Update: Privacy, Security, and Regulations
In our blog posts last month, we have covered topics pertinent to privacy, security, and the related regulations. We have covered government's and Big Tech's boundaries regarding digital data and legal ramifications of the "publisher-platform" distinction, and holding international online marketplaces accountable for legal violations.
We started the month with an elucidation of the Fifth Amendment rights in the area of biometrics. Since 1975, the national rule has specified that the Fifth Amendment protects a citizen from giving testimonial evidence against himself or herself. It does not, however, shield him/her from the obligation to divulge incriminating physical evidence. In the Information Age, though, the line between testimony and mere evidence can be unclear. The traditional distinction between the two has been whether the court order requires the defendant to testify as to the veracity of information or to reveal the "contents of an individual's mind." This distinction is clearer in principle than in practice. For example, a circuit split has arisen as to whether divulging an iPhone password, simple factual information in itself, yet "potentially containing the most intimate details of a person's life," should be legally considered protected testimony under the Fifth Amendment. The U.S. Supreme Court should be issuing a ruling in the near future.
We expanded on digital privacy and discussed this year's changes in the legal landscape and politics that underpin them. In 2018, Europe and California enacted legislation greatly enlarging online user's privacy rights, with the General Data Privacy Regulation and Consumer Privacy Act of 2018 respectively. Technology giants like Facebook, Google, Microsoft, and IBM wish to enact weaker federal legislation to effectively neuter California's law through the Supremacy Clause. California's law currently sets the bar for other states (seventeen have followed with similar legislation) and user data has immense commercial value. The White House has stated it is writing legislation "that is the appropriate balance between privacy and prosperity." It will not likely come into effect before the California law does in January 2020, which gives interested groups ample time to lobby.
The big technology companies face another hurdle. Allegations of censorship bias have not only sparked consumer retaliation, but have also brought on political pressure to regulate any selectivity. Doing this directly would flout the First Amendment, but there has been talk of indirect approaches to curb the companies' political influence should the public deem appropriate. One method implied at Mark Zuckerberg's Senate hearing was the use of antitrust laws. By many measures, all arguable, Facebook is a monopoly in the social media industry. Its disintegration could theoretically lead to a vibrant multitude of alternative speech platforms. This solution is unlikely to materialize. Another proposal, or threat rather, was to reclassify the companies as publishers, ending the benefits they enjoy as neutral platforms. Facebook, in particular, has danced around the line, depending on the legal woes it faces. Publishing involves editorial conduct and incurs liability; neutral platforms involve neither. "Shadow banning," the act of deliberately dialing down certain voices more than others, is a gray area between the two. The tech giants may need to tread softer at this time.
Finally, Pinduoduo, China's second-largest online marketplace, is facing legal action in the American courts for allegedly misrepresenting to shareholders the authenticity of products offered on its website. Its failure to disclose that its controls may not effectively prevent its vendors from selling counterfeit goods could run afoul of the U.S. securities laws.
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