The TikTok Problem Is Not What You Think

[BootinUp]

Matt Stoller at BIG writes

There are many reasons members agreed to support this legislation, and there are open questions about what will happen in the Senate, and then what happens in the marketplace if this bill gets signed into law. There are also many objections, such as the claim that this legislation is an abridgment of free speech, that it’s xenophobic, that it will jeopardize the hard work of creators or businesses who depend on TikTok, or that addressing TikTok ownership shouldn’t happen because we haven’t passed basic privacy protections or regulated social media in any significant way.

While I support the bill, and find most of these objections lacking in credibility, there is some legitimacy to the skepticism, which I’ll get into. But what I want to offer is some basic framing, which is that this legislation has to be understood not as a substitute to a broader movement for reform of social media and privacy, but as part of it. And there are two basic points here. The first is while it’s true that Congress hasn’t passed a ‘comprehensive Federal privacy law,’ it’s also true the Biden administration is orchestrating a remarkable revolution in privacy protections by resurrecting old legal tools. There are reasons you haven’t heard of this revolution that have to do with the incentives of privacy scholars, but the litigation here is fierce and deeply bitter. The second is those who say ‘we can’t even regulate social media and now you want to divest TikTok’s ownership!’ have it 180 degrees backwards. Being able to address Chinese ownership of one video sharing platform is part of the movement to reform all platforms.

Ok, let’s dive in.

Biden Rewrites the Rules of the Internet
Two months ago, the Network Advertising Initiative (NAI), an advertising trade association composed of data brokers and tech giants like Google and Adobe, announced it was developing new industry standards for corporations who “collect and process sensitive consumer location data.” It might have seemed like a one off, except that major law firms were also sending out alerts and information to clients telling them to just stop using certain location data to target individuals. It turns out, people really don’t like it when corporations, or employers, abusers, etc know when they go to the doctor, church, a political rally, a gay bar, and so forth. And the industry of data brokers was listening.

Why? Well it’s because of a little noticed but pivotal legal change in enforcement by the Federal Trade Commission in a series of privacy cases. Traditionally, brokers could do anything they wanted with your data (with a few exceptions), as long as they disclosed they were doing it. So usually there was some long web form that you’d click on, and that’s it, your data is now their data. That’s the ‘notice and consent’ framework. The FTC brought cases, but these were under the framework of deception, not using your sensitive data but lying to you about it. Brokers could also fix this situation with another impenetrable click-through screen you wouldn’t notice. But in August of 2022, the commission brought a different kind of case, against a data broker called Kochava, arguing that collecting and using certain kinds of data, whether that was disclosed or not, was unfair. It was a novel legal claim, and it wasn’t clear if a judge would ratify it.

Continued