On April 11, 2018, Mark Zuckerberg, the Chief Executive of Facebook appeared before Congress to provide testimony regarding Cambridge Analytica and the data breach of thousands of Facebook Users. While the testimony was itself unimpressive, revealing little other than the apparent complexity of digital privacy and sometimes contrasting personal opinions held by Zuckerberg, his general emotionless and systemized responses adequately frames the general premise of the problem: How do we regulate a transnational entity, which is at its heart a profitable business, when it contrastingly serves and touches upon the personal lives of people?
When asked a similar question and his opinion on potential future regulation, Zuckerberg vaguely stated that his position was “not that there should be no regulation” but rather the most pertinent question was generally whether there was any “right regulation” that could be implemented.[1] Consequently, it frames the issue not as black-or-white, but rather as an intricate balance between over and under regulation of a new frontier of policymaking. In this comment itself, Zuckerberg touches on two American sensibilities that would likely frame any future regulation on the matter.
Firstly, what Zuckerberg touches on is the general conservative American attitude towards the constitutional right to free speech, enshrined within the First Amendment. Compared to Canadian views on the matter, American jurisprudence has generally held a higher impetus for upholding the Right to Free Speech, and has been quicker to generally label items as infringing on such a right, such as in consideration of hate speech laws. Consequently, with the highly fragmented and anti-federalist political climate currently enveloping American Politics, the further question of Data Mining and future regulation that would affect the Right to Free Speech would certainly draw ire and appear controversial. While the testimony is framed in the issue of “terrorist propaganda” and on the backdrop of Russian involvement in the US Election, the testimony’s focus on these two foreign issues clearly do not reflect on the domestic issues that equally plague their society. As Senator Duncan states that “conservatives are the ones that raise awareness that their content has been pulled”, he seems to imply that Conservatives face the brunt of the issue rather than “liberal” groups. In this very sense, the discussion of the First Amendment, although open, was aimed at suppressing “foreign” rather than also equally focusing on domestic threats and biased on bipartisan divisions to a certain degree. Consequently, there remains a heavy differences in the very analysis of the issue of data mining, digital privacy and the First Amendment that would likely destabilize future talks on regulation.
Second, Zuckerberg plays at the American general beliefs in libertarianism and individual liberty. As regulation of social media and individual data would inevitably translate into restrictions on the actions of companies and individuals, it would play at these values and serve to advance government intervention into electronic and social media. As stated by Zuckerberg, the addition of future regulation “might be more difficult for a smaller start-up to comply with” versus a large corporation like Facebook.[5] Although it may be seen that Zuckerberg makes a claim in caring for future tech start-ups, it pales in regards to the larger picture, where the absence of more restrictive regulation affords lesser restrictions for Facebook, which would only serve to diversify the availability of possible strategies. Consequently, it would nonetheless strengthen their general monopoly on the market.
What can be done on the matter? Considering the transnational scheme of social media, there should be an impetus on further discussion of the matter on an international level, especially at the United Nations. The UN has discussed the issue, specifically the right to privacy in the digital age, such as through the adoption of Resolution 68/167 which tied such digital privacy with the International Covenant on Civil and Political Rights, as well as Decision 25/117 where the Human Rights Council convened a discussion on the promotion of privacy in the Digital Age. With a visible focus on the issue and a recognition of its increasing relevance to the international community, the future of digital privacy as a key issue in the UN’s agenda is promising.
However, despite this recent focus on the issue, the UN’s growing discussion on the matter is not a means to an end but is only a partial and limited response. As with many other global issues, the UN’s recommendation would act only as a weak blanket response to an international issue that may at most bring greater focus on the issue. Considering the localization of the users and companies as well as the inability of the UN to micromanage such issues, companies such as Facebook would be largely insulated from any general UN led response.
Consequently, as stated in Zuckerberg’s Congressional testimony, a domestic response, such as in regard to the Cambridge Analytica scandal, is needed. This is however not limited to the United States but is required for each nation domestically. As seen in potential dangers of such data breaches and its potential ramifications for a nation’s domestic affairs, specifically provided by the example of Russian influence on the US Presidential Election, nations should not view data theft as a problem simply affecting civil rights, but view it as a threat towards social stability and democracy, as well as perhaps a threat, albeit currently minor, towards national security. As with the rise of fake news articles and as others forms of misinformation spread through digital avenues, the ability to easily “weaponize” such electronic mediums need to be met with equally vigorous defences, which in themselves are inherently more difficulty to construct and implement. Although treating digital privacy as a form of counter-intelligence may seem extreme and wanting of greater justification, the push to treat it as such brings with it the needed urgency and importance which should be allotted in regard to the sanctity of a citizen’s digital privacy. While a realistic assurance of each citizen’s individual privacy is unlikely to be fulfilled, considering the vast networks that underlie an individual’s electronic footprint, envisioning a capacity to try and maximize a protection of that individual’s privacy as a component of a greater policy or campaign targeting the wider national community would likely be best for both the individual and nation as a whole.
While this in itself carries the promise of creating stringent privacy standards, it in turn provides government greater regulatory powers which inevitably draws up new political and judicial questions. As with Zuckerberg’s conversation on the First Amendment and restriction for commercial purposes, further government regulation will be a bitter yet necessary “pill” to metaphorically swallow. However, by keeping in mind the balance between restriction and privacy, as well as maintaining a sense of realistic accountability for the government, such a pill can be made less bitter when it comes to be implemented in the future.
By Timothy Law