Will there be a real privacy push before the midterms?
Twitter Gives Elon Musk Access To Billions Of Tweets To Prevent Him From Renegotiating Acquisition Deal
On June 6th, Elon Musk sent a public letter to Twitter, arguing that Twitter is in “clear material breach” of their $44 billion acquisition deal and threatening to “terminate” the agreement if the company fails to provide more information about the number of bots on the platform.
In an email to The Verge about the ongoing controversy, Twitter defended itself and dismissed Musk’s allegations. Most commentators have agreed with Twitter. Brian Quinn, an associate professor at Boston College law school, told The Guardian, “It is possible the board will tire of the back and forth letters and will go to court. The parties might end up renegotiating the price, but I don’t think Musk has a strong case to walk given the abundant evidence of his trying to find an excuse to walk away.”
Then, on Tuesday, the company agreed to allow Musk direct access to its “firehose,” a stream of billions of tweets that flow through its network on a daily basis. On Monday, Texas Attorney General Ken Paxton announced he will investigate the issue of how Twitter may be “misleading Texans” about the number of automated bots on its platform.
The ongoing saga has provoked a campaign from progressive groups, who are trying to “Stop the Deal” through grassroots mobilization and by encouraging scrutiny from regulators and other influential public figures. The response from regulators hasn’t been as impactful as advocacy groups would like it to be, and that’s because both the FTC and SEC have limited authority here. The FTC can only narrowly rule on the question of antitrust, which isn’t that relevant to Musk because most of his ventures are in other sectors, while the SEC is primarily concerned with whether Musk's public filings in advance of the takeover bid comply with its rules on disclosures.
RESPONSES
Jesse Lehrich, co-founder of Accountable Tech, tweeted, “Elon already has buyer’s remorse –– he overpaid, put his wealth & Tesla at risk, underestimated the challenges, etc. it’s clear from his childish behavior (i.e. pretending the deal is “on hold” despite waiving due diligence rights): he either wants to bail or renegotiate.”
Nick Merrill, co-Founder of Evergreen Strategy Group, tweeted, “Like it or not, the strength of our democracy is inextricably linked to how social media platforms wield their power, & @elonmusk knows about as much about free speech as I do about building rockets. His takeover would be a catastrophic step backwards.”
Columnist for Bloomberg News Matt Levine tweeted in response to AG Paxton’s investigation, saying: “how does this keep getting dumber”
Tech reporter Mike Isaac tweeted, “this is extremely funny because what the hell is Elon going to do with direct access to the firehose”
He continued, tweeting, “it’s certainly a way for Twitter to say “hey you want to say we aren’t complying? Here you go” but also is Elon going to hire a team of data scientists to deconstruct the bot count? (I mean maybe, who knows) feels like an “I call your bluff” moment”
Industry analyst Matt Navarra tweeted, “Twitter calls Elon Musk's bluff… Twitter's giving him access to the FULL Twitter firehose to inspect. That firehose contains 500m tweets per day! Good luck with the analysis, Elon”
Mike Masnick, writer and editor for Techdirt, tweeted, “Lol. This is going to be interesting. Twitter is doing this to basically call Musk's bluff, and take away his reason for bailing. My guess: he'll now demand something even more outrageous.”
Jacob Silver, case implementation at the Oversight Board, tweeted, “Ironically for Musk, the firehose also comes with a huge undercounting asterisk: the firehose only includes accounts that actually tweet. Many don't! And many of these, as potential *viewers* of content, are hyper-relevant to discussions of ad fraud and monetization”
He continued, tweeting, “Whether this is a savvy business move by Twitter remains to be seen. Power to them if they can use it to sufficiently undermine Elon's beyond flimsy ‘case’ for backing out. But it won't be before a lot more public confusion on the ‘bot question’”
Sheryl Sandberg's Departure From Meta Highlights Debate About How Individual Power Shapes Platforms
When Sheryl Sandberg announced on Friday that she would be stepping down as Meta's Chief Operating Officer, a deluge of coverage followed — mostly reflecting on her complicated legacy at the company. Cutting through this noise, Sandberg sat down for an interview with The Verge, during which she seemed to signal some regret for failing to address concerns about user data security and privacy raised during her tenure. In answering the question “[d]o you have a biggest regret, looking back over 14 years,” Sandberg responded:
“We have things we’ve learned and certainly wish we had known earlier. I put in my post that we have a real responsibility to protect people’s privacy, to build safety into the products. And I think we made those investments. But of course we wish we had done those earlier. And if you look at what we’re doing now with the metaverse, Nick [Clegg, Meta’s president of global affairs] wrote a very good paper, and we are building that in now for the metaverse. And I think that is very, very, very important.”
In the wake of her announcement, tech policy advocates and experts have noted her role in the platform's precipitous growth, but also its multiple scandals (including rampant election misinformation, the Cambridge Analytica scandal, and whistleblower allegations of compromising user data privacy). While her words are not quite a mea culpa, it's significant that Meta's leadership is now acknowledging that trust and safety investments should have been prioritized sooner.
RESPONSES
In a statement, the Real Facebook Oversight Board wrote: “Sandberg leaves behind a shameful legacy… Her failed leadership enabled Facebook and its platforms to become the engine of disinformation that it is today.”
Writing in Platformer, Casey Newton elaborated on Sandberg’s role as COO of Facebook. He writes: “Though the company took pains to deny it, the aftermath of the election saw Sandberg’s sphere of influence gradually contract… By the end Sandberg occupied a role that seemed to me quite small, for a leader of her stature: focused on overseeing the company’s efforts to promote small businesses, encouraging them to use the company’s ad tools. It felt more like a part-time consulting project than work befitting the COO.”
He continued, saying: “Ultimately, no column written on deadline can capture such a singular figure in all her dimensions: legendary operator, controversial feminist, self-made billionaire, public mourner, negligent policy chief, practitioner of the public-relations dark arts.”
Director of FFTF, Evan Greer, tweeted, “i know palace intrigue is strong but i actually dont think Sheryl Sandberg leaving Meta is all that important. the problems in tech are systemic problems. the solutions are collective solutions. we waste too much breath centering the powerful instead of movements challenging them.”
President of Color of Change, Rashad Robinson, tweeted, “While she did make a commitment to engage and reach out, Sheryl Sandberg and the brand that she built is at the center of protecting Facebook through a lot of the actions that have harmed our democracy, civil rights, and so much about our way of life.”
He later tweeted, “Sheryl Sandberg did try to be in conversation with civil rights groups and I don't believe we would have gotten a public civil rights audit without her — but Mark Zuckerberg still maintains his grip on Facebook and on our safety. One person shouldn’t be allowed this much power.”
Shauna Thomas, co-founder of UltraViolet, said in a statement: “Her decisions at Meta made social media platforms less safe for women, people of color, and even threatened the American electoral system… Sandberg had the power to take action for fourteen years, yet consistently chose not to.”
In a statement, Senior Policy Counsel for Muslim Advocates, Sumayyah Waheed, said: “We wish Sandberg the best with her future endeavors and hope that she puts in the hard, painful work of grappling with and atoning for the hate, threats, violence and even genocide that Facebook enabled under her watch. We also urge her to step down from Meta’s board. In her role as COO of Facebook/Meta, she has proven that at best she was incapable of acting as a check on Mark Zuckerberg, and at worst was actively encouraging Facebook to sacrifice the safety of its users in the name of growth and profit. We expect no different from her as a member of the board going forward.”
Federal Privacy Reform Gains Momentum With A Bipartisan Draft Bill
On Friday, House Energy and Commerce Chair Frank Pallone (D-NJ), Cathy McMorris Rodgers (R-Wash) and Sen. Roger Wicker (R-Miss) released a 64-page draft and summary of the American Data Privacy and Protection Act. The bipartisan and bicameral legislation aims to overhaul data privacy laws for consumers through a comprehensive federal data privacy framework. According to a press release, the bill will grant more strigent protections for Americans against the discriminatory use of their data and require covered entities to minimize on the front end individuals’ data they need to collect, process, and transfer. The bill would also explicitly grant the FTC rulemaking authority, and it would be concurrently enforced by the FTC and state attorneys general.
Data privacy advocates welcomed the progress made towards a federal privacy law, approving of the bill’s broad objectives. However, privacy experts expressed serious concerns about the legislation’s narrow definition of data – “information identifying, linked, or reasonably linkable to an individual” – and worried that the preemption provisions would preclude states from enacting more aggressive privacy protections.
Senate Chair of the Commerce Committee Sen. Maria Cantwell (D-WA), whose support could prove critical to the legislation, has announced her opposition to the bill as it’s currently drafted. The House Energy and Commerce Committee will hold a hearing next week to discuss the draft.
RESPONSES
In his article for TechDirt, Mike Masnick wrote, “There are also a lot of fill-in-the-blank aspects to the law, putting tremendous weight on the FTC to figure out what all of this actually means, meaning that there will be further confusion and uncertainty.
In a statement, the Center for Democracy & Technology said, “While it’s not perfect, the draft is a hopeful first step. We urge Congress to move forward with the legislative process and pass legislation by the end of this year”
In a statement, Free Press said, “To say that it’s high time for real progress on a federal privacy bill would be a tremendous understatement. We’ve been waiting for more than a decade for Congress to tackle online privacy and data-security issues.”
Catriona Fitzgerald, Deputy Director at EPIC, tweeted, “We still need to see the details, but a bipartisan agreement on a privacy bill is encouraging progress towards tackling the privacy crisis we face today.”
Evan Greer tweeted, “Key lawmakers just released a draft of a bipartisan privacy bill. It seems like a good faith effort, but the details will be key. Basically every privacy expert and advocacy group is reading it right now.”
Demand Progress retweeted this statement.
The Information Technology & Innovation Foundation tweeted, “In summary, while the ADPPA is far from perfect, with some adjustments, it is a reasonable framework for a federal data privacy law if the drafters can include stronger state preemption and eliminate the private right of action.”
Shoshana Wodinsky, reporter at Gizmodo, tweeted, “there's more that i could have written on the bill, and honestly wanted to—but i am so very tired, and this bill is so very bad, and i'm sick of seeing good-faith efforts get openly watered down by industry and by.... Cops.”
Johnny Ryan, Senior Fellow at Open Markets, tweeted, “New US federal privacy ADPPA bill appears to have a big gap. Do I read correctly, that purpose limitation will not apply to Google, Facebook, Amazon etc. So while third parties are rightly frozen out, big tech can continue internal data free-for-all?”
Lawmakers Seek Floor Vote On Bipartisan Antitrust Legislation Ahead Of Midterms
On Wednesday, Sen. Amy Klobuchar (D-Minn) held a joint press conference with Sen. Chuck Grassley (R-Iowa), Rep. David Cicilline (D-R.I.), and Rep. Ken Buck (R-Colo.) to announce changes to the American Innovation and Choice Online Act, a bipartisan antitrust bill that would bar companies from preferencing their own products and services. The legislators argued that “competitive free markets are a key source of American economic strength” and that the Department of Justice and the Commerce Department both support the legislation.
The press conference came just days after Amazon published a blog post, criticizing the legislation, arguing that the bill’s target of self-preferencing practices would cost the company billions of dollars in fines, “...make it difficult to justify the risk of Amazon offering a marketplace in which selling partners can participate,” and jeopardize its popular Amazon Prime service. Google also released a statement Tuesday, outlining its own concerns with the bill. In response, advocacy groups firmly rebutted Amazon’s claims. Director of Fight for the Future Evan Greer notably said, “Amazon is full of shit … antitrust bills cracking down on anti-competitive practices and self-dealing are not going to ‘break’ Prime.”
RESPONSES
Accountable Tech tweeted, “Big Tech is coming out in full force against historic bipartisan antitrust bills. But that's not stopping us or lawmakers from advancing this popular legislation.”
Co-founder Jesse Lehrich responded in an interview, “This is a "make-or-break time" for Congress to pass historic bipartisan legislation to #ReinInBigTech.”
FFTF tweeted, “Some tech regulation bills are poorly drafted, overly broad, or just plain terrible… But #AICOA and #OAMA are good bills! They would meaningfully crack down on the self-dealing and anti-competitive practices of the largest tech giants… That's why industry lobbyists are going into overdrive and flooding the hill with nonsense. These bills are the thing they fear the most: thoughtful, bipartisan legislation that attacks the root of the problem and forces them to compete on a level playing field.”
Christopher J. Lewis, CEO of Public Knowledge, tweeted, “Big Tech is trying to pass off simple clarifications in the bill as nefarious exceptions to rile up those who haven’t been paying attention. Don’t listen to their misdirection.”
Mark Lemley, professor at Stanford Law School, tweeted, “Unfortunately, this bill may well be interpreted to make tech platforms common carriers, unable to do any content moderation because blocking or downranking terrorists, COVID misinformation, or hate speech would "discriminate" against that content.”
He continued, tweeting, “There is still time to fix this, but so far the drafters haven't been willing to, I suspect because they need Republican votes and the Republicans want to use this as a wedge to prevent content moderation.”
Progressive Privacy Advocates Warn That Collecting Personal Data Will Have Dire Consequences Post-Roe
In the wake of a leaked Supreme Court draft opinion that would repeal Roe v. Wade, progressive privacy advocates have made the case that you can’t be pro-choice without being pro-privacy. As the Ford Foundation’s Cynthia Conti-Cook explains in her University of Baltimore Law Review article Surveilling the Digital Abortion Diary, law enforcement is already using personal data, or obtaining warrants to track women’s digital footprints, to prosecute abortion-seekers in states with regressive anti-choice laws.
On Thursday, a coalition of over 50 digital rights organizations sent a letter to Google CEO Sundar Pichai, calling on the platform to “stop unnecessarily collecting and retaining customer location data, to prevent that information from being used to identify people seeking abortions.” The coalition (which includes Fight For The Future, the Center for Digital Democracy, the Open Technology Institute, and Electronic Privacy Information Center) echoed worries that repealing Roe will lead some states to ban abortion, and could result in local governments or citizens policing women’s bodies, utilizing location data.
The coalition’s privacy concerns also reflect those expressed in another letter to Google’s CEO (sent back in May) from a group of Democratic Senators. That letter raised concerns that law enforcement in anti-abortion states could use geofence warrants to force Google to turn over user data in order to assist in prosecutions against women seeking abortions. They write:
“While Google collects and retains customer location data for various business purposes, including to target online ads, Google is not the only entity to make use of this data. Law enforcement officials routinely obtain court orders forcing Google to turn over its customers' location information. This includes dragnet ‘geofence’ orders demanding data about everyone who was near a particular location at a given time… If abortion is made illegal by the far-right Supreme Court and Republican lawmakers, it is inevitable that right-wing prosecutors will obtain legal warrants to hunt down, prosecute and jail women for obtaining critical reproductive health care.”
RESPONSES
In an interview with the Record, research scholar at the Stanford Internet Observatory, Riana Pfefferkorn, said: “You cannot be both pro-choice and anti-encryption anymore… We have digitized every part of our society, from obtaining information about healthcare and medical procedures to telehealth appointments to talking to trusted friends and family members… And that means that absent strong encryption, there’s information that can now potentially be accessible to law enforcement with the right legal process.”
In Tech Policy Press, activist Patrick K. Lin wrote: “When states write new crimes into law, it is up to local prosecutors to decide how to enforce them. Still, Congress has struggled to pass legislation regulating the sale of Americans’ private data or to establish rules for how law enforcement can use digital surveillance tools in investigations.”
The Electronic Frontier Foundation tweeted in reference to their previous statement opposing geofence warrants targeting user data. From their statement: “[These warrants] violate the Fourth Amendment because it results in an overbroad fishing-expedition against unspecified targets… Companies can resist complying with geofence warrants across the country, be much more transparent about the geofence warrants it receives, provide all affected users with notice, and give users meaningful choice and control over their private data.”
Color of Change tweeted, “‘These states have trigger laws that would ban abortion within days if Roe were overturned.’ An unnecessary burden now falls on state DAs, but they must keep their promise to NOT criminalize pregnancy.”
Campaign Director at FFTF, Caitlin Seeley George, said in a statement: “Google’s location data collection has always been a problem. Pairing this excessive invasion of peoples’ privacy with the likely future where the laws of our country give the government control over peoples’ bodies will endanger millions. Google must act quickly to change its practices to stop this unnecessary data dragnet before it is complicit in the criminalization of abortions.”
U.S. Policy Analyst for Access Now, Willmary Escoto, said in a statement: “To truly protect women while privacy rights are under assault in the United States, companies must stop collecting unnecessary data. Google can’t share our location data with the police if they don’t have it. Women who are Black or brown, disabled, indigenous, or of low income are disproportionately vulnerable.”
Michael Kleinman, Director of Technology and Human Rights at Amnesty International, said in a statement: “Google’s surveillance capitalism business model – in which they are incentivized to collect as much personal data as possible, in order to sell targeted ads – has long undermined our right to privacy. It’s terrifying to consider how the massive amounts of personal data gathered by Google and other companies can now be weaponized against people seeking to exercise their reproductive rights.”
Alex Andrews of SWOP Behind Bars said in a statement: “Google must protect its users from being criminalized for using its services. Saving location data puts people seeking abortions at risk of arrest, incarceration and persecution for meeting their needs and making the hardest of choices. Right now, as our government and public officials fail us, Google can step into the gap and help protect us from this overarching interference with our human rights… Our bodies are not your marketing tools.”
In the Daily Beast, founder of the Surveillance Technology Oversight Project, Albert Fox Cahn, wrote: “For pro-choice lawmakers, it’s easy to pay lip service to Roe, but it’s much harder to meaningfully deconstruct the post-9/11 surveillance state. And for corporate leaders who get PR points for promising to help customers with abortion care, it’s a lot harder to protect reproductive rights when it impacts their bottom line.”
Supreme Court Reinstates Injunction Against Texas Law, But Questions Remain About Justices' Views On Constitutionality
In a 5-4 decision, the United States Supreme Court blocked Texas’ social media law, H.B. 20, which punishes platforms for removing content based on political viewpoints. The ruling comes after several tech industries and digital progressive groups urged the Supreme Court to halt the law from taking effect, arguing that it would unconstitutionally impede content moderation on platforms and prompt a proliferation of hate speech and extremism across social media.
Progressive groups consider the ruling a victory, especially in the aftermath of the mass shooting in a Buffalo supermarket that left 10 Black Americans dead. The shooting, which was live-streamed to Twitch, raised alarm for digital advocates who feared laws like H.B. 20 would deter platforms from deplatforming extremists and hateful content in the future.
Although progressive digital activists and tech industry groups celebrated the court’s decision, the 5-4 ruling may indicate that the Supreme Court is closely divided on the constitutionality of the Texas law. In his dissent, Justice Samuel Alito remarked upon the novelty of the law, saying, “It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.”
RESPONSES:
In a statement, the Center for Democracy & Technology said, “The Center for Democracy & Technology (CDT) welcomes the Supreme Court’s ruling today, which blocks the Texas social media law H.B. 20 from going into effect. CDT filed an amicus brief with a coalition of human rights organizations opposing the law earlier this month.”
In the statement, they also said, “The Supreme Court’s action to block Texas’s reckless social media law from taking effect is good news for users and the public.”
In a statement, John Bergmayer, Legal Director at Public Knowledge, said, “It is good that the Supreme Court blocked HB20, the Texas online speech regulation law. But it should have been unanimous. It is alarming that so many policymakers, and even Supreme Court justices, are willing to throw out basic principles of free speech to try to control the power of Big Tech for their own purposes, instead of trying to limit that power through antitrust and other competition policies. Reining in the power of tech giants does not require abandoning the First Amendment.”
In a statement to the Washington Post, Scott Wilkens, senior staff attorney at the Knight First Amendment Institute, said, “I think the dissenting opinions suggest that those three justices may in the end vote to uphold the Texas law or a similar state law.“
Rick Hasen, Law Professor at University of California, Irvine School of Law, said in a blog post: “The good news from today’s opinion is that it looks like there are 5 or 6 votes at least to reject the Texas law and to hold that just like newspapers can decide what content to include or exclude, social media companies can do so too. Whether Section 230 of the Communications Decency Act recognizes it or not, social media companies exercise editorial discretion all the time. They should not be forced as private actors to carry dangerous and anti-democratic speech. People who want such speech can easily find it on Trump’s ‘Truth Social’ platform or elsewhere.”
OPEN TABS
New York state passes first-ever ‘right to repair’ law for electronics (The Verge)
Before Uvalde, a platform fails to answer kids' alarms (Platformer)
Ableism And Disability Discrimination In New Surveillance Technologies (Center for Democracy & Technology)
Consumer and digital groups in Europe and the U.S. call for a full ban on surveillance-based advertising (Trans Atlantic Consumer Dialogue)
Senators Propose Industry-Friendly Cryptocurrency Bill (Wall Street Journal)