Chris Hoofnagle writes:
Are our institutions up to the challenge of protecting users from information-age problems? This is the high-level question emerging from the Facebook-Cambridge Analytica debate. While on one hand Facebook and similarly-situated companies will pay some regulatory price, our public institutions are also in the crosshairs. In the U.S., the much-praised and admired Federal Trade Commission (“FTC”) approach is suffering a crisis of legitimacy. Facebook’s European regulator, the Irish data protection commissioner, is losing both control over its supervision of American companies and the respect of its regulatory colleagues. In a recent press release, the Article 29 Working Party announced that it was creating a working group focusing on social media, never mentioning the Irish in its statement.
In this essay I explain the challenges the FTC faces in enforcing its 2012 consent agreement against Facebook and suggest ways it could nonetheless prevail. In the long run, everyone wins if our civil society institutions can police Facebook, including the company itself. While Facebook’s privacy problems have long been dismissed as harmless, advertising-related controversies, all now understand Facebook’s power over our broader information environment. After Brexit, the 2016 U.S. election, and violence in Myanmar, if consumer law fails, we risk turning to more heavy-handed regulatory tools, including cyber sovereignty approaches, with attendant consequences for civil society and internet freedom.
Read Chris’s essay on Jurist.