This is the week when the movement to reform Section 230 of the Communications Decency Act got serious. The Justice Department released a substantive report suggesting multiple reforms. I was positive about many of them (my views here). Meanwhile, Sen. Josh Hawley (R-MO) has proposed a somewhat similar set of changes in his
This is a bonus episode of the Cyberlaw Podcast – a freestanding interview of Noah Phillips, a Commissioner of the Federal Trade Commission. The topic of the interview is whether privacy and antitrust analysis should be merged, especially in the context of Silicon Valley and its social media platforms. Commissioner Phillips, who has devoted considerable attention to the privacy side of the FTC’s jurisdiction, recently delivered a speech on the topic and telegraphed his doubts in the title: “Should We Block This Merger? Some Thoughts on Converging Antitrust and Privacy.” Subject to the usual Cyberlaw Podcast injunction that he speaks only for himself and not his institution or relatives, Commissioner Phillips lays out the very real connections between personal data and industry dominance as well as the complexities that come from trying to use antitrust to solve privacy problems. Among the complexities: the key to more competition among social media giants could well be more sharing between companies of the personal data that fuels their network effects, and corporate sharing of personal data is what privacy advocates have spent a decade crusading against. It’s a wide-ranging interview, touching on, among other things, whether antitrust can be used to solve Silicon Valley’s censorship problem (he’s skeptical) and what he thinks of suggestions in Europe that perhaps the Schrems problem can be solved by declaring that post-CCPA California meets EU data privacy standards. Commissioner Phillips is bemused; I conclude that this is just Europe seeking revenge for President Trump’s Brexit support by promoting “Calexit.”
We kick off Episode 267 with Gus Hurwitz reading the runes to see whether a 50-year Chicago winter for antitrust plaintiffs is finally thawing in Silicon Valley. Gus thinks the predictions of global antitrust warming are overhyped. But he recognizes we’re seeing an awful lot of robins on the lawn: The rise of Margrethe Vestager in the EU, the enthusiasm of state AGs for suing Big Tech, and the piling on of Dem presidential candidates and the House of Representatives. Judge Koh’s Qualcomm decision is another straw in the wind, triggering criticism from Gus (“an undue extension of Aspen Skiing”) and me (“the FTC needs a national security minder in privacy and competition law”). Matthew Heiman tells me I’m on the wrong page in suggesting that Silicon Valley’s suppression of conservative speech is a detriment to consumer welfare that the antitrust laws should take into account, even in a Borkian world.
I know. That could be any national strategy written in the last 15 years. And that’s the point. In our interview, Dr. Amy Zegart and I discuss the national cyber strategy and what’s wrong with it, along with the culture clash between DOD and Silicon Valley (especially Google), and whether the Mueller report should lead to a similarly thorough investigation into how the Intelligence Community and Justice handled the allegations at the start of the Trump Administration. Plus, Amy answers this burning question: “If a banana republic is a country where losing an election means getting criminally investigated, what do you call a country where winning an election means you get criminally investigated?”
Maury interviews James Griffiths, a journalist based in Hong Kong and the author of the new book, The Great Firewall of China: How to Build and Control an Alternative Version of the Internet.