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Main article: Policy

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Twitter is holding off on fixing verification policy to focus on election integrity

01:21 | 18 July

Twitter is pausing its work on overhauling its verification process, which provides a blue checkmark to public figures, in favor of election integrity, Twitter product lead Kayvon Beykpour tweeted today. That’s because, as we approach another election season, “updating our verification program isn’t a top priority for us right now (election integrity is),”


Last November, Twitter paused its account verifications as it tried to figure out a way to address confusion around what it means to be verified. That decision came shortly after people criticized Twitter for having verified the account of Jason Keller, the person who organized the deadly white supremacist rally in Charlottesville, Virginia.

Fast forward to today, and Twitter still verifies accounts “ad hoc when we think it serves the public conversation & is in line with our policy,” Beykpour wrote. “But this has led to frustration b/c our process remains opaque & inconsistent with our intented [sic] pause.”

While Twitter recognizes its job isn’t done, the company is not prioritizing the work at this time — at least for the next few weeks, he said. In an email addressed to Twitter’s health leadership team last week, Beykpour said his team simply doesn’t have the bandwidth to focus on verification “without coming at the cost of other priorities and distracting the team.”

The highest priority, Beykpour said, is election integrity. Specifically, Twitter’s team will be looking at the product “with a specific lens towards the upcoming elections and some of the ‘election integrity’ workstreams we’ve discussed.”

Once that’s done “after ~4 weeks,” he said, the product team will be in a better place to address verification.


We've heard some questions recently about the status of Verification on Twitter, so wanted to address directly. Updating our verification program isn’t a top priority for us right now (election integrity is). Here’s some history & context, and how we plan to put it on our roadmap

— Kayvon Beykpour (@kayvz)



The 21st Century Internet Act aims to enshrine net neutrality in law

15:01 | 17 July

Congress may soon vote on a new bill that would set net neutrality down as a matter of law rather than a set of rules to be changed every few years by the FCC. The “21st Century Internet Act,” introduced by Rep. Mike Coffman (R-CO), would ban blocking, throttling, paid prioritization, and eliminates all questions of jurisdiction.

The bill, announced online and at an event in Washington, DC today, would modify the Communications Act of 1934 (greatly built upon by the 1996 Telecommunications Act) and add a new “Title VIII” full of stipulations specific to internet providers.

This would settle the decades-long dispute over whether internet access is an “information service” or a “telecommunications service,” a legal distinction that either reins in (the former) or unleashes (the latter) the FCC on ISPs.

Instead of quibbling over whether the FCC has authority to write the rules or not, and then quibbling over the rules themselves, the act just codifies the rules as law and sets the FCC as the official watchdog.

The Commission shall have the authority to initiate investigations, bring enforcement actions, issue declaratory rulings, conduct rulemakings, and take other such actions… necessary to implement the requirements of this title.

It would no longer be a question of whether the FCC wants to have net neutrality rules or not — net neutrality would be the law and it would unequivocally be the Commission’s job to enforce it.

The basic blocking, throttling, and paid prioritization bans are very similar to the 2015 rule’s, and the law even institutes the “general conduct” rule that many complained was too vague. This catch-all rule says an ISP “may not unreasonably interfere with or disadvantage” users or edge providers from accessing or providing lawful content and services.

Because it isn’t specific, it means practices that may or may not be legal, such as zero rating, have to be evaluated case by case. That can be a lot of work — but it’s hard to think of a better way to provide against the shifting tactics of crafty ISPs.

Interestingly the act would require the FCC to investigate “unfair or deceptive acts or practices,” something that is frequently on the FTC’s plate — false advertising, misrepresenting the product, that kind of thing. Presumably this is to settle any jurisdictional dispute there, though the FTC may still come into play here and there.

Broadband providers would be eligible to receive money from the FCC’s Universal Service Fund, which it uses to help fulfill its mainline duty of making sure communications infrastructure is up to snuff. And while it could ask ISPs to contribute to the fund, the FCC is barred from rate regulation — telling providers what they can and can’t charge for their services. It was a worry that under the 2015 rules, the only thing stopping the Commission from doing so was voluntary forbearance (the technical term for opting out of statutory authority) from the capability to do so.

They also wouldn’t count as “common carriers,” a designation that comes with other responsibilities and oversight. This choice is practical if not, some may argue, completely correct: internet providers really do seem to qualify as common carriers as they are generally defined. But before the main reason for designating them as such was to justify the application of Title II, which granted the FCC authority to enforce the 2015 rules.

It’s all very confusing, right? This law, however, really cuts through a lot of the cruft of the past few decades and clearly establishes the “bright line” rules consumers know and understand.

Who will oppose it and why? Broadband providers will of course say first that the act is unnecessary because they’ve pledged to follow the rules voluntarily, and second that it will prevent them from innovating with services that technically break rules but are in fact beneficial to consumers. Don’t be fooled — these services don’t exist and never did. The only one that comes close is zero rating, and it’s a sham.

Remember, broadband providers also loudly called for “regulatory certainty” instead of the seesawing rules of the last five years. Be careful what you wish for!

Conservatives may oppose it because it expands regulations rather than reduces them, which is at least a valid position to take, as little as consumers may agree with it. The rules also have their origins in the Obama administration, which makes them burn partisan politicians at the touch.

It’s always hard to say whether a bill will be a success, and the processes are so slow anyway that it might be a year or more before we see this on the floor of the House. As for the President, it’s hard to say what he’ll do, as with so many other issues. That it would be difficult to cast the bill in partisan terms, practical as it is and introduced by a Republican Congressman, but that doesn’t mean it won’t be vetoed anyway.

Notably Rep. Coffman is lighting the candle under the FCC at both ends (if you’ll permit the confused metaphor) by supporting the House’s Congressional Review Act petition to undo the current administration’s rules: “While my bill moves through the Congress, I am taking an ‘all of the above’ approach by simultaneously signing the discharge petition on the CRA, and introducing my bill.”

At the very least the bill seems a good example of a law that takes the short path to providing consumers with net neutrality protections: direct and to the point, with no sweetheart clauses or funny business as far as I can tell. That said, it may yet be butchered in committee. We’ll follow its progress carefully.



It’s official: Brexit campaign broke the law — with social media’s help

13:43 | 17 July

The UK’s Electoral Commission has published the results of a near nine-month-long investigation into Brexit referendum spending and has found that the official Vote Leave campaign broke the law by breaching election campaign spending limits.

It found Vote Leave broke the law including by channeling money to a Canadian data firm, AggregateIQ, to use for targeting political advertising on Facebook’s platform, via undeclared joint working with another Brexit campaign, BeLeave.

Aggregate IQ remains the subject of a separate joint investigation by privacy watchdogs in Canada and British Columbia.

The Electoral Commission’s investigation found evidence that BeLeave spent more than £675,000 with AggregateIQ under a common arrangement with Vote Leave. Yet the two campaigns had failed to disclose on their referendum spending returns that they had a common plan.

As the designated lead leave campaign, Vote Leave had a £7M spending limit under UK law. But via its joint spending with BeLeave the Commission determined it actually spent £7,449,079 — exceeding the legal spending limit by almost half a million pounds.

The June 2016 referendum in the UK resulted in a narrow 52:48 majority for the UK to leave the European Union. Two years on from the vote, the government has yet to agree a coherent policy strategy to move forward in negotiations with the EU, leaving businesses to suck up ongoing uncertainty and society and citizens to remain riven and divided.

Vote Leave cheated. The country was cheated. The vote was illegitimate. https://t.co/Y6zm9KDWd8

— Jo Maugham QC (@JolyonMaugham)

Meanwhile, Facebook — whose platform played a key role in distributing referendum messaging — booked revenue of around $40.7BN in 2017 alone, reporting a full year profit of almost $16BN.

Back in May, long-time leave supporter and MEP, Nigel Farage, told CEO Mark Zuckerberg to his face in the European Parliament that without “Facebook and other forms of social media there is no way that Brexit or Trump or the Italian elections could ever possibly have happened”.

The Electoral Commission’s investigation focused on funding and spending, and mainly concerned five payments made to Aggregate IQ in June 2016 — payments made for campaign services for the EU Referendum — by the three Brexit campaigns it investigated (the third being: Veterans for Britain).

Veterans for Britain’s spending return included a donation of £100,000 that was reported as a cash donation received and accepted on 20 May 2016. But the Commission found this was in fact a payment by Vote Leave to Aggregate IQ for services provided to Veterans for Britain in the final days of the EU Referendum campaign.

Despite the donation to a third Brexit campaign by the official Vote Leave campaign being for services provided by Aggregate IQ, which was also simultaneously providing services to Vote Leave, the Commission did not deem it to constitute joint working, writing: “[T]he evidence we have seen does not support the concern that the services were provided to Veterans for Britain as joint working with Vote Leave.”

It was, however, found to constitute an inaccurate donation report — another offense under the UK’s Political Parties, Elections and Referendums Act 2000. And the report details multiple issues with spending returns across the three campaigns.

The Commission has issued a series of fines to the three Brexit campaigns, and referred two individuals — Vote Leave’s David Alan Halsall and BeLeave’s Darren Grimes — to the UK’s Metropolitan Police Service which has the power to instigate a criminal investigation.

Early last year the Commission decided not to fully investigate Vote Leave’s spending but by October it says new information had emerged — which suggested “a pattern of action by Vote Leave” — so it revisited the assessment and reopened an investigation in November.

Its report also makes it clear that Vote Leave failed to co-operate with its investigation — including by failing to produce requested information and documents; by failing to provide representatives for interview; by ignoring deadlines to respond to formal investigation notices; and by objecting to the fact of the investigation, including suggesting it would judicially review the opening of the investigation.

Note to Brexiters indulging in spectacular Whataboutery on Vote Leave/electoral commission: you either believe in the rule of law and its application to democratic processes… or you don't.

— John Harris (@johnharris1969)

Judging by the Commission’s account, Vote Leave seemingly did everything it could to try to thwart and delay the investigation — which is only reporting now, two years on from the Brexit vote and with mere months of negotiating time left before the end of the formal Article 50 process.

What’s crystal clear from this report is that following money and data trails takes time and painstaking investigation, which — given democracy is at stake — heavily bolsters the case for far more stringent regulations and transparency mechanisms to prevent powerful social media platforms from quietly absorbing politically motivated money and messaging without recognizing any responsibility to disclose the transactions, let alone carry out any diligence on who or what may be funding the political spending.

Last week the UK’s information commissioner, Elizabeth Denham, announced its intention to fine Facebook the maximum possible for breaches of UK data protection law relating to the Cambridge Analytica scandal, after it emerged that information on as many as 87 million Facebook users was extracted from its platform and passed to a controversial UK political consultancy without most people’s knowledge or consent.

She also published a series of policy recommendations around digital political campaigning — calling for an ethical pause on the use of personal data for political ad targeting, and warning that a troubling lack of transparency about how people’s data is being used risks undermining public trust in democracy

“Without a high level of transparency – and therefore trust amongst citizens that their data is being used appropriately – we are at risk of developing a system of voter surveillance by default,” she warned.

The Cambridge Analytica Facebook scandal is linked to the Brexit referendum via AggregateIQ — which was also a contractor for Cambridge Analytica, and also handled Facebook user information which the former company had improperly obtained, after paying a Cambridge University academic to use a quiz app to harvest people’s data and use it to create psychometric profiles for ad targeting.

The Electoral Commission says it was approached by Facebook during the Brexit campaign spending investigation with “some information about how Aggregate IQ used its services during the EU Referendum campaign”.

We’ve reached out to Facebook for comment on the report and will update this story with any response.

The Commission states that evidence from Facebook indicates that AggregateIQ used “identical target lists for Vote Leave and BeLeave ads”, although at least in one instance the BeLeave ads “were not run”.

It writes:

BeLeave’s ability to procure services from Aggregate IQ only resulted from the actions of Vote Leave, in providing those donations and arranging a separate donor for BeLeave. While BeLeave may have contributed its own design style and input, the services provided by Aggregate IQ to BeLeave used Vote Leave messaging, at the behest of BeLeave’s campaign director. It also appears to have had the benefit of Vote Leave data and/or data it obtained via online resources set up and provided to it by Vote Leave to target and distribute its campaign material. This is shown by evidence from Facebook that Aggregate IQ used identical target lists for Vote Leave and BeLeave ads, although the BeLeave ads were not run.

“We also asked for copies of the adverts Aggregate IQ placed for BeLeave, and for details of the reports he received from Aggregate IQ on their use. Mr Grimes replied to our questions,” it further notes in the report.

At the height of the referendum campaign — at a crucial moment when Vote Leave had reached its official spending limit — officials from the official leave campaign persuaded BeLeave’s only other donor, an individual called Anthony Clake, to allow it to funnel a donation from him directly to Aggregate IQ, who Vote Leave campaign director Dominic Cummins dubbed a bunch of “social media ninjas”.

The Commission writes:

On 11 June 2016 Mr Cummings wrote to Mr Clake saying that Vote Leave had all the money it could spend, and suggesting the following: “However, there is another organisation that could spend your money. Would you be willing to spend the 100k to some social media ninjas who could usefully spend it on behalf of this organisation? I am very confident it would be well spent in the final crucial 5 days. Obviously it would be entirely legal. (sic)”

Mr Clake asked about this organisation. Mr Cummings replied as follows: “the social media ninjas are based in canada – they are extremely good. You would send your money directly to them. the organisation that would legally register the donation is a permitted participant called BeLeave, a “young people’s organisation”. happy to talk it through on the phone though in principle nothing is required from you but to wire money to a bank account if you’re happy to take my word for it. (sic)

Mr Clake then emailed Mr Grimes to offer a donation to BeLeave. He specified that this donation would made “via the AIQ account.”

And while the Commission says it found evidence that Grimes and others from BeLeave had “significant input into the look and design of the BeLeave adverts produced by Aggregate IQ”, it also determined that Vote Leave messaging was “influential in their strategy and design” — hence its determination of a common plan between the two campaigns. Aggregate IQ was the vehicle used by Vote Leave to breech its campaign spending cap.

Providing examples of the collaboration it found between the two campaigns, the Commission quotes internal BeLeave correspondence — including an instruction from Grimes to: “Copy and paste lines from Vote Leave’s briefing room in a BeLeave voice”.

On 15 June 2016 Mr Grimes told other BeLeave Board members and Aggregate IQ that BeLeave’s ads needed to be: “an effective way of pushing our more liberal and progressive message to an audience which is perhaps not as receptive to Vote Leave’s messaging.”

On 17 June 2016 Mr Grimes told other BeLeave Board members: “So as soon as we can go live. Advertising should be back on tomorrow and normal operating as of Sunday. I’d like to make sure we have loads of scheduled tweets and Facebook status. Post all of those blogs including Shahmirs [aka Shahmir Sami; who became a BeLeave whistleblower], use favstar to check out and repost our best performing tweets. Copy and paste lines from Vote Leave’s briefing room in a BeLeave voice”



WeWork takes meat off the menu as part of environmental policy drive

14:02 | 16 July

WeWork, the co-working startup that’s valued at ~$20 billion and has some 200,000 members across 200 locations globally plus nearly 6,000 staff of its own, will no long allow employees to expense meat. It will also no longer serve meat at company events. The policy shift is intended to reduce the business’ environmental impact.

The new internal policy was reported on Friday by Bloomberg which obtained a company memo in which co-founder Miguel McKelvey revealed the policy, writing: “New research indicates that avoiding meat is one of the biggest things an individual can do to reduce their personal environmental impact — even more than switching to a hybrid car.”

So Elon Musk take note.

A WeWork spokeswoman confirmed the new policy to us — which specifically removes red meat, poultry and pork from company menus and expenses policy. Though she emphasized that the company is not prohibiting WeWork staff or members from bringing in meat-based meals they’ve paid for themselves.

Members are also still free to host their own events at WeWork locations and serve meat they’ve paid for themselves. The policy only applies to food purchased (or paid for) by WeWork itself.

The spokeswoman also confirmed that fish is not covered in the meat-free initiative.

The internal memo announcing the meat-free policy is embedded below:

Global Team,

One thing that inspires me most about WeWork is our ability to effect positive change. Our team, united together, has no limit when solving any problem. That’s the Power of We.

In the past few weeks, many teams around the world have already taken action to help us become more environmentally conscious. From plastic-free events in Montreal to recycling initiatives in Hong Kong, we’re excited and humbled by how quickly our teams can make an impact.

But we know we can do more.

We have made a commitment to be a meat-free organization. Moving forward, we will not serve or pay for meat at WeWork events and want to clarify that this includes poultry and pork, as well as red meat.

New research indicates that avoiding meat is one of the biggest things an individual can do to reduce their personal environmental impact — even more than switching to a hybrid car. As a company, WeWork can save an estimated 16.7 billion gallons (63.1 billion liters) of water, 445.1 million pounds (201.9 million kg) of CO2 emissions, and over 15 million animals by 2023 by eliminating meat at our events.

One of our most powerful annual events is Summer Camp. Many of you have asked if we will be serving meat this year. In keeping with our commitment, we will not be serving meat at camp. This is a significant first step — and one that will have a meaningful impact. In just the three days we are together, we estimate that we can save more than 10,000 animals. The team has worked hard to create a sustainable, plentiful, and delicious menu. If you require a medical or religious accommodation, please contact our Global Policy Team.

We are energized by this opportunity to leave a better world for future generations and appreciate your partnership as we continue the journey.

For information on changes (from T&E to the Honesty Market), additional reading on the effects a meat-free diet can have on the world, or to get involved, visit our Connect page. You can also reach out to us at culture@wework.com.

The changes you are making every day will truly change the world.


Scientists have been warning for years that the meat industry is a massive generator of greenhouses gases — although the topic often gets bypassed in mainstream environmental discussions and overlooked by corporate social responsibility policies, so it’s interesting to see WeWork stepping up to the plate (ha!) and putting its policies where its environmentally conscious soundbites are.

According to Bloomberg, the company will also exclude meat products from the self-serve food and drink kiosk systems that are present in around 400 of WeWork’s co-working buildings.

So its affirmative environmental action to reduce meat consumption will have some impact — albeit likely a smaller one — on its paying members too.



Apple announces clean energy fund in China

18:58 | 13 July

Apple has announced a new investment fund to foster clean energy usage in China. The company isn’t just trying to switch its own offices and facilities. Apple is also working with its suppliers to expand the use of clean energy across the board.

For this fund in particular, Apple and 10 suppliers will invest $300 million over the next four years. Overall, the company expects to finance multiple clean energy projects to produce 1 gigawatt of renewable energy in China.

Apple isn’t going to manage the fund itself. The company is partnering with DWS Group, a division of Deutsche Bank. DWS will also participate in the fund.

The company started working on renewable energy projects a few years ago. Earlier this year, Apple claimed that 100 percent of its offices, retail stores, data centers and Apple-owned facilities are now powered by renewable energy.

Apple is not there yet when it comes to suppliers. The company has launched the Supplier Clean Energy Program back in 2015 with 23 manufacturing partners, and regularly shares updates — Foxconn seems to be missing so far.

By 2020, Apple and its suppliers hope to generate 4 gigawatts of clean energy. And let’s be honest, this is great news for the planet.



The Department of Justice isn’t done fighting the AT&T-Time Warner merger

00:32 | 13 July

The U.S. Department of Justice has filed to appeal a federal judge’s decision to approve AT&T’s acquisition of Time Warner.

Back when he was campaigning for the presidency, Donald Trump said his administration would block the deal, and indeed, the DOJ sued to stop the merger, arguing it would hurt competition.

Last month, however, U.S. District Court Judge Richard J. Leon ruled that the deal could move forward without conditions. He said from the bench, “The court has now spoken. … The defendants have won” — and the deal closed later that week.

In fact, we’re already starting to see some of the fallout, with AT&T’s reported plans for Time Warner-owned HBO leading to a flurry of worried headlines in just the past couple days.

The deal also seemed to set the stage for even more consolidation between telecom and media companies, leading Comcast to challenge Disney for ownership of Fox’s film and TV assets. (TechCrunch was already a very small part of this trend, since we’re owned by Verizon.)

“The Court’s decision could hardly have been more thorough, fact-based, and well-reasoned,” said AT&T General Counsel David McAtee in a statement. “While the losing party in litigation always has the right to appeal if it wishes, we are surprised that the DOJ has chosen to do so under these circumstances. We are ready to defend the Court’s decision at the D.C. Circuit Court of Appeals.”



FCC looks to revamp children’s media rules, but advocates cry foul

19:56 | 12 July

One of the FCC’s many jobs as a media regulator is to make sure that there is adequate time being dedicated by broadcasters to educational content for kids. As the media landscape changes, however, so too should the regulations — and the FCC is looking to update its “Kid Vid” rules for the 21st century. But the agency’s proposal is half-baked, warn some advocates.

This latest move, one of several in the FCC’s so-called “modernizing media regulation” efforts, got its start back in January, when Commissioner Michael O’Rielly wrote a blog post explaining why he felt it was high time children’s television regulations were revisited.

The chief reason for this was essentially that with the plethora of different avenues by which kids can reach educational media these days, it doesn’t make sense to have regulations requiring broadcasters to have 30-minute shows making up at least 3 hours of content per week. Why not shorter format stuff? Why not let programs on Netflix and Hulu count? Why not allow sub-channels to carry that content instead of main channels? They’re good questions.

Following this post, FCC Chairman Ajit Pai asked O’Rielly to head up a review of the rules and propose changes. And today the FCC votes on whether that proposal should be made official. (To be clear, it would then have to be formalized, opened for comment, and voted on again later to take effect.)

Does it seem like they skipped a step? Perhaps the step where they answer those questions listed above? You’re not the only one who thinks so.

The Notice of Proposed Rulemaking, or NPRM, raises all kinds of questions.

  • Are kids really consuming more content on other platforms? How much, and who? Are some populations left out of this new economy? If so, how will they be affected by the new regulations?
  • Absent regulation requiring 30-minute-long shows, will anyone bother to make them? Who makes them now, and would they continue to? Is the 30 minute show length useful or detrimental? Do parents like it? Do kids like it?
  • Among underserved households that only receive basic broadcast or cable, and/or have inadequate broadband, or lack multiple screens, how is kids’ media consumed? How will those households be affected? What do parents in that position think would be helpful?
  • If programs are not listed on a channel’s schedule, how will kids and parents find them? How will programming meeting the “educational” threshold be designated or searchable on other platforms?

Some of these questions are in the NPRM itself, such as when it asks whether there are any studies on engagement with short vs. full-length shows. Others are the natural result of a little thought on the topic.

The problem is not that the answers to these questions are all negative or troubling — it’s that there are no answers at all. The NPRM makes many “tentative” conclusions based on little or no evidence, and when there is evidence it seems to have been provided by broadcasters.

Critics proposed an easy solution to this: instead of proposing new rules based on scant data, change this NPRM into an NOI — a “Notice of Inquiry.” An NOI is the appropriate official item for when you have more questions than answers; you get lots of answers, then you use that information to create a more informed NPRM.

A coalition of advocates for children’s welfare writes the following in a letter to the FCC:

We agree that major changes have taken place in the video marketplace and that it is appropriate for the FCC to take a fresh look at its rules in light of these changes. But the draft NPRM appears to be a wish-list for broadcasters, which does nothing to serve the needs of children. It makes numerous ‘tentative conclusions’ based on no evidence. Finalizing these ‘tentative conclusions’ would effectively eliminate the existing rules, and as a result, many children would lose access to educational programming designed to serve their needs. Children of color and those whose families are of limited means will especially be harmed by adopting these tentative conclusions, because they are less able to afford cable, satellite, or broadband (even if available), tend to watch more television, and may have fewer opportunities to learn in other ways. Changing the draft to a NOI would allow the Commission to obtain the necessary evidence and to craft proposals in light of that evidence.

And Senator Ed Markey (D-MA), joined by several colleagues, writes:

In the absence of key information about how American children access educational programming on television and how significant changes to the ‘Kid Vid’ rules would affect this access, the Commission’s proposed rulemaking is premature. Given the critical importance of these rules and our concern that several proposals in the Commission’s NPRM have the potential to undermine the rules’ effectiveness, we respectfully request that the FCC revise its item on children’s programming rules as an NOI and go through a rigorous fact finding process. The Commission should not act in haste to revise rules that can negatively impact children in our country.

Unfortunately the majority was not interested in this line of action, which would of course have had the effect of delaying the whole operation. The Commission voted 3-1 (on party lines, naturally) to approve the item.

Commissioner Rosenworcel, in her remarks on the item, lamented the lack of due diligence:

I regret my colleagues refused to convert this effort to a notice of inquiry so that we could include the evidence we need to proceed fairly. I am disappointed that this rulemaking all but announces where we are headed—a future with less quality children’s programming that is also harder for families to locate and watch. Moreover, I regret that dozens of times the text before us cites the need to ease industry of the “burdens” of serving our children with educational programming under the law. It never once cites children, parents, families—or mothers. So take it from this one: This is not the effort our children deserve.

Concerned parents and experts in the field should still feel free to comment; this probably won’t be the melee that net neutrality was. That it is an NPRM and not an NOI just means it’s critical to make those comments sooner and more forcefully, as the next time we see this item it will be when it is being proposed as an official order. You can file a comment into the system here.



Supreme Court nominee Brett Kavanaugh’s brutal education in net neutrality

00:42 | 12 July

DC Circuit Court Judge Brett Kavanaugh has been nominated for the position of Supreme Court Justice, and on this occasion I think it warranted that we revisit in detail the sound intellectual thrashing this man suffered at the hands of his colleagues just last year on the topic of the internet and net neutrality. Because Kavanaugh was very, very wrong then and gives every indication that he will take his ignorance unapologetically to the highest court in the land.

To set the scene: In 2015 the United States Telecom Association sued the FCC, alleging the Open Internet Order that passed earlier that year, establishing net neutrality as we know it — or rather, knew it — was illegal.

This highly watched case was heard late in 2015 and the decision was issued six months later, in June of 2016. DC Circuit Judges Srinivasan, Tatel, and Williams ruled against the telecoms, essentially finding that the FCC was well within its jurisdiction in establishing net neutrality rules to begin with, and also that the rule as written was lawful.

Unsatisfied with this ruling, the USTA petitioned to have the case reheard “en banc,” meaning with all active circuit judges present. This petition was denied, primarily because the Open Internet Order was by that point in peril of replacement, and new deliberations would as likely as not soon be rendered moot.

But two judges had dissenting opinions to bruit, and so the court published them alongside the denial — though unfortunately for them Srinivasan used the same opportunity to demolish their arguments. It would have been better for them, in retrospect, if they had remained silent, rather than raising their profound ignorance like a dirty flag to be mocked and pointed at forever — as we do here today.

I covered this disaster in less detail then, because it was only one case and news story among many having to do with net neutrality, and having no official consequences (the motion, after all, was denied) it was only worth touching on in brief. But now, with Kavanaugh ascendant, I feel it is important to resurface his late folly as evidence of his unsuitability for the position to which he has been nominated. His dissent deeply misinterprets multiple Supreme Court decisions, demonstrates a profound lack of understanding about how the industry works, and produces absurd results if taken to its logical conclusions.

I’ll present Kavanaugh’s arguments in good faith, since they were offered that way, and then summarize their point-by-point demolishment by Srinivasan, the FCC, or common sense.

Wrong on jurisdiction

Kavanaugh’s first argument is that the FCC’s rule is illegal to begin with because it does not have authority to issue it. He cites what he calls the “major rules” doctrine, which is that an agency like the FCC requires clear and explicit permission from Congress to issue “decisions of ‘vast economic and political significance.’ ”

This makes perfect sense — there have to be limits so serious questions of policy aren’t defined by a small group of commissioners. He writes:

If an agency wants to exercise expansive regulatory authority over some major social or economic activity–regulating cigarettes, banning physician-assisted suicide, eliminating telecommunications rate-filing requirements, or regulating greenhouse gas emitters, for example–an ambiguous grant of statutory authority is not enough. Congress must clearly authorize an agency to take such a major regulatory action.

Congress has never enacted net neutrality legislation or clearly authorized the FCC to impose common-carrier obligations on Internet service providers.

As this is primarily a question of authority and precedent and not technology, I won’t go too into detail here. If you’re curious, this article goes into the various court and agency decisions that led to the 2015 rules.

In brief, however, the question comes down to whether Congress has authorized the FCC to make a decision like that made in the 2015 rules: to classify broadband providers as common carriers and exert its powerful Title II authority over them. Srinivasan explains that it most certainly is:

We have no need in this case to resolve the existence or precise contours of the major rules (or major questions) doctrine described by our colleagues. Assuming the existence of the doctrine as they have expounded it, and assuming further that the rule in this case qualifies as a major one so as to bring the doctrine into play, the question posed by the doctrine is whether the FCC has clear congressional authorization to issue the rule. The answer is yes. Indeed, we know Congress vested the agency with authority to impose obligations like the ones instituted by the Order because the Supreme Court has specifically told us so.

And it told us so in a 2005 decision known as Brand X — which Kavanaugh himself cites. In Brand X it was decided that the FCC could in fact define DSL as telecommunications but cable internet as an information service (again, the piece above has more context for these terms).

Kavanaugh argues that Brand X shows that the 1996 Telecommunications Act, from which the FCC derives its authority, is ambiguous in its definition of internet services. This ambiguity, he says, means that there is no specific mandate from Congress to create a major rule such as net neutrality.

“That analysis,” Srinivasan explains in his enjoyable prose, “rests on a false equivalence: it incorrectly equates two distinct species of ambiguity.”

“Whereas Brand X found statutory ambiguity on whether ISPs are telecommunications providers, the decision found no statutory ambiguity on whether the FCC gets to answer that question,” he writes (emphasis mine). And once the Supreme Court decides something is legal, he concludes, “our inquiry is over.” Ouch.

It’s important to note here that Brand X isn’t some obscure case — it’s extremely influential and well studied. Kavanaugh’s interpretation of it is exceptional in its backwardness, attempting to wring the complete opposite conclusion from what has been accepted for more than a decade. This kind of poor reasoning isn’t the kind you expect to find in a Supreme Court Justice.

Wrong on tech and wrong on free speech

But the question of jurisdiction is only prefatory to the main event, in which Kavanaugh truly embarrasses himself.

“Imposing common-carrier regulations on Internet service providers violates the First Amendment,” he writes. And to be clear, he’s talking about the First Amendment rights of the internet service providers. He cites the Supreme Court again, this time two cases from the ’90s involving Turner Broadcasting.

Some readers may already be exhibiting signs of skepticism. Turner Broadcasting? In the ’90s? Wasn’t that a completely different era and industry? It was, but Supreme Court decisions can be surprisingly broad and durable; precedents may stand for decades, if not centuries. So let’s hear Kavanaugh out, shall we?

The cases, he explained, had to do with Turner Broadcasting challenging “must-carry” rules that required cable operators to carry certain programming — local stations, for instance. Turner argued that the government requiring it to broadcast certain information infringed on its right to free speech. And indeed, although the court ultimately decided that the must-carry rules should be enforced, it was also acknowledged that Turner does indeed exert free speech rights when it decides what content to broadcast or not broadcast.

“The First Amendment’s basic principles ‘do not vary when a new and different medium for communication appears,’ ” he writes, “Although there of course can be some differences in how the ultimate First Amendment analysis plays out depending on the nature of (and competition in) a particular communications market.”

Starting from this solid ground, Kavanaugh immediately drifts into the hard vacuum of ignorance. Please remember that the following was written by someone nominated to be a Justice of the Supreme Court. I really can’t condense it because every sentence has, as Srinivasan might put it, a distinct species of ignorance (emphasis mine).

Here, of course, we deal with Internet service providers, not cable television operators. But Internet service providers and cable operators perform the same kinds of functions in their respective networks. Just like cable operators, Internet service providers deliver content to consumers. Internet service providers may not necessarily generate much content of their own, but they may decide what content they will transmit, just as cable operators decide what content they will transmit. Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes.

Indeed, some of the same entities that provide cable television service – colloquially known as cable companies – provide Internet access over the very same wires. If those entities receive First Amendment protection when they transmit television stations and networks, they likewise receive First Amendment protection when they transmit Internet content. It would be entirely illogical to conclude otherwise.

Setting aside the unprofessional and unjustified bravado that concludes this breathtaking little salvo, it really would take hours and thousands of words to explain satisfactorily, to Kavanaugh himself, all the different ways he is incorrect. I’ll attempt to satisfy the demands of posterity and brevity in summarizing them.

1. Packet-based internet service is fundamentally different from cable broadcasting, even if the latter has converted to packet-based transmission over the last decade. What they have in common is that they are transmitted as electrical impulses, sometimes over wires. It’s akin to the level of similarity between a telephone call (mostly also packet-based now) and a cable television signal.

2. The idea that because things are transmitted via the same medium, they are legally identical, is so mystifyingly naive and backwards that I’m surprised to see it in a legal document of any kind, let alone a judge’s official dissent in a major case. Just as a basic counter-example, what about radio waves? They are used in countless different capacities by countless different devices, many of which are differently regulated, subject to different laws, possessed of different capabilities, and so on. What about DSL? It runs over telephone lines, should it be regulated like phone calls?

3. Outside some very basic and well-understood limits, internet service providers do not decide what content to deliver to users. And in many cases, thanks to encryption, they are totally unable to track (and therefore unable to control) what data they are providing. If all the traffic on the internet was encrypted and ISPs only transmitted data that was totally unintelligible to them, they would still be able to advertise and provide the exact same, highly valuable service to their users.

Kavanaugh does touch on, and dismiss, some of this as follows:

[T]he FCC argues (and the panel agreed) that Turner Broadcasting does not apply in this case because many Internet service providers do not actually exercise editorial discretion to favor some content over others… I find that argument mystifying.

It may be true that some, many, or even most Internet service providers have chosen not to exercise much editorial discretion, and instead have decided to allow most or all Internet content to be transmitted on an equal basis. But that “carry all comers” decision itself is an exercise of editorial discretion. Moreover, the fact that the Internet service providers have not been aggressively exercising their editorial discretion does not mean that they have no right to exercise their editorial discretion.

We have already established, of course, that ISPs not only do not decide what content to transmit, but that in many (approaching all) circumstances, it cannot do so. But beyond this elementary oversight, Kavanaugh has also failed to comprehend, or perhaps even to read, the rule he is railing against.

Because his exact argument is preemptively dealt with in the text of the rule itself, which in the first place defines entities affected by the rules as advertising and providing “the capability to transmit data to and receive data from all or substantially all Internet endpoints” — a definition that precludes editorial control. And if that’s too ambiguous for Kavanaugh, several paragraphs are dedicated to addressing his concerns in detail. Some excerpts:

As a factual matter, broadband Internet access services are nothing like the cable service at issue in Turner I.

Cable operators… both engage in and transmit speech with the intent to convey a message either through their own programming directly or through contracting with other programmers for placement in a cable package.

Broadband providers, however, display no such intent to convey a message in their provision of broadband Internet access services—they do not engage in speech themselves but serve as a conduit for the speech of others.

There’s more (paragraphs 544 to 549 or so) in the Open Internet Order if anyone (for instance, Judge Kavanaugh) is curious. And in case you are worried that these definitions and assertions have been found wanting by others or challenged by the parties affected, allow Srivinasan set your mind at ease:

An ISP has no First Amendment right to engage in those kinds of practices [i.e. editorial content control]. No Supreme Court decision suggests otherwise. Indeed, although the two dissenting FCC Commissioners objected to the agency’s adoption of the rule on multiple grounds, neither suggested the rule poses any First Amendment issue. Similarly, the principal parties challenging the Order in this court, who collectively represent virtually every broadband provider—including all of the major ISPs—bring no First Amendment challenge to the rule.

Considering especially the length and thoroughness with which now-Chairman Ajit Pai excoriated the original rule, it may be expected that if there were free speech considerations, he would have brought them up. Likewise the many ISPs and trade organizations, which would have loved to have something like Constitutional grounds to challenge the order.

The only ones who bring up the issue are Kavanaugh and a tiny ISP in Texas called Alamo, which wanted to offer a “family-friendly” edited subset of the internet to its customers.

Funnily enough, this is permitted! And by publicly stating that it has no intention of providing access to “substantially all Internet endpoints,” Alamo would exempt itself from the net neutrality rules! Yes, you read that correctly — an ISP can opt out of the rules by changing its business model. They are, to Kavanaugh’s evident bafflement, essentially voluntary. But here’s Srivinasan again enlightening his colleague:

There is no need in this case to scrutinize the exact manner in which a broadband provider could render the FCC’s Order inapplicable by advertising to consumers that it offers an edited service rather than an unfiltered pathway. No party disputes that an ISP could do so if it wished, and no ISP has suggested an interest in doing so in this court.

In the event that an ISP nonetheless were to choose to hold itself out to consumers as offering them an edited service rather than indiscriminate internet access—despite the potential effect on its subscriber base—it could then bring itself outside the rule. In that sense, the rule could be characterized as “voluntary,” [as Kavanaugh describes it], but in much the same way that just about any regulation could be considered voluntary, insofar as a regulated entity could always transform its business to such an extent that it is no longer in the line of business covered by the regulation.

Wrong on the slippery slope

Lastly, not content to be wrong on several Supreme Court cases, the technical basis for the industry he is writing about, or the rule itself he is suggesting is unconstitutional, Kavanaugh felt the need to offer, as a rancid cherry on top, a dose of FUD suggesting that if this rule (which as he sees it permits government tampering with free speech without evidence of monopoly) were lawful, the government could move on to regulating the speech of edge providers from Google and Facebook to this website:

If market power need not be shown, the Government could regulate the editorial decisions of Facebook and Google, of MSNBC and Fox, of NYTimes.com and WSJ.com, of YouTube and Twitter. Can the Government really force Facebook and Google and all of those other entities to operate as common carriers? Can the Government really impose forced-carriage or equal-access obligations on YouTube and Twitter? If the Government’s theory in this case were accepted, then the answers would be yes. After all, if the Government could force Internet service providers to carry unwanted content even absent a showing of market power, then it could do the same to all those other entities as well.

The vast and numerous differences between a broadband internet provider and a service like Facebook, let alone a press outlet like the New York Times, are perhaps unsurprisingly lost on Kavanaugh. Once more Srivinasan explains it concisely:

Those companies evidently do not share our colleague’s concern—all but one is a member of a group that supports the rule in this court.

That may be in part because those companies, in contrast with broadband ISPs, are not considered common carriers that hold themselves out as affording neutral, indiscriminate access to their platform without any editorial filtering.

The real slippery-slope concerns run in the reverse direction. Under our dissenting colleague’s approach, broadband ISPs would have a First Amendment entitlement to block and throttle content based on their own commercial preferences even if they had led customers to anticipate neutral and indiscriminate access to all internet content.

That’s the last thing on the long list of things about which Kavanaugh needed to be schooled in order to issue even a reasonably incorrect opinion on this subject.

This has been a rather long exposition, but I thought it was important that everyone see, in Kavanaugh’s own words, exactly how poor of a study he is, at least as far as this issue is concerned, and how little he seems to think through both his own arguments and those of others.

As Srinivasan notes, what Kavanaugh essentially suggests is that, against the explicit findings of several Supreme Court decisions, the regulators, and the regulated industry, internet providers should be granted free speech rights that allow them to arbitrarily limit the free speech of their users.

Is this the type of twisted logic, inadequate research, and shallow understanding that we want in a Supreme Court Justice? I think not. Kavanaugh’s brash and embarrassing failure on this case alone is in my opinion generates sufficient doubt regarding his competence that his nomination should be denied.



Facebook under fresh political pressure as UK watchdog calls for “ethical pause” of ad ops

14:42 | 11 July

The UK’s privacy watchdog revealed yesterday that it intends to fine Facebook the maximum possible (£500k) under the country’s 1998 data protection regime for breaches related to the Cambridge Analytica data misuse scandal.

But that’s just the tip of the regulatory missiles now being directed at the platform and its ad-targeting methods — and indeed, at the wider big data economy’s corrosive undermining of individuals’ rights.

Alongside yesterday’s update on its investigation into the Facebook-Cambridge Analytica data scandal, the Information Commissioner’s Office (ICO) has published a policy report — entitled Democracy Disrupted? Personal information and political influence — in which it sets out a series of policy recommendations related to how personal information is used in modern political campaigns.

In the report it calls directly for an “ethical pause” around the use of microtargeting ad tools for political campaigning — to “allow the key players — government, parliament, regulators, political parties, online platforms and citizens — to reflect on their responsibilities in respect of the use of personal information in the era of big data before there is a greater expansion in the use of new technologies”.

The watchdog writes [emphasis ours]:

Rapid social and technological developments in the use of big data mean that there is limited knowledge of – or transparency around – the ‘behind the scenes’ data processing techniques (including algorithms, analysis, data matching and profiling) being used by organisations and businesses to micro-target individuals. What is clear is that these tools can have a significant impact on people’s privacy. It is important that there is greater and genuine transparency about the use of such techniques to ensure that people have control over their own data and that the law is upheld. When the purpose for using these techniques is related to the democratic process, the case for high standards of transparency is very strong.

Engagement with the electorate is vital to the democratic process; it is therefore understandable that political campaigns are exploring the potential of advanced data analysis tools to help win votes. The public have the right to expect that this takes place in accordance with the law as it relates to data protection and electronic marketing. Without a high level of transparency – and therefore trust amongst citizens that their data is being used appropriately – we are at risk of developing a system of voter surveillance by default. This could have a damaging long-term effect on the fabric of our democracy and political life.

It also flags a number of specific concerns attached to Facebook’s platform and its impact upon people’s rights and democratic processes — some of which are sparking fresh regulatory investigations into the company’s business practices.

“A significant finding of the ICO investigation is the conclusion that Facebook has not been sufficiently transparent to enable users to understand how and why they might be targeted by a political party or campaign,” it writes. “Whilst these concerns about Facebook’s advertising model exist generally in relation to its commercial use, they are heightened when these tools are used for political campaigning. Facebook’s use of relevant interest categories for targeted advertising and it’s, Partner Categories Service are also cause for concern. Although the service has ceased in the EU, the ICO will be looking into both of these areas, and in the case of partner categories, commencing a new, broader investigation.”

The ICO says its discussions with Facebook for this report focused on “the level of transparency around how Facebook user data and third party data is being used to target users, and the controls available to users over the adverts they see”.

Among the concerns it raises about what it dubs Facebook’s “very complex” online targeting advertising model are [emphasis ours]:

Our investigation found significant fair-processing concerns both in terms of the information available to users about the sources of the data that are being used to determine what adverts they see and the nature of the profiling taking place. There were further concerns about the availability and transparency of the controls offered to users over what ads and messages they receive. The controls were difficult to find and were not intuitive to the user if they wanted to control the political advertising they received. Whilst users were informed that their data would be used for commercial advertising, it was not clear that political advertising would take place on the platform.

The ICO also found that despite a significant amount of privacy information and controls being made available, overall they did not effectively inform the users about the likely uses of their personal information. In particular, more explicit information should have been made available at the first layer of the privacy policy. The user tools available to block or remove ads were also complex and not clearly available to users from the core pages they would be accessing. The controls were also limited in relation to political advertising.

The company has been criticized for years for confusing and complex privacy controls. But during the investigation, the ICO says it was also not provided with “satisfactory information” from the company to understand the process it uses for determining what interest segments individuals are placed in for ad targeting purposes.

“Whilst Facebook confirmed that the content of users’ posts were not used to derive categories or target ads, it was difficult to understand how the different ‘signals’, as Facebook called them, built up to place individuals into categories,” it writes.

Similar complaints of foot-dragging responses to information requests related to political ads on its platform have also been directed at Facebook by a parliamentary committee that’s running an inquiry into fake news and online disinformation — and in April the chair of the committee accused Facebook of “a pattern of evasive behavior”.

So the ICO is not alone in feeling that Facebook’s responses to requests for specific information have lacked the specific information being sought. (CEO Mark Zuckerberg also annoyed the European Parliament with highly evasive responses to their highly detailed questions this Spring.)

Meanwhile, a European media investigation in May found that Facebook’s platform allows advertisers to target individuals based on interests related to sensitive categories such as political beliefs, sexuality and religion — which are categories that are marked out as sensitive information under regional data protection law, suggesting such targeting is legally problematic.

The investigation found that Facebook’s platform enables this type of ad targeting in the EU by making sensitive inferences about users — inferred interests including communism, social democrats, Hinduism and Christianity. And its defense against charges that what it’s doing breaks regional law is that inferred interests are not personal data.

However the ICO report sends a very chill wind rattling towards that fig leaf, noting “there is a concern that by placing users into categories, Facebook have been processing sensitive personal information – and, in particular, data about political opinions”.

It further writes [emphasis ours]:

Facebook made clear to the ICO that it does ‘not target advertising to EU users on the basis of sensitive personal data’… The ICO accepts that indicating a person is interested in a topic is not the same as formally placing them within a special personal information category. However, a risk clearly exists that advertisers will use core audience categories in a way that does seek to target individuals based on sensitive personal information. In the context of this investigation, the ICO is particularly concerned that such categories can be used for political advertising.

The ICO believes that this is part of a broader issue about the processing of personal information by online platforms in the use of targeted advertising; this goes beyond political advertising. It is clear from academic research conducted by the University of Madrid on this topic that a significant privacy risk can arise. For example, advertisers were using these categories to target individuals with the assumption that they are, for example, homosexual. Therefore, the effect was that individuals were being singled out and targeted on the basis of their sexuality. This is deeply concerning, and it is the ICO’s intention as a concerned authority under the GDPR to work via the one-stop-shop system with the Irish Data Protection Commission to see if there is scope to undertake a wider examination of online platforms’ use of special categories of data in their targeted advertising models.

So, essentially, the regulator is saying it will work with other EU data protection authorities to push for a wider, structural investigation of online ad targeting platforms which put users into categories based on inferred interests — and certainly where those platforms are allowing targeting against special categories of data (such as data related to racial or ethnic origin, political opinions, religious beliefs, health data, sexuality).

Another concern the ICO raises that’s specifically attached to Facebook’s business is transparency around its so-called “partner categories” service — an option for advertisers that allows them to use third party data (i.e. personal data collected by third party data brokers) to create custom audiences on its platform.

In March, ahead of a major update to the EU’s data protection framework, Facebook announced it would be “winding down” this service down over the next six months.

But the ICO is going to investigate it anyway.

“A preliminary investigation of the service has raised significant concerns about transparency of use of the [partner categories] service for political advertising and wider concerns about the legal basis for the service, including Facebook’s claim that it is acting only as a processor for the third-party data providers,” it writes. “Facebook announced in March 2018 that it will be winding down this service over a six-month period, and we understand that it has already ceased in the EU. The ICO has also commenced a broader investigation into the service under the DPA 1998 (which will be concluded at a later date) as we believe it is in the public interest to do so.”

In conclusion on Facebook the regulator asserts the company has not been “sufficiently transparent to enable users to understand how and why they might be targeted by a political party or campaign”.

“Individuals can opt out of particular interests, and that is likely to reduce the number of ads they receive on political issues, but it will not completely block them,” it points out. “These concerns about transparency lie at the core of our investigation. Whilst these concerns about Facebook’s advertising model exist in relation in general terms and its use in the commercial sphere, the concerns are heightened when these tools are used for political campaigning.”

The regulator also looked at political campaign use of three other online ad platforms — Google, Twitter and Snapchat — although Facebook gets the lion’s share of its attention in the report given the platform has also attracted the lion’s share of UK political parties’ digital spending. (“Figures from the Electoral Commission show that the political parties spent £3.2 million on direct Facebook advertising during the 2017 general election,” it notes. “This was up from £1.3 million during the 2015 general election. By contrast, the political parties spent £1 million on Google advertising.”)

The ICO is recommending that all online platforms which provide advertising services to political parties and campaigns should include experts within the sales support team who can provide political parties and campaigns with “specific advice on transparency and accountability in relation to how data is used to target users”.

“Social media companies have a responsibility to act as information fiduciaries, as citizens increasingly live their lives online,” it further writes.

It also says it will work with the European Data Protection Board, and the relevant lead data protection authorities in the region, to ensure that online platforms comply with the EU’s new data protection framework (GDPR) — and specifically to ensure that users “understand how personal information is processed in the targeted advertising model, and that effective controls are available”.

“This includes greater transparency in relation to the privacy settings, and the design and prominence of privacy notices,” it warns.

Facebook’s use of dark pattern design and A/B tested social engineering to obtain user consent for processing their data at the same time as obfuscating its intentions for people’s data has been a long-standing criticism of the company — but one which the ICO is here signaling is very much on the regulatory radar in the EU.

So expecting new laws — as well as lots more GDPR lawsuits — seems prudent.

The regulator is also pushing for all four online platforms to “urgently roll out planned transparency features in relation to political advertising to the UK” — in consultation with both relevant domestic oversight bodies (the ICO and the Electoral Commission).

In Facebook’s case, it has been developing policies around political ad transparency — amid a series of related data scandals in recent years, which have ramped up political pressure on the company. But self-regulation looks very unlikely to go far enough (or fast enough) to fix the real risks now being raised at the highest political levels.

“We opened this report by asking whether democracy has been disrupted by the use of data analytics and new technologies. Throughout this investigation, we have seen evidence that it is beginning to have a profound effect whereby information asymmetry between different groups of voters is beginning to emerge,” writes the ICO. “We are a now at a crucial juncture where trust and confidence in the integrity of our democratic process risks being undermined if an ethical pause is not taken. The recommendations made in this report — if effectively implemented — will change the behaviour and compliance of all the actors in the political campaigning space.”

Another key policy recommendation the ICO is making is to urge the UK government to legislate “at the earliest opportunity” to introduce a statutory Code of Practice under the country’s new data protection law for the use of personal information in political campaigns.

The report also essentially calls out all the UK’s political parties for data protection failures — a universal problem that’s very evidently being supercharged by the rise of accessible and powerful online platforms which have enabled political parties to combine (and thus enrich) voter databases they are legally entitled to with all sorts of additional online intelligence that’s been harvested by the likes of Facebook and other major data brokers.

Hence the ICO’s concern about “developing a system of voter surveillance by default”. And why she’s pushing for online platforms to “act as information fiduciaries”.

Or, in other words, without exercising great responsibility around people’s information, online ad platforms like Facebook risk becoming the enabling layer that breaks democracy and shatters civic society.

Particular concerns being attached by the ICO to political parties’ activities include: The purchasing of marketing lists and lifestyle information from data brokers without sufficient due diligence; a lack of fair processing; and use of third party data analytics companies with insufficient checks around consent. And the regulator says it has several related investigations ongoing.

In March, the information commissioner, Elizabeth Denham, foreshadowed the conclusions in this report, telling a UK parliamentary committee she would be recommending a code of conduct for political use of personal data, and pushing for increased transparency around how and where people’s data is flowing — telling MPs: “We need information that is transparent, otherwise we will push people into little filter bubbles, where they have no idea about what other people are saying and what the other side of the campaign is saying. We want to make sure that social media is used well.”

The ICO says now that it will work closely with government to determine the scope of the Code. It also wants the government to conduct a review of regulatory gaps.

We’ve reached out to the Cabinet Office for a government response to the ICO’s recommendations.

A Facebook spokesman declined to answer specific questions related to the report — instead sending us this short statement, attributed to its chief privacy officer, Erin Egan: “As we have said before, we should have done more to investigate claims about Cambridge Analytica and take action in 2015. We have been working closely with the ICO in their investigation of Cambridge Analytica, just as we have with authorities in the US and other countries. We’re reviewing the report and will respond to the ICO soon.”

Here’s the ICO’s summary of its ten policy recommendations:

1) The political parties must work with the ICO, the Cabinet Office and the Electoral Commission to identify and implement a cross-party solution to improve transparency around the use of commonly held data.

2) The ICO will work with the Electoral Commission, Cabinet Office and the political parties to launch a version of its successful Your Data Matters campaign before the next General Election. The aim will be to increase transparency and build trust and confidence amongst 5 the electorate on how their personal data is being used during political campaigns.

3) Political parties need to apply due diligence when sourcing personal information from third party organisations, including data brokers, to ensure the appropriate consent has been sought from the individuals concerned and that individuals are effectively informed in line with transparency requirements under the GDPR. This should form part of the data protection impact assessments conducted by political parties.

4) The Government should legislate at the earliest opportunity to introduce a statutory Code of Practice under the DPA2018 for the use of personal information in political campaigns. The ICO will work closely with Government to determine the scope of the Code.

5) It should be a requirement that third party audits be carried out after referendum campaigns are concluded to ensure personal data held by the campaign is deleted, or if it has been shared, the appropriate consent has been obtained.

6) The Centre for Data Ethics and Innovation should work with the ICO, the Electoral Commission to conduct an ethical debate in the form of a citizen jury to understand further the impact of new and developing technologies and the use of data analytics in political campaigns.

7) All online platforms providing advertising services to political parties and campaigns should include expertise within the sales support team who can provide political parties and campaigns with specific advice on transparency and accountability in relation to how data is used to target users.

8) The ICO will work with the European Data Protection Board (EDPB), and the relevant lead Data Protection Authorities, to ensure online platforms’ compliance with the GDPR – that users understand how personal information is processed in the targeted advertising model and that effective controls are available. This includes greater transparency in relation to the privacy settings and the design and prominence of privacy notices.

9) All of the platforms covered in this report should urgently roll out planned transparency features in relation to political advertising to the UK. This should include consultation and evaluation of these tools by the ICO and the Electoral Commission.

10)The Government should conduct a review of the regulatory gaps in relation to content and provenance and jurisdictional scope of political advertising online. This should include consideration of requirements for digital political advertising to be archived in an open data repository to enable scrutiny and analysis of the data.



ZTE replaces its CEO and other top execs

19:35 | 5 July

A number of top executives are out at ZTE as the phone maker works to fulfill the requirements of U.S.-imposed restrictions. Among the big changes up top is new CEO Xu Ziyang, who formerly headed up the company’s operations in Germany. A new CFO, CTO and head of HR have been named, as well, according to The Wall Street Journal.

The move comes a few days after company slowly began to resume some business operations on a one-month waver, following a seemingly D.O.A. seven-year export ban. The ban was announced back in April, after the company failed to appropriately punish top employees over Iran/North Korean trade violations.

Trump, however, was quick to toss the company a lifeline,

in China. The President’s willingness to bail out ZTE has been met with staunch criticism by many, including members of his own party. A bipartisan push in Congress to reinstitute the ban began in Congress last month. Many of the issues appear to stem from ties to the Chinese government that also put Huawei in hot water with U.S. security orgs.

For now, however, the company appears to be springing back to life, as it rushes to comply with the most recent laundry list of restrictions. The moves come in the wake of a $1 billion fine and the effective freeze on operations as the company mulled a way forward without relying on products from U.S. businesses like Google and Qualcomm.

In that time, ZTE has lost billions, and grappled with other…inconveniences. Of course, even with these changes, the company isn’t out of the woods just yet. In addition to on-going financial issues, security and other concerns could be enough to put consumers in the U.S. and other countries off the company altogether.


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