The national dialogue on privacy is devolving into uninformed demagoguery that conceals the real culprit — ourselves.
In a piece published in The Intercept that reads more like an opinion page harangue than responsible reporting, Lee Fang recently took his turn on the communal soapbox to perfunctorily swat the technology industry about the head and shoulders in a hackneyed retread of TechLash complaints while saving the bulk of his energy and word count for pointing and shouting “J’accuse” at many of the think tanks and industry groups that focus on technology public policy inside the Beltway.
The reason for his opprobrium? An apparent distaste for the unsurprising fact that technology companies contribute financially to the trade and industry associations that they are members of while also helping to underwrite the work done by think tanks and academics that focus on the tech-related public policy issues that matter to technology companies.
For many years, I’ve worked closely with industry associations such as NetChoice, think tanks like the Technology Policy Institute, and civil society organizations such as the Center for Democracy and Technology, and many others that receive funding from the technology industry. Just about the only thing that these organizations have in common is that they are staffed and led by smart and highly capable advocates and thought leaders whose biases are long-standing and well-known. Most of the differences between tech companies occur at a highly technical level — on matters of principle they align more often than not.
My favorite part was the assertion that the Federal Trade Commission — a “notoriously toothless federal agency with no rule-making authority” — was a worse option for consumers to seek recourse than having the ability to sue tech companies directly. Besides revealing that The Intercept has become a shill for the trial lawyers’ interests, it also demonstrates a remarkable ignorance about how enforcement works in the real world. I wonder how many of the companies that operate under a consent decree with the FTC would agree that the agency is toothless. Not to mention, the FTC has the investigative and prosecutorial resources to take on a tech titan that would require an awfully large consumer class-action to be matched.
Clearly, while the debate over Congressional efforts to craft federal privacy legislation is still young, it has already devolved into a performance straight from the theater of the absurd.
Federal pre-emption of state statutory efforts on broad issues with Constitutional implications that affect all Americans — such as privacy — is not controversial, except for those with an axe to grind or that seek to show how “woke” they are by contributing to the TechLash.
The reason why federal action is necessary is because the possibility of a disparate patchwork of state and local privacy laws is a nightmare — not to mention it wouldn’t enhance Americans’ privacy because such a complex tapestry of overlapping, possibly contradictory, privacy requirements increases the probability that errors will occur.
Also, who is best able to comply with complexity like this? The Tech Giants, that’s who. Not small businesses, who would likely be put out of business — if they even bothered to get into business in the first place after taking one look at the regulatory patchwork quilted hand-me-down from hell.
Even Europe — which has an impressive track record of gleefully suffocating domestic innovation with a public policy plastic bag — had enough sense to implement GDPR on a global — I mean, EU-wide — basis rather than leaving it to individual member-states to develop their own regulatory solutions.
Perhaps there are those that welcome this sort of complexity and think that it solves problems. They’re wrong, but they’re entitled to their own opinions. But what is really getting old are the histrionic hens who cluck about the henhouse while hurling invective that is more appropriate for the set of Jerry Springer or a WWF ring. Not only is it fake and overdone — it’s not helpful.
I was extremely disappointed when the UK’s parliamentary committee chose to call Facebook “digital gangsters” in their recent report — and I was even more disappointed to see Americans jumping on the bandwagon. It’s an incendiary red herring straight out of Joe McCarthy’s playbook that doesn’t add anything useful to the search for solutions while revealing an awful lot about the thuggish proclivities of those who bandy about such terms recklessly.
You want to see real examples of “gangster” behavior masquerading as commerce in America? Take a look at the Key West wreckers — the enterprising folk who put up fake lighthouses to lure unsuspecting ships onto reefs in order to ensure full employment for the ship salvaging industry in the 1800s. That’s “gangster” commerce. It’s a real stretch to throw that millstone around the neck of a social media company providing a free service by which it collects users’ personal information to inform its sales of advertising.
Yes, there have been terrible examples of misuse of these platforms. But maybe people need to stop pointing fingers and hurling invective and, instead, take a look in the mirror. Because it isn’t Facebook or Twitter or any of these big companies that are guilty of this content being up there — its the users themselves — it’s us.
I have written before that the Internet is nothing less than an extension of humanity and as this “network of networks” is really starting to scale, it’s giving humanity a pretty stark reminder of just how ugly we can be sometimes. It is inappropriate to crucify social media platforms for failing to hide ugly examples of human behavior conducted on their platforms without first taking a good, long look at what fuels these ugly posts — not just the initial posting of content, but also the prurient Peeping Toms’ and sadistic sharers.
Finally, it is unacceptable to compromise the right to free expression endowed to the many by constructing a nanny state to address the intolerable behavior of a few. As Benjamin Franklin warned, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither.”
The reality is that Facebook, Twitter and the rest of them — even armed with tens of thousands of content moderators and the best AI that money can buy — can’t save us from ourselves. And as Dr. Franklin’s warning makes clear, the solution offered by unleashing Leviathan comes with a pretty steep price tag. Foregoing hypocrisy in favor of solving real challenges requires deliberate measures taken by determined people — not name-calling and histrionic clucking.
So, if you don’t like what you’re seeing — change the channel.