As Facebook is embroiled in three separate privacy crises, let he who never transacts commercially or politically cast the first stone.
Facebook CEO Mark Zuckerberg has been summoned to Washington to testify in both the House and Senate. Facebook’s initial problem was vendor Cambridge Analytica’s abuse of user data. Two newer problems involve (1) Facebook purportedly unintentionallyretaining data from its Messenger app when phones running now-dinosaur versions of the Android operating system were involved; and (2) the realization that some have figured out trick ways of bulk-harvesting public (not private, as far as we know) profiles on Facebook.
Mr. Zuckerberg’s own words invite a data privacy law and further regulation.
I actually am not sure we shouldn’t be regulated. I think in general technology is an increasingly important trend in the world and I actually think the question is more, what is the right regulation rather than “Yes or no, should it be regulated?”
Careful, Mr. Zuckerberg. Privacy is the least of what this legislative circus is about. Some are bent on transforming the Internet giants into regulated public utilities. All “Big Tech” today, whether engaged in social media, commerce or other pursuits, is highly vulnerable to political predation. Some wish to use antitrust and go after firms’ market power; others see big tech platforms as blocking speech, and privacy blowups provides convenient pretext for either. Companies can and do misbehave, such as Twitter’s alleged “shadow ban” of Sen. Ted Cruz (R-Texas), but these are private, shareholder-owned businesses and backlash makes them change course quickly, and more effectively than legislation or regulation could.
One can see signs of Facebook’s awareness of this greater agenda. In advance of Zuckerberg’s testimony, Facebook appears to be taking steps to effectively ban anonymous speech (“fake accounts”). It’s well within Facebook’s rights and even advisable to do that as a private platform, of course; but worrisome as bow to Washington. Anonymous speech, broadly speaking, is something that merits protection also.
“Free” is the best way to get more online services to those least able to otherwise afford them, and the Internet’s model has been largely advertising-based. If Facebook cannot stand firm on its rights and on the legitimacy of an information-based transaction economy in front of grandstanding legislators, it isn’t obvious who can.
Unknown and yet-to-be-created firms and the customers they would have served would be the most ill-served by over-reaching privacy regulation. Indeed, Facebook itself represented the classic dorm-room or garage technology startup catching up to the industry standard (back then, MySpace) and growing far beyond it.
The problem is, and legislators know it, is that Facebook would be “fine,” so to speak, with regulation, to the extent it blocks upstarts. But the company will be a lesser form of its potential self.
The ease of transacting makes the world go round. Sound data sharing allows individuals unknown to one another to work together and trade value for value. Breaches of data and contractual data-use guarantees by the likes of Equifax in 2017 and Yahoo in 2013, more severe than the Facebook scandal, already are illegal and can be punished. Indeed, the Federal Trade Commission may slap Facebook with a hefty fine. But that doesn’t justify blanket legislation, particularly without there having even been a data breach of user-concealed data. With respect to the profile scraping, Facebook already changed the defaults that allowed bulk searching via email or phone number; so there will be no more reverse search for people. Even that action, driven by political pressure, could have unintended effects.
The Facebook episodes remind me of when a California politician called Google’s free Gmail “an absolute invasion of privacy,” and wanted to mandate the right to opt-out of advertising. The alleged problem was that email messages could be scanned by software, and advertisements served based on prompt words typed in the body of a message. If your correspondence mentioned NASCAR or J-Lo, for instance, you might see ads for motor oil or a concert tour. In “exchange,” Google offered a then-unheard-of gigabyte of free storage (now it’s 15 GB per account). This was many times the capacity of contemporary Yahoo and Hotmail services, whose few megabytes were consumed quickly by music files or pdfs. Such email scanning, routine in spam filters, foreshadowed the modern concerns with Facebook Messenger’s potential retention of data or messages even after the user thought they had been deleted. Messenger, too, is a free service.
Gmail and Messenger foreshadow something else; Do we yet know, really, what happens to your voice queries to Siri and Alexa? No doubt there’ll be future hearings on voice-at-home privacy. So do Apple and Amazon really want to be prominent this week and make targets of themselves by calling for regulation? When it comes to the voice Internet, what will count as legitimately retianed personal metadata (like query logs and times, duration and frequency of queries)? What about even the content of questions that may remain logged in some manner and available to these AIs or artificial intelligences for data-mining or monetization purposes (some residue appears to remain: Alexa asks me sometimes if a certain answer was useful). The competitive marketplace can resolve these tricky matters, but it will be messy. And preferences can change. We may find one day that we want more tracking than we originally thought; geolocation and presence technology could stop a child playing Pokemon Go from stepping in front of a driverless car.
Notably, it has been the case that just about anything posted online lives forever. The Internet Archive Wayback Machine stores outdated and vanished Web pages for posterity; and, decades ago it was apparent that one’s newsgroup postings were likely immortal in cyberspace. Users have to be aware, not pampered. Users’ inability to delete records or queries, if true, are worrisome, and companies may rethink subpoena friendly harvesting. New proprietary services do offer the prospect of changing the default from permanence to impermanence if users desire it. Big Tech deserves credit for that, not reproach, as we navigate the transition.
Escalating the criticism of reverse-search “scraping” of users’ public (not private) profiles for political purposes this week will require pretending that scraping has not been a long-standing practice apart from Facebook and its slice of the far-more-vast Internet. An old Quora article, for one example, asks, “What is the best way to scrape Facebook data?” Indeed, one can find user friendly software that makes scraping seem simple like shopping for KitchenAid attachments on eBay; you just tick off the boxes of what you’re after to narrow your search parameters.
As for the broader speech issues, Big Tech faces backlash from both the left and right over purported influence over advertising and particularly over political speech in cyberspace. But of course, media and speech in a society where government does not practice censorship cannot be monopolized or suppressed. Private firms or platforms cannot violate your First Amendment rights, and they do not have to provide you with a microphone. Only governments (or their grants of licenses) can undermine free speech. This is why claims of “weaponization” of social media are misleading and represent self-serving paternalism in pursuit of power rather than necessarily noble concerns. Those bent on regulating Facebook, Google and Amazon as public utilities or essential facilities must know that in doing so, they themselves become the manipulators of content and speech — the very act of which they accuse others. This is the real reason left and right alike push for regulation. It’s about political power and control over the realm that now already represents the pinnacle of freedom of speech.
Zuckerberg should assume some moral high ground rather than legitimize what is happening. We deserve more than the spectacle of the federal government, which tolerates no individual privacy, posturing as defender. Among plenty else, the Patriot Act, which originally gave the federal government enhanced “trap and trace” capabilities against our private email, set the stage for the Pentagon’s panopticon “Total Information Awareness” project until it was shot down.
A lesson of today is that government ought not to ban or disrupt novel services that awkwardly express inherent, but ever-unfolding, capabilities of the Internet. The AI-based voice searches seem particularly vulnerable in this regard. Consumer acceptance or repudiation of social networking and search sustaining themselves via information sharing (since consumers contribute nothing financially to them) requires freedom to experiment and make mistakes, with appropriate penalties for malfeasance or failing to uphold guarantees. As goes Zuckerberg, so goes the yet-to-come.
A European Union-style General Data Protection Regulation (GDPR) or a “Privacy Bill of Rights (so called) — along with the larger goal of regulatory control of big tech, is what the Zuckerberg hearings are about. If successful, this will ensure the survival of companies that best serve the regulator class rather than consumers, and will leave governmental information collection unscathed. To realize this, simply look beyond the horizon a bit: policymakers aren’t about to relinquish control of your data for purposes of their utopian “Smart Cities.” Such sweeping campaigns represent tomorrow’s genuine privacy and cybersecurity threats, and Zuckerberg should say so and not accept the black hat. Better privacy steps would include modernizing the Electronic Communications Privacy Act (ECPA) reform to ensure that data enjoys Fourth Amendment protections like our non-Internet correspondence and papers. But Washington is more likely to demand such data about you, not allow companies to protect your information from seizure.
The implications could even affect those calling for regulation from the sidelines. Journalists and activists (in today’s world, is that sometimes redundant?) cheering the Zuckerberg flaying might note what’s behind Door 2 this week: “Homeland Security to compile database of journalists and ‘media influencers’.” Media conglomerates are corporations, too; and given today’s post-constitutional administrative state, one can formulate creative legal theories to apply privacy regulations to journalists’ prying activities and hateful tweets, First Amendment notwithstanding, just as many of those those same journalists would ditch the Second Amendment. After all, their pen is mightier than the sword (or the firearm).