FTC's Misses Opportunity To Understand Social Media; Instead Goes For Weird Fishing Expedition Against Odd Grouping Of Companies

from the this-could-have-been-helpful dept

On Monday, the FTC announced that it was issuing what’s known as 6(b) orders to nine social media and video streaming companies, demanding a fairly massive amount of information regarding their data collection and usage policies, as well as their advertising practices. To me, this is a huge missed opportunity. If the FTC is truly trying to gain a better understanding of data collection, privacy, and advertising practices, perhaps to better inform Congress on how to, say, pass a truly comprehensive (and useful?!?) privacy legislation, then there are ways to do that. But this… is not that. This looks like a weird fishing expedition for a ton of unrelated information, from an odd selection of nine companies, many of whom are in a very different business than the others. It leaves me quite perplexed.

First, let’s look at the odd selection of companies. The letters are going to:

  • Amazon (apparently including Twitch)
  • Bytedance (TikTok)
  • Discord
  • Facebook
  • Reddit
  • Snap
  • Twitter
  • WhatsApp (owned by Facebook)
  • YouTube

Okay, so they’ve definitely focused on many of the big players, but they’ve also left out a ton as well. Where’s LinkedIn? Or Github? Or WeChat? Or Pinterest? Or Quora? They list Facebook and Whatsapp… but not Instagram? Where’s Zoom? Now it’s true that sometimes the FTC will randomly sample a bunch of companies in a particular industry to get a look at certain practices — but for that to make sense, you want to sample from a set of similarly situated companies. This is… not that.

For the smaller companies on the list, such as Reddit and Discord, the FTC demanding they file a ton of paperwork in a very short time frame is going to mean a tremendous waste of time.

The second concern is the broad nature of the requests. The “sample order” is massive. There are 53 separate requests, many with multiple sub-parts. They’re not just asking for specific information, but rather going on what appears to be an incredibly broad fishing expedition for information about a wide variety of practices at all of these companies — including broad demands for future strategies and plans. For example, beyond just information on the number of users, it demands all documents relating to “business strategies or plans,” “research and development efforts,” “strategies or plans to reduce costs, improve products or services…” It also seems to be demanding all “presentations to management committees, executive committees, and boards of directors.”

That feels like a fishing expedition, rather than an attempt to actually understand data collection and usage practices.

There are categories of information included here that I think it would be useful for the FTC to understand. But there’s just so much information requested that it seems likely to bury the useful information.

The one FTC Commissioner who dissented from this effort, Noah Joshua Phillips, raises important questions in his dissent:

Effective 6(b) orders look carefully at business practices in which companies engage in a manner designed to elicit information, understand it, and then present it to the public in way that is usable and can form a basis for sound public policy.

The first step is to select a group of recipients that will permit such examination, usually a group of firms engaged in conduct that can be compared. But the logic behind the choice of recipients here is not clear at all. The 6(b) orders target nine entities: Facebook, WhatsApp, Snap, Twitter, YouTube, ByteDance, Twitch, Reddit, and Discord. These are different companies, some of which have strikingly different business models. And the orders omit other companies engaged in business practices similar to recipients, for example, Apple, Gab, GroupMe, LinkedIn, Parler, Rumble, and Tumblr, not to mention other firms the data practices of which have drawn significant government concern, like WeChat. The only plausible benefit to drawing the lines the Commission has is targeting a number of high profile companies and, by limiting the number to nine, avoiding the review process required under the Paperwork Reduction Act, which is not triggered if fewer than ten entities are subject to requests.

Phillips calls out the same broad demands I raised above regarding business plans, R&D and presentations, noting:

Such a request would be suited to an antitrust investigation. But as part of an inquiry ostensibly aimed at consumer privacy practices, it amounts to invasive government overreach. And that is just one of the order?s 50-plus specifications.

And, finally, he highlights how this effort is just demanding way too much information to be of use for a comprehensive policy recommendation:

The biggest problem is that today?s 6(b) orders simply cover too many topics to make them likely to result in the production of comparable, usable information?yet another feature proper oversight and public comment could have flagged. Rather than a carefully calibrated set of specifications designed to elicit information that the agency could digest and analyze as a basis for informing itself, Congress, stakeholders, and the public, these 6(b) orders instead are sprawling and scattershot. Their over 50 specifications, most with numerous and detailed subparts, address topics including, but not limited to: advertising (reach, revenue, costs, and number and type); consumer data (collection, use, storage, disclosure, and deletion); as noted above, all strategic, financial, and research plans; algorithms and data analytics; user engagement and content moderation; demographic information; relationships with other services; and children and teens (policies, practices, and procedures).

Recipients of 6(b) orders typically negotiate to limit their productions, to tailor them in light of their specific business models and business practices. Perhaps the Commission will push back on attempts to do so, devoting additional lawyers to litigating the orders and having a federal judge oversee them, rather than OIRA. Or negotiation may reduce the burdens. But if that happens, each recipient will be responding to a different set of negotiated specifications. That certain of the companies in question have very different business models makes this even more likely. The end result of that is, say, the agency learning a lot about one recipient?s advertising practices, but not as much about its algorithms. For another recipient, the agency might receive information about privacy practices but very little about its plans to expand. Each of the nine recipients will produce differing, if any, amounts of information to each of the 50-plus specifications.

I actually think it would be a good thing for the FTC to better understand how these companies work and their practices. I think it could be useful for them to gain such an understanding, and then make recommendations on a comprehensive federal privacy law. But I don’t see how this fishing expedition does any of that. Instead, it just asks for basically everything and the kitchen sink from a somewhat random selection of companies, some of whom will have difficulty producing all of this information.

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Companies: amazon, bytedance, discord, facebook, reddit, snap, tiktok, twitch, twitter, whatsapp, youtube

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Comments on “FTC's Misses Opportunity To Understand Social Media; Instead Goes For Weird Fishing Expedition Against Odd Grouping Of Companies”

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Faber Schnidejoch says:

Corporations are NOT persons with rights: gov't can DEMAND info!

demanding a fairly massive amount of information regarding their data collection and usage policies

I’ve sort of been waiting to use this point, heh, heh.

Again, the first act of persons wishing to form a corporation is to ASK The Public for PERMISSION. Second act is to SIGN AN AGREEMENT TO SERVE The Public and PAY A FEE for the privilege.

But I don’t see how this fishing expedition does any of that.

You just nailed down that corporations do not have FOURTH Amendment RIGHTS, but must DISH upon demand.

Rocky says:

Re: Corporations are NOT persons with rights: gov't can DEMAND i

Again, the first act of persons wishing to form a corporation is to ASK The Public for PERMISSION.

Seems you don’t like the constitution, especially the 1st Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Considering everything else you have said, it seems you are a closet communist.

Ehud Gavron (profile) says:

Re: Re: Closet communist

Socialist – someone who believes the public good can be done by sharing resources. My definition; blame me if it’s not what you think.

Communist – a politically forced version of the above except there are the haves and have nots.

There’s no such thing as a "closet communist". That having been said the right of people to assemble has nothing to do with sharing resources. You can argue that preventing such an assembly by the government is a First Amendment violation… and you’d likely be right… but it has NOTHING to do with whether you are a democrat, republican, socialist, communist, libertarian, middle-of-the-road-ian, etc.

Congress has made NO LAWS preventing peaceable assembly. End of story.

E

Rocky says:

Re: Re: Re: Closet communist

There’s no such thing as a "closet communist".

You are aware that he on numerous occasions have said that he wants the government to take over corporations and force them to do things he thinks are "for the public good", because corporations doesn’t really have any rights.

That sounds like communism to me, but since he doesn’t dare to unequivocally spell it out I call him a closet communist.

That having been said the right of people to assemble has nothing to do with sharing resources. You can argue that preventing such an assembly by the government is a First Amendment violation… and you’d likely be right.

I am right, there’s no "likely" about it. If someone think I’m wrong, may I suggest they take it up with the SCOTUS first.

OGquaker says:

Re: Re: Re:3 Ehud

*A semicolon separates sentences; Not fragments.

What did you study? What were your sources? Where is the analysis?*

In the time you took to dismiss my facts because i dont G.A.S. about your Gentlemen’s Agreement; Rejecting my imput because of my use of YOUR punctuation, YOU could have anal-ised trumps marginal loss of the electroll colege totals in several US States; The more xstream voters pushed levers hard against thei’r own self interest. Mr. Nader did not run this time, just a Green socialist, see http://green.republican/ so forgit that excuse.

Any search engine will be quicker and expand the muscle in your head faster than an ignor-ant flurry of questions next time.

Ehud Gavron (profile) says:

Re: Re: Re:4 Illiteracy

Sorry you think search engines will explain how to use semicolons.

You’re wrong. Entirely wrong. That’s not for me to say "where I learned it" but thanks for the "mom question."

Go get an education. Then when you respond to a two-week old post WRONGLY you might have a shot at making a point.

This wasn’t it, junior.

Best.

E

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bhull242 (profile) says:

Re: Corporations are NOT persons with rights: gov't can DEMAND i

I’ve sort of been waiting to use this point, heh, heh.

Actually, you’ve been repeating this point over and over again. You even start the very next sentence with the word “again” to show you’re repeating yourself.

Again, the first act of persons wishing to form a corporation is to ASK The Public for PERMISSION. Second act is to SIGN AN AGREEMENT TO SERVE The Public and PAY A FEE for the privilege.

First, you are never consistent on what “the public” means. Sometimes it seems to mean the government. Other times it means the general populace. Which one is it? Be clear and consistent!

If by “the public” you mean “the general populace/citizenry”, then no, corporations do not need direct permission from the public to form, and they do not need to sign an agreement to serve them.

On the other hand, if by “the public” you mean “the government”, then yes, corporations do need to ask permission, but that doesn’t really take much to get; more importantly, though, outside of obeying the same laws and regulations that anyone in that industry (including private human persons) has to obey, corporations do not need to serve the government, either.

The only ones corporations need to serve are the owners, managers, and/or shareholders. You may wish it otherwise, but your wishes are not the law.

Now, while it is true that corporations must pay a fee to be formed, that really adds nothing material to this discussion.

You just nailed down that corporations do not have FOURTH Amendment RIGHTS, but must DISH upon demand.

Nope. Corporations do have 4A rights. They have used those rights to successfully contest many subpoenas and warrants. The dissent even points out that it is quite likely that these companies will contest the broadness of this request. The Fourth Amendment applies to anyone with property to be searched or seized. Like the 1A, the 4A applies to all legal persons and is not restricted to humans or citizens. They don’t have to “dish upon demand” any more than you do.

Once again, that you don’t believe they should have those rights doesn’t mean they don’t.

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Faber Schnidejoch says:

So your key assertion of "First Amendment rights" is hooey!

"And, I think it’s fairly important to state that these platforms have their own First Amendment rights, which allow them to deny service to anyone."

https://www.techdirt.com/articles/20170825/01300738081/nazis-internet-policing-content-free-speech.shtml

1A for corporations is statutorily granted privilege at best.

THANKS, Maz. Takes a while, but you provide me with proof of all that I write.

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Faber Schnidejoch says:

Re: So your key assertion of "First Amendment rights"

Better clarify for hypothetical new readers (besides busy persons): neo-fascist Masnick asserts the above in connection with his wish that corporations have the power to control ALL speech on the Internet — and especially that of political enemies. It’s truly a KEY assertion for him, so when he handily points out above that corps don’t have 4th Amendment rights against arbitrary search — on demand — then his 1A assertions necessarily collapse.

Bluegrass Geek (profile) says:

Re: Re: So your key assertion of "First Amendment rights&qu

… you do realize this is not a "search" as per the 4th Amendment, right? It’s an order to give information, which hinges on the companies in question complying (or not). There aren’t FTC agents going into offices & combing through file cabinets or server entries.

The entire thrust of your argument falls apart because you don’t understand what’s happening here.

Ehud Gavron (profile) says:

Re: Re: Masnick is a neo-fascist (or so I read)

Thanks. I needed some distraction from real news so this is good. Also unpacking is lots of fun, so let’s unpack.

Better clarify [who should clarify, and what criteria is better?] for hypothetical new readers [implies there are no new readers based on… um… nothing. Do you have TD’s readership list? Oh. No? I guess we’ll skip forward.]

neo-fascist Masnick (you’ll want to look up that big word. Mr. Masnick is not a right-wing person. That means he can’t be a fascist. Sucks, donut?)

asserts the above (wait, which of the "above" assertions do you refer to? You can’t just say "see above" LOL!! You go see above!)

…. in connection with his wish… (you have no idea what Mr. Masnick wishes for, now do ya?)

…that corporations hae the power to control ALL speech on the Internet (Mr. Masnick has never said that CORPORATIONS or PARTNERSHIPS or SOLE PROPRIETORSHIPS or INDIVIDUALS should control anything. If I had to sum my perspective on his written text it would be that he espouses that GOVERNMENT SHOULD NOT control… not that anyone SHOULD control. Subtle, that whole "not" thing, and then making up stuff about corporations.)

It’s truly a KEY assertion for him (Wait, which one? The "one" above? The Corporation bullshit? Explain it like you understand it.)

…handily points out… (well I guess if by handily you mean easily, he’s pretty facile with written English so good on him! You meant it as an insult… as if he does so without thought. If you’re looking for speech without thought try the bathroom mirror.)

…that corps… (again with the corporations. Read Mr. Masnick’s work. Try not to intuit words that aren’t there. Bathroom mirror.)

…don’t have 4th Amendment rights against arbitrary search (Uh, what the heck is "arbitrary search"??? Are you creating new case law in a TechDirt comment thread?)

…then his 1A assertions necessarily collapse. (Well you’ll have to explain to this old dog why you’ll write our 4th Amendment in full, but when it comes to the 1st Amendment you write 1A. Are you perhaps a failed 1L?

Nothing necessarily collapses except specious random gibberish, of which you provided plenty of excellent examples.

I award you no points, and may God have mercy on your soul. (Credit: A Sandler)

E

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bhull242 (profile) says:

Re: Re: So your key assertion of "First Amendment rights&qu

Masnick asserts the above in connection with his wish that corporations have the power to control ALL speech on the Internet —

Actually, corporations only control the portions of the internet that they own. Removing a link to an article from Facebook doesn’t remove the article itself from the internet. Remove a post from Twitter doesn’t prevent the poster from posting it on Parler. This is what Masnick wants. More importantly, it’s what the law says.

— and especially that of political enemies.

Nope. Masnick has supported the right of corporations to remove any speech from their platform, regardless of whether he agrees with that speech or their decision to remove it. You’re attacking a strawman.

It’s truly a KEY assertion for him, so when he handily points out above that corps don’t have 4th Amendment rights against arbitrary search — on demand — then his 1A assertions necessarily collapse.

Except the fact that he didn’t claim that corporations don’t have 4th Amendment rights—on the contrary—and the two claims aren’t inextricably linked given the fact that the Supreme Court has explicitly ruled that corporations have 1A rights in a separate case from any regarding the 4A rights of anyone. But, again, note that the target companies have the right to contest the broadness of the request. You’re completely misrepresenting what was said here.

Ehud Gavron (profile) says:

Re: Re: Re: Nope. Actually.

When you start a sentence with "Nope" or "Actually" you imply you know something the original author did not, and that the reader will kindly thank you for informing him/her about. Not so this time.

Nobody misrepresented what YOU said. YOU misrepersented what others have said.

Trying to respond to all the false stuff you made up would take up too much of anyone’s time — like mine to write — and others to read. Go form your own website, call it TechClean. Make up your own facts. Better yet, have a good time on Parler. That’s [almost] French for "Adults are talking now. Be quiet or go to your room."

E

Ehud Gavron (profile) says:

Re: Re: Re:3 Nope. Actually.

Platforms. Companies that put their resources to give to others — usually for near free — do have the right to NOT moderate or moderate as they see fit. Most choose to leave things alone.

I appreciate that others (such as you) agree with me. I also appreciate those who disagree with me. What I don’t like is those who won’t think.

In any event, I’m going to call it a day. The FTC is now defanged. The FCC is self-defanged. It’s just a disaster.

E

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Ehud Gavron (profile) says:

Re: Re: Again with the "Actually"

For the second time in this thread — when you start a sentence with "Actually" or "Nope" you invent the concept that you know more than the author, or the reader. Sadly, this is not the case.

Your thesis about the SCOTUS interpretation of 1A for corps is wrong. Let me know if you want me to go into detail.

It’s a constitutionally granted right.

Yes, that part you got right. However you didn’t read the First Amendment before you said that. It says "Congress shall make no law…" It says nothing about "Facebook won’t censor idiots" or "TechDirt won’t shut up idiots" or "Ehud Gavron won’t put up with idiots."

I’m not the brightest bulb in the room, but at least I don’t darken it. Hold the line against the night.

E

bhull242 (profile) says:

Re: Re: Re: Again with the "Actually"

I am aware of that. In fact, what you said is more or less the point I was getting at: the right to free speech for corporations is based on constitutional law. That means the government can’t control what private corporations host on their platforms.

Again, I think there’s been some sort of misunderstanding here, because I actually agree with what you’re saying. This may possibly be because I worded my point poorly, but my point is the same as yours: the constitution doesn’t prevent private platforms from being moderated and actually protects that right.

Look, I was specifically addressing the claim by the OP that 1A protections that protect corporations (and human persons) from government interference are “statutorily granted privileges” rather than the constitutionally guaranteed rights that they are. Yes, it’s also true that the Constitution says nothing about restricting corporations at all, but I don’t believe that was the claim being made by the OP. Rather, they were trying to claim that the 1A in the constitution does not protect corporations from the government like it does human persons, only statutes might, which is false. That’s the claim I was addressing.

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That One Guy (profile) says:

'Reviews of rather than by us are just such a pain...'

The only plausible benefit to drawing the lines the Commission has is targeting a number of high profile companies and, by limiting the number to nine, avoiding the review process required under the Paperwork Reduction Act, which is not triggered if fewer than ten entities are subject to requests.

Welp, there goes any credibility the thing might have had I’d say. If this was really an honest attempt to understand the industry then getting the idea reviewed shouldn’t have been a problem, but by intentionally avoiding that it looks, at best, like a fishing expedition aimed at one or more companies while using the others as a smokescreen, if not simple harassment ordered from above as Glenn suggests.

Ehud Gavron (profile) says:

Dish upon demand

Faber wrote that corporations must "dish upon demand."
I have a question meant to elicit information, not disagreement:

And yet, for a counter example and not for politics, the Trump Organization ("scheme") has yet to produce any of the documents sought by AUSAs and the SDNY and private citizens (alleging among other things rape).

Why is it that one company can say "No, Shanks" to AUSAs, but other companies named above have to "dish upon demand" to the ENTIRELY INEFFECTUAL AND NEUTERED AND STUPID FTC?

What recourse do these companies have to hire good (or unethical) lawyers and say "Aw hell no, Karen!"?

E

Anonymous Coward says:

Re: You, despite your best efforts, do make a valid point.

Harris is going to do what Trump should’ve done upon taking office: fire everyone associated with the previous administration. If he had, he’d have a second term.

I mean, granted, Harris doing so will lead to America’s further plunge off the cliff, and if Trump had done it, he’d have had a better chance of MAGA. But it’s still wise politics.

One thing you can say about Democrats: they know how to play hardball and be utterly merciless and Machiavellian to their enemies. Republicans have always had that pathetic, Pollyannaish, Dudley Doo-Right, Sunday School belief that their adversaries are not ruthless anti-American scum.

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