Very excited to be interviewing Timothy Sandefur, Vice President for Litigation at the Goldwater Institute, TOMORROW! The topic will be the Arizona Constitution’s “Private Affairs” clause, and what it means for the legal protection of privacy in AZ (and maybe elsewhere). Tune in and watch live, 6:30 p.m. ET (3:30 p.m. PT) at this link:
My co-host of “None of the Above” was ill this week, so I used the opportunity to geek out for a full hour on privacy, and the prospects for, as I put it, “checking out of Hotel Panopticon” (saving privacy). Check it out here:
What theory of privacy do I plan to bring to bear here? Those who have followed me for some time already know what it is, but for those of you who are new, I’ll give you the answer I just gave to someone who asked me the question on Facebook.
Background: From the beginning, when Leonard Peikoff first asked me to “find out whether there was a right to privacy,” as research for his radio show, I found the arguments for a distinct right to privacy unconvincing. I thought, instead, the proper legal protection for privacy should rest on rights to property and contract. I wrote my dissertation to that effect, and my revised understanding of my position, in relation to the academic literature, is here: http://www.law.nyu.edu/…/default/files/ECM_PRO_060963.pdf
The cool thing about my way of conceiving of privacy is that it allowed me to think of a solution to the problem of the “third-party doctrine”–the 4th Amendment doctrine saying that you no longer have a “reasonable expectation of privacy” in information you share with a “third party.” (E.g., Facebook). If you no longer have that expectation, so the doctrine says, it’s not a “search” within the meaning of the 4th amendment when the government obtains your information from the “third party,” and so no warrant is required. So, for example, the recent “settlement order,” which has the pretense of “oversight,” is enough of a reason for the FTC & DOJ to have access to your data.
In my view this is a bunch of garbage, and in fact the whole third-party doctrine should be scrapped in favor of a consistent application of common-law contract. How you can do this, and still retain proper functions of law enforcement, was the subject of my last law review article:
I have reason to think my view of this doctrine can actually be accepted, and is not at all pie-in-the-sky, due to the approach Justices Gorsuch and Thomas, in particular, used in analyzing the recent Carpenter case. (Gorsuch is closest to understanding my view.)
If you would like to help me get this theory before the Court, perhaps as part of challenging the FTC’s recent takeover of Facebook, donate here.
What follows is an excerpted and annotated version of the FTC’s “Stipulated Order” representing its “Settlement” with Facebook. It’s dated July 24. I’m giving you the lowlights, as I see them, plus my “translations.” If you like, and if you have a strong stomach, I invite you to read the whole order here.
“Defendant agrees that the Department of Justice shall have the same rights as the Commission to engage in compliance monitoring as provided by Part XV of the Decision and Order set forth in Attachment A, as well as the same right as the Associate Director for Enforcement for the Bureau of Consumer Protection at the Commission provided under Part VIII.B to approve the person(s) selected to conduct the Assessments described in Part VIII of the Decision and Order set forth in Attachment A, subject to any applicable law or regulation.” (page 4)
Translation: Anything the FTC can get or do as a result of this “settlement,” so can the DOJ. This becomes particularly relevant when you see some of the last paragraphs of the order, the ones which inspired the title of this blog post.
“If a User deletes an individual piece of Covered Information but does not delete his or her account, nothing in this paragraph shall be construed to require deletion or de-identification of metadata (e.g., logs of User activity) that may remain associated with the User’s account after the User has deleted such information.” (page 6)
Translation: All your metadata are belong to the DOJ, unless you delete your entire account in time. (And will that really work anyway, or is it already too late?) Deleting individual pieces of data is inadequate to protect your privacy.
I include this here because many are interested in the restrictions on Facial Recognition technology more generally. The provision is included in the agreement, I’m sure, so you are under the impression that the FTC is really looking out for you! Doesn’t it make you feel warm and fuzzy? There are other similar, tough-sounding provisions, in addition to the $5 billion fine they’re so proud of.
VIII. INDEPENDENT PRIVACY PROGRAM ASSESSMENTS (pp. 12-14)
“Each Assessment must: (1) determine whether Respondent has implemented and maintained the Privacy Program required by Part VII.A-J of this Order, titled Mandated Privacy Program; (2) assess the effectiveness of Respondent’s implementation and maintenance of each subpart in Part VII of this Order; (3) identify any gaps or weaknesses in the Privacy Program; and (4) identify specific evidence (including, but not limited to, documents reviewed, sampling and testing performed, and interviews conducted) examined to make such determinations, assessments, and identifications, and explain why the evidence that the Assessor examined is sufficient to justify the Assessor’s findings. To the extent that Respondent revises, updates, or adds one or more safeguards required under Part VII.E. of this Order in the middle of an Assessment period, the Assessment shall assess the effectiveness of the revised, updated, or added safeguard(s) for the time period in which it was in effect, and provide a separate statement detailing the basis for each revised, updated, or additional safeguard;
“E. Respondent and its Representatives must disclose all material facts to the Assessor(s), and must not misrepresent in any manner, expressly or by implication, any fact material to the Assessor(s)’ (1) determination of whether Respondent has implemented and maintained the Mandated Privacy Program required by Part VII of this Order; (2) assessment of the effectiveness of the implementation and maintenance of subparts VII.A-J of this Order; or (3) identification of any gaps or weaknesses to the Mandated Privacy Program;
“F. Respondent and its Representatives, whether acting directly or indirectly, must provide or otherwise make available to the Assessor all information and material in their possession, custody, or control that is relevant to the Assessment for which there is no reasonable claim of privilege;
“G. No finding of any Assessment shall rely primarily on assertions or attestations by Respondent’s management. The Assessment shall be signed by the Assessor and shall state that the Assessor conducted an independent review of the Mandated Privacy Program, and did not rely primarily on assertions or attestations by Respondent’s management;
My take: F contains some pretty broad language, right? The Assessor–again, someone who is basically appointed by the government–is supposed to conduct an “independent review” and, per the language of VIII. F., can get all “relevant” information, so long as there is “no reasonable claim of privilege.” I include the rest of the information about the assessments so that you can see there is a lot to which a piece of information might be deemed “relevant.”
“I. The Assessor may only be removed by Respondent from such position, subject to Part VIII.B, with the affirmative vote of a majority of the Independent Privacy Committee.“
Translation: Good luck getting rid of the government stooge, because it requires an affirmative vote of a majority of all the other stooges.
X. MANDATED INDEPENDENT PRIVACY COMMITTEE AND OTHER GOVERNANCE MATTERS (pp. 14-16)
A. Within one hundred and twenty (120) days after entry of this Order, Respondent shall create the Independent Privacy Committee, including adopting a new committee charter or amending the charter of an existing committee. The adopted or amended charter for such committee shall include the following qualifications, authority, and responsibilities, including:
Each member of the committee shall be an Independent Director, and each of the members of the committee shall meet the Privacy and Compliance Baseline Requirements;
Translation: We’re packing your Board of Directors with people who will be sympathetic to government “oversight,” because of the “baseline requirements” we will specify. Good luck!
5. The committee shall meet with the Assessor at least quarterly, and at the conclusion of each biennial Assessment;
Translation: The committee of aspiring stooges, now mandatory members of your board, will be meeting with the head stooge quite often! But wait! It gets better…
b. At each quarterly meeting, the committee (together with any other Independent Directors in attendance) shall meet with the Assessor in an executive session without management present to discuss matters involving the Assessment or other privacy-related issues or risks, as appropriate; and
c. At the meeting to review the biennial Assessment with the Assessor, the Assessor and the committee shall review the various elements of the Assessment, as well as (1) any material issues raised by the most recent Assessment or material unresolved issues from prior Assessments, and (2) in an executive session without management present, any problems or difficulties with management. Following the review of the biennial Assessment (at either the same meeting or the following meeting), management shall review with the committee its proposed remediation plans to address any such issues raised in the Assessment; and
Translation: All the stooges we’re deploying to take charge of your company, will be meeting behind your back to talk about you, and scheme about how to take even more control from you, on a regular basis, plus…
6. The committee shall evaluate the independence of the Assessor, and the Assessor shall not be appointed or removed by Respondent, subject to Part VIII.B, without the prior approval of a majority of the committee;
…if you don’t like the Assessor, it’s really too bad, because neither the assessor nor these “Independent Directors” are supposed to be your friends. Moreover, all the stooges have each others’ back, while they’re busy talking about you, and scheming about grabbing more control, behind your back.
B. Within one hundred and twenty (120) days after entry of this Order, Respondent shall create the Independent Nominating Committee, including adopting a new committee charter or amending the charter of an existing committee to provide that such committee shall have the following authority and responsibilities, including:
1. The committee shall have the sole authority to recommend the appointment of directors, or the nomination of candidates for election, to Respondent’s Board of Directors,such that Respondent’s Board of Directors may not approve any such appointment or nomination in the absence of a favorable recommendation from the committee;
2. The committee shall have the sole authority to recommend the appointment of directors to, or the removal of directors from, the Independent Privacy Committee, such that Respondent’s Board of Directors may not approve any such appointment or removal in the absence of a favorable recommendation from the committee; and
3. The committee shall determine whether the members of the Independent Privacy Committee qualify as Independent Directors and whether each member of the Independent Privacy Committee meets the Privacy and Compliance Baseline Requirements. The foregoing determinations shall be made prior to, or concurrent with, the formation of the Independent Privacy Committee for the initial members; and prior to, or concurrent with, the appointment of each new director to the Independent Privacy Committee for future members;
Translation: You no longer have control over the makeup of your Board of Directors and, moreover, the “Privacy and Compliance Baseline Requirements” (details of which are conveniently omitted here, #sorrynotsorry) will ensure that the members of the “Independent Privacy Committee” are sympathetic to government control and oversight.
C. Within one hundred and eighty (180) days after entry of this Order, Respondent shall adopt and file an amendment to Respondent’s Certificate of Incorporation (the “Charter Amendment”) in accordance with applicable Delaware law modifying the provisions of Article VI, Section 4 thereof with respect to the removal of directors as set forth in the form attached hereto as Exhibit 1, for the purpose of adding a new Article VI, Section 4(b) (hereafter “Supplemental Removal Provision”). Respondent shall not further alter or amend the Supplemental Removal Provision of Respondent’s Certificate of Incorporation for the term of the Order. Notwithstanding the foregoing, in the event that, prior to the effectiveness of the Charter Amendment, any person commences any legal or administrative proceeding or action (an “Action”), or any governmental or regulatory entity or body, or any court, tribunal, or judicial body, in each case whether federal, state, or local, issues or grants any order, judgment, decision, decree, injunction, or ruling that has the effect of delaying, restraining, enjoining, prohibiting, or otherwise preventing the approval, filing, or effectiveness of the Charter Amendment (individually or collectively, a “Restraint”) within 180 days after entry of this Order, that time period shall be extended and Respondent shall be deemed to be in compliance with the Order so long as: (a) Respondent diligently pursues in good faith the favorable resolution of such Action, and (b) Respondent adopts and files the Charter Amendment in accordance with applicable Delaware law as promptly as reasonably practicable following the resolution of the Action and at such time as such Restraint (if any) is withdrawn, vacated, or terminated; and
Translation: Our board-packing plan must be included in your corporate charter, to memorialize your capitulation.
D. Nothing in this Order shall be construed to expand, modify, or alter the fiduciary duties of the members of the Respondent’s Board of Directors or any committee thereof.
Translation: Of course we all know that having some members of a Board of Directors meet, behind closed doors, with an independent assessor, to discuss, among other things, “difficulties with management,” does indeed alter the fiduciary duties of members of the board (at least these “independent” ones). Nonetheless, everyone is supposed to pretend that nothing has changed. And we include the word “expand” in this paragraph just to throw you off the scent from the idea that the “independent” directors will not be loyal to Facebook–i.e., that their fiduciary duties will actually be contracted.
IT IS FURTHER ORDERED that Respondent shall:
A. Within forty-five (45) days after the end of each full fiscal quarter (but in no event later than the first meeting of the Independent Privacy Committee with respect to such fiscal quarter (as provided in Part X.A)) following the anniversary of the effective date of this Order, provide the Commission with its certification, signed by the Principal Executive Officer and the Designated Compliance Officer(s) on behalf of Respondent, that, with respect to such fiscal quarter: (1) Respondent has established, implemented, and maintained a Privacy Program that complies in all material respects with the requirements of Part VII of this Order; and (2) Respondent is not aware of any material noncompliance with Part VII that has not been corrected or disclosed to the Commission. In making this certification on behalf of Respondent, the Principal Executive Officer shall rely, and be entitled to rely, solely on the following: (a) his or her personal knowledge; (b) sub-certifications regarding compliance with Part VII, provided by knowledgeable personnel charged with implementing the Privacy Program; and (c) the Principal Executive Officer’s review of the summaries in the Quarterly Privacy Review Report required under Part VII.E.2.c.(i) for such fiscal quarter, as well as any material issues raised in Covered Incident Reports required under Part IX for such fiscal quarter. The Designated Compliance Officer(s) shall rely, and be entitled to rely, solely on the following: (a) his or her personal knowledge; (b) sub-certifications regarding compliance with Part VII, provided by knowledgeable personnel charged with implementing the Privacy Program; (c) material issues identified in the Quarterly Privacy Review Report required under Part VII.E.2.c.; and (d) material issues raised in the Covered Incident Reports required under Part IX for such fiscal quarter;
Translation: Mark Zuckerberg or his successor(s) must personally, explicitly, and formally reaffirm his capitulation to our demands on a regular basis. (I omitted, for your comfort, paragraph B, which requires the submission of even more “certifications”.)
XIII. COMPLIANCE REPORTING
IT IS FURTHER ORDERED that Respondent make timely submissions to the Commission:
A. One hundred eighty (180) days after entry of this Order, Respondent must submit a compliance report, sworn under penalty of perjury, which: (1) identifies the primary physical, postal, and email address and telephone number, as designated points of contact, which representatives of the Commission may use to communicate with Respondent; (2) identifies all of Respondent’s businesses by all of their names, telephone numbers, and physical, postal, email, and Internet addresses; (3) describes the activities of each business; (4) describes in detail whether and how Respondent is in compliance with each Part of this Order; and (5) provides a copy of each Order Acknowledgment obtained pursuant to this Order, unless previously submitted to the Commission;
B. For twenty (20) years after entry of this Order, Respondent must submit a compliance notice, sworn under penalty of perjury, within fourteen (14) days of any change in the following: (1) any designated point of contact; (2) Respondent’s corporate structure; or (3) the structure of any entity that Respondent has any ownership interest in or controls directly or indirectly that may affect compliance obligations arising under this Order, including: creation, merger, sale, or dissolution of the entity or any subsidiary, parent, or affiliate that engages in any acts or practices subject to this Order;
C. Respondent must submit to the Commission notice of the filing of any bankruptcy petition, insolvency proceeding, or similar proceeding by or against Respondent within fourteen (14) days of its filing;
Translation: Good luck trying to escape or shrug! We will know where you are at all times! (Oh, and you may as well send us a compliance report, too.)
IT IS FURTHER ORDERED that Respondent must create certain records for twenty (20) years after entry of the Order, and retain each such record for five (5) years. Specifically, Respondent must create and retain the following records:
… (Omitting paragraphs A-D, detailing a bunch of different kind of records, so that you have bandwidth to digest the really juicy ones. Basically, they say to keep records that will allow us to keep tabs on who has the data, and records of complaints, etc., that make Facebook look bad.)…
E. Each materially different document relating to Respondent’s attempt to obtain the consent of Users referred to in Part II titled Changes To Sharing Of Covered Information, along with documents and information sufficient to show each User’s consent; and documents sufficient to demonstrate, on an aggregate basis, the number of Users for whom each such Privacy Setting was in effect at any time Respondent has attempted to obtain and/or been required to obtain such consent;
Translation: You are required to keep records of each Facebook user for at least five years, but, scout’s honor, it’s only because we want to make sure you’ve gotten consent from them. (All the better to insist on the application of the third-party doctrine, right?)
G. All records necessary to demonstrate full compliance with each Part of this Order, including all submissions to the Commission.
Translation: We bet you won’t dare discard anything given the comprehensive language of this provision! Heh.
And, saving the very worst for last…
XV. COMPLIANCE MONITORING
IT IS FURTHER ORDERED that, for the purpose of monitoring Respondent’s compliance with this Order:
Translation: This is our excuse for the monstrosities that follow. We hope you’ll buy it.
A. Within fourteen (14) days of receipt of a written request from a representative of the Commission, Respondent must: submit additional compliance reports or other requested information, which must be sworn under penalty of perjury; appear for depositions; and produce documents for inspection and copying. The Commission is also authorized to obtain discovery, without further leave of court, using any of the procedures prescribed by Federal Rules of Civil Procedure 29, 30 (including telephonic depositions), 31, 33, 34, 36, 45, and 69;
Translation: We can request anything we want (“other requested information”), and all it takes is a phone call, regardless of our attempt to distract you in the first sentence about written requests, etc. (And, remember, someone from the DOJ can call up Facebook, just as the FTC can, per the first paragraph I excerpt, above.)
B. For matters concerning this Order, the Commission is authorized to communicate directly with Respondent. Respondent must permit representatives of the Commission to interview any employee or other person affiliated with Respondent who has agreed to such an interview. The person interviewed may have counsel present; and
My take: “Matters concerning this Order” is pretty broad, isn’t it? And remember, the DOJ is therefore also authorized to communicate directly with “any employee or other person affiliated with Respondent who has agreed to such an interview.”
C. The Commission may use all other lawful means, including posing, through its representatives, as consumers, suppliers, or other individuals or entities, to Respondent or any individual or entity affiliated with Respondent, without the necessity of identification or prior notice. Nothing in this Order limits the Commission’s lawful use of compulsory process, pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49, 57b-1.
Translation: Just in case all of the above is inadequate for us to catch you doing something that will give us an excuse to retain or gain even more control over Facebook, we (and therefore also the DOJ) can use secret agents. Face it, Facebook, you’re toast. And, therefore, so are your users, insofar as they care about keeping their private information out of government hands in the absence of a warrant.
Would you like to help me do whatever is possible, using my unique theory of the proper legal protection of privacy, to fight this power-grab by the FTC and DOJ? If so, donate here. Make sure to add “FTC” in the optional comment field, and your contribution will be earmarked appropriately. I’m in the process of applying for non-profit, 501 c(3) status, and so I’ll do everything possible to ensure your donation will be tax deductible once the application is approved.
The section permits acquisition, retention and dissemination of “covered communications” subject to certain “limitations.” The limitations are weak: while the retention period is five years, that can be extended for a variety of vaguely worded reasons (including that the communication is merely encrypted), and accountability is only to legislative intelligence committees. Moreover, these weak limitations don’t even have to go into effect for two more years. That means Obama gets to retain all his toys–unfettered access to our private communications–for the remainder of his term in office. How convenient.
Remember, it’s the third-party doctrine that has put protection of all these communications at the mercy of legislation (if not simply the “pen and phone” of our Chief Executive). The only way to fix this mess is to eliminate the third-party doctrine. Read how here.
SEC. 309. PROCEDURES FOR THE RETENTION OF INCIDENTALLY ACQUIRED
(a) Definitions.--In this section:
(1) Covered communication.--The term ``covered communication''
means any nonpublic telephone or electronic communication acquired
without the consent of a person who is a party to the
communication, including communications in electronic storage.
(2) Head of an element of the intelligence community.--The term
``head of an element of the intelligence community'' means, as
(A) the head of an element of the intelligence community;
(B) the head of the department or agency containing such
(3) United states person.--The term ``United States person''
has the meaning given that term in section 101 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
(b) Procedures for Covered Communications.--
(1) Requirement to adopt.--Not later than 2 years after the
date of the enactment of this Act each head of an element of the
intelligence community shall adopt procedures approved by the
Attorney General for such element that ensure compliance with the
requirements of paragraph (3).
(2) Coordination and approval.--The procedures required by
paragraph (1) shall be--
(A) prepared in coordination with the Director of National
(B) approved by the Attorney General prior to issuance.
(A) Application.--The procedures required by paragraph (1)
shall apply to any intelligence collection activity not
otherwise authorized by court order (including an order or
certification issued by a court established under subsection
(a) or (b) of section 103 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803)), subpoena, or
similar legal process that is reasonably anticipated to result
in the acquisition of a covered communication to or from a
United States person and shall permit the acquisition,
retention, and dissemination of covered communications subject
to the limitation in subparagraph (B).
(B) Limitation on retention.--A covered communication shall
not be retained in excess of 5 years, unless--
(i) the communication has been affirmatively
determined, in whole or in part, to constitute foreign
intelligence or counterintelligence or is necessary to
understand or assess foreign intelligence or
(ii) the communication is reasonably believed to
constitute evidence of a crime and is retained by a law
(iii) the communication is enciphered or reasonably
believed to have a secret meaning;
(iv) all parties to the communication are reasonably
believed to be non-United States persons;
(v) retention is necessary to protect against an
imminent threat to human life, in which case both the
nature of the threat and the information to be retained
shall be reported to the congressional intelligence
committees not later than 30 days after the date such
retention is extended under this clause;
(vi) retention is necessary for technical assurance or
compliance purposes, including a court order or discovery
obligation, in which case access to information retained
for technical assurance or compliance purposes shall be
reported to the congressional intelligence committees on an
annual basis; or
(vii) retention for a period in excess of 5 years is
approved by the head of the element of the intelligence
community responsible for such retention, based on a
determination that retention is necessary to protect the
national security of the United States, in which case the
head of such element shall provide to the congressional
intelligence committees a written certification
(I) the reasons extended retention is necessary to
protect the national security of the United States;
(II) the duration for which the head of the element
is authorizing retention;
(III) the particular information to be retained;
(IV) the measures the element of the intelligence
community is taking to protect the privacy interests of
United States persons or persons located inside the