So I've been stewing on the swirl around the @Facebook / NYU's Ad Observatory / @FTC issue for a few days, and it just keeps getting further under my skin. This latest news triggers me. A THREAD.…
As prelude, I am a strong supporter of independent research on social media platforms. My org has funding at seven figures+ such research. I support even adversarial research and would support CFAA reform to enable it. (Reach out if you want to collaborate there!)
And I believe the team at NYU's Ad Observatory has been doing useful and careful research and I think their contribution has been important. I hope (and believe) they can continue their work.
But I was a lawyer at the FTC & know a good amount about when the FTC sues. There is a giant gap in the discussion. The press coverage missed it. Mozilla's post ignored it. FB's post didn't really explain it. Most egregiously, the FTC's recent statement avoids it. Here it is:
The NYU research program absolutely, incontrovertibly increased Facebook's legal risk. As a company under order at the FTC, that risk is even higher. As a company under order with a giant target on its back, that risk is significant. Here's why:
As I understand it, the AdObserver browser plug-in has access to all the content accessible to the user on the FB domain. NYU uses only a very limited subset of that information. They are very careful and privacy protective.
But as I heard NYU researcher @LauraEdelson2 quite rightly state on a Twitter Spaces discussion yesterday, all software has bugs. Their software has bugs. In fact, they made changes to the plugin in response to feedback from Mozilla.
So, a little thought experiment: If one of those bugs went bad or the plugin was misused and user data leaked, who do you think the FTC would go after? NYU researchers? Or FB? Academics, or the company that they already got a $5 billion settlement out of in a similar situation?
And the consent order that FB is under would *absolutely* enable the FTC to pursue an enforcement action against Facebook in such a case. This is true EVEN IF (and maybe ESPECIALLY IF) the FTC granted researchers an exemption for good faith research.
The @FTC recently claimed that if FB had asked ahead, FTC staff would have clarified that the order doesn't prevent FB from allowing good faith research. That's probably true but entirely beside the point.…
The FTC could have reduced FB's legal risk by saying "Sure, allow this research; if researchers mess up we won't sue you." But the FTC (certainly not this FTC) would NEVER do this. Reporters (@viaCristiano, @GiladEdelman, @issielapowsky), ask Mr. Levine if you don't believe me.
I suppose the Ad Observatory also could have reduced Facebook's risk by entering a legal agreement indemnifying FB from any consequences if their use of data goes wrong. I wouldn't advise either side to enter such an agreement, but it'd be interesting to know if it was explored.
TL;DR: The simple fact is that the Ad Observatory research project increased FB's legal risk even without a FTC settlement, and the FTC settlement heightens that risk dramatically. So it is fully plausible to claim the FTC settlement as a reason for stopping this research.
You might think that FB should eat that risk (I'm sympathetic to this view) and should trust the NYU researchers (who again, seem very trustworthy), but you cannot pretend that there was zero legal risk to FB from allowing this research in this manner. /END

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More from @neil_chilson

Jan 12, 2021
The Parler antitrust case against Amazon AWS is weaker than a wet noodle.

Yes, I am going to beat this dead horse. THREAD. /1
It's not surprising to see Parler attempting to use antitrust laws to force Big Tech back into doing business with them. Antitrust seems like everyone's fix-it tool these days. But Parler wields this tool particularly ineptly. /2
In duscussion with my colleagues, we agree that no one should be surprised at the quick dismissal for failure to state a claim that Amazon has probably already drafted. /3
Read 11 tweets
Dec 9, 2020
Ok, I've read the FTC complaint against Facebook and have a few initial thoughts. A quick thread.
At first, I was like "Wow, this court filing is so well written and the grammar is tight and it's filed in the right court!"

And then I realized I've been reading too many Trump team election appeals so my standards might be low.
Ok, now onto the things that jumped out to me. I already noted the slight oddity of a 3-2 vote with no published dissents:
Read 8 tweets
Dec 9, 2020
You may be asking, "Wait, the FTC vote on the Facebook case was 3-2, but where are the dissents?" I am! Well, there are two possibilities. SHORT THREAD.
1) Sometimes dissenters don't post out of courtesy to staffe. That's more common in low-stakes cases. Seems unlikely here.
2) More likely, dissents are being delayed because staff is putting the dissenting commissioners' statements through the ringer, pushing hard to remove anything that could be used against the FTC's case in court.
Read 6 tweets
Oct 20, 2020
The DOJ complaint against Google is out. Here is a thread with a few thoughts i had while reading it.…
As with all complaints, first read alleged violations (p55) to learn what the DOJ thinks actually matters, legally.

*Not* in the allegations: search bias, acquisitions, Play store fees, scraping, self-preferencing, or display ads. Many GOOG enemies prob. feeling left out today.
What *is* alleged? In three different "markets" (general search, general search advertising, and general search text advertising), the same core alleged misconduct is Google's contracts with browser devs, phone manufacturers, and carriers, incl. to default to Google search.
Read 11 tweets
Jun 24, 2020
"How in 20 years did we go from the promise of the Internet to democratize access to knowledge ... to this litany of daily horrors," Hany Farid says @EnergyCommerce.

A theory: the internet is disrupting the shit out of powerful social gatekeepers & they are fighting back.
Here's some evidence for that theory from my paper with @CaseyMattox_ about online free speech and antitrust:…
Must-read sources on this issue: Antitrust Prof. Ramsi Woodcock:…
Read 5 tweets
Feb 18, 2020
I'm on a panel at tomorrow's DOJ Workshop on Section 230. Here is my submission. A few highlights, including a story about my amazing 7-month-old daughter: 1/16…
First, Section 230 is a focused law that embodies a clear and conservative principle of individual responsibility. In the simplest terms, it says that individuals are responsible for their actions online, not the tools they use. 2/
Sounds obvious? That's because this is the normal way we do things in the U.S. We hold newspapers—not newsstands—liable for their words. Authors—not bookstores—accountable for their writings. So too do we hold social media users—not services—responsible for their words online. 3/
Read 16 tweets

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