WASHINGTON D.C. —­­ Today, as the House and Senate hold hearings with Facebook CEO Mark Zuckerberg, TechFreedom issued a letter to Members of Congress sharing (1) our legal analysis of Facebook’s handling of user data and (2) policy guidance on how the Federal Trade Commission and Congress should respond to Facebook’s handling of Cambridge Analytica’s misuse of user data.

Facebook clearly dropped the ball here, and some governmental response is justified, but Congress must resist the urge to pass knee-jerk legislation,” said TechFreedom President Berin Szóka. “At a minimum, the FTC may be justified in concluding that Facebook’s failure to notify users about Cambridge Analytica’s misuse of Facebook data constituted deception by ‘material omission.’ The #DeleteFacebook movement suggests the FTC may be able to establish that at least some users might have left the site last year had they known about Cambridge Analytica’s misuse of their data to influence the election — which could make Facebook’s failure to notify them ‘material.’ But only Congress can craft a customer notification law that adequately reflects the sensitivity of data and unique underlying policy concerns, such as the use of generally benign information about what users ‘like’ to create psychographic profiles that could help foreign powers sway our elections.”

“This incident shows a clear need to consider new privacy reforms,” continued Szóka. “Responsibility lies first with the FTC to determine how these circumstances fit into the current law. This analysis will be crucial in guiding Congress with regard to how existing laws should be updated to prevent future privacy violations of this kind. Rather than attempting to pass a single, ‘comprehensive’ bill, Congress should focus on the specific concerns raised by this and other recent cases. Overly broad legislation could disrupt the entire Internet ecosystem, and, ironically, discourage websites from acting responsibly. The best way to move legislation forward would be to ask the FTC to seek public comment on the details of legislation, then prepare a report making recommendations to lawmakers. This kind of expert advice is, after all, precisely why the FTC was created in 1913.”

The six-page letter states:

Haste makes for poor legislation, and indignation, however justified, is a poor basis for drafting the laws that will shape not only the future governance of Facebook, but that of every other Internet social network. Most critically, that includes the next “Facebooks.” Whatever a revised regulatory framework might look like, today’s entrenched incumbents can handle that regulatory burden far better than the startups vying to unseat them—especially since new companies, to attract users, must create radically innovative paradigms of user experience, while incumbents can far more easily afford to “play it safe.” While government has a vital role to play in protecting users, ultimately, the best protector of users is not government, but the possibility of disruption: no government sanction will ever do more to discipline Facebook than the possibility of its users leaving the site, or simply using it less, in favor of an alternative. This has been made very clear by the #DeleteFacebook campaign over the past month.

In addition to the six page letter, TechFreedom submitted a 31-page appendix detailing our legal analysis of whether Facebook violated existing law and how Congress should craft additional legislation to cover such situations in the future. A simple chart summarizes our legal conclusions.


We can be reached for comment at media@techfreedom.org. See more of our work on consumer privacy, including:

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TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.