A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | FALL 2018 Facebook, Google Fail to Protect Users’ Data; Tech Companies and Federal Government Pursue Federal Data Privacy Frameworks hroughout 2018, social network platform Facebook them that user profi le data would be collected for academic was the target of investigations and widespread purposes. Kogan’s data collection began in 2014, and only about criticisms over allegations that it failed to adequately 270,000 Facebook users consented to sharing their Facebook protect users’ data. The scrutiny began in March profi le data with the app. However, the app also harvested 2018 after several news outlets reported that data from profi les of the users’ friends, even though the friends TFacebook was aware that Cambridge Analytica, a political data had not consented to data collection. Ultimately, more than 87 fi rm connected to President Donald Trump’s 2016 campaign, million raw data profi les were shared with Cambridge Analytica. had gained unauthorized access to personal information of Both The New York Times and The Observer reported that millions of Facebook users in 2015. In the wake of the reports, Cambridge Analytica, which had received substantial funding lawmakers and regulators in the United States and abroad from Republican donor Robert Mercer, planned to use the data opened investigations into why Facebook had waited until 2018 to develop comprehensive psychographic profi les of individuals to inform its users that their data may have been improperly with the intent to infl uence voting behaviors. accessed. Facebook CEO Mark Zuckerberg was also asked to In a March 16 blog post, Facebook announced that the appear before Congressional committees to answer lawmakers’ company had suspended Cambridge Analytica and the SCL questions about his company’s privacy missteps and tech Group from the social media site, as well as Kogan and companies’ growing reach into people’s daily lives. former Cambridge Analyticaemployeeturnedwhistleblower Later in 2018, Facebook and Google faced criticism over Christopher Wylie for violations of Facebook’s terms of service. separate privacy incidents. On September 28, Facebook “Although Kogan gained access to this information in a legitimate announced that a security attack affected the data of over 50 way and through the proper channels that governed developers million user accounts. On October 8, Google announced that the on Facebook at the time, he did not subsequently abide by company had previously discovered and remedied a software our rules. By passing information on to a third party, including bug that allowed thirdparty developers access to the personally SCL/Cambridge Analytica and Christopher Wylie of Eunoia identifi able information of as many as 500,000 Google+ users, Technologies, he violated our platform policies,” Facebook including their names, email addresses, ages, occupations, and Vice President and Deputy General Counsel Paul Grewal wrote. relationship status. “When we learned of this violation in 2015, we removed his app Meanwhile, tech companies, the Trump administration, and from Facebook and demanded certifi cations from Kogan and a U.S. Representative each took different actions related to all parties he had given data to that the information had been adopting a new federal law or framework protecting internet destroyed. Cambridge Analytica, Kogan and Wylie all certifi ed to users’ privacy and security online, prompting support from some us that they destroyed the data.” observers and concerns from others. In a March 17 update to its initial blog post, Facebook pushed back against reports that Cambridge Analytica’s access to social Political Data Firm Improperly Obtained Data From media users’ information should be considered a data breach. Millions of Facebook Users Rather, Facebook maintained that Kogan obtained information On March 17, 2018, The New York Times and The Observer of from users who chose to use his app and provided consent. London reported that Cambridge Analytica, a subsidiary of the “People knowingly provided their information, no systems were Britishbased political data analysis company SCL Group, had infi ltrated, and no passwords or sensitive pieces of information harvested personal data from more than 50 million Facebook were stolen or hacked,” Grewal wrote. users without permission. Cambridge Analytica obtained the data The reports that Cambridge Analytica had improperly from a Facebook app called “thisisyourdigitallife,” developed by accessed millions of Facebook users’ data prompted Cambridge University researcher Aleksander Kogan. The app condemnation of the social media platform in the United States paid Facebook users to complete a personality quiz and informed Privacy, continued on page 3 Inside This Issue Fall 2018: Volume 24, No. 1 1 Facebook, Google Fail to Protect Users’ Data; Tech 45 Stearns County Releases State Documents from the Companies and Federal Government Pursue Federal Data Wetterling Investigation Privacy Frameworks Privacy Cover Story 47 Ninth Circuit Ruling and Federal Lawsuit Target U.S. 9 President Trump Continues Anti-Press Rhetoric and Actions Customs and Border Protection for First and Fourth First Amendment Amendment Violations Law Enforcement 17 Journalists in the United States and Abroad Face Threats of Violence and Incarceration 51 Federal Judge Indicates the Public and the Press Have First Reporters in Danger Amendment Right to Witness All Portions of California Executions 23 President Trump Prevails in Two Federal Courts’ First Access Amendment Rulings, Faces New First Amendment Lawsuit First Amendment 52 Defamation Cases Continue for Right-Wing Radio Host and BuzzFeed; Former Political Candidates Bring Defamation 28 First Amendment Coalition Sues Department of Justice Lawsuits Over Secret Collection of Journalist’s Telephone and Email Defamation Records FOIA 58 Ninth Circuit Declines a Second Look at the Monkey Selfi e Case 30 Brett Kavanaugh Sworn In as the 114th U.S. Supreme Court Copyright Justice Supreme Court News 59 Fourth Circuit Allows Lawsuit Targeting North Carolina Ag-Gag Law to Continue; District Court Rules Wyoming Law 34 Repeal of Net Neutrality Rules Continues to Face Legal Unconstitutional Uncertainty Ag-Gag Laws Net Neutrality 62 33rd Annual Silha Lecture Addresses the Free Speech 38 Investigations, Prosecutions, and Sentencing Continue In Implications of the #MeToo Movement Goverment Leak Cases Silha Center Events Leak Investigations 43 Trump Administration Threatens Regulation of Social Media Companies and Google for Alleged Political Bias Tech Censorship SILHA C ENTER S TAFF JANE E. KIRTLEY SILHA C ENTER D IRECTOR AND S ILHA P ROFESSOR OF M EDIA E THICS AND L AW SCOTT M EMMEL SILHA BULLETIN E DITOR KIRSTEN N ORDSTROM SARAH W ILEY SILHA R ESEARCH A SSISTANT SILHA R ESEARCH A SSISTANT CASEY C ARMODY ELAINE H ARGROVE FORMER S ILHA R ESEARCH A SSISTANT SILHA C ENTER S TAFF 2 Privacy, continued from page 1 and we need to know that users can trust Facebook. With the and abroad. Given widespread concerns that foreign countries information we have now, our trust has been broken.” used Facebook to meddle in American elections, many critics Facebook also faced challenges and criticisms over its expressed alarm that the data had been collected by a foreign handling of users’ data in the individual litigation realm. On political consulting company. In a March 18 statement to The April 9, Bloomberg BNA reported that the Cambridge Analytica Washington Post , U.S. Sen. Amy Klobuchar (DMinn.) called on scandal had prompted at least 18 lawsuits against Facebook Facebook CEO Mark Zuckerberg to appear before Congress. throughout the United States. The lawsuits, fi led by users “They say ‘trust us,’ but Mark Zuckerberg needs to testify before and investors, levied several accusations against the social the Senate Judiciary Committee about what Facebook knew media company, ranging from alleged privacy violations, user about misusing data from 50 million Americans in order to target agreement breaches, consumer fraud, unfair competition, political advertising and manipulate voters,” Sen. Klobuchar said. negligence, securities fraud, and racketeering. Attorney Marc On April 10, in response to the Cambridge Analytica Melzer told Bloomberg BNA on April 9 that the wideranging revelations, Sens. Richard Blumenthal (DConn.) and Ed Markey lawsuits would require Facebook to proceed carefully. (DMass.) introduced the Customer Online “Facebook’s having to fi ght on multiple fronts, with potentially Notifi cation for Stopping EdgeProvider confl icting strategies and obligations, is what will make this COVER STORY Network Transgressions (CONSENT) ‘litigation swarm’ problematic,” Melzer said. Act. The bill would require an online Beyond U.S. borders, lawmakers and data privacy regulators service, such as Facebook, to provide information to consumers announced that they too would investigate Facebook’s failure about data collection, use, and sharing processes. The bill also to prevent Cambridge Analytica from improperly obtaining would require that online services obtain optin consent from users’ data. The UK Information Commissioner’s Offi ce (ICO) users before using, sharing, or selling consumer data and would compel companies to develop data storage protections so that “Facebook has made promises about individuals cannot be identifi ed. The CONSENT Act identifi ed the users’ privacy in the past, and we need Federal Trade Commission (FTC) as the primary agency