It’s easy to greet the FTC’s new report on social media privacy, which concludes that tech giants have terrible privacy practices with a resounding “duh,” but that would be a grave mistake.
Much to the disappointment of autocrats and would-be autocrats, administrative agencies like the FTC can’t just make rules up. In order to enact policies, regulators have to do their homework: for example, they can do “market studies,” which go beyond anything you’d get out of an MBA or Master of Public Policy program, thanks to the agency’s legal authority to force companies to reveal their confidential business information.
Market studies are fabulous in their own right. The UK Competition and Markets Authority has a fantastic research group called the Digital Markets Unit that has published some of the most fascinating deep dives into how parts of the tech industry actually function, 400+ page bangers that pierce the Shield of Boringness that tech firms use to hide their operations. I recommend their ad-tech study:
In and of themselves, good market studies are powerful things. They expose workings. They inform debate. When they’re undertaken by wealthy, powerful countries, they provide enforcement roadmaps for smaller, poorer nations who are being tormented in the same way, by the same companies, that the regulator studied.
But market studies are really just curtain-raisers. After a regulator establishes the facts about a market, they can intervene. They can propose new regulations, and they can impose “conduct remedies” (punishments that restrict corporate behavior) on companies that are cheating.
Now, the stolen, corrupt, illegitimate, extremist, bullshit Supreme Court just made regulation a lot harder. In a case called
Loper Bright, SCOTUS killed the longstanding principle of “Chevron deference,” which basically meant that when an agency said it had built a factual case to support a regulation, courts should assume they’re not lying:
The death of Chevron Deference means that many important regulations – past, present and future – are going to get dragged in front of a judge, most likely one of those Texas MAGA mouth-breathers in the Fifth Circuit, to be neutered or killed. But even so, regulators still have options – they can still impose conduct remedies, which are unaffected by the sabotage of Chevron Deference.
Pre-
Loper, post-
Loper, and today, the careful, thorough investigation of the facts of how markets operate is the prelude to
doing things about how those markets operate. Facts matter. They matter even if there’s a change in government, because once the facts are in the public domain, other governments can use them as the basis for action.
Which is why, when the FTC uses its powers to compel disclosures from the largest tech companies in the world, and then assesses those disclosures and concludes that these companies engage in “vast surveillance,” in ways that the users don’t realize and that these companies “fail to adequately protect users, that matters.
ALT
