Battle Lines Drawn in the Tech Industry: The Future of Federal Data Privacy Law in the United States

By: Genevieve Bresnahan

On October 24, Apple CEO Tim Cook spoke in Brussels, Belgium, at the annual International Conference of Data Protection and Privacy Commissioners.[1]  Cook praised the European Union’s General Data Protection Regulation (hereinafter “GDPR”) during his speech, and expressed Apple’s support for the passage of a similar comprehensive federal privacy law in the United States.[2]  The GDPR, which went into effect in May of 2018, gives European citizens more autonomy over the data Facebook and other companies collect.[3]  If those companies fail to comply, they can face fines up to four percent of their global revenue.[4]  Cook explained that a future federal privacy law in the United States should center around four essential rights: 1) the right to have personal data minimized; 2) the right to knowledge; 3) the right to access; and 4) the right to security.[5]

Big technology and social media companies have come under increased scrutiny in recent months due to numerous high-profile privacy incidents, concerns over “fake news,” and questions over the integrity of American elections, to name a few.  For example, last November, Facebook admitted that at least 3,000 advertisements, at an estimated cost of $150,000, had been placed by a Russian agency during the 2016 presidential election.[6]  A few months later, multiple media outlets revealed that consulting firm Cambridge Analytica harvested data from as many as 87 million Facebook users.[7]  Today, Facebook, Apple, Google, and other tech companies are grappling with data privacy concerns under a more intense spotlight.[8]

This privacy debate has also revealed battle lines being drawn in the big tech industry.[9]  Cook stated in Brussels that “[w]e at Apple believe that privacy is a fundamental human right. But we also recognize that not everyone sees things as we do.  In a way, the desire to put profits over privacy is nothing new.”[10]  He continued to critique other tech companies, saying there are others who would inevitably echo his call for a federal privacy law in public but in reality, work discretely to undermine it.[11]  The positions companies take in this debate largely depend on their business models.[12]  Facebook treats its consumers as its products to maximize revenue on the sale of advertising dollars.[13]  Therefore, Facebook and Google will benefit from a regulatory scheme that allows them to continue to collect customer data.[14]  Apple, however, can more freely advocate for tighter data protection regulations because its revenue comes from the sale of its products, rather than user data.[15]  That is exactly the type of advocacy Cook seems to be laying the groundwork for.[16]

Given the many recent high-profile incidents that have lawmakers honing in on big tech, the United States is planning to take a new look at its privacy laws.[17]  Additionally, businesses are deciding whether an overarching federal law may be easier to manage rather than a multitude of various state laws enforcing different privacy standards.[18]  Cook is taking a gamble in hopes that a new federal law will be more favorable to his company.[19]  Facebook’s CEO Mark Zuckerberg and Google’s CEO Sundar Pichai addressed the group in Brussel’s via video link later in the conference, and likewise acknowledged the importance of addressing privacy concerns.[20]  However, the battle lines are clear.[21]  These complex dynamics, and the steps technology companies like Apple are taking, will help determine the future of federal data privacy law in the United States.[22]  Apple, Google, Facebook, and others will continue to advocate for self-regulation, and attempt to define what federal regulations might look like, before the federal government comes up with their own ideas.

[1] Sara Salinas & Sam Meredith, Tim Cook: Personal Data Collection is Being ‘Weaponized Against Us With Military Efficiency’, CNBC (Oct. 24, 2018), https://www.cnbc.com/2018/10/24/apples-tim-cook-warns-silicon-valley-it-would-be-destructive-to-block-strong-privacy-laws.html.

[2] Id.

[3] Brian Fung, Why You’re Getting Flooded With Privacy Notifications in Your Email, Wash. Post (May 25, 2018), https://www.washingtonpost.com/news/the-switch/wp/2018/05/25/why-youre-getting-flooded-with-privacy-notifications-in-your-email/?utm_term=.b6a0131ee5f4.

[4] Id.

[5] Salinas, supra note 1.

[6] See Genevieve Bresnahan, Elect to Regulate: Regulating Social Media Companies in the Wake of an Election Advertising Crisis, Am. U. Bus. L. Rev. (Nov. 22, 2017), http://www.aublr.org/2017/11/elect-regulate-regulating-social-media-companies-wake-election-advertising-crisis/ (arguing that the United States’ regulatory framework must catch up to the operational realities of our social media platforms by imposing disclosure requirements).

[7] Jen Kirby, 9 Questions About Facebook and Data Sharing You Were Too Embarrassed To Ask, Vox (Apr. 10, 2018, 11:50 AM) https://www.vox.com/policy-and-politics/2018/4/10/17203620/zuckerberg-testimony-questions-about-facebook-data-sharing.

[8] See Makena Kelly, How Congress Could Rein in Google and Facebook, The Verge (Oct. 31, 2018), https://www.theverge.com/2018/10/31/18041882/congress-data-privacy-google-facebook-gdpr-markey-klobuchar.

[9] See Sara Fischer, It’s On: Apple vs. Facebook, Axios (June 5, 2018), https://www.axios.com/apple-facebook-data-privacy-tim-cook-zuckerberg-ff19d140-a00a-4c5b-8d62-86eb70b12883.html; see also Cat Zakrzeski, The Cybersecurity 202: Tim Cook’s Sharp Rebuke of ‘Data Industrial Complex’ Draws Battle Lines in Privacy Debate, Wash. Post (Oct. 24, 2018), https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2018/10/24/the-cybersecurity-202-tim-cook-s-sharp-rebuke-of-data-industrial-complex-draws-battle-lines-in-privacy-debate/5bcf55c41b326b559037d293/?utm_term=.af3cfe6731ce.

[10] Zakrzeksi, supra note 9.

[11] Salinas, supra note 1.

[12] Zakrzeksi, supra note 9.

[13] See Fischer, supra note 9.

[14] See Zakrzeksi, supra note 9; see also David Goldman, Tim Cook Wants Stricter Privacy Laws, CNN (Oct. 24, 2018, 12:45 PM), https://www.cnn.com/2018/10/24/tech/tim-cook-privacy/index.html.

[15] See Zakrzeksi, supra note 9.   

[16] Id.

[17] See, e.g., Kelly, supra note 8.

[18] See Zakrzeksi, supra note 9.   

[19] Id.

[20] Mark Scott, Apple, Google, Facebook Line Up to Pay Homage to EU Privacy Rules, Politico (Oct. 24, 2018), https://www.politico.eu/article/europe-privacy-apple-google-facebook-line-up-to-pay-homage-to-rules/.

[21] See Fischer, supra note 9; see also Zakrzeksi, supra note 9.

[22] See Kelly, supra note 8.

Leave a Reply

Your email address will not be published. Required fields are marked *