Affairs Nick Clegg revealed that Facebook “is referring its decision to indefinitely suspend former US President Donald Trump’s access to his Facebook and Instagram accounts to the independent Oversight Board.” Clegg claimed “[i]t is an independent body and its decisions are binding — they can’t be overruled by CEO Mark Zuckerberg or anyone else at Facebook.” It appears the timeline for deciding the ban on Trump will be adjudicated over the next four months or so.
  • The Oversight Board stated:
    • Over the coming days, the case will be assigned to a five-Member case review panel in accordance with our Bylaws and Rulebook. After the panel reaches a decision, its findings are shared with the entire Board. Sign-off by a majority of the Board is required for a case decision to be issued.
  • Clegg further added:
    • We have taken the view that in open democracies people have a right to hear what their politicians are saying — the good, the bad and the ugly — so that they can be held to account. But it has never meant that politicians can say whatever they like. They remain subject to our policies banning the use of our platform to incite violence. It is these policies that were enforced when we took the decision to suspend President Trump’s access.
    • Whether you believe the decision was justified or not, many people are understandably uncomfortable with the idea that tech companies have the power to ban elected leaders. Many argue private companies like Facebook shouldn’t be making these big decisions on their own. We agree. Every day, Facebook makes decisions about whether content is harmful, and these decisions are made according to Community Standards we have developed over many years. It would be better if these decisions were made according to frameworks agreed by democratically accountable lawmakers. But in the absence of such laws, there are decisions that we cannot duck.
    • This is why we established the Oversight Board. It is the first body of its kind in the world: an expert-led independent organization with the power to impose binding decisions on a private social media company. Its decision will be available at the board’s website when it is issued.
• The Washington State Senate Environment, Energy & Technology Committee held a hearing on the Washington Privacy Act (SB 5062) and made available a number of materials, including an overview of SB 5062 and a comparison between it and the “California Privacy Rights Act.” A week later, the committee marked up the bill, adopted a substitute version, and then sent the bill to another committee. In the bill report, staff summarized public testimony on the bill into three groups:
  • PRO: Consumers only have rights that are granted to them by businesses. The bill provides new rights and gives consumers more control over the handling of their data. By providing a regulatory framework for the processing of data, consumers are provided data protections, businesses may advance services and operate with increased predictability, and public confidence and trust will be fostered. Contact tracing provisions are needed to build public confidence in using tools to help stop the spread of COVID-19.
  • CON: This bill does not provide meaningful consumer protection regulations. People need to be able to bring a private right of action, which this bill explicitly prohibits, in order to protect their privacy rights and hold businesses accountable. This approach protects businesses rather than consumers by providing several exemptions. Financial information should be included. This bill fails to protect sensitive data shared by children in schools. The bill should include protections for teenagers. Contact tracing provisions should be addressed in a separate bill. An opt-in framework provides better protections than the opt-in provisions of the bill. Major platforms are carved out of the bill. Local jurisdictions should be able to enact stronger privacy laws.
  • OTHER: This bill reflects all of the hard work that has gone into this issue over several years and represents a compromise amongst various stakeholders. We are concerned that the definition of targeted advertising is confusing. We recommend a couple of measures that will help consumers exercise their rights such as recognizing global opt out mechanisms and authorizing delegated authority. With regards to enforcement, we have concerns with the cure period. This bill provides tools needed for enforcement. Compliance is burdensome; nonprofits should be exempt from these requirements just as they are in California. We have concerns that the provisions regarding loyalty programs might invalidate some partnerships.
• The Biden Administration has directly and through the new acting Chief Executive Officer removed a number of Trump appointees that had been politicizing the previously non-partisan agency that oversees Voice of America and other news organizations. Federal courts had stopped former CEO Michael Pack, a Steve Bannon ally, from purging leadership and staff. The White House received Pack’s resignation after informing him he would be fired. Four other Trump holdovers were also fired, and Kelu Chao was named acting CEO. A few days later she “replaced the heads of the three U.S.-funded international broadcasting grantees: Radio Free Europe/Radio Liberty (RFE/RL), Radio Free Asia (RFA) and the Middle East Broadcasting Networks (MBN).”
• The National Security Agency’s (NSA) recently appointed General Counsel was put on administrative leave pending an investigation into the circumstances of his appointment. Michael Ellis had been named NSA General Counsel at the very end of the Trump Administration, and Ellis came over from the White House to take up his post. The former acting Secretary of Defense Christopher Miller directed the NSA to install Ellis who had worked for the former chair of the House Intelligence Committee, Devin Nunes (R-CA). The general counsel position is a civil service and not political position, and it appeared the Trump Administration was trying to get a loyalist in place before President Joe Biden’s inauguration.
• At the tail end of the Trump Administration, the Center for Democracy & Technology (CDT) sued the Department of Homeland Security (DHS) “for failure to respond to Freedom of Information Act (FOIA) requests about how the government monitors and uses social media data in its immigration and naturalization work.” CDT brought its “action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, et seq., to enjoin the United States Customs and Border Protection (CPB) and the United States Citizenship and Immigration Services (USCIS), components of the United States Department of Homeland Security (DHS), from continuing to improperly withhold agency records responsive to FOIA requests made by CDT.” CDT explained that “[t]he underlying FOIA requests sought records regarding Defendants’ policies and practices regarding the monitoring of social media for immigration and naturalization purposes.” CDT added:
  • Based on the limited information about these practices that is publicly available, CDT is concerned that these practices are of dubious constitutionality, and may have the effect of chilling of Americans’ speech on social media platforms. In particular, social media surveillance like the practices at issue introduces significant civil liberties concerns. Communication on social media is highly susceptible to misinterpretation because it is, like most human interaction, idiosyncratic. Deciphering the meaning of statements is difficult without an intimate understanding of the context in which they are made. In the context of immigrants in particular, social media content commonly contains foreign languages, further increasing the complexity of analyzing this information. Government monitoring of social media opens the door to discriminatory pretextual denials of benefits—in fact, DHS has acknowledged these risks, noting that “data may be taken out of context,” and that social media surveillance may lead to “an erroneous adverse effect on an individual, such as denial of an immigration benefit.”
• The Federal Trade Commission (FTC) released its Annual Performance Plan for FY 2020 that “is structured around three strategic goals and their supporting objectives as established in the FTC Strategic Plan for FY 2018-2022:”
  • Strategic Goal 1: Protect consumers from unfair and deceptive practices in the marketplace
  • Strategic Goal 2: Maintain competition to promote a marketplace free from anticompetitive mergers, business practices, or public policy outcomes
  • Strategic Goal 3: Advance the FTC’s performance through excellence in managing resources, human capital, and information technology
  • The FTC added:
    • The Annual Performance Plan for FY 2021-2022 will be published later this year alongside the President’s budget.

Coming Events

• The Commerce, Science, and Transportation Committee will hold a hearing on the nomination of Gina Raimondo to be the Secretary of Commerce on 26 January.
• On 27 July 2021, the Federal Trade Commission (FTC) will hold PrivacyCon 2021.

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