Daily Digest 4/24/2018 (Section 230)

In April, Washington lawmakers overwhelmingly passed a narrow bill that seeks to crack down on sex trafficking online. To most, it seemed like a no-brainer: Sex trafficking is obviously bad. The law, however, changed Section 230 of the Communications Decency Act of 1996, a 20-year-old communications law that is the basis of the free internet as we know it. On April 11, President Donald Trump signed the bill — a combination of bills passed by the House and Senate, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA) — into law. The legislation opens more avenues for victims of online sex trafficking to legally pursue websites that facilitate trafficking by amending Section 230, making it easier for federal and state prosecutors and private citizens to go after platforms whose sites have been used by traffickers. Originally, Section 230 was intended to shield tech platforms from liability for content posted by their users. But it has become more and more imperiled, not only with FOSTA-SESTA but also in light of increased scrutiny on Facebook and the advent of platforms such as Airbnb and Yelp, where third-party content is the business model.

An advocacy group is suing the Federal Trade Commission (FTC) for records on Facebook’s privacy practices, arguing that there’s a “clear public interest” in learning details about the social media giant’s policies following revelations of a data scandal.  The Electronic Privacy Information Center (EPIC) filed a lawsuit under the Freedom of Information Act to push for the unredacted release of biennial privacy assessments that Facebook agreed to submit under a 2011 consent agreement with the FTC. The FTC recently released a heavily redacted version of the latest assessment, from 2017 and conducted by the firm PwC, which signed off on Facebook’s privacy program. EPIC argues that the public deserves to see the full reports after it was revealed that a political research firm with ties to President Trump improperly obtained data on 87 million Facebook users. “The release of the full audits is crucial for Congress, the States Attorneys General, and the public to evaluate how the Cambridge Analytica breach occurred and the FTC, Facebook, and the selected independent third-party auditor fulfilled their obligation under the 2012 FTC Consent Order,” the filing reads.

In 2016, Google changed its terms of service, allowing it to merge its trove of tracking and advertising data with the personally identifiable information from our Google accounts. Google uses, among other things, our browsing and search history, apps we’ve installed, demographics such as age and gender and, from its own analytics and other sources, where we’ve shopped in the real world. Google says it doesn’t use information from “sensitive categories” such as race, religion, sexual orientation or health. Because it relies on cross-device tracking, it can spot logged-in users no matter which device they’re on. This is why Google and Facebook are dominant in online advertising. By pouring huge amounts of our personal data into the latest artificial-intelligence technology, they can determine who—and where—we really are, whether or not we reveal ourselves voluntarily.

The Justice Department is investigating whether AT&T and Verizon may have colluded to thwart a technology that could allow wireless customers to switch network providers more easily. But antitrust officials conducting a similar probe in 2016 found little evidence for the claim and ultimately dropped the inquiry, according to a letter sent by the Justice Department. In closing the Obama-era investigation, the government said that while mobile carriers had pushed for new industry policies that raised competitive concerns, their initiative proposed little more than a “technical capability” for cellphones without clearly demonstrating how or if companies such as AT&T and Verizon might use it to gain an unfair advantage. The investigation could be reopened if the proposed policies raised further concerns after implementation, the Justice Department indicated in the letter. While some of the policies have been approved for inclusion in the final standard governing cellphones, the overall policy remains in the drafting phase and has not yet been implemented.

Facebook spent more money lobbying the US government in the first quarter of 2018 than it ever has before, according to a new filing. The social media company forked over $3.3 million to steer lawmakers on privacy, security, online advertising and transparency efforts, among other issues. While that’s a lot for Facebook, it’s not far from what its peers spend. Amazon spent slightly more, $3.38 million, last quarter as it looked for favorable policies on everything from taxes to music licensing to drones. Google was the lead tech spender so far in 2018, dishing out more than $5 million to influence policies on intellectual property, “student digital privacy” and law enforcement access to data stored abroad.

The Federal Communications Commission’s top lawyer says that Republican commissioners who attended the Conservative Political Action Conference (CPAC) earlier in 2018 did not violate any ethics rules. FCC General Counsel Thomas Johnson Jr. said that the appearance by the three GOP commissioners was in line with ethics requirements because even though CPAC is a conservative event, it’s nonpartisan. “The Commissioners' ability to accept prominent speaking engagements like this one helps promote transparency and accountability and encourages public participation and interest in Commission rulemakings, without contravening applicable ethics obligations,” Johnson wrote in a letter sent to Democratic Reps on the House Commerce Committee. House Commerce Committee Ranking Member Frank Pallone (D-NJ) blasted Johnson’s letter, accusing the Republicans of ducking congressional oversight of their “increasingly political actions.” "We asked the Commissioners legitimate questions and expected them to respond, not to hide behind their lawyer,” Ranking Member Pallone said. “The general counsel did not provide any legal reason why the Commissioners could not respond, and we still expect the Commissioners to answer our questions."

Commissioner Mignon Clyburn of the Federal Communications Commission said she had been thinking about leaving for some time. By the end of 2018, term limit rules would have forced her out anyway. But the final decision, announced during a commission hearing, was spontaneous. "I was not 100 percent sure when I woke up this morning that this was the day," she said. "But I think it's the right time for me and it's a good time to have a reset to allow someone else to come in and pass that baton." When Clyburn was first nominated, Gigi Sohn, who worked as an adviser for former FCC Chairman Tom Wheeler, said many advocates in the public interest community were suspicious of her because she had previously been on South Carolina's Public Service Commission, which is tasked with regulating the state's utilities. "From the get-go, she acknowledged that suspicion and basically said, 'I'm going to prove you wrong,'" said Sohn, who is now a distinguished fellow at the Georgetown Law Institute for Technology Law & Policy. "I don't think she acted the way she acted or voted the way she voted to prove us all wrong," Sohn added. "I think she is a person who cares deeply about vulnerable populations — the poor, the imprisoned, communities of color — and she really used her pulpit there to represent the underrepresented."