Policy

More bad news for Big Tech: Lina Khan’s a privacy hawk, too

The incoming agency chair once likened widespread data collection to environmental pollution. What can she do about it now?

FTC chair Lina Khan

FTC chair Lina Khan's privacy views may be bad for Big Tech.

Photo: Saul Loeb-Pool/Getty Images

In December 2019, a Columbia Law School fellow named Lina Khan co-authored an article in the Harvard Law Review comparing social media executives to used-car salesmen.

In it, Khan and her co-author, Columbia Law professor David Pozen, dismissed as "implausible" the idea that a company like Facebook or Google, which makes its money from personalized ads, could ever truly put its users' privacy first.

"As long as such companies make most of their money through personally targeted advertisements, they will be economically motivated to extract as much data from their users as they can," they wrote, "a motivation that runs headfirst into users' privacy interests as well as any interests users might have in exercising behavioral autonomy or ensuring that their personal data is not stolen, sold, mined, or otherwise monetized down the line."

The article was a full-throated condemnation of the very business model that dominates the web and a call for regulation that would actually force tech companies to protect users' privacy. "By and large, addictive user behavior is good for business. Divisive and inflammatory content is good for business. Deterioration of privacy and confidentiality norms is good for business," the article reads.

Now, as she takes over as chair of the Federal Trade Commission, it's a critique Khan might be able to translate into action.

Ever since Khan was first nominated to the FTC, another piece of her writing, in which she built a novel antitrust case against Amazon, has been cited endlessly as evidence that she'll be coming for the ecommerce giant (Disclosure: I'm married to an Amazon employee). That speculation only increased after Sen. Amy Klobuchar unceremoniously let slip that Khan would not only join the commission, but also lead it. But while Khan built her name on competition policy, her writing on online ads deserves its own close read. It offers insights into how Khan thinks about online privacy just as she prepares to become one of the country's chief privacy enforcers.

Paging Dr. Zuckerberg

While Khan might not describe herself as a privacy scholar per se, Pozen, her co-author on the privacy article, said that Khan's views on personalized advertising are a natural outgrowth of her views on competition. She is, after all, is best known for pushing the theory that pricing isn't the only metric for measuring the harm monopolies can do to consumers. There are other harms, like, for instance, privacy violations. "Lina has emphasized the point that there are a much broader set of potential harms from companies getting so powerful that can't be captured by their monetary prices," Pozen said, noting that ad-funded businesses are often cheap or even free, "but that very same model also creates an obvious and massive privacy concern."

The 2019 article grapples with an increasingly popular concept in privacy law that proposes turning tech companies into "information fiduciaries." Just as these companies have a fiduciary duty to maximize profits for their shareholders, the thinking goes, they could also be required to be fiduciaries — which is to say, legally-bound stewards — of user data.

The idea has been floated in privacy legislation at the state and national level — and Khan and Pozen more or less rip it to shreds.

The enormously successful business of behavioral ads, they argue, is so at odds with user privacy that a company like Facebook could never truly uphold its duty to shareholders while also upholding its duty to user privacy. In a world in which information fiduciaries existed, Khan and Pozen argue, user privacy would still come second, rendering the duty meaningless. "The social media executive who is exhorted to treat users well [...] yet not required to place users' interests first resembles, instead, the used-car dealers and restaurateurs who are classic examples in the case law of service providers who are not ordinarily fiduciaries for their customers," the article reads.

Proponents of information fiduciaries often point to the fact that doctors are bound by certain duties of care for their patients in order to suggest that the same concept could be applied to tech. But once again, Khan and Pozen show how that idea would border on ridiculous if doctors also made all their money on ads.

"Imagine visiting a doctor — let's call her Marta Zuckerberg — whose main source of income is enabling third parties to market you goods and services," they write. In Khan and Pozen's telling, this Dr. Zuckerberg flings ads for pills and procedures at patients based on their demographic, economic and psychological profiles, and gets paid every time patients even look in their direction.

"They are also continually updated in light of information Dr. Zuckerberg collects on you; to be sure she does not miss anything, she has planted surveillance devices all around your neighborhood as well as her office," Khan and Pozen write, asking ominously whether this system could "plausibly be reconciled with a commitment to prioritizing your health?"

To Chris Hoofnagle, faculty director at Berkeley Center for Law & Technology and author of a book on the FTC, this line of thinking is precisely what differentiates Khan from other regulators and lawyers. "Most attorneys are basically snowed by business people. The business people come in and say: 'This is how the tech works.' Most lawyers can only nod along," Hoofnagle said. "Khan is a realist and has spent a lot of time studying the business models of these different companies."

Cleaning house and writing rules

The article goes so far as to liken abuse of user data to environmental pollution and calls for "clear prohibitions and economic disincentives, rather than morally laden standards" to deal with that pollution. The question now is what Khan can do about any of that as chair.

While the chair of the FTC has more power than individual commissioners, Khan still won't be able unilaterally to bring a case against individual tech companies, a decision that falls to FTC staff. But she will have the power to staff the FTC with people who share her outlook on both competition and online privacy.

"The cases the attorneys get to work on, the topics the attorneys explore, what cases make it and don't in terms of getting dropped or getting pursued, all of those decisions are made by the bureau heads," said Ashkan Soltani, former chief technologist for the FTC. "Who the chair chooses to install as the bureau chiefs will have a huge implication on the approach the agency takes moving forward."

Soltani said while the FTC has suffered from lack of funding and authority, part of its inaction in recent years has had to do with inertia among the never-changing staff. Some inside the agency, he said, refer to themselves as the "webes" as in "we be here," while individual chairs cycle in and out. One of the most significant changes Khan could make, Soltani said, is to "clean house."

"She has congressional backing on a lot of this stuff," he said, noting that she was confirmed to the commission with bipartisan support. "That essentially would permit her to say: 'I think Congress is looking for a refresh.'" He also encouraged Khan to elevate the office of chief technologist, his former role, enabling the chief technologist to consult on enforcement cases in the same way the Bureau of Economics currently does.

Another important change, Hoofnagle said, would be to develop a new basic internet privacy rule. The FTC, which has rule-making authority, already has rules regarding children's online privacy and financial privacy, which give the FTC the ability to seek damages from violators. "The FTC could pass a rule that says: If you materially mislead a consumer through third-party information sharing, it is an unfair practice, and violators of that rule would have to pay money damages," Hoffnagle said.

Former acting chair Rebecca Slaughter already signaled her interest in reinvigorating rule-making within the FTC by forming a new rule-making group earlier this year. "I believe that we can and must use our rule-making authority to deliver effective deterrence for the novel harms of the digital economy and persistent old scams alike," Slaughter said at the time.

Slaughter and Khan also have some overlap in how they see the connection between competition and privacy, two issues that the FTC has authority over, but which are often handled along different tracks. Khan and Pozen clearly considered this dynamic in their article on online ads, writing that "antitrust lawsuits reversing key acquisitions and penalizing forms of monopoly" are one possible remedy.

Khan and Pozen also wrote about imposing interoperability requirements on tech platforms, arguing that if consumers could take their data and go to a competitor, "a platform that perennially violated users' privacy would likely lose ground to more privacy-conscious rivals."

Both Soltani and Hoofnagle said the FTC would be well-served by encouraging more coordination between the Bureau of Competition and the Bureau of Consumer Protection.

Ultimately, though, one of the biggest tools Khan will have as chair is the power to use the bully pulpit to communicate these concerns both to Congress and to industry. Slaughter used her limited time as acting chair to ask Congress for additional funding and authority for the FTC and to issue a warning to tech companies that selling or using biased AI could violate the agency's prohibition on deceptive or misleading practices. As chair, Khan could issue much the same sort of guidance on deceptive data practices and send a message about how the FTC plans to pursue such cases in the future.

"There's enforcement, which is entering new cases," Soltani said, "but there's also the soft regulatory dance that's done with industry and regulators about what industry is planning and how regulators will receive those plans."

Fintech

Judge Zia Faruqui is trying to teach you crypto, one ‘SNL’ reference at a time

His decisions on major cryptocurrency cases have quoted "The Big Lebowski," "SNL," and "Dr. Strangelove." That’s because he wants you — yes, you — to read them.

The ways Zia Faruqui (right) has weighed on cases that have come before him can give lawyers clues as to what legal frameworks will pass muster.

Photo: Carolyn Van Houten/The Washington Post via Getty Images

“Cryptocurrency and related software analytics tools are ‘The wave of the future, Dude. One hundred percent electronic.’”

That’s not a quote from "The Big Lebowski" — at least, not directly. It’s a quote from a Washington, D.C., district court memorandum opinion on the role cryptocurrency analytics tools can play in government investigations. The author is Magistrate Judge Zia Faruqui.

Keep ReadingShow less
Veronica Irwin

Veronica Irwin (@vronirwin) is a San Francisco-based reporter at Protocol covering fintech. Previously she was at the San Francisco Examiner, covering tech from a hyper-local angle. Before that, her byline was featured in SF Weekly, The Nation, Techworker, Ms. Magazine and The Frisc.

The financial technology transformation is driving competition, creating consumer choice, and shaping the future of finance. Hear from seven fintech leaders who are reshaping the future of finance, and join the inaugural Financial Technology Association Fintech Summit to learn more.

Keep ReadingShow less
FTA
The Financial Technology Association (FTA) represents industry leaders shaping the future of finance. We champion the power of technology-centered financial services and advocate for the modernization of financial regulation to support inclusion and responsible innovation.
Enterprise

AWS CEO: The cloud isn’t just about technology

As AWS preps for its annual re:Invent conference, Adam Selipsky talks product strategy, support for hybrid environments, and the value of the cloud in uncertain economic times.

Photo: Noah Berger/Getty Images for Amazon Web Services

AWS is gearing up for re:Invent, its annual cloud computing conference where announcements this year are expected to focus on its end-to-end data strategy and delivering new industry-specific services.

It will be the second re:Invent with CEO Adam Selipsky as leader of the industry’s largest cloud provider after his return last year to AWS from data visualization company Tableau Software.

Keep ReadingShow less
Donna Goodison

Donna Goodison (@dgoodison) is Protocol's senior reporter focusing on enterprise infrastructure technology, from the 'Big 3' cloud computing providers to data centers. She previously covered the public cloud at CRN after 15 years as a business reporter for the Boston Herald. Based in Massachusetts, she also has worked as a Boston Globe freelancer, business reporter at the Boston Business Journal and real estate reporter at Banker & Tradesman after toiling at weekly newspapers.

Image: Protocol

We launched Protocol in February 2020 to cover the evolving power center of tech. It is with deep sadness that just under three years later, we are winding down the publication.

As of today, we will not publish any more stories. All of our newsletters, apart from our flagship, Source Code, will no longer be sent. Source Code will be published and sent for the next few weeks, but it will also close down in December.

Keep ReadingShow less
Bennett Richardson

Bennett Richardson ( @bennettrich) is the president of Protocol. Prior to joining Protocol in 2019, Bennett was executive director of global strategic partnerships at POLITICO, where he led strategic growth efforts including POLITICO's European expansion in Brussels and POLITICO's creative agency POLITICO Focus during his six years with the company. Prior to POLITICO, Bennett was co-founder and CMO of Hinge, the mobile dating company recently acquired by Match Group. Bennett began his career in digital and social brand marketing working with major brands across tech, energy, and health care at leading marketing and communications agencies including Edelman and GMMB. Bennett is originally from Portland, Maine, and received his bachelor's degree from Colgate University.

Enterprise

Why large enterprises struggle to find suitable platforms for MLops

As companies expand their use of AI beyond running just a few machine learning models, and as larger enterprises go from deploying hundreds of models to thousands and even millions of models, ML practitioners say that they have yet to find what they need from prepackaged MLops systems.

As companies expand their use of AI beyond running just a few machine learning models, ML practitioners say that they have yet to find what they need from prepackaged MLops systems.

Photo: artpartner-images via Getty Images

On any given day, Lily AI runs hundreds of machine learning models using computer vision and natural language processing that are customized for its retail and ecommerce clients to make website product recommendations, forecast demand, and plan merchandising. But this spring when the company was in the market for a machine learning operations platform to manage its expanding model roster, it wasn’t easy to find a suitable off-the-shelf system that could handle such a large number of models in deployment while also meeting other criteria.

Some MLops platforms are not well-suited for maintaining even more than 10 machine learning models when it comes to keeping track of data, navigating their user interfaces, or reporting capabilities, Matthew Nokleby, machine learning manager for Lily AI’s product intelligence team, told Protocol earlier this year. “The duct tape starts to show,” he said.

Keep ReadingShow less
Kate Kaye

Kate Kaye is an award-winning multimedia reporter digging deep and telling print, digital and audio stories. She covers AI and data for Protocol. Her reporting on AI and tech ethics issues has been published in OneZero, Fast Company, MIT Technology Review, CityLab, Ad Age and Digiday and heard on NPR. Kate is the creator of RedTailMedia.org and is the author of "Campaign '08: A Turning Point for Digital Media," a book about how the 2008 presidential campaigns used digital media and data.

Latest Stories
Bulletins