Facebook needs more “due process” from government agencies, the ACLU of Kentucky and the American Civil Liberties Union’s Indiana chapter to preserve its fair play. In a letter this morning, the civil liberties organizations ask an Indiana Senator to help fill a vacancy on the Federal Trade Commission while it’s waiting to make a decision about whether to investigate Facebook for bullying and information sharing practices with the Russian government.
The FTC didn’t find that Facebook violated children’s privacy under Section 2 of the Children’s Online Privacy Protection Act, but is currently determining if the platform operated in a deceptive or unfair manner under Section 5 of the act.
FTC law specifically says that “an agency may not commence or continue an investigation that is pending under any other Federal law pending the appointment of a new FTC Commissioner to complete the investigation.” Which is why members of the Senate Commerce Committee that oversees the FTC are already leading the charge on Senator Todd Young’s (R-IN) request for a confirmation vote on Todd Yeaton to fill the FTC spot.
While Senator Young is expected to introduce Yeaton after the elections, a delay from the full Senate may push the final decision into next year, forcing the three year-old investigation to continue. Should Yeaton not be confirmed, the two other FTC commissioners’ days on the job would expire.
How Facebook could sway the Senator
In today’s letter, the ACLU and the ACLU of Kentucky argue that recent revelations about Facebook’s cross-border power were a game-changer for the FTC. Additionally, they say, “social media companies have been publishing US audience data in countries which do not have the minimum privacy protections for such data required by US law.” The ACLU feels that Facebook is advocating for governments to enforce stronger data protection laws to give it more power than the FTC can offer.
In addition to combatting this international user data sharing, the letter claims Facebook users and their partners are subject to “dungeon-like surveillance” with Facebook’s highly-data-intensive and highly-geolocated Stories. The groups also cite over one billion comments posted to Facebook with pernicious content, telling the senator “In an interconnected global society, the risks of such control cannot be easily imagined.”
The groups want Facebook to refrain from relabeling its privacy choices to appear less burdensome to users as they approach 2019. For example, it has reportedly advertised removal of tools such as HTTPS and other privacy features as “just junk”. The ACLU also argues that Facebook must design its platform and user controls with privacy-minded communities and locations in mind, like the LGBTQI community and Native Americans. The coalition requests that Facebook provide detail about how it will respond to meaningful inquiries by the FTC, ensure that Facebook’s policies, user controls and enforcement are specific to its target communities, and create better ways to address concerns about handing over user data.
Whether Facebook has any influence on the Senate or whatever body decides the specific commissioner is important. The company has been fighting for greater power in government regulations after it got slammed with a massive slate of scandals in 2018. The scandals included using people’s personal data to influence elections, partnering with this American company to crack down on hate speech and disinformation, carrying ads from the Panama Papers via a Danish contractor, and relaxing local data regulations.
It’s not a stretch to imagine the Senator taking a different perspective than the ACLU. After all, Yeaton has never issued a formal complaint against Facebook for bringing fake news to Facebook, sharing user data with tech trade associations, or allowing hate speech to spread. He’s seen the practices of the web growing into a weaponized utility that requires responsible regulation.
Yeaton is also a Trump appointee. Having industry players running the FTC, a body the President needs to fill and perhaps terminate as a compliment to the political relationships he builds, gives Facebook valuable leverage in future regulatory battles.
Last year, the ACLU and more than 200 other organizations signed an open letter requesting a free and open debate on net neutrality during the FCC’s upcoming vote on eliminating it. The FCC ultimately abandoned the repeal, but not before net neutrality advocates and Google were assaulted. It doesn’t look like we’ll see that same bipartisan effort this time around.