Only very, VERY rarely does a situation result that covers and includes several of the available options, regarding the ways in which it could all have turned out.  Brexit is such a situation, and that is why it is such a storm, as the end result (or next installment) can still go in any direction, or in every direction.

In my last post,[1] being number 3 of 4 to date,[2] in this Brexit series, I had summed things up into three alternative options.

First, I had said that there could possibly be a change in UK prime ministers, as well as a second Brexit Referendum.[3]  The prime minister did indeed change, with Theresa May being replaced by Boris Johnson,[4] and this pending election for December 12, 2019,[5] will essentially count as a second Brexit Referendum due to PM Johnson’s deep and longstanding commitment to “[…]Get Brexit Done!”,[6] the very public election strategizing of Nigel Farage and his Brexit Party,[7] and the state of public discourse.

Next, I had also said that there could be a Hard Brexit, which PM Johnson also tried to force when Parliament did not give him the votes he wanted.[8]  He was, however, sternly rebuked by the UK Supreme Court for trying to usurp the rights of his fellow British lawmakers,[9] and he has now had to accept this December, 2019 general election option as a combined confidence and referendum vote.

Finally, I had said that the Europeans “might” cave-in on the Irish backstop and give the UK some additional concessions.[10]  This was an outside possibility [11] and it remains very much outside, because even though the Europeans did give the UK the very minor concession of some additional time to get its Brexit act in order, by extending the deadline for it to leave the EU under Article 51 from (originally May 29, 2019, first to October 31, 2019), and now to January 31, 2020,[12] they are getting quite tired of the UK inability to act decisively one way or another on leaving or staying,[13] and a hard Brexit is still very much an option if the next deadline comes and goes without the acceptance by the UK of a deal already and conclusively negotiated with Europe.[14]

What will the election bring, and will it finally solve the Shakespearean question of whether the UK’s future is “[t]o be, or not to be [in Europe]?”[15]  At this point, I will not even hazard a guess on that; but I can say that there tends to be a messy result if you either take roughly 50% of a nation out of the place where they want to stay, or keep roughly 50% of a nation in a place where they do not want to be.  You could have incessant and relatively peaceful actions as in France; a slow-rising chaos as in Hong Kong; or a multi-sided outburst of rage that refuses to be sated – whether any or all are sparked by the final Brexit decision itself, or the aftermath of that Brexit decision.

This realization, may well be the true reason why the UK lawmakers do not want to act decisively one way or another.  A decision, either way, might lead to unrest – the kind of unrest that the Europeans, whether or not the UK is in Europe (and whether or not the UK asks for assistance), may be forced to act on, so as to restore and maintain order in the British Isles, protect their own citizens there, prevent spillover, or a combination of these.[16]  So, a final Brexit move is a proverbial and problem-fraught trigger that nobody wants to pull.  However, this constant delay and playing for time will not make it go away, and nerves are fraying all around.[17]  The election may finally force the matter, as a continued near stalemate in supporters and opponents of leaving once all ballots are counted, is really quite unlikely.[18]

So, let’s wait to see whether these poll results will lead to the final chapters, or again, a next installment.[19]

 

**********************************************************************

Author:

Ekundayo George is a lawyer and sociologist.  He has also taken courses in organizational and micro-organizational behavior, and gained significant experience in programs, policy, regulatory compliance, litigation, and business law and counseling.  He has been licensed to practise law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America.  See, for example: https://www.ogalaws.com.  A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Energy, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors.  He is a published author on the national security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal millieux.

Trained in Legal Project Management (and having organized and managed several complex projects before practising law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams.  Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, crisis consulting, and targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: healthcare; education and training; law and regulation; policy and plans; statistics, economics, and evaluations including feasibility studies and business cases; infrastructure; and information technology/information systems (IT/IS) – also sometimes termed information communications technologies (ICT).  See, for example: https://www.simprime-ca.com.

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred.  The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.  Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

 

[1] Ekundayo George.  Calling the Brexit end-result at this point, is a guessing game!  Posted March 11, 2019, on ogalaws.wordpress.com.  Web: <https://ogalaws.wordpress.com/2019/03/11/calling-the-brexit-end-result-at-this-point-is-a-guessing-game/>

[2] See e.g. Ekundayo George.  Analyzing the 2016 Brexit: A Classically Complex Conundrum.  Posted June 30, 2016 on ogalaws.wordpress.com.  Web:  <https://ogalaws.wordpress.com/2016/06/30/analyzing-the-2016-brexit-a-classically-complex-conundrum/>; See also Ekundayo George.  Analyzing the 2016 Brexit: The UK Exit Plan is Revealed, Promising a “Hybridized” End-result. January 20, 2017.   Web: <https://ogalaws.wordpress.com/2017/01/20/analyzing-the-2016-brexit-the-uk-exit-plan-is-revealed-promising-a-hybridized-end-result/>

[3] Supra note 1.

[4] Charlie D’Agata / CBS News.   Boris Johnson to be next prime minister of UK, replacing Theresa May amid Brexit turmoil.  Posted July 23, 019 on cbsnews.com.  Web: <https://www.cbsnews.com/news/prime-minister-boris-johnson-amid-brexit-turmoil-boris-johnson-to-be-next-prime-minister-of-uk-replacing-theresa-may/>

[5] David Reid.  UK set for a December election as opposition Labour party backs calls.  Posted October 28, 2019 on CNBC.com.  Web: <https://www.cnbc.com/2019/10/28/boris-johnson-loses-vote-to-hold-uk-general-election-on-december-12.html>

[6] BBC Politics.  Bercow warns Johnson against disobeying Brexit law.  Posted September 13, 2019 on bbc.com.  Web: <https://www.bbc.com/news/uk-politics-49683797>;  See also ITV Report.  Boris Johnson unveils new battle bus as Tory general election campaign hits the road.  Posted November 15, 2019 on itv.com.  Web:  <https://www.itv.com/news/2019-11-15/well-deliver-greener-vehicles-insists-pm-as-he-unveils-battlebus/>

[7] David Reid.  Trump-ally Nigel Farage offers Boris Johnson a Brexit election alliance.  Posted November 1, 2019 on cnbc.com.  Web:  <https://www.cnbc.com/2019/11/01/trump-ally-nigel-farage-offers-boris-johnson-a-brexit-election-alliance.html>

[8] Jill Lawless, The Associated Press.  Johnson suspends U.K. Parliament after latest Brexit defeat.  Posted September 10, 2019 on thestar.com.  Web:  <https://www.thestar.com/news/world/europe/2019/09/10/johnson-suspends-uk-parliament-after-latest-brexit-defeat.html>; See also Heather Stewart, Jessica Elgot and Peter Walker.  Cornered Boris Johnson suffers triple Commons defeat: MPs block bid to call snap election after vote on bill to prevent a no-deal Brexit.  Posted September 4, 2019 on theguardian.com.  Web: <https://www.theguardian.com/politics/2019/sep/04/cornered-boris-johnson-suffers-triple-commons-defeat>

[9] Estelle Shirbon and Michael Holden, Reuters.  Boris Johnson illegally suspended British parliament, U.K. Supreme Court rules.  Posted September 24, 2019, on Nationalpost.com.  Web:  <https://nationalpost.com/news/world/boris-johnson-illegally-suspended-british-parliament-u-k-supreme-court-ruled>

[10] Ekundayo George.  Calling the Brexit end-result at this point, is a guessing game!  Posted March 11, 2019, on ogalaws.wordpress.com.  Web: <https://ogalaws.wordpress.com/2019/03/11/calling-the-brexit-end-result-at-this-point-is-a-guessing-game/>

[11] See Infra, note 13.

[12] Silvia Amaro.  EU agrees to give the UK a Brexit extension until January 31.  Posted October 28, 2019 on cnbc.com.  Web: <https://www.cnbc.com/2019/10/28/the-eu-discusses-three-month-brexit-extension.html>

[13] Ibid. This extension, giving extra time to finally gain proper Brexit approval by the UK parliament, was only granted on the condition that the UK “actually” leave the EU based “solely” on the deal already negotiated with the EU by prime minister Theresa May (the Withdrawal Agreement), and which includes that already highly contentious deal to split the Irish mainland (leaving the Republic of Ireland in the EU but also keeping Northern Ireland – after Brexit – still beholden to EU customs rules and thereby complicating the efforts of an otherwise freestanding UK to negotiate its own trade agreements elsewhere), in case the EU and UK cannot timely reach a post-Brexit customs deal.  Considering everything, that may or may not, be the end result we actually see.

[14] Id.

[15] William Shakespeare.  Hamlet.  Act 3, Scene 1, line 57. (emphasis added).

[16] Indeed, Article 3 of the North Atlantic Treaty may simply be interspersed with the Responsibility to Protect (as a purely pre-emptive act under the last clause of its paragraph 39), so as to enable an armed incursion under Article 4 of that same North Atlantic Treaty, and whether with or without the request or consent of any standing, barely standing, or exiled UK government at that time.

 

The North Atlantic Treaty

Washington D.C. – 4 April 1949

Article 3

In order more effectively to achieve the objectives of this Treaty, the Parties, separately and jointly, by means of continuous and effective self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack.

Article 4

The Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened.

See The North Atlantic Treaty Organization (NATO).  The North Atlantic Treaty.  Visited November 18, 2019.  Web: <https://www.nato.int/cps/en/natohq/official_texts_17120.htm>

 

Responsibility to Protect:

138.  Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

 

139.  The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.

 

140.  We fully support the mission of the Special Adviser of the Secretary-General on the Prevention of Genocide.

 

See The United Nations Organization (UN).  The United Nations Office on Genocide Prevention and the Responsibility to Protect.  Visited November 18, 2019.  Web: <https://www.un.org/en/genocideprevention/about-responsibility-to-protect.shtml>;  See also Andrew Sparrow.  Former MI6 boss says Brexit makes UK more vulnerable to attacks like Russian novichok poisoning – Politics Live.  Posted October 19, 2018 on theguardian.com.  Web:  <https://www.theguardian.com/politics/blog/live/2018/oct/19/brexit-may-summit-tory-brexiters-would-vote-down-extra-payments-to-eu-for-longer-transition-says-rees-mogg-politics-live>

[17] Ray O’Hanlon.  Irish nerves frayed amid little reassurance from Washington.  Posted September 6, 2019 on irishecho.com.  Web: ..<https://www.irishecho.com/2019/09/irish-nerves-frayed-amid-little-reassurance-from-washington/>  The government and citizens of the Republic of Ireland remain concerned about being “forced out of” the EU after a chaotic Brexit, due to a perceived inability to control their borders with Northern Ireland so as to prevent illicit and customs-flouting trade from the UK.  But see contra, supra note 13.  The government and citizens of the UK are likewise concerned about Northern Ireland being “forced to remain within” the EU after an orderly Brexit, due to interim imposition of the Irish Backstop on delayed trade negotiations with the EU.

 

Also fraying nerves, of course, and all around, is that little “Yellowhammer” matter.  See generally, Reality Check team BBC News.  Brexit: What does Yellowhammer say about no-deal impact?  Posted September 12, 2019 on bbc.com.  Web: <https://www.bbc.com/news/uk-politics-47652280>

[18] Rather than clarity on the path forward, this election may actually add unquantifiable additional complications, such as if there now develops a 3-way power split as Conservative supporters tired of Brexit delays, vote in large numbers for the Brexit Party.  At that point, Conservatives (including those previously resigning or rejected from the caucus) will be forced to choose between the hard Brexit of Mr. Farage, the orderly Brexit of Mr. Johnson (assuming Mr. Johnson not only retains his own seat, but also remains as prime minister), or be overcome by an outright cancellation of the whole Brexit exercise if the Labour Party gains or assembles a Parliamentary majority – maybe with or maybe without yet another Referendum and pleas or attempts, for even more re-negotiations with the EU.  See e.g.  Election 2019.  Labour Party manifesto 2019: 12 key policies explained.  Posted November 21, 2019 on bbc.com.  Web: <https://www.bbc.com/news/election-2019-50501411>  For the second of these twelve points listed, a victorious Labour Party intends to “renegotiate a new Brexit deal within three months, and hold a referendum on the deal or Remain within six months.”  One must remember, however, that the EU is under no obligation whatsoever to let every successive British political leader, or British political party “have a go” at remaking that existing Brexit deal after riling-up the public and highlighting perceived flaws in the most recent version.  Eventually, they will just say no.

[19]Reserved

 

INTRODUCTION:

I had initially looked at the FAAAN group (Facebook, Amazon, Alphabet/Google, Apple and Netflix), and shown how the prevailing view of Antitrust and Monopoly analysis did not fit their activities in the classical sense, but required a new paradigm that focused on the Gig eConomy, and I presented that model in some depth.[1]  Then, I singled-out Amazon as the most likely member of this group to first feel the impact of a push to break-up, due to its constant expansion into new “physical” areas in addition to the “virtual”, and the ever-greater number of competitors that these incursions invariably disrupted.[2]

Now, however, after reading Virginia Senator Mark Warner’s draft paper on Big Tech. regulation,[3] and after a review of his proposed bipartisan bill with Nebraska Senator Deb Fischer aimed at curbing what some feel has been the default “culture and conduct” of the more notorious of these online giants,[4] as well as other developments described below, I think the first target will more likely be one of the “data ‘gators” (aggregators and disseminators) – either Facebook or Alphabet/Google, or perhaps both … but this does not mean Amazon is entirely out of the limelight.

Why?  Let me explain.

 

FACEBOOK

Historic allegations of “collusion”[5] and the use of Facebook by certain parties to carry-out foreign interference in the 2016 United States federal election campaign[6] (which saw the election of Donald J. Trump on November 9, 2019),[7] and criminal indictments issued against several Russian nationals as the aforementioned parties;[8] as well as prison sentences for several U.S. Citizens on a diversity of charges stemming from the recently concluded Mueller investigation of Russian election interference,[9] coupled with the Cambridge Analytica affair which originally broke on March 17, 2018,[10] have all kept Facebook in the public headlights – bobbing, weaving, playing whack-a-mole, and collecting hard body blows.[11]

In a public opinion piece, Mark Zuckerberg, the Facebook CEO, tried to address some of these concerns and dispel some of that public and regulatory ire, by saying:

“I believe we need a more active role for governments and regulators.  After focusing on these issues for the past two years, I think it’s important to define what roles we want companies and governments to play.  By updating the rules for the internet, we can preserve what’s best about it — the freedom for people to express themselves and entrepreneurs to build new things — while also protecting society from broader harms.”

“From what I’ve learnt, I believe we need new regulation in four areas: harmful content, election integrity, privacy and data portability.”[12]

In further pleading for a single global regulatory standard for online privacy and conduct as opposed to disparate and perhaps even conflicting rules – all competing for their own extraterritorial primacy – that might even fracture and fragment the Internet (and therefore the influence, global reach, relevance, market shares and market capitalizations of Facebook and the other online giants here listed), Mr. Zuckerberg writes, “[i] believe Facebook has a responsibility to help address these issues and I am looking forward to discussing them with lawmakers around the world.[13]  But then, he has also been a no-show in response to the invitations to talk, of more than one group of lawmakers.[14]

In contrast, while calling for a breakup of Facebook, Chris Hughes, the company co-founder, opines over it in light of recent and ongoing events involving, and revolving around, Facebook, in lamenting that:

“The company’s mistakes — the sloppy privacy practices that dropped tens of millions of users’ data into a political consulting firm’s lap; the slow response to Russian agents, violent rhetoric and fake news; and the unbounded drive to capture ever more of our time and attention — dominate the headlines.”[15]

Facebook also has dual, leading roles as both a host platform publishing the posts, news, streams and feeds of others, and a publisher in choosing what does or does not get out, at one and the same time.[16]

 

ALPHABET/GOOGLE

Alphabet/Google, for its part, also had its own running battles with bad publicity, most notably in Europe,[17] where the focus has ranged from antitrust and privacy, through the EU Right to be Forgotten, to emerging views on copyright laws, illegal content,[18] and consideration of the revenue potential in taxing search engines and other internet services[19] in an effort to avoid the tax base erosion of the type used by large and sophisticated, highly-profitable entities that end up paying little to no taxes[20] – all whether before or after breaking these entities up.[21]

 

AMAZON

Amazon has been drawing serial regulatory scrutiny like a magnet in Europe – from the EU itself, Germany, Austria, France, and most recently, Italy.[22]  These cases all revolve around accusations of use of a dominant position to favour one’s own and related offerings, over those of rivals, preferential delivery fullfilment, vendor obligations to disclose pricing, and a direct complaint by France over Amazon terms of service in general – all due to Amazon’s dual and leading roles as both host marketplace for the wares of others and marketer for its own and related wares, at one and the same time.[23]  There have also been breaches at Amazon Web Services (AWS), exposing customer data and impacting privacy.[24]

 

APPLE

Apart from some taxing queries,[25] Apple had for a long time, mostly steered clear of data scandals and unwanted regulatory scrutiny.  However, revelation of the FaceTime application vulnerability, which allowed callers to hear audio and access video feeds from certain subjects before they even answered those incoming calls;[26] coupled with the well-publicized practice of slowing down older versions of its flagship iPhone,[27] and a recent ruling by the United States Supreme Court that gave Apple App Store users the right to sue Apple directly – not as an intermediary – for monopolistic practices in the sale of applications for its platform and the distribution of system updates,[28] threw Apple right into the heart of the dual spotlights on data privacy and abusive market dominance, where the company met its above three peers: Amazon, Alphabet/Google, and Facebook, already sweating from the heat.  As a result, the Apple CEO has engaged in his own exercise of bobbing and weaving, as he asks for comprehensive regulation[29] of the data, social media, online search and online marketplace industries with four guiding principles:

“First, the right to have personal data minimized.  Companies should challenge themselves to strip identifying information from customer data or avoid collecting it in the first place. Second, the right to knowledge—to know what data is being collected and why.  Third, the right to access.  Companies should make it easy for you to access, correct and delete your personal data.  And fourth, the right to data security, without which trust is impossible.”[30] [Emphasis added].

He further suggested that the Federal Trade Commission (FTC) establish a “data-broker clearinghouse” where all data brokers would have to register, and at and through which people could exercise their privacy rights, and especially under the third of his four principles.[31]

 

NETFLIX

Netflix has been growing by leaps and bounds and now has some 130 million subscribers worldwide, in over 190 nations.[32]  While most subscribers are too busy enjoying what they are watching (actually, often “binge”-watching with all of its drawbacks),[33] to complain too much (if at all), there have been troubling allegations of insensitivity to mass casualty disaster footage,[34] and at least one comparison of the growing global footprint of Netflix content, to the similarly expansive British and French colonialism of yore, in its broad and deep reach through our eyes, directly into our hearts and minds.[35]

As a huge and powerful company, similar in scale to the Facebooks of the world, the mistakes that Netflix makes have global implications.  Through the stories Netflix decides to tell and promote, this company shapes how we decide to be.  A show, movie or documentary can change our beliefs about life itself.[36]

Admittedly, achieving this current lead in the over the top (OTT) space was no cakewalk, as there were allegations of throttling (slowing the content stream) on some platforms while leaving others alone, by exploiting a rather large regulatory loophole that did not specifically prohibit that practice for entities like Netflix;[37] and major regulatory hurdles in its early Asian expansion, ranging from a shortage of local language content and local payment options, through delays due to a need for age-appropriate ratings, to criticisms for displaying prohibited violence or sexual content.[38]  Similarly, just as with its FAAAN peers here listed, Netflix also had its own European problems, in allegations from European cinema associations that it was benefitting from public funding, lax regulation, and even more loopholes, such as receiving UK tax rebates but paying no UK business taxes.[39]

 

TERRAIN AND TECHNIQUES:

Adding to this generalized agitation amongst the four (excluding Netflix) entities dominating this BigData online terrain, a concerted effort by regulators in 9 countries[40] to understand and address their shortcomings, had started to take shape in 2018, known as the International Grand Committee on Disinformation and Fake News (or the “International Grand Committee”, for short), with its inaugural evidentiary meeting held at the House of Parliament in London, England, on November 27, 2018.[41]  Faced with the repeated unwillingness and/or inability of Mark Zuckerberg to be present and answer International Grand Committee questions, the committee had accepted the attendance of Richard Allan, Vice President of Policy Solutions at Facebook, in his stead; still believing that “Mark Zuckerberg is the appropriate person to answer important questions about data privacy, safety, security and sharing.”[42]

A second, 2019 meeting of the International Grand Committee in Ottawa, Canada, hosted by the House of Commons Standing Committee on Access to Information, Privacy and Ethics at the House of Parliament, saw 5 additional nation-states sending representatives,[43]and this time, both Mark Zuckerberg and Cheryl Sandberg of Facebook, were subpoenaed, but did not attend in person or give video evidence; which latter option had also been offered.[44]  The assembled parliamentarians and their witnesses were not at all shy in expressing their frustrations and views regarding the absence of and need for social media privacy protections, Facebook in general, and its two invited but absent executives, in particular.[45]  The Committee has, however, developed 5 guiding principles to, inter alia, counter disinformation, keep personal data safe online, and more efficiently and effectively, and speedily identify and remove terrorist and violent extremist online content;[46] which are:

“(1) The internet is global and law relating to it must derive from globally agreed principles;

(2) The deliberate spreading of disinformation and division is a credible threat to the continuation and growth of democracy and a civilizing global dialogue;

(3) Global technology firms must recognize their great power and demonstrate their readiness to accept their great responsibility as holders of influence;

(4) Social media companies should be held liable if they fail to comply with a judicial, statutory or regulatory order to remove harmful and misleading content from their platforms, and should be regulated to ensure they comply with this requirement;

(5) Technology companies must demonstrate their accountability to users by making themselves fully answerable to national legislatures and other organs of representative democracy.”[47][Emphasis added]

So it is, that within the highest government circles in the United States, itself, from whence these Internet and Gig eConomy giants hail, there is an increasing realization that if their nation does not “at the very least” have a seat at the table, then its champion creations will be subjected to the regulations of everyone other than itself; and so both U.S. legislators and regulators have met this challenge, with:

  • Democratic Senator Mark R. Warner (VA) and Republican Senator Deb Fischer (NE) introducing the Deceptive Experiences To Online Users Reduction (“DETOUR”) Act;[48]
  • In the House of Representatives, the House Judiciary Committee, through its Subcommittee on Antitrust, Commercial and Administrative Law, launched a bipartisan initiative to “investigate the rise and use of market power online and assess the adequacy of existing antitrust laws and current enforcement levels”;[49] and
  • Due to the size and scope of these modern internet giants and the “significant” federal resources needed to thoroughly review their business practices, an alleged gentleman’s agreement among the U.S. chief regulators on these hotly contested digital terrains and techniques has meant that the Department of Justice (DOJ) will focus on and review the practices of Apple and Alphabet/Google, while the Federal Trade Commission (FTC) will focus on and review the practices of Amazon and Facebook.[50]

Now ….. with all this attention on these above four behemoths, one would THINK, that tip-toeing around for the meantime would not be such a bad practise for them to quickly adopt, right? Well …..

  • On Tuesday, June 18, 2019, Facebook announced that it planned to roll out a cryptocurrency (Libra) in 2020, adding customer financial information and purchasing habits to the customer personal data and browsing and sharing habits that it was under scrutiny for …. managing?![51]
  • Also on Tuesday, June 18, 2019, Amazon announced that it would partner with Mastercard and TD Bank Group to offer a new branded, loyalty credit card in Canada – earning both cash back, and points that would be “automatically” redeemed as an Amazon gift card upon reaching a certain level; and thereby pushing Amazon further into the banking realm.[52]

Understandably, the reaction to Facebook’s announcement was the louder and the most widespread.[53]

 

INSTIGATING THE INVESTIGATORS:

“Google, Facebook, and their cousins Apple and Amazon have grown so vast that they have aroused the ire of the entire political establishment.  And they aren’t only transforming journalism but also politics, retail, and virtually all commerce.  The regulation, or even the breakup, of these companies is a long way off, and it’s not clear what form it would take.  But the journey has begun.”[54]

Let us consider the domestic scope of these entities, to better understand why the regulators are so incentivized and why the tech giants cannot help BUT further instigate the investigators with every step.

  • In 2017, search engines generated $59.7 billion in U.S. revenues alone, with a combined 97% of that domestic market share held by Alphabet/Google (91%) and Microsoft (6%) – leaving 3% to all of their domestic competitors;[55]
  • In 2018, social networking sites generated $34 billion in U.S. revenues alone, with a combined 85% of that domestic market share held by Facebook (70%), LinkedIn (10%), and Twitter (5%) – leaving 11% to all of their domestic competitors;[56]
  • In 2018, the eCommerce industry generated $525.9 billion in U.S. revenues alone, with a combined 56% of that domestic market share held by Amazon (49%) and eBay (7%) – leaving 44% to all of their domestic competitors.[57]
  • Without even discussing revenues, the 3 top smartphone operating system manufacturers in the United States in 2012 had a combined 94% of that domestic market share, being Google (49%), Apple (30%), and Blackberry (15%) – leaving 6% to all of their domestic competitors;[58] but by 2018 – a mere 6 years later – Blackberry no longer made smartphone operating systems at all, Google had 54% and Apple had 45% of the domestic market share, and all of their domestic competitors combined to control a mere 1% of that market.[59]

Not only do the listed companies have these revenues and control (or dominate) these market shares, they also control an increasing amount of the related[60] and (at least previously) unrelated[61] space around them, as I have shown in earlier posts.  Facebook, for example, controls Messenger, Instagram, WhatsApp, Oculus VR, and Masquerade;[62] Alphabet’s most notable offerings are Google Play, Maps, and Search, Google Cloud, Android, YouTube, and Waymo,[63] but it ultimately owns and controls over 200 separate companies;[64] Apple is already well known for its iPhone and other leading businesses of Siri, iCloud, and Beats Electronics, but it also owns and controls  Shazam, Emagic, Anobit Technologies, PrimeSense, and NeXT, Inc.;[65] and while Amazon’s reputation leads with Alexa, Echo, Kindle, Whole Foods Market, and Amazon Web Services (AWS), the company also owns and controls Audible, Kiva Systems, Twitch Interactive, Ring, Zappos, and PillPack, Inc.[66]

“Mark’s influence is staggering, far beyond that of anyone else in the private sector or in government. He controls three core communications platforms — Facebook, Instagram and WhatsApp — that billions of people use every day. Facebook’s board works more like an advisory committee than an overseer, because Mark controls around 60 percent of voting shares. Mark alone can decide how to configure Facebook’s algorithms to determine what people see in their News Feeds, what privacy settings they can use and even which messages get delivered. He sets the rules for how to distinguish violent and incendiary speech from the merely offensive, and he can choose to shut down a competitor by acquiring, blocking or copying it.”[67]

In that quotation, Chris Hughes, the co-founder of Facebook, speaks of the sheer concentration of power in Facebook’s leader.  This shows that monopoly and market dominance do not have to mean a constant commission of intentional bad acts because that kind of latent power, alone, can be sufficiently prohibitive of and harmful to, competition.  When coupled with the other above examples, is it any surprise, then, that these relentlessly acquisitive (and “disruptive” to incumbent businesses and business models) parent companies have instigated the investigators and attracted so much attention?

 

LEGAL:

Returning to some of the resurgent legalities, Senator Warner’s social media regulation proposals,[68] and his bipartisan bill with Senator Fischer,[69] both focus on addressing and deterring cases of demonstrated misconduct, restoring trust and confidence in the services offered and in the privacy of personal data online, and re-asserting the supremacy of at least one state (the apparent home state, or at least the state of claimed origin) over these borderless and relentless non-state actors.

 

POLICY PROPOSALS

Senator Warner’s policy proposals identified the following three focal areas for policymakers:

  1. (…) understanding the capacity for communications technologies to promote disinformation that undermines trust in our institutions, democracy, free press, and markets;”[70]
  2. (…) consumer protection in the digital age;”[71]
  3. (…) the rise of a few dominant platforms poses key problems for long-term competition and innovation across multiple markets, including digital advertising markets (which support much of the Internet economy), future markets driven by machine-learning and artificial intelligence, and communications technology markets.[72]

Proposals to counter online disinformation, included the labeling of bots, authentication of accounts and knowing the origin of posts, identifying fake accounts, imposing platform liability for state law torts such as defamation, a public interest right of data access, establishing an interagency taskforce to counter asymmetric threats to democracy, required disclosures for online political advertising, a media literacy campaign for the public, and creating a true deterrent against foreign manipulation online.[73]

Proposals to enhance online privacy and protect online data, included statutory classification and regulation of certain online providers as “information fiduciaries”, granting authority to the Federal Trade Commission to enact Rules on privacy, a comprehensive federal data protection legislation, first party consent to data collection as linked to addressing dark patterns, and fairness and transparency in algorithmic decision-making.[74]

Proposals to ensure long-term competition and innovation despite a growing concentration threat, included a data transparency bill, a “data as portable property” bill, interoperability, permitting academic researchers and qualified (smaller) businesses to access federal datasets and collections, and prescribing a base of sheer size or market share, or a level of dependence by others, at which a core function or application or platform becomes an “essential facility” with certain mandatory duties.[75]

At the heart of all of these problems, however, were dark patterns, which he wanted “statutorily determined” to be unfair and deceptive trade practices – a direct progenitor for his proposed Bill:

“Dark patterns are user interfaces that have been intentionally designed to sway (or trick) users towards taking actions they would otherwise not take under effective, informed consent.  Often, these interfaces exploit the power of defaults – framing a user choice as agreeing with a skewed default option (which benefits the service provider) and minimizing alternative options available to the user.”[76]

 

DETOUR ACT

And then, adding real, tangible weight to those thoughts, Senator Warner joined with Senator Fischer,[77] to introduce the “Deceptive Experiences To Online Users Reduction (DETOUR) Act” on April 9, 2019.[78]  Actual examples of dark patterns include default privacy settings set to maximum sharing, consents buried deep within long and complex terms of service, spamming contacts with invitations to join once those contacts have been shared with a platform, auto-play videos that encourage compulsive usage and other addictive behaviour in serial viewing – especially in those under the age of 13, un-announced behavioural and psychological experiments and research –often conducted without informed consent, and other mechanisms and manipulative user interfaces that make it easy to sign-up for a service and very hard to cancel it and leave.[79]

Apart from targeting compulsive usage (“any response stimulated by external factors that causes an individual to engage in repetitive purposeful, and intentional behavior causing psychological distress, loss of control, anxiety, depression, or harmful stress responses”),[80] and calling for more informed consent by research subjects (who must be over the age of 13),[81] with “clear, conspicuous, context-appropriate, and easily-accessible[82] routine research disclosures no less often then every 90-days,[83] the proposed Act also restricts its application to large online operators with “more than 100,000,000 authenticated users of an online service in any 30-day period”,[84] and calls for independent review boards to oversee behavioural or psychological research[85] and themselves register with the United States Federal Trade Commission (FTC).[86]  The Act would see some limited self-regulation through professional standards bodies of associated online operators[87] which developed bright line rules and safe harbors for member conduct that did not infringe the Act’s provisions, but all would remain subject to the FTC if the conduct rose to be or constitute such unfair or deceptive acts or practices as the FTC shall or may from time to time define.[88]

 

CONCLUSION:

Suspicions and sanctions regarding these entities for behaviours falling short of, equating, and going beyond mere dark patterns[89] to constitute sharp business practices, at the very least, have been around for quite some time …. and names were  named.  Examples of these alleged behaviours, have included:

  • User profiling and contact mining to better target them for advertising campaigns and contact list growth (Alphabet/ Google, LinkedIn);[90]
  • Copying the most popular offerings of vendors, as the marketplace host (Amazon); [91]
  • Preferring one’s own offerings and limiting the visibility or the functionality of the offerings of others (Amazon, Alphabet/Google, Apple);[92]
  • Liberally borrowing features from competitor sites (Facebook, WhatsApp, Instagram);[93]

Hughes further writes:

“As a result of all this, would-be competitors can’t raise the money to take on Facebook.  Investors realize that if a company gets traction, Facebook will copy its innovations, shut it down or acquire it for a relatively modest sum.  So despite an extended economic expansion, increasing interest in high-tech start-ups, an explosion of venture capital and growing public distaste for Facebook, no major social networking company has been founded since the fall of 2011.”

“As markets become more concentrated, the number of new start-up businesses declines.  This holds true in other high-tech areas dominated by single companies, like search (controlled by Google) and e-commerce (taken over by Amazon).  Meanwhile, there has been plenty of innovation in areas where there is no monopolistic domination, such as in workplace productivity (Slack, Trello, Asana), urban transportation (Lyft, Uber, Lime, Bird) and cryptocurrency exchanges (Ripple, Coinbase, Circle).”[94]

  • Most recently (or should we say, “most recently noticed and publicized”), is the deployment and use in brick and mortar retail locations, of customer tracking Bluetooth beacons …. [95] implying that the lessons of all these earlier run-ins with assorted regulators, just didn’t stick.[96]

But, as belligerent parties increase the tempo to gain that extra ground or that extra piece of negotiating leverage in the waning days of an armed conflict, with the ceasefire date looming, so too in this mirror universe, with U.S. tech giants finding themselves “at the eve of the end” of absent to light touch U.S. regulation – due to the fact that other nations have taken-up that slack, [97] and somewhat embarrassed the U.S. into action [98]– these tech giants are now furiously expanding in all directions as far as they can and as fast as they can, in the hope that something tangible and worth branding will still be viable and left standing, once related and unrelated businesses and even the core business intestines, have all been regulatorily wrangled and disentangled, and well-whittled away – all to the lasting benefit of the consuming public, as Chris Hughes further writes:

“But the biggest winners would be the American people. Imagine a competitive market in which they could choose among one network that offered higher privacy standards, another that cost a fee to join but had little advertising and another that would allow users to customize and tweak their feeds as they saw fit. No one knows exactly what Facebook’s competitors would offer to differentiate themselves.  That’s exactly the point.”[99]

In addition to the above regulatory rumblings, now that the incumbent republican President Donald J. Trump,[100] a true maverick, has “for targeting only” joined democratic senator and presidential candidate Elizabeth Warren,[101] another true maverick, to call for lawsuits against big tech. and even for breaking them up (albeit for different reasons),[102] and especially Facebook, star of the most heated current media and regulatory attention – but not to the exclusion of Amazon, Twitter, and Alphabet/Google … that breakup hammer in this pre-season for the Q4 2020 U.S. presidential election, could fall at any time.

As another commentator has lamented, “[n]o existing regulatory framework exists or has been conceived for a global company holding personal data on one-third of the planet’s population.  Just as importantly, the commercial model driving social media is inconsistent with a ‘privacy first’ approach.  And both those factors will now lead into a back and forth on regulation and sanctions across the world.[103]

Around the world, however, some businesses are already working under and creating solutions to stay within, the E.U. General Data Protection Regulation (GDPR) by giving data subjects more control of their own personal data and operations or analytics regarding that personal data,[104] while others still struggle to comply with that and other new and evolving stringent privacy provisions.[105] 

So, let us keep watching this U.S. prize fight (or grand mélée, as ever more of the competitive landscape is co-opted into the dance around the eye of this ever-growing storm) with the data (aggre)-gatorsFacebook, Amazon, and Alphabet/Google, as they serenade and parade for, trade shots with, evade the dragnets of, and are potentially flayed and dismayed on full public and permanent display by, their own assorted and sundry “local” regulators.[106]

 

**********************************************************************

Author:

Ekundayo George is a lawyer and sociologist.  He has also taken courses in organizational and micro-organizational behavior, and gained significant experience in regulatory compliance, litigation, and business law and counseling.  He has been licensed to practise law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America.  See, for example: https://www.ogalaws.com.  A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Energy, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors.  He is a published author on the national security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal millieux.

 

Trained in Legal Project Management (and having organized and managed several complex projects before practising law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams.  Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, crisis consulting, and targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: healthcare; education and training; law and regulation; policy and plans; statistics, economics, and evaluations including feasibility studies and business cases; infrastructure; and information technology/information systems (IT/IS) – also sometimes termed information communications technologies (ICT).  See, for example: https://www.simprime-ca.com.

 

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

 

[1] Ekundayo George.  Monopolies and Market Dominance in the “GIG” eConomy: What Might These Look Like / Are We There Yet?  Posted July 16, 2017 on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2017/07/16/monopolies-and-market-dominance-in-the-gig-e-conomy-what-might-this-look-like-are-we-there-yet/<

[2] Ekundayo George.  Monopolies and Market Dominance in the “GIG” eConomy? We are Getting There! Posted February 19, 2018 on ogalaws.wordpress.com.  Online: >https://ogalaws.wordpress.com/2018/02/19/monopolies-and-market-dominance-in-the-gig-economy-we-are-getting-there/<

[3] United States Senator Mark R. Warner (D-VA), Vice-Chairman, Senate Intelligence Committee, United States Senate. White Paper (DRAFT).  Potential Policy Proposals for Regulation of Social Media and Technology Companies.  Visited June 6, 2019 and posted on scribd.com.  Online: >https://www.scribd.com/document/385137394/MRW-Social-Media-Regulation-Proposals-Developed#from_embed<

[4] United States Senator Warner, Mark R. [D-VA]; United States Senator Fischer, Deb [R-NE], Co-sponsors.  S.1084 –Deceptive Experiences To Online Users Reduction Act.  Introduced April 9, 2019 in the 116th Congress, 1st Session (2019-2020).  Visited June 19, 2019 and posted on congress.gov.  Online: >https://www.congress.gov/bill/116th-congress/senate-bill/1084/text?q=%7B%22search%22%3A%5B%22congressId%3A116+AND+billStatus%3A%5C%22Introduced%5C%22%22%5D%7D&r=17&s=1<

[5] For a deep dive into the collusion, issue, See e.g. Ryan Goodman.  Guide to the Mueller Report’s Findings on “Collusion”.  Posted April 29, 2019 on justsecurity.org.  Online:  >https://www.justsecurity.org/63838/guide-to-the-mueller-reports-findings-on-collusion/<

[6] Issie Lapowski.  How Russian Facebook Ads Divided and Targeted US Voters Before the 2016 Election.  Posted April 16, 2018 on wired.com.  Online: >https://www.wired.com/story/russian-facebook-ads-targeted-us-voters-before-2016-election/<

[7] BBC.  US election 2016 result: Trump beats Clinton to take White House.  Posted November 9, 2016 on bbc.com.  Online: >https://www.bbc.com/news/election-us-2016-37920175<

[8] United States Federal Bureau of Investigation (FBI).  RUSSIAN INTERFERENCE IN 2016 U.S. ELECTIONS – CONSPIRACY TO COMMIT AN OFFENSE AGAINST THE UNITED STATES; FALSE REGISTRATION OF A DOMAIN NAME; AGGRAVATED IDENTITY THEFT; CONSPIRACY TO COMMIT MONEY LAUNDERING.  Posted on fbi.gov and visited June 16, 2019.  Online: >https://www.fbi.gov/wanted/cyber/russian-interference-in-2016-u-s-elections<

[9] Amy Sherman.  All of the people facing charges from Mueller’s investigation into Russian meddling.  Posted March 25, 2019 on politifact.com.  Online: >https://www.politifact.com/truth-o-meter/article/2019/mar/25/who-has-already-been-indicted-russia-investigation/See also Alex Boutilier, Craig Silverman, Jane Lytvynenko.  Canadians are being targeted by foreign influence campaigns, CSIS says.  Posted July 2, 2019 on thestar.com.  Online:  >https://www.thestar.com/politics/federal/2019/07/02/canadas-voters-being-targeted-by-foreign-influence-campaigns-spy-agency-says.html<  Canada is preparing for its fall 2019 federal elections, with some trepidation.  See infra note 96 and accompanying text (The Canadian Press: Canada’s electoral integrity).

[10] Issie Lapowski.  How Cambridge Analytica Sparked the Great Privacy Awakening.  Posted March 17, 2019 on wired.com.  Online: >https://www.wired.com/story/cambridge-analytica-facebook-privacy-awakening/See also Catharine Tunney · CBC News.  A year after Cambridge Analytica scandal, calls for a national data strategy grow.  Posted March 17, 2019 on cbc.ca.  Online: >https://www.cbc.ca/news/politics/cambridge-analytica-data-strategy-1.5054943<

[11] Id.; See also supra, note 6.

[12] Mark Zuckerberg.  Mark Zuckerberg: ‘Yes, we need regulation – but we can’t do it on our own’.  Posted March 30, 2019 on independent.ie.  Online: >https://www.independent.ie/ca/business/technology/mark-zuckerberg-yes-we-need-regulation-but-we-cant-do-it-on-our-own-37967115.html<

[13] Ibid.

[14] See e.g. notes 42, 44, and 45 and accompanying text for mentions of Mr. Zuckerberg’s unavailability.

[15] Chris Hughes.  Opinion.  The Privacy Project.  It’s Time to Break Up Facebook.  Posted May 9, 2019 on nytimes.com.  Online: >https://www.nytimes.com/2019/05/09/opinion/sunday/chris-hughes-facebook-zuckerberg.html?<

[16] Ibid.

 “Mark used to insist that Facebook was just a “social utility,” a neutral platform for people to communicate what they wished.  Now he recognizes that Facebook is both a platform and a publisher and that it is inevitably making decisions about values.  The company’s own lawyers have argued in court that Facebook is a publisher and thus entitled to First Amendment protection.”

“No one at Facebook headquarters is choosing what single news story everyone in America wakes up to, of course.  But they do decide whether it will be an article from a reputable outlet or a clip from “The Daily Show,” a photo from a friend’s wedding or an incendiary call to kill others.”

[17] Ivana Kottasová, CNN Business.  How Europe is forcing Google to change.  Posted March 20, 2019 on cnn.com.  Online: >https://www.cnn.com/2019/03/20/tech/eu-antitrust-google/index.html<

[18] Id.

[19] Reuters.  UK proposes a 2% tax on tech giants like Google, Amazon and Facebook for profits they make in the country.  Posted October 29, 2018 on cnbc.com.  Online: >https://www.cnbc.com/2018/10/29/britain-to-target-online-giants-with-new-digital-services-tax.htmlSee also The Associated Press.  French lawmakers approve 3% tax on online giants.  Posted July 4, 2019 on coastreporter.com.  Online:  >https://www.coastreporter.net/french-lawmakers-approve-3-tax-on-online-giants-1.23875825<  This online tax in France has passed the lower house or National Assembly, and awaits a vote in the nation’s upper house of legislators, the Senate.

[20] Nick Statt.  Apple agrees to pay Ireland $15.4 billion in back taxes to appease EU.  Posted December 4, 2017 on theverge.com.  Online: >https://www.theverge.com/2017/12/4/16736114/apple-ireland-european-union-order-back-taxes-agreement<

[21] Ben Fox Rubin, Marguerite Reardon.  Momentum grows to break up big tech, as Amazon, Facebook, Google and Apple face scrutiny.  Posted June 11, 2019 and updated June 14, 2019 on cnet.com.  Online: >https://www.cnet.com/news/momentum-grows-to-break-up-big-tech-as-amazon-facebook-google-and-apple-face-scrutiny/<

[22] Thibault Larger.  Italy competition watchdog opens probe into Amazon, adding to EU list.  The European Commission, the Austrian and German authorities have also been looking into the company.  Posted April 16, 2019 and updated April 17, 2019 on politico.eu.  Online: >https://www.politico.eu/article/italy-competition-watchdog-opens-probe-into-amazon-adding-to-eu-list/<

[23] IdSee also Boris Groendahl.  Amazon’s Legal Woes Grow as Austria Probes Online Giant.  Posted February 14, 2019 on bloomberg.com.  Online: >https://www.bloomberg.com/news/articles/2019-02-14/amazon-s-legal-woes-grow-in-eu-as-austria-opens-antitrust-probe<

[24] Catalin Cimpanu for Zero Day.  Contractor’s AWS S3 server leaks data from Fortune 100 companies: Ford, Netflix, TD Bank.  Posted June 28, 2019 and updated June 30, 2019 on zdnet.com.  Online: >https://www.zdnet.com/article/contractors-aws-s3-server-leaks-data-from-fortune-100-companies-ford-netflix-td-bank/See also Mark Ward Technology correspondent, BBC News.  Exposed Amazon cloud storage clients get tip-off alerts.  Posted February 20, 2018 on bbc.com.  Online: >https://www.bbc.com/news/technology-42839462See also Becky Peterson.  Forget stealing data — these hackers hijacked Amazon cloud accounts to mine bitcoin.  Posted October 8, 2017 on businessinsider.com.  Online: >https://www.businessinsider.com/hackers-broke-into-amazon-cloud-to-mine-bitcoin-2017-10<

[25] Supra note 20.

[26] Davey Winder. Contributor.  Apple Confirms iPhone FaceTime Eavesdropping Exploit — Here’s What To Do.  Posted January 29, 2019 on forbes.com.  Online: >https://www.forbes.com/sites/daveywinder/2019/01/29/apple-confirms-iphone-facetime-eavesdropping-exploit-heres-what-to-do/#77affa26745bSee contra Malcolm Owen.  ‘Celebgate’ iCloud hack perpetrator sentenced to 34 months in prison.  Posted March 1, 2019 on appleinsider.com.  Online: >https://appleinsider.com/articles/19/03/01/celebgate-icloud-hack-perpetrator-sentenced-to-34-months-in-prison<  Apple was initially blamed for this, but internal and police investigations showed that the company was not at fault.

[27] Michelle Toh, Ben Geier and Ivana Kottasová.  Global backlash spreads over Apple slowing down iPhones.  Posted February 1, 2018 on cnn.com.  Online: >https://money.cnn.com/2018/01/12/technology/apple-iphone-slow-battery-lawsuit/index.html<

[28] See Apple Inc. v. Pepper et al., No. 17-204, Slip op. (S. Ct., 2019), 587 U.S. ___ (2019), Argued November 26, 2018—Decided May 13, 2019.  Online: > https://www.supremecourt.gov/opinions/18pdf/17-204_bq7d.pdf<

[29] Tim Cook.  You Deserve Privacy Online. Here’s How You Could Actually Get It.  Visited June 17, 2019 and posted on time.com.  Online: >https://time.com/collection/davos-2019/5502591/tim-cook-data-privacy/<

[30] Ibid.

[31] Ibid.

[32] Jo Ellison.  Is Netflix’s global dominance a force for good or bad?  Posted December 27, 2018 on ft.com.  Online: >https://www.ft.com/content/13078a02-0465-11e9-99df-6183d3002ee1See also Louis Brennan.  How Netflix Expanded to 190 Countries in 7 Years.  Posted October 12, 2018 on nbr.org.  Online: >https://hbr.org/2018/10/how-netflix-expanded-to-190-countries-in-7-years<

[33] Joanna Clay.  Health. Science/Technology.  Is Netflix bad for you? How binge-watching could hurt your health.  Posted December 15, 2017 on usc.edu.  Online: >https://news.usc.edu/131981/is-netflix-bad-for-you-how-binge-watching-could-hurt-your-health-amazon-hulu-tv/<

[34] The Canadian Press.  CBC president compares Netflix influence to colonialism.  Posted and last updated January 31, 2019 on cbc.ca.  Online: >https://www.cbc.ca/news/entertainment/tait-netflix-colonialism-analogy-1.5000657<

[35] Ibid.

[36] Todd Van Luling.  HuffPost US.  Why Netflix Should Scare You More Than It Does – Facebook can influence elections, but Netflix can influence hearts and minds.  Posted October 10, 2018 on huffingtonpost.ca.  Online: >https://www.huffingtonpost.ca/entry/netflix-scared-bad_n_5bbcd832e4b01470d055d4b3<  There have also been allegations of factually inaccurate and otherwise problematic documentaries being presented as the truth or reality, when they are not quite so.

[37] Mike Wendy.  Netflix: Do as I say, not as I do.  Posted April 26, 2016 on washingtonexaminer.com.  Online: >https://www.washingtonexaminer.com/netflix-do-as-i-say-not-as-i-do<

[38] Nataly Pak, Eveline Danubrata.  In Asia, Netflix trips on regulation, content, and competition.  Posted April 21, 2016 on reuters.com.  Online: >https://www.reuters.com/article/us-netflix-asia/in-asia-netflix-trips-on-regulation-content-and-competition-idUSKCN0XJ0BZ<

[39] Andreas Wiseman.  Germany’s Largest Cinema Org Issues Netflix Warning As Streamer Encounters Growing Euro Heat.  Posted September 18, 2018 on deadline.com.  Online: >https://deadline.com/2018/09/netflix-germany-berlin-film-festival-hdf-kino-eu-1202465672/<

[40] U.K. Parliament, Select Committee on Digital, Culture, Media and Sport.  Parliamentarians from across the world to question Richard Allan of Facebook, and the Information Commissioner at inaugural hearing of ‘international grand committee’ on Disinformation and ‘fake news’.  Posted on parliament.uk on September 23, 2018.  Online:  >https://www.parliament.uk/business/committees/committees-a-z/commons-select/digital-culture-media-and-sport-committee/news/grand-committee-evidence-17-19/<  The 9 nation-state members of the International Grand Committee on Disinformation and Fake News, were Argentina, Belgium, Brazil, Canada, France, Ireland, Latvia, Singapore and members of the UK’s Digital, Culture, Media and Sport Committee.

[41] Ibid.

[42] Ibid.

[43] Jesse Hirsh.  What You Need to Know about the Grand Committee on Big Data, Privacy and Democracy.  Posted May 29, 2019 on cigionline.org.  Online: >https://www.cigionline.org/articles/what-you-need-know-about-grand-committee-big-data-privacy-and-democracy<  The 5 additional nation-states represented at this second meeting, were Ecuador, Estonia, Mexico, Morocco, and Trinidad and Tobago.

[44] Id.

[45] See generally Mike Blanchfield, The Canadian Press.  Big data committee blasts Mark Zuckerberg, Sheryl Sandberg for ignoring Parliament’s subpoena.  Posted May 28, 2019 on ctvnews.ca.  Online: >https://www.ctvnews.ca/politics/big-data-committee-blasts-mark-zuckerberg-sheryl-sandberg-for-ignoring-parliament-s-subpoena-1.4440295<

[46] Howard Solomon.  Social media giants focus of three-day parliamentary hearing in Ottawa.  Posted May 27th, 2019 on itworldcanada.com.  Online: >https://www.itworldcanada.com/article/social-media-giants-focus-of-three-day-parliamentary-hearing-in-ottawa/418387<

[47] Ibid.; See also infra, note 96, and Twitter’s censorship action in apparent subscription to and compliance with, principles 2 and 5.

[48] Press Release.  Office of Senator Mark R. Warner (Democrat, Virginia).  Senators Introduce Bipartisan Legislation to Ban Manipulative ‘Dark Patterns’.  Posted April 9, 2019 on warner.senate.gov.  Online:   >https://www.warner.senate.gov/public/index.cfm/2019/4/senators-introduce-bipartisan-legislation-to-ban-manipulative-dark-patternsSee also Press Release.  Office of Senator Deb Fischer (Republican, Nebraska).  SENATORS INTRODUCE BIPARTISAN LEGISLATION TO BAN MANIPULATIVE ‘DARK PATTERNS’.  Posted April 9, 2019 on fischer.senate.gov.  Online: >https://www.fischer.senate.gov/public/index.cfm/2019/4/senators-introduce-bipartisan-legislation-to-ban-manipulative-dark-patterns<

Senator Warner, as a Virginia Democrat, serves on the Senate Banking, Budget, Finance, and Rules Committees, as well as the Senate Select Committee on Intelligence where he is the Vice-chairman.  He was also a single-term Governor of the state of Virginia (2002-6) and an early investor and longtime executive in the company that would become Nextel Communications and then merge with Sprint Corporation, a mobile telephony provider.  He is therefore well-versed in the evolving terrain and techniques of privacy and responsible data management.  See e.g. The Office of Senator Mark R. Warner.  Biography.  Visited June 18, 2019.  Online: >https://www.warner.senate.gov/public/index.cfm/biography<

On her part, Senator Fischer, as a Nebraska Republican, serves on the Senate Agriculture Committee; the Senate Commerce, Science, and Transportation Committee, where she is chairman of the Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety and Security; and she also chairs the Senate Armed Services Subcommittee on Strategic Forces.  Senator Fischer has further served in the Nebraska legislature where she was a member of the Revenue Committee, the Natural Resources Committee and the Executive Board, and she is similarly well-versed in the in the evolving terrain and techniques of privacy and responsible data management, from having also chaired the Nebraska Legislature’s Transportation and Telecommunication Committee.  See e.g. The Office of Senator Deb Fischer.  Biography.  About Deb.  Visited June 18, 2019.  Online: >https://www.fischer.senate.gov/public/index.cfm/biography<

[49] U.S. House Committee on the Judiciary, Press Release 116th Congress.  House Judiciary Committee Launches Bipartisan Investigation into Competition in Digital Markets.  Posted June 3, 2019 on judiciary.house.gov.  Online: >https://judiciary.house.gov/news/press-releases/house-judiciary-committee-launches-bipartisan-investigation-competition-digital<

[50] Seth Fiegerman, CNN Business.  Google, Facebook and Apple could face US antitrust probes as regulators divide up tech territory.  Posted and updated June 3, 2019 on cnn.com.  Online: >https://www.cnn.com/2019/06/03/tech/facebook-google-amazon-antitrust-ftc/index.htmlSee also Anna Edgerton / Bloomberg.  House Judiciary Committee Opens Bipartisan Probe of Competition in Tech Industry.  Posted June 3, 2019 on time.com.  Online: >https://time.com/5600218/congress-bipartisan-probe-tech-industry/<

[51] Nick Statt.  Facebook confirms it will launch a cryptocurrency called Libra in 2020.  Posted June 18, 2019 on theverge.com.  Online: > https://www.theverge.com/2019/6/18/18682290/facebook-libra-cryptocurrency-visa-mastercard-digital-currency-calibra-wallet-announce<  Financial institution and financial intermediary data breaches such as the events at Desjardins (and cash or coin captures such as the events at QuadrigaCX) are not new, but they still cause widespread shockwaves when they occur, and the risk of the world seeing ever more of them is very real, indeed.  See e.g. Howard Solomon.  Huge data theft by employee at Canadian credit union.  Posted June 21, 2019 on itworldcanada.com.  Online: >https://www.itworldcanada.com/article/huge-data-theft-at-canadian-credit-union/419264See also Theron Mohamed.  Experts finally tracked down the digital wallets of the crypto CEO who died with sole access to millions. They say the money’s gone.  Posted March 6, 2019 on businessinsider.com.  Online: >https://markets.businessinsider.com/currencies/news/crypto-ceo-died-with-passwords-to-137-million-but-the-money-is-gone-2019-3-1028009684<  This is not to downplay the risk of bad acts resulting from giving insiders too much access to personal customer data, or not properly questioning and monitoring an employee’s claimed “need to know”.  See e.g. Zak Doffman.  U.S. Authorities Target Zuckerberg As Facebook ‘Buries’ Huge Instagram Password Breach.  Posted April 19, 2019 on forbes.com.  Online:  >https://www.forbes.com/sites/zakdoffman/2019/04/19/u-s-authorities-target-zuckerberg-as-instagram-security-breach-hits-millions/#5f87ea965062<  In fact, social media alone, before adding-in any cryptocurrency tagalong application, has already been identified as a prime and massive enabler of cybercrime.  See e.g. Helpnet Security.  Social media-enabled cybercrime is generating $3.25 billion a year.  Posted February 27, 2019 on helpnetsecurity.com.  Online: >https://www.helpnetsecurity.com/2019/02/27/social-media-enabled-cybercrime/<

[52] RTTNews.  Amazon Canada, TD Bank, Mastercard Unveil Amazon.ca Rewards Mastercard.  Posted June 18, 2019 on businessinsider.com.  Online: >https://markets.businessinsider.com/news/stocks/amazon-canada-td-bank-mastercard-unveil-amazon-ca-rewards-mastercard-1028286383<

[53] Kate Rooney.  Facebook’s ambitious cryptocurrency plan is met by a wall of regulatory and data concerns.  Posted and updated June 19, 2019 on cnbc.com.  Online: > https://www.cnbc.com/2019/06/19/facebooks-ambitious-cryptocurrency-plan-greeted-by-wall-of-regulatory-and-data-concerns.html<

[54] Jeffrey Toobin.  The House Judiciary Committee Considers Antitrust Law, the Tech Giants, and the Future of News. Posted June 14, 2019 on newyorker.com.  Online: >https://www.newyorker.com/news/daily-comment/the-house-judiciary-committee-considers-antitrust-law-the-tech-giants-and-the-future-of-news<

[55] Open Markets Institute.  America’s Concentration Crisis.  An Open Markets Institute Report.  Posted 2019 on openmarketsinstitute.org and visited June 16, 2019.  Online: https://concentrationcrisis.openmarketsinstitute.org/<  See e.g. Social Networking Sites. >https://concentrationcrisis.openmarketsinstitute.org/industry/social-networking-sites/<

[56] Id. at Search Engines. >https://concentrationcrisis.openmarketsinstitute.org/industry/search-engines/<

[57] Supra note 55 at E-commerce. >https://concentrationcrisis.openmarketsinstitute.org/industry/e-commerce/<

[58] Supra note 55 at Smartphone Operating Systems (Show Historical Data). >https://concentrationcrisis.openmarketsinstitute.org/industry/smartphone-operating-systems/<

[59] Supra note 55 at Smartphone Operating Systems (Show Current Data). >https://concentrationcrisis.openmarketsinstitute.org/industry/smartphone-operating-systems/<

[60] Ekundayo George.  Monopolies and Market Dominance in the “GIG” eConomy: What Might These Look Like / Are We There Yet?  Posted July 16, 2017 on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2017/07/16/monopolies-and-market-dominance-in-the-gig-e-conomy-what-might-this-look-like-are-we-there-yet/<

[61] Ekundayo George.  Monopolies and Market Dominance in the “GIG” eConomy? We are Getting There!  Posted February 19, 2018 on ogalaws.wordpress.com.  Online: >https://ogalaws.wordpress.com/2018/02/19/monopolies-and-market-dominance-in-the-gig-economy-we-are-getting-there/<

[62] Nina Godlewski.  What Company Owns Instagram?  Five Companies Owned by Facebook and How They Use Your Information.  Posted March 26, 2018 on newsweek.com.  Online: >https://www.newsweek.com/facebook-own-instagram-does-companies-apps-data-860732<

[63] mattallen1998.  The Structure of Alphabet and Google.  Posted February 11, 2019 on bcsheatechtrek.com (Boston College Carroll School of Management, Tech Trek).  Online: > https://bcsheatechtrek.com/2019/02/11/the-structure-of-alphabet-and-google/<

[64] Kevin B. Johnston.  Top 4 Companies Owned by Google.  Last updated June 3, 2019 and posted on investopedia.com.  Online: >https://www.investopedia.com/investing/companies-owned-by-google/<

[65] Nathan Reiff.  Top 7 Companies Owned By Apple.  Last updated May 16, 2019 on investopedia.com.  Online: >https://www.investopedia.com/investing/top-companies-owned-apple/<

[66] Nathan Reiff.  Top 7 Companies Owned by Amazon.  Last updated May 18, 2019 on investopedia.com.  Online: >https://www.investopedia.com/articles/markets/102115/top-10-companies-owned-amazon.asp<

[67] Chris Hughes. Opinion.  The Privacy Project.  It’s Time to Break Up Facebook.  Posted May 9, 2019 on nytimes.com.  Online: >https://www.nytimes.com/2019/05/09/opinion/sunday/chris-hughes-facebook-zuckerberg.html?<

[68] United States Senator Mark R. Warner (D-VA), Vice-Chairman, Senate Intelligence Committee, United States Senate. White Paper (DRAFT).  Potential Policy Proposals for Regulation of Social Media and Technology Companies.  Visited June 6, 2019 and posted on scribd.com.  Online: >https://www.scribd.com/document/385137394/MRW-Social-Media-Regulation-Proposals-Developed#from_embed<

[69] United States Senator Warner, Mark R. [D-VA]; United States Senator Fischer, Deb [R-NE], Co-sponsors.  S.1084 –Deceptive Experiences To Online Users Reduction Act.  Introduced April 9, 2019 in the 116th Congress, 1st Session (2019-2020).  Visited June 19, 2019 and posted on congress.gov.  Online: >https://www.congress.gov/bill/116th-congress/senate-bill/1084/text?q=%7B%22search%22%3A%5B%22congressId%3A116+AND+billStatus%3A%5C%22Introduced%5C%22%22%5D%7D&r=17&s=1<

[70] Supra note 68 at p 1.

[71] Id. at page p 3.

[72] Id. at p 4.

[73] United States Senator Mark R. Warner (D-VA), Vice-Chairman, Senate Intelligence Committee, United States Senate. White Paper (DRAFT).  Potential Policy Proposals for Regulation of Social Media and Technology Companies, at pp 6-14.  Visited June 6, 2019 and posted on scribd.com.  Online: >https://www.scribd.com/document/385137394/MRW-Social-Media-Regulation-Proposals-Developed#from_embed<

[74] Id. at pp 14-19.

[75] Id. at pp 19-23.

[76] Id. at p 17.

[77] Press Release.  Office of Senator Mark R. Warner (Democrat, Virginia).  Senators Introduce Bipartisan Legislation to Ban Manipulative ‘Dark Patterns’.  Posted April 9, 2019 on warner.senate.gov.  Online:   >https://www.warner.senate.gov/public/index.cfm/2019/4/senators-introduce-bipartisan-legislation-to-ban-manipulative-dark-patternsSee also Press Release.  Office of Senator Deb Fischer (Republican, Nebraska).  SENATORS INTRODUCE BIPARTISAN LEGISLATION TO BAN MANIPULATIVE ‘DARK PATTERNS’.  Posted April 9, 2019 on fischer.senate.gov.  Online: >https://www.fischer.senate.gov/public/index.cfm/2019/4/senators-introduce-bipartisan-legislation-to-ban-manipulative-dark-patterns<

[78] Nicole Lindsey.  New Senate Bill Targets Dark Patterns Used by Big Tech Giants.  Posted April 25, 2019 on cpomagazine.com.  Online: >https://www.cpomagazine.com/data-protection/new-senate-bill-targets-dark-patterns-used-by-big-tech-giants/<

[79] Id.

[80] United States Senator Warner, Mark R. [D-VA]; United States Senator Fischer, Deb [R-NE], Co-sponsors.  S.1084 –Deceptive Experiences To Online Users Reduction Act, at §2(3) Definitions: Compulsive Usage.  Introduced April 9, 2019 in the 116th Congress, 1st Session (2019-2020).  Visited June 19, 2019 and posted on congress.gov.  Online: >https://www.congress.gov/bill/116th-congress/senate-bill/1084/text?q=%7B%22search%22%3A%5B%22congressId%3A116+AND+billStatus%3A%5C%22Introduced%5C%22%22%5D%7D&r=17&s=1<

[81] Id. at §2(5) Definitions: Informed Consent.

[82] Id. at §3(b)(3)(A).

[83] Id. at §(3)(b).

[84] Id. at §2(6) Definitions: Large Online Operator.

[85] United States Senator Warner, Mark R. [D-VA]; United States Senator Fischer, Deb [R-NE], Co-sponsors.  S.1084 –Deceptive Experiences To Online Users Reduction Act, at §2(4) Definitions: Independent Review Board; §3(b)(4)-(5).  Introduced April 9, 2019 in the 116th Congress, 1st Session (2019-2020).  Visited June 19, 2019 and posted on congress.gov.  Online: >https://www.congress.gov/bill/116th-congress/senate-bill/1084/text?q=%7B%22search%22%3A%5B%22congressId%3A116+AND+billStatus%3A%5C%22Introduced%5C%22%22%5D%7D&r=17&s=1<

[86] Ibid.

[87] Supra note 85 at §3(c).

[88] Id. at §3(d).

[89] For a very deep dive on the meaning and usage (in Europe) of dark patterns, see e.g. The Norwegian Consumer Council (ForbrukerRådet).  DECEIVED BY DESIGN: How tech companies use dark patterns to discourage us from exercising our rights to privacy.  Posted June 27, 2018 on forbrukerradet.no.  Online: >https://fil.forbrukerradet.no/wp-content/uploads/2018/06/2018-06-27-deceived-by-design-final.pdf<

[90] Olivia Solon.  Google’s ad tracking is as creepy as Facebook’s. Here’s how to disable it.  Posted October 21, 2016 on theguardian.com.  Online: >https://www.theguardian.com/technology/2016/oct/21/how-to-disable-google-ad-tracking-gmail-youtube-browser-historySee also John Brownlee.  Evidence.  After Lawsuit Settlement, LinkedIn’s Dishonest Design Is Now A $13 Million Problem.  Posted October 5, 2015 on fastcompany.com.  Online: >https://www.fastcompany.com/3051906/after-lawsuit-settlement-linkedins-dishonest-design-is-now-a-13-million-problem<

[91] Michal Addady.  Merchants Say Amazon Is Copying Their Products.  Posted April 20, 2016 on fortune.com.  Online: >http://fortune.com/2016/04/20/amazon-copies-merchants/<

[92] Foo Yun Chee.  Business News.  Apple in Dutch antitrust spotlight for allegedly promoting own apps.  Posted April 11, 2019 on reuters.com.  Online: >https://www.reuters.com/article/us-apple-antitrust-netherlands/apple-in-dutch-antitrust-spotlight-for-allegedly-promoting-own-apps-idUSKCN1RN215See also Jack Nicas.  Google Uses Its Search Engine to Hawk Its Products.  Posted January 19, 2017 on wsj.com.  Online: >https://www.wsj.com/articles/google-uses-its-search-engine-to-hawk-its-products-1484827203See also Eugene Kim.  Amazon has been promoting its own products at the bottom of competitors’ listings.  Posted October 2, 2018 and Updated March 18, 2019 on cnbc.com.  Online: > https://www.cnbc.com/2018/10/02/amazon-is-testing-a-new-feature-that-promotes-its-private-label-brands-inside-a-competitors-product-listing.htmlSee also Steven J. Vaughan-Nichols for Linux and Open Source.  MariaDB CEO accuses large cloud vendors of strip-mining open source.  Posted February 27, 2019 on zdnet.com.  Online: >https://www.zdnet.com/article/mariadb-ceo-accuses-large-cloud-vendors-of-strip-mining-open-source/<  Quoting and paraphrasing Michael Howard, CEO of the database server open source collaboration, MariaDB.  “Howard doesn’t have much against AWS promoting its own brands. “”That’s just merchandising. They’re welcome to do that. I don’t think it’s the right thing to do.  Right. But I’m not gonna I’m not going to be really super critical of that. Like, when you go into a pharmacy, they generally have sales on their own native things.’” But, if AWS’s going out of its way to make a rival service look inferior to its own, well, Howard’s not happy about that.” [Emphasis added].

[93] Mehvish.  Snapchat features borrowed by Facebook, WhatsApp and Instagram.  Posted April 5, 2017 on theandroidsoul.com.  Online: > https://www.theandroidsoul.com/snapchat-features-borrowed-by-facebook-whatsapp-and-instagram/<

[94] Chris Hughes.  Opinion.  The Privacy Project.  It’s Time to Break Up Facebook.  Posted May 9, 2019 on nytimes.com.  Online: >https://www.nytimes.com/2019/05/09/opinion/sunday/chris-hughes-facebook-zuckerberg.html?<  Chris Hughes, the co-founder of Facebook, speaks of Facebook’s sheer dominance and a fear of its incumbency, stymying competition and investment in those startups that might one day grow to compete with it (if allowed to even exist for more than an instant, before being bought-up or otherwise curtailed); and he says that this sequence of events replicates in other dominated fields, but not in those that are free of dominance.

[95] Michael Kwet.  Opinion.  The Privacy Project.  In Stores, Secret Surveillance Tracks Your Every Move.  Posted June 14, 2019 on nytimes.com.  Online: >https://www.nytimes.com/interactive/2019/06/14/opinion/bluetooth-wireless-tracking-privacy.html<

[96] Dave Lee North America technology reporter.  Facebook may be ‘pivoting’ to something worse.  Posted July 2, 2019 on bbc.com.  Online: >https://www.bbc.com/news/technology-48835250<  This article decries the increasing prevalence of private Facebook “Groups” that are hard to monitor, harder to find, and that can feed on ever more disinformation and fake news in silos of isolation, potentially making members ever more radical and extreme.  But see contra.  The Canadian Press.  Some tech giants sign onto Canada’s declaration on electoral integrity.  Posted May 27, 2019 on timescolonist.com.  Online: > https://www.timescolonist.com/some-tech-giants-sign-onto-canada-s-declaration-on-electoral-integrity-1.23834687<  Facebook, Alphabet/Google, and Microsoft joined on a declaration to protect the integrity of this year’s (Q3/Q4 2019) pending Canadian federal elections.  See also contra Sara Carter.  Breaking: Twitter Confirms New Policy to ‘Hide Tweets’ but Claims It’s “In the Public Interest”.  Posted June 27, 2019 on saracarter.com.  Online: >https://saraacarter.com/breaking-twitter-confirms-new-policy-to-hide-tweets-but-claims-its-in-the-public-interest/See further Twitter Safety.  Defining public interest on Twitter.  Posted June 27, 2019 on twitter.com.  Online:  >https://blog.twitter.com/en_us/topics/company/2019/publicinterest.html<  Twitter also appears to have gotten the message to get serious about dealing with some of the online negativity spread by those most widely-followedInternet Influencers” of our times.  See also supra, note 47 and accompanying text (at 5 Principles).

[97] Chris Hughes. Opinion.  The Privacy Project.  It’s Time to Break Up Facebook.  Posted May 9, 2019 on nytimes.com.  Online:  >https://www.nytimes.com/2019/05/09/opinion/sunday/chris-hughes-facebook-zuckerberg.html?<  Chris Hughes, the co-founder of Facebook, speaks of how U.S. lawmakers were slow to move partly because they were in awe of Facebook and its colleagues in big tech, such as Amazon and Netflix, and partly because the American public did not see those lawmakers as “hip enough” to meet (or even understand) the modern task of technology regulation, let alone the tech. landscape.

“For too long, lawmakers have marveled at Facebook’s explosive growth and overlooked their responsibility to ensure that Americans are protected and markets are competitive. (…).  After Mark’s congressional testimony last year, there should have been calls for him to truly reckon with his mistakes. Instead the legislators who questioned him were derided as too old and out of touch to understand how tech works.  That’s the impression Mark wanted Americans to have, because it means little will change.”

In addition to the European experiences and fines regarding big U.S. tech, and despite a home nation that champions freedom of speech and is really not at all in favor of generalized censorship, India and Saudi Arabia have now acted to restrict Netflix.  See e.g. India Today Web Desk.  SC issues notice to Centre to regulate Netflix, Amazon Prime content.  Posted May 10, 2019 on indiatoday.in.  Online: >https://www.indiatoday.in/television/top-stories/story/sc-issues-notice-to-centre-to-regulate-netflix-amazon-prime-video-content-1521635-2019-05-10See also Emily Dreyfuss.  Culture.  Saudi Arabia Won’t Be the Last Country to Censor Netflix.  Posted January 3, 2019 on wired.com.  Online: >https://www.wired.com/story/saudi-arabia-netflix-censorship/<

[98] See supra, notes 48, 49, and 50 and accompanying text for some of these recent U.S. Regulator actions

[99] Chris Hughes. Opinion.  The Privacy Project.  It’s Time to Break Up Facebook.  Posted May 9, 2019 on nytimes.com.  Online:  >https://www.nytimes.com/2019/05/09/opinion/sunday/chris-hughes-facebook-zuckerberg.html?<  Chris Hughes, the co-founder of Facebook, speaks on the potential benefits of innovation for the creative public, in competition for the consuming public, and for commerce itself, if Facebook were broken-up.

[100] Joe Williams.  Trump: US should sue Google for ‘trying to rig’ the 2020 elections.  Posted June 26, 2019 on foxbusiness.com.  Online: >https://www.foxbusiness.com/technology/trump-us-should-sue-google-facebook<

[101] Elizabeth Warren.  Here’s how we can break up Big Tech.  Posted March 8, 2019 on medium.com.  Online: >https://medium.com/@teamwarren/heres-how-we-can-break-up-big-tech-9ad9e0da324c<

[102] Id.; Supra, note 100.

[103] Zak Doffman.  U.S. Authorities Target Zuckerberg As Facebook ‘Buries’ Huge Instagram Password Breach.  Posted April 19, 2019 on forbes.com.  Online: >https://www.forbes.com/sites/zakdoffman/2019/04/19/u-s-authorities-target-zuckerberg-as-instagram-security-breach-hits-millions/#5f87ea965062<  As it was revealed, Facebook had not properly revealed a breach, in the fact that its own employees had near unfettered access to (and did, serially so access), customer data, and the author cites to sources stating that “some 2,000 engineers or developers made approximately nine million internal queries for data elements that contained plain text user passwords.”  There is also no global law or remedy to control how privacy is to be managed or policed on dominant global platforms.

[104] Bill Thompson, Rhianne Jones.  BBC Research and Development.  Introducing the BBC Box.  Posted June 18, 2019 and last updated July 2, 2019 on bbc.com.  Online: >https://www.bbc.co.uk/rd/blog/2019-06-bbc-box-personal-data-privacy<

[105] Thomson Reuters.  Businesses Struggling with GDPR After One Year, Says Thomson Reuters Survey.  Posted May 22, 2019 on thomsonreuters.com.  Online:  >https://www.thomsonreuters.com/en/press-releases/2019/may/businesses-struggling-with-gdpr-after-one-year-says-thomson-reuters-survey.html<

[106] RESERVED –

I have been watching the Brexit issue for quite some time, with an initial post,[1] a follow-up,[2] and ongoing monitoring of developments and the commentary on same – both by people with and without a clue as to what they were talking about.

Now, however, as the deadline of March 29, 2019 looms, I think calling the end result, with all the twists and turns to date, is a guessing game.

I would make two guesses and say that allowing for the UK[3] to have additional negotiating time is an outside possibility, with the more likely result being a second Referendum, a change in prime minister, and the eventual demise of Brexit on what will likely be described as sober second thoughts, or the like.  Of course, this would not go down too well with the “Yes/Leaver” voters.

In my second “alternative” guess, there would be a Hard Brexit (being the least-favoured result), and Britain would muddle-on from there to negotiate and secure its own individualized and strategic trade and security partnerships.  Again, this would not go down too well with the “No/Remainer” voters.

One least likely option – far into the outside possibility zone, is for the Europeans to cave-in at the last minute and give the Brits the sweeter deal that they want.  This is quite unlikely, due to the fact that it might well encourage other E.U. members to leave, and it would doubtless cause some protests and instability in parts of Europe that remain within Europe, or that also have vocal and dedicated elements, or even persistent groups – (not unlike the French Yellow Vest protest movement),[4] who want to leave the E.U. and follow the U.K. lead, or who have other gripes.  This, however, is not one of my guesses.

I really do not see any way that a period of some instability can be avoided in the U.K., and I would hazard a guess that some highly visible and tangible security measures and “precautionary restrictions” will be put into place as the March 29, 2019 date emerges; doubtless to charges of fascism that would speed a change of prime minister.

Of course, I could be entirely wrong on both guesses, and even that “outside chance” third case.  But, there are 18 more nail-biting days of votes and twists and turns to go.  So, let’s count them down![5]

************************************************************************ 

Author:

Ekundayo George is a lawyer and sociologist.  He has also taken courses in organizational and micro-organizational behavior, and gained significant experience in regulatory compliance, litigation, and business law and counseling.  He is licensed to practise law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America.  See, for example: http://www.ogalaws.com.  A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors.  He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux. Trained in Legal Project Management (and having organized and managed several complex projects before practising law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams.  Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: healthcare; education and training; law and regulation; policy and plans; statistics, economics, and evaluations including feasibility studies; infrastructure; and information technology/information systems (IT/IS) – also sometimes termed information communications technologies (ICT).  See, for example: http://www.simprime-ca.com.

 

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

 

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred.  The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.  Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

 

[1] Ekundayo George.  Analyzing the 2016 Brexit: A Classically Complex Conundrum.  Posted June 30, 2016 on ogalaws.wordpress.com.  Web:  <https://ogalaws.wordpress.com/2016/06/30/analyzing-the-2016-brexit-a-classically-complex-conundrum/>

[2] Ekundayo George.  Analyzing the 2016 Brexit: The UK Exit Plan is Revealed, Promising a “Hybridized” End-result. January 20, 2017.   Web: <https://ogalaws.wordpress.com/2017/01/20/analyzing-the-2016-brexit-the-uk-exit-plan-is-revealed-promising-a-hybridized-end-result/>

[3] Britain and the U.K. are used interchangeably, here.

[4] France 24 Press.  French Yellow Vest protesters hold 17th weekend of marches.  Posted March 9, 2019 on france24.com.  <https://www.france24.com/en/20190309-Yellow-Vests-find-new-ways-protest-Act-17>

[5] Ekundayo George.  Brexit – What happens after that December 12, 2019 UK Election?  Posted November 22, 2019, on ogalaws.wordpress.com.  Web: <https://ogalaws.wordpress.com/2019/11/21/brexit-what-happens-after-that-december-12-2019-uk-election/>

REVIEW –

In mid-July of last year (A.D. 2017), I wrote a piece on monopolies and market dominance in the Gig eConomy, and concluded that there wasn’t any “traditional” comparability between the old and new economies, but through a hybridized analysis I did concede that monopoly and market dominance were possible, and could be easily seen when they appeared or threatened to appear.[1]  I will now go out on a limb and state that I think one particular entity may well be approaching that line …. Amazon!

 

SCHEMA –

With specific focus on the FAAAN group of Facebook, Amazon, Alphabet/Google, Apple, and Netflix,[2] I had looked at the standard market sectors and Monopoly / Antitrust analytical frameworks and mixed the old with the new to devise a total of 5 (“five”) hybrid sectors that covered everything from farming, through manufacturing and eCommerce, to such gig economy staples as food delivery, ride-hailing, and cloud services.  These 5 sectors (with each one also having several sub-sectors), were as follows:

(1)          General Goods and Services Sector;

(2)          Specialized Goods and Services Sector;

(3)          Digital Tools, Applications, and Services Sector;

(4)          Social infotainment Sector;

(5)          Gig eConomy Sector.[3]

Next, selecting the Specialized Goods and Services Sector, I had included 8 (“eight”) sub-sectors as follows:

(i)  Conglomerates;

(ii)  Financial Services;

(iii)  Food;

(iv)  Health and Wellness;

(v)  Information Communications Technologies;

(vi)  Information Data Technologies;

(vii)  Personal Services;

(viii)  Shelter.[4]

 

ANALYSIS –

Amazon is already a conglomerate, offering Information Communications Technologies (Amazon Web Services); Information and Data Technologies (such as Amazon Echo); other Services (order fulfillment for food and beverages through Fresh and Amazon Restaurants, and for consumer products and general goods through the Amazon.com marketplace); and operating in technology, industry, and manufacturing through the many Amazon and non-Amazon branded products that it owns and regarding which it conducts research and development as through Annapurna Labs for example, or that it otherwise makes available through AmazonBasics and Amazon Private Label),[5] amongst others.[6]

One could always have suspected, but not predicted as to when, that Amazon would expand into other areas.  However, within less than 8 (“eight”) months to date, we have heard or seen Amazon’s expansion announcements: further into Transportation, with its own fleet of trucks, planes, and drones destined to pickup and deliver parcels and other goods for both itself and other vendors through Shipping with Amazon (SWA);[7] further into Food, with its purchase of the organic grocer, Whole Foods Market;[8] and initially into Health and Wellness, with its announcement to partner with Berkshire Hathaway and JPMorgan Chase in establishing a healthcare entity to “create solutions that benefit our U.S. employees, their families and, potentially, all Americans.”[9]

It being the case that transportation was already a line item (“Leisure, Property, and Transportation”) within Conglomerates,[10] and because there is no standalone category for it, Amazon gets a pass on that “existing service, line-item”.  However, the Whole Foods Market purchase and the healthcare initiative represent new, “standalone divisions” under the schema, and therefore expansions into further sub-sectors under General Goods and Services, as shown.

When one considers the existing ownership by Mr. Bezos of the Washington Post newspaper,[11] under Information Communications Technologies (publishing and printed media), the presence of Amazon Echo within Personal services (virtual assistants), and Amazon Web Services, itself (Information and Data Technologies), we can more clearly see that Amazon and its Chief Executive are now substantially present in 6 (“six”) of the 8 (“eight”) subsectors for Specialized Goods and Services.

Those substantially untouched subsectors, are: (ii) Financial Services; and (viii) Shelter.

If Amazon were to delve further into (or grow its volume or revenue substantially in) banking than its payment services and debit cards (Amazon Cash), or its small business loans that surpassed $3 billion in 2017;[12] or if it bought an established “brick and mortar” or “online” financial services entity outright in the United States or Canada;[13] or if it leveraged block chain technology to form a standalone financial services entity – whether by itself or with one or more partners and regardless of whether it was in the United States or Canada,[14] it would have become firmly and undeniably entrenched in that financial services sector.

Also, if Amazon were, for example, to purchase a major builder or cruise and travel operator, a major hotelier or landlord, or a major building services and maintenance provider,[15] it would have become firmly and undeniably entrenched in that shelter subsector.

Hence, we would see complete sector presence, “sector octo-occupation”, or “sector octopedence”, and the potential for a monopoly – or at the very least a modern Chaebol,[16] Keiretsu,[17] or perhaps even something more.[18]

 

SUMMARY –

As I had said in the July, 2017 article:

“It is only if, and when, well-funded market operators start to occupy whole sectors (in the new schema laid out here) … that we should start to worry about abuse of dominant positions, monopolies, and over-concentration in the control of personal data”.[19]

Some readers may ask how mere presence in a subsector can equate to monopoly or lead to a dominant market position and its abuse?  The answer is that the whole is greater than the sum of its parts, and when a small, mid-size, or large entity is supported by a parent company’s constantly renewable cash hoard, raw analytical and computing power, intimate knowledge of consumer tastes and purchase  histories, ancillary and mutually supporting businesses, and a first mover advantage in synergizing all of these, you may have a monopoly right from the gate if others cannot compete with their pricing and service terms, enter the market with a fighting chance, or nimbly adapt and persist once it moves to match or better them at what they do, and what they did, and how.

 

PREDICTION –

Admittedly, as one notable commentator has said, traditional economic analysis will still find no monopoly or antitrust red flags, or market dominance in the FAAAN entities, as yet,[20] and some readers may disagree with my analysis and conclusions.   But, let’s watch this space and see whether or not Amazon and its CEO make decisive and deeper moves into either or both of “Finance” and “Shelter” as outlined above, and sometime within the next 4-6 months, or at least before the close of calendar 2018.

I really think and predict, that we will see such a decisive move or moves from Mr. Bezos and Amazon.  But, only time will tell, for certain.[21]

**********************************************************************

Author:

Ekundayo George is a lawyer and sociologist.  He has also taken courses in organizational and micro-organizational behavior, and gained significant experience in regulatory compliance, litigation, and business law and counseling.  He has been licensed to practise law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America.  See, for example: http://www.ogalaws.com.  A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors.  He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

Trained in Legal Project Management (and having organized and managed several complex projects before practising law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams.  Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: healthcare; education and training; law and regulation; policy and plans; statistics, economics, and evaluations including feasibility studies and business cases; infrastructure; and information technology/information systems (IT/IS) – also sometimes termed information communications technologies (ICT).  See, for example: http://www.simprime-ca.com.

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred.  The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.  Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

**********************************************************************

[1] Ekundayo George.  Monopolies and Market Dominance in the “GIG” eConomy: What Might These Look Like / Are We There Yet?  Posted July 16, 2017 on ogalaws.wordpress.com.  Online: >https://ogalaws.wordpress.com/2017/07/16/monopolies-and-market-dominance-in-the-gig-e-conomy-what-might-this-look-like-are-we-there-yet/<

[2] Id, at Introduction.

[3] Id, at Sectors (Specialized Goods and Services Sector).

[4] Id, at Specialized Goods and Services Sector (Subsectors).

[5] Ibid.  Under this schema, Amazon has therefore occupied all 5 of the conglomerate sub-elements or variants.  See e.g. Shareen Pathak.  In 2018, Amazon will turn to private label goods.  Posted December 29, 2017 on digiday.com.  Online: >https://digiday.com/marketing/2018-brand-amazon-will-turn-private-label/< See also Leon Doitscher.  Why Amazon Paid $350 Million for Annapurna Labs.  Posted January 26, 2015 on medium.com.  Online: >https://medium.com/chasing-buzzwords/why-amazon-paid-350-million-for-annapurna-labs-9026527d3fb9<

[6] Tara Johnson.  The Complete List of Amazon’s Private Label Brands.  Posted July 5, 2017 on cpcstrategy.com.  Online: >http://www.cpcstrategy.com/blog/2017/07/amazons-private-label-brands/<

[7] Jack Roberts.  Amazon Moves to Launch Its Own Delivery Fleet.  Posted February 12, 2018 on truckinginfo.com.  Online: >http://www.truckinginfo.com/channel/fleet-management/news/story/2018/02/reports-amazon-moves-to-launch-its-own-p-d-fleet.aspx<

[8] Sarah Butler and Zoe Wood.  Amazon to buy Whole Foods Market in $13.7bn deal.  Posted June 16, 2017 on theguardian.com.  Online: >https://www.theguardian.com/business/2017/jun/16/amazon-buy-whole-foods-market-organic-food-fresh<

[9] Tom Murphy – The Associated Press.  Amazon to create new health-care company with Berkshire Hathaway, JPMorgan.  Posted January 30, 2018 on thestar.com.  Online: >https://www.thestar.com/business/2018/01/30/amazon-to-create-new-health-care-company-with-berkshire-hathaway-jpmorgan.html< This quotation in the article headline was attributed to Jamie Dimon, the Chairman and CEO of JP Morgan Chase.  Also according to the article, these three companies have a combined U.S. workforce of approximately 1 million, and the U.S. employer-sponsored healthcare market covers some 167 million employees.

[10] Ekundayo George.  Monopolies and Market Dominance in the “GIG” eConomy: What Might These Look Like / Are We There Yet?  Posted July 16, 2017 on ogalaws.wordpress.com.  Online: >https://ogalaws.wordpress.com/2017/07/16/monopolies-and-market-dominance-in-the-gig-e-conomy-what-might-this-look-like-are-we-there-yet/<

[11] Monica Nickelsburg.  Washington Post profitable and growing for two years under Jeff Bezos’ ownership.  Posted January 9, 2018 on geekwire.com.  Online: >https://www.geekwire.com/2018/washington-post-profitable-growing-two-years-jeff-bezos-ownership/<

[12] By Jeffry Pilcher.  Amazon Bank: Will Banking’s Worst Nightmare Come True in 2018?  Posted January 2, 2018 on thefinancialbrand.com.  Online: https://thefinancialbrand.com/69436/amazon-bank/<

[13] Ibid.

[14] See generally World Economic Forum.  Beyond Fintech: A Pragmatic Assessment Of Disruptive Potential In Financial Services.  Published August 22, 2017 on weforum.org.  Online: >https://www.weforum.org/reports/beyond-fintech-a-pragmatic-assessment-of-disruptive-potential-in-financial-services<

[15] Amazon Hub, is actually a locker system that Amazon pays landlords to host with a one-time fee, as a means of facilitating and further securing its package deliveries to customers.  Should the payments be reversed and become an “As a Service” offering or otherwise require some periodic fee to Amazon, then yes, Amazon will become the landlord for that limited purpose.  See generally Laura Kusisto.  Amazon and Big Apartment Landlords Strike Deals on Package Delivery.  Posted October 17, 2017 on foxbusiness.com.  Online: >http://www.foxbusiness.com/features/2017/10/17/amazon-and-big-apartment-landlords-strike-deals-on-package-delivery-update.html<

[16] Wikipedia.  Chaebol.  Posted on Wikipedia.com.  Online: >https://en.wikipedia.org/wiki/Chaebol<

[17] Wikipedia.  Keiretsu.  Posted on Wikipedia.com.  Online: >https://en.wikipedia.org/wiki/Keiretsu<

[18] I am toying with the words “NeoRetsu” (new age Keiretsu), or “IchiBol”, because “ichi” means “number one”, in Japanese, and IchiBol just so happens to combine both the Korean and Japanese languages, and both business concepts: the Chaebol as a family-owned business with centralized management by family members, and the Keiretsu as a family of businesses with professional managers, centred on a core bank (or a money machine).

[19] Ekundayo George.  Monopolies and Market Dominance in the “GIG” eConomy: What Might These Look Like / Are We There Yet?  Posted July 16, 2017 on ogalaws.wordpress.com at “Summary”  Online: >https://ogalaws.wordpress.com/2017/07/16/monopolies-and-market-dominance-in-the-gig-e-conomy-what-might-this-look-like-are-we-there-yet/<  at Summary.

[20] Greg Ip.  The Antitrust Case Against Facebook, Google and Amazon.  Posted January 16, 2018 on wsj.com.  Online: >https://www.wsj.com/articles/the-antitrust-case-against-facebook-google-amazon-and-apple-1516121561<

[21] Ekundayo George.  Monopolies and Market Dominance in the “GIG” eConomy: Regulatory Rumblings Rattle the Ranks.  Posted July 7, 2019 on ogalaws.wordpress.com.  Online: >https://ogalaws.wordpress.com/2019/07/07/monopolies-and-market-dominance-in-the-gig-economy-regulatory-rumblings-rattle-the-ranks/<

BACKGROUND:

 

SPEECH –

An example of “public speech”, in this context, would be an open and notorious change to one’s LinkedIn profile, such as adding a project, an interest, or a competency and skill; and then positively choosing to publicize these profile changes to one’s network.

 

WHISPER –

An example of a “public whisper”, in this context, would be changing one’s skills or communication preferences to show openness to career opportunities, thereby letting recruiters know that one might be interested in opportunities; willingly sharing one’s LinkedIn profile with potential recruiters; or making a public speech as above, but then “specifically” choosing to not announce this profile change to one’s network or to members of the general public.

 

LINKEDIN

LinkedIn    (“LinkedIn”) is a very widely-used networking site that allows users to choose between making such public speech and public whispers, in their settings preferences.

 

hiQ

hiQ Labs, Inc. (“hiQ”), is a data analytics entity that has developed and deployed automated “bots” that can access public speech and that last definitional element of a public whisper[1] (hushed or stealthy profile changes) on LinkedIn in a Skill Mapper, allegedly not always in accordance with LinkedIn user-selected visibility preferences,[2] and then further share, publicize or sell the results whether in the raw or aggregated formats to its own customer base of interested employers and parties and persons attempting to contact such job-seeking, job-interested, and passively job interested LinkedIn users.

 

“Companies like LinkedIn, Twitter and Facebook view scraping of the data generated by their users not just as theft – they sometimes charge to license data (to higher level business users) – but a violation of their users’ privacy, because some information can be limited so not all users can view it”[3] [additional words in parentheses].

 

Understandably, LinkedIn, “which charges recruiters, salespeople and job hunters for higher levels of access to profile data”,[4] issued a 3-page cease-and-desist letter to hiQ on May 23, 2017,[5] advising the recipient that it was in violation of the LinkedIn user agreement with those behaviours, notifying  the recipient that additional security precautions had been implemented to prevent any recurrence, demanding that the recipient delete and destroy all such “improperly obtained material” in its possession or custody or control, and putting the recipient on notice that any further such behaviour would be in violation of applicable state and federal laws, with citation to a leading 2015 case in that jurisdiction of the United States federal District Court for the Northern District of California (USDC, NDCA), in which the court had barred similar “website data scraping” conduct.[6]

 

hiQ promptly filed for a Temporary Restraining Order (TRO) in California federal court (USDC, NDCA),[7] to bar any actual application of that cease-and-desist language pending ultimate determination of the underlying matters in a court of competent jurisdiction.  And so it was, that on Monday, August 14, 2017, the court granted hiQ its TRO.[8]

 

 

ANALYSIS:

 

CRAIGSLIST

In the case that LinkedIn cited within its cease-and-desist letter to hiQ, Craigslist, Inc., had filed a Complaint against the defendant, but the defendant had not timely answered.  As a result, Craigslist then applied for and was granted, a Default Judgement.[9]  According to the ruling, a certain Brian Niessen, a Craigslist user, had answered a Craigslist advertisement posted by another Craigslist user, for a “Skilled Hacker at Scraping Web Content”.[10]  Niessen had described himself as a hacker, and professed that he was already scraping several thousand websites, including “[c]raigslist, Twitter, Groupon, Zagat, and others.”[11]  3taps then entered into a business relationship with Niessen to continue his scraping, for them, which Craigslist stated was in violation of its terms of use (TOU) and constituted a breach of contract because Niessen, as a registered Craigslist user, had agreed to the TOU on several occasions.[12]

 

“The TOU prohibit, among other things, “[a]ny copying, aggregation, display, distribution, performance or derivative use of craigslist or any content posted on craigslist whether done directly or through intermediaries, […]”[13]

 

Craigslist did secure injunctions against the Niessen co-defendants, including Lovely, PadMapper, and 3taps.[14]  However, Niessen – named along with those co-defendants in the Amended Complaint with its 17 Claims for Relief,[15] was somewhat more elusive; as he was first difficult to effectively serve with the Complaint, and then after being served, he failed to provide an answer within the specified time.[16]  As a result, the Clerk of Court first entered a Notice of Default against Niessen, and then Craigslist made Motion for a Default Judgement against Niessen, which the court granted.[17]

 

 

LINKEDIN –

LinkedIn had sought a response by May 31, 2017 to its cease-and-desist letter of May 23, 2017.[18]  However, hiQ filed its Complaint for Declaratory and Injunctive relief against LinkedIn on June 7, 2017.[19]  In summary, with the first paragraph of the Introduction for same, hiQ writes:

 

“This is an action for declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 2201 and 2202, and for injunctive relief under California law.  hiQ seeks a declaration from the Court that hiQ has not violated and will not violate federal or state law by accessing and copying wholly public information from LinkedIn’s website.  hiQ further seeks injunctive relief preventing LinkedIn from misusing the law to destroy hiQ’s business, and give itself a competitive advantage through unlawful and unfair business practices and suppression of California Constitutional free speech fair guarantees.  hiQ also seeks damages to the extent applicable.”[20]

 

hiQ did promptly and appropriately seek and retain counsel to engage in discussions with LinkedIn upon receipt of the cease-and-desist letter, in order to better understand LinkedIn’s position and seek an accommodative solution to their serious differences.[21]  LinkedIn argued through counsel that it was protecting the interests of its users and seeking to remedy violations of state and federal laws; and hiQ argued through counsel that not only did LinkedIn lack any proprietary interests in the posted data, which was still owned by its users, but that LinkedIn was therefore attempting to “pervert the purpose of the laws at issue by using them to destroy putative competitors, engage in unlawful and unfair business practices and suppress the free speech rights of California citizens and businesses.”[22]

 

On May 30, 2017, hiQ then sent its own letter to LinkedIn seeking the ongoing interim website access that would allow it to persist as a going concern – because “complying with LinkedIn’s demands would essentially destroy hiQ’s business”,[23] while continuing discussions towards “a mutually amicable resolution” of their impasse.  However, on receiving no response, hiQ filed its Complaint for declaratory and injunctive relief.[24]

 

 

HIQ –

The parties entered into a standstill agreement that preserved hiQ’s access to the public LinkedIn data, and agreed to convert hiQ’s original motion into one for a preliminary injunction, after the court had heard the initial party arguments on the hiQ complaint on July 27, 2017.[25]  In California federal District Court, “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.[26]  Within the United States Court of Appeals for the Ninth Circuit, which lays-down controlling precedent for United States Federal District Courts in California and several other states and territories,[27] there is a sliding scale for the standard of proof on these elements; which means “a stronger showing of one element may offset a weaker showing of another.”[28]

 

The court also grappled, inter alia, with the language of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030,[29] which prohibits and sanctions unauthorized (whether lacking authorization ab initio or with authorization later revoked), or improperly elevated or improperly applied access to a computer or computer system, because although the LinkedIn profiles were public, they rested on one or more private servers, which were computers.[30]  However, as the court finally opined, “[…] hiQ has, at the very least, raised serious questions as to applicability of the CFAA to its conduct.[31]

 

“The CFAA must be interpreted in its historical context, mindful of Congress’ purpose. The CFAA was not intended to police traffic to publicly available websites on the Internet – the Internet did not exist in 1984. The CFAA was intended instead to deal with “hacking” or “trespass” onto private, often password-protected mainframe computers.”[32]

 

With regard to hiQ‘s claims that the LinkedIn conduct had violated applicable California free speech laws, the court was more circumspect.  hiQ had cited to Robins v. Pruneyard Shopping Ctr.,[33] a case involving attempts to curtail political speech in a privately-owned shopping mall, to analogize that the LinkedIn site was a public forum akin to a shopping mall with guaranteed free access, free speech, and free association, because “[…] the state’s guarantee of free expression may take precedence over the rights of private property owners to exclude people from their property.”[34]

 

The court was very loathe to start traveling down this most slippery of slopes, stating that: no court had, as yet, extended Pruneyard to the internet in so complete a manner; unlike a shopping mall, the Internet had no single controlling authority; there may result significant repercussions on the capacity of social media hosts to curate posted materials in such a public forum; and there was a lingering question as to whether the same rules would apply to the websites of small, medium, and large entities, alike.[35]  The court therefore concluded, that “[i]n light of the potentially sweeping implications discussed above and the lack of any more direct authority, the Court cannot conclude that hiQ has at this juncture raised “serious questions” that LinkedIn’s conduct violates its constitutional rights under the California Constitution.[36]

 

On the balance, the court agreed that hiQ had raised enough of a question as to whether LinkedIn’s actions against it had violated the provisions of California’s Unfair Competition Law (UCL)[37] by “leveraging its power in the professional networking market for an anticompetitive purpose”;[38] disagreed that hiQ had either claimed to be a third-party beneficiary of LinkedIn’s promise to its users that they could control the publicity of their profiles, or shown that a third-party could assert such a claim of promissory estoppel in the first instance;[39] and agreed that the public interest favoured a granting of hiQ’s injunction, because “[i]t is likely that those who opt for the public view setting expect their public profile will be subject to searches, date (sic) mining, aggregation, and analysis.”[40]

 

 

CONCLUSION:

 

Of note, regarding all of its claims and especially the estoppel claim, hiQ had also argued that LinkedIn had long acquiesced to its usage of the website and publicly available user data in this way; including attending hiQ conferences where the host thoroughly explained its methodology and business model, and even gave at least one LinkedIn employee an award.[41]  Indeed, some industry commentators have opined that LinkedIn has merely had a change in policy subsequent to its acquisition by Facebook which the courts should not enjoin, and they foresee several other negative repercussions from the outcome of this case if hiQ prevails, and they expect LinkedIn to appeal the District Court ruling.[42]  However, there are also several strong voices supporting hiQ that see negative repercussions if LinkedIn prevails.[43]

 

Suffice it so say that for now, LinkedIn has been Ordered to withdraw its cease and desist letters to hiQ, and stop blocking hiQ, both with immediate effect from the August 14, 2017 date of the Order of Edward M. Chen, United States District Judge.[44]

 

We await LinkedIn’s appeal,[45] if any, but in the interim …… all who so do, are advised to publicly shout, and to publicly whisper, with caution, because they never know who might be cataloguing their words – and where those words that they own might land; (or more specifically, land the originator of those very words) in this Gig e-conomy[46] that exemplifies the gentle admonition that “sharing is daring!

 

 

*********************************************************************

 

Author:

Ekundayo George is a lawyer and sociologist.  He is a keen student of organizational and micro-organizational behavior and has gained significant experience in regulatory compliance, litigation, and business law and counseling.  He has been licensed to practise law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America.  See, for example: http://www.ogalaws.com.  A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services and Public Finance, Public Procurement, Healthcare and Public Pensions, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors.

 

Of note, Mr. George has now worked at the municipal government, provincial government, and federal government levels in Canada, as well as at the municipal government, state government, and federal government levels in the United States.  He is also a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and enjoys complex systems analysis in legal, technological, and societal milieux.

 

Trained in Legal Project Management (and having organized and managed several complex projects before practising law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams.  Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: healthcare; education and training; law and regulation; policy and plans; statistics, economics, and evaluations including feasibility studies and business cases; infrastructure; and information technology/information systems (IT/IS) – also sometimes termed information communications technologies (ICT).  See, for example: http://www.simprime-ca.com.

 

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

 

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred.  The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.  Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

 

 

[1] See Infra note 7 at Introduction, ¶2.  hiQ does specifically state in its Complaint, that: “hiQ does not analyze the private sections of LinkedIn, such as profile information that is only visible when you are signed-in as a member, or member private data that is visible only when you are “connected” to a member. Rather, the information that is at issue here is wholly public information visible to anyone with an internet connection.”  But See HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-EMC (N.D. Cal. August 14, 2017).  Order Granting Plaintiff’s Motion for Preliminary Injunction, issued by Edward M. Chen, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA), at 6.  Web: <https://assets.documentcloud.org/documents/3932131/2017-0814-Hiq-Order.pdf>…

“LinkedIn maintains that […] while the information that hiQ seeks to collect is publicly viewable, the posting of changes to a profile may raise the risk that a current employee may be rated as having a higher risk of flight under Keeper even though the employee chose the Do Not Broadcast setting. hiQ could also make data from users available even after those users have removed it from their profiles or deleted their profiles altogether. LinkedIn argues that both it and its users therefore face substantial harm absent an injunction; if hiQ is able to continue its data collection unabated, LinkedIn members’ privacy may be compromised, and the company will suffer a corresponding loss of consumer trust and confidence” [emphasis added].

[2] Id. at Introduction, ¶5.  On this point, hiQ writes to specify LinkedIn’s 5 levels of profile visibility preference, and emphasize its own limited access to and use of same:

“LinkedIn members can choose to (1) keep their profile information private; (2) share only with their direct connections; (3) share with connections within three degrees of separation; (4) allow access only to other signed-in LinkedIn members, or (5) allow access to everyone, even members of the general public who may have no LinkedIn account and who can access the information without signing in or using any password. It is only this fifth category of information – wholly public profiles – that is at issue here: hiQ only accesses the profiles that LinkedIn members have made available to the general public.”

[3] Thomas Lee.  LinkedIn, HiQ Spat Presents Big Questions for Freedom, Innovation.  Published July 8, 2017 on sfchronicle.com.  Web: <http://www.sfchronicle.com/business/article/LinkedIn-HiQ-spat-presents-big-questions-for-11274133.php#comments>

[4] Ibid.

[5] LinkedIn Corporation.  RE: Demand to Immediately Cease and Desist Unauthorized Data Scraping and other Violations of LinkedIn’s User Agreement.  Letter dated May 23, 2017.  Web: <https://static.reuters.com/resources/media/editorial/20170620/hiqvlinkedin–ceaseanddesist.pdf>

[6] Craigslist, Inc v. 3Taps, Inc et al, 12-cv-03816-CRB (N.D. Cal. October 9, 2015).  ORDER Granting Application for Default Judgment, issued by Charles R. Breyer, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA).  Web: <http://law.justia.com/cases/federal/district-courts/california/candce/3:2012cv03816/257395/280/>

[7] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-LB (N.D. Cal. June 7, 2017).  COMPLAINT FOR DECLARATORY JUDGMENT UNDER 22 U.S.C. § 2201 THAT PLAINTIFF HAS NOT VIOLATED: (1) THE COMPUTER FRAUD AND ABUSE ACT (18 U.S.C. § 1030); (2) THE DIGITAL MILLENNIUM COPYRIGHT ACT (17 U.S.C. §1201);(3) COMMON LAW TRESPASS TO CHATTELS; OR (4) CAL. PENAL CODE § 502(c); INJUNCTIVE RELIEF TO ENJOIN: (1) INTENTIONAL INTERFERENCE WITH CONTRACT AND PROSPECTIVE ECONOMIC ADVANTAGE; (2) UNFAIR COMPETITION (CAL. BUS. & PROF. CODE § 17200); (3) PROMISSORY ESTOPPEL; AND (4) VIOLATION OF CALIFORNIA FREE SPEECH LAW; AND RELATED MONETARY RELIEF. Filed 2017, in the United States District Court for the Northern District of California (USDC, NDCA).  Web: <https://www.unitedstatescourts.org/federal/cand/312704/1-0.html>

[8] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-EMC (N.D. Cal. August 14, 2017).  Order Granting Plaintiff’s Motion for Preliminary Injunction, issued by Edward M. Chen, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA).  Web: <https://assets.documentcloud.org/documents/3932131/2017-0814-Hiq-Order.pdf>

[9] Craigslist, Inc v. 3Taps, Inc et al, 12-cv-03816-CRB (N.D. Cal. October 9, 2015).  ORDER Granting Application for Default Judgment, issued by Charles R. Breyer, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA).  Web: <http://law.justia.com/cases/federal/district-courts/california/candce/3:2012cv03816/257395/280/>

[10] Id. at 2.

[11] Ibid.

[12] Id. at 3.

[13] Id. at 2.

[14] Craigslist, Inc v. 3Taps, Inc et al, 12-cv-03816-CRB (N.D. Cal. October 9, 2015).  ORDER Granting Application for Default Judgment, issued by Charles R. Breyer, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA), at 3.  Web: <http://law.justia.com/cases/federal/district-courts/california/candce/3:2012cv03816/257395/280/>

[15] Craigslist, Inc v. 3Taps, Inc et al, 12-cv-03816-CRB (N.D. Cal. November 20, 2012).  First Amended Complaint.

Web: <http://www.3taps.com/images/pics/430_Amended Compalint .pdf>

[16] Supra note 14 at 3.

[17] Ibid.

[18] LinkedIn Corporation.  RE: Demand to Immediately Cease and Desist Unauthorized Data Scraping and other Violations of LinkedIn’s User Agreement.  Letter dated May 23, 2017.  Web: <https://static.reuters.com/resources/media/editorial/20170620/hiqvlinkedin–ceaseanddesist.pdf>

[19] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-LB (N.D. Cal. June 7, 2017). COMPLAINT FOR DECLARATORY JUDGMENT UNDER 22 U.S.C. § 2201 THAT PLAINTIFF HAS NOT VIOLATED: (1) THE COMPUTER FRAUD AND ABUSE ACT (18 U.S.C. § 1030); (2) THE DIGITAL MILLENNIUM COPYRIGHT ACT (17 U.S.C. §1201);(3) COMMON LAW TRESPASS TO CHATTELS; OR (4) CAL. PENAL CODE § 502(c); INJUNCTIVE RELIEF TO ENJOIN: (1) INTENTIONAL INTERFERENCE WITH CONTRACT AND PROSPECTIVE ECONOMIC ADVANTAGE; (2) UNFAIR COMPETITION (CAL. BUS. & PROF. CODE § 17200); (3) PROMISSORY ESTOPPEL; AND (4) VIOLATION OF CALIFORNIA FREE SPEECH LAW; AND RELATED MONETARY RELIEF.  Filed 2017, in the United States District Court for the Northern District of California (USDC, NDCA).  Web: <https://www.unitedstatescourts.org/federal/cand/312704/1-0.html>

[20] Id. at Introduction, ¶1.

[21] Id. at ¶¶27-8.

[22] Id. at ¶28.

[23] Id. at ¶¶34, 38, 46.

[24] Id. at ¶29.

[25] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-EMC (N.D. Cal. August 14, 2017).  Order Granting Plaintiff’s Motion for Preliminary Injunction, issued by Edward M. Chen, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA), at 3.  Web: <https://assets.documentcloud.org/documents/3932131/2017-0814-Hiq-Order.pdf>…

[26] Id. at 4.

[27] The United States Court of Appeals for the Ninth Circuit covers Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington state.  See generally Geographical Boundaries of United States Courts of Appeals and United States District Courts.  Online: <https://www.supremecourt.gov/about/Circuit Map.pdf>

[28] Supra note 25 at 4.

[29] Congress of the United States, United States Code18 USC 1030: Fraud and related activity in connection with computers.  Title 18: Crimes and Criminal Procedure; Part I: Crimes; Chapter 47: Fraud and False Statements. Web: <uscode.house.gov/browse/prelim@title18/part1/chapter47&edition=prelim>

[30] Supra note 25 at 10.

[31] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-EMC (N.D. Cal. August 14, 2017).  Order Granting Plaintiff’s Motion for Preliminary Injunction, issued by Edward M. Chen, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA), at 16.  Web: <https://assets.documentcloud.org/documents/3932131/2017-0814-Hiq-Order.pdf>

[32] Id. at 10.

[33] See Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899, 905 (1979).

[34] Supra note 31 at 18

[35] Id. at 19.

[36] Id. at 20-21.

[37] See Unfair Competition Law (UCL), Cal. Bus. & Prof. Code §17200 et seq.

[38] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-EMC (N.D. Cal. August 14, 2017).  Order Granting Plaintiff’s Motion for Preliminary Injunction, issued by Edward M. Chen, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA), at 21.  Web: <https://assets.documentcloud.org/documents/3932131/2017-0814-Hiq-Order.pdf>

[39] Id. at 23.

[40] Id. at 24.

[41] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-LB (N.D. Cal. June 7, 2017). COMPLAINT FOR DECLARATORY JUDGMENT UNDER 22 U.S.C. § 2201 THAT PLAINTIFF HAS NOT VIOLATED: (1) THE COMPUTER FRAUD AND ABUSE ACT (18 U.S.C. § 1030); (2) THE DIGITAL MILLENNIUM COPYRIGHT ACT (17 U.S.C. §1201);(3) COMMON LAW TRESPASS TO CHATTELS; OR (4) CAL. PENAL CODE § 502(c); INJUNCTIVE RELIEF TO ENJOIN: (1) INTENTIONAL INTERFERENCE WITH CONTRACT AND PROSPECTIVE ECONOMIC ADVANTAGE; (2) UNFAIR COMPETITION (CAL. BUS. & PROF. CODE § 17200); (3) PROMISSORY ESTOPPEL; AND (4) VIOLATION OF CALIFORNIA FREE SPEECH LAW; AND RELATED MONETARY RELIEF. Filed 2017, in the United States District Court for the Northern District of California (USDC, NDCA), at ¶7.  Web: <https://www.unitedstatescourts.org/federal/cand/312704/1-0.html>

[42] See generally Tristan Greene.  The future of your data could rest in the outcome of LinkedIn vs HiQ case.  Posted August 24, 2017 on thenextweb.com.  Web: <https://thenextweb.com/insider/2017/08/24/hiq-is-the-david-to-linkedins-goliath-in-legal-battle-over-user-data/#.tnw_Q1Tn05Hv>…

[43] Id.

[44] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-EMC (N.D. Cal. August 14, 2017).  Order Granting Plaintiff’s Motion for Preliminary Injunction, issued by Edward M. Chen, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA), at 21.  Web: <https://assets.documentcloud.org/documents/3932131/2017-0814-Hiq-Order.pdf>

[45]  – Reserved

[46] For a general overview of the Gig e-conomy and its monopoly potential, see e.g. Ekundayo George.  Monopolies and Market Dominance in the “GIG” e-conomy: What Might These Look Like / Are We There Yet?  Published July 16, 2017 on ogalaws.wordpress.com.  Web: <https://ogalaws.wordpress.com/2017/07/16/monopolies-and-market-dominance-in-the-gig-e-conomy-what-might-this-look-like-are-we-there-yet/>

INTRODUCTION:

I will not get into legalese, as this is but a conceptual take on the topic.  I came across the following New York Times article,[1] which posed the question “Is It Time to Break Up Google?”  That article had been cited by a more recent one that spoke of the dominant market positions of the so-called FAAAN stocks (described as Facebook, Amazon, Alphabet, Apple and Netflix) or sometimes FAANG stocks (Facebook, Amazon, Apple, Netflix and Google), and the potential need to limit or dismantle them for such reasons as to protect the consumer, or to better protect against the loss or misuse of personal data, or to maintain market integrity, investment and productivity, and dynamism through vigorous multiparty competition.[2]  I will use FAAAN and FAANG interchangeably.

This is the language of competition regulators – avoiding monopolies, carefully watching oligopolies, and protecting the consumer from any entity that would abuse its dominant position in the market to take advantage of them.  There are competing schools in different regulator domains, however, as one side says that competition spurs innovation (European Union stance), whilst the other side appears more comfortable with FAAAN entity market shares than it was with those in telecommunications, oil and gas, and railways (United States stance).[3]  The Standard Oil Company, which maintained a 90% market share for twenty years, is often cited as the posterboy for monopoly power in the United States – but was it really so villainous?[4]  In any case, before we apply a solution, we must first answer 3 essential questions:

  1. What, exactly, are these FAAAN entities allegedly dominant in?
  • Facebook has a leading position in social media, through its control of Facebook Messenger, WhatsApp, and Instagram (and now sharing control, with Alphabet/Google, of approximately 56% of the U.S. market for mobile advertising).[5]
  • Amazon has a leading position in e-commerce, with its ubiquitous shopping portal (now handling approximately 30% of all U.S. e-commerce sales),[6] and in the provision of cloud hosting and data centre services.
  • Alphabet/Google has a leading position in online search, online video through its control of Youtube, and in the revenue yield from online advertising (now earning approximately 78% of all U.S. search advertising revenues).[7]
  • Apple has a leading position in smartphones wearables, and tablets, through its iPhone (now accounting for approximately 60% of global smartphone sales),[8] iPad, Watch, Mac, and MacBook lines.
  • Netflix also has a leading position in “over the top” (OTT) movie, performance, and documentary streaming (now reaching approximately 75% of all U.S. streaming service viewers).[9]

Are these indications of dominance, we ask, or just a solid and perhaps (for now) unassailable lead in markets resoundingly disrupted?

“Movies and television could become like opera and novels, because there are so many other forms of entertainment. Someday, movies and TV shows will be historic relics. But that might not be for another 100 years.”[10]

For example, all of these FAAAN stocks, other than Apple, may be especially dominant in the United States, but with the U.S. share of global e-commerce expected to fall from 20.7% in 2016 to 16.9% in 2020, while China’s share of it rises from 47% to 59.5% in the same period,[11] then given the restrictions on market entry into China,[12] how can any current such “dominance”, persist?

Microsoft is also sometimes mentioned as a market dominator, with its leading positions in operating system software, desktops and mobile, cloud hosting, big data, analytics, and online storage through its data centres; as is Uber, with its stated goal to dominate the ride-hailing space on a global scale.

  1. What, precisely, is the market or who, precisely, is the consumer that these FAANG entities are allegedly dominating?

Let us now start to break things down a little further, step by step.

VERTICALS –

I think we can all agree that there are three consumer verticals: government, business, and generic consumers – meaning neither of the preceding two verticals.  From there, however, things can get quite tricky, with this hierarchy of 3 verticals, then 5 sectors, then 30 groups, and finally, their many included elements.  Of course, each regulator or group of regulators assessing these entities, has its own domain, such as the United States (with its long tradition of Antitrust regulation), Canada (with its long experience in near oligopolies for financial services and telecommunications), Russia and China (with growing experience in competition regulation, and where Uber recently partnered with Yandex in Russia,[13] and earlier with Didi Chuxing in China,[14] for ride-hailing, or “on-demand transportation”), and the European Union (where Facebook,[15] Alphabet/Google,[16] Apple,[17] and Microsoft,[18] have all had run-ins with the local Competition regulator).

In the investing community, there are a number of ways to segment the market.  The diversified Standard & Poor’s 500 Index uses 11 market sectors,[19] and the NASDAQ (technology-heavy) index follows the Industry Classifications Benchmark (ICB) system, to create ten market sectors.[20]  There is some overlap between these two, but the Toronto Stock Exchange (energy and financial services- heavy) index has just seven market sectors.[21]  Personally, I have long used a modified schema of about 16 sectors, but I think it is time to change the whole approach because these FAAAN / FAANG entities have disrupted much, will continue to do so, and have spawned a whole series of ecosystems of disruptors that cross sectoral boundaries, serve multiple verticals, and make a mockery of most if not all commonly used methods of market and competition analysis, including clear regulatory categorization, for purposes of finding and assessing the impact of a dominant position.  This is collectively the “gig” -economy of on-demand piecework, tempwork, and peer-to-peer transacting that circumvents big businesses, with “gig” now having a U.S. labor market share now estimated at 34% and projected to rise to 43% by 2020.[22]

Hence, my analytical proposal is this:

SECTORS –

We start with 5 very broad sectors, and then break things down further.  Those five sectors, are: General Goods and Services; Specialized Goods and Services; Digital Tools, Applications and Services; Social Infotainment; and the Gig e-conomy.

GENERAL GOODS AND SERVICES SECTOR:

Here, I have placed the 8 key groups of Government, Manufacturing and Industry, Materials, Oil and Gas, Retail and Wholesale, Security, Transportation, and Utilities.

Government, is further divided across the 5 elements of: regulation; education and tutoring; standard setting; libraries and archives; and dispute resolution and keeping the peace.

Manufacturing and Industry, are further divided across the 5 elements of: aerospace and defence; construction and engineering; transportation and utilities infrastructure; technology, hardware, communications equipment and components and peripherals; and services.

Materials, are further divided across the 5 elements of: paper and forest products; metals and mining; construction materials and components; advanced materials; and CAD-CAM, and GIS and other services.

Oil and Gas, are further divided across the 5 elements of: oil and gas services; drilling and equipment; transportation and storage; refining, trade, plastics and chemicals; and other.

Retail and Wholesale, are further divided across the 5 elements of: leisure; household durable and furniture; household discretionary and personal products; retail (multiline and specialty); and luxury goods, apparel, and textiles.

Security, is further divided across the 5 elements of: national security and defence; societal security and emergency management; physical and industrial safety and security, and emergency management; personal safety and security, and incident response; and virtual security, and incident and event management.

Transportation, is further divided across the 5 elements of: public transportation networks; commercial transportation networks; carriage for hire and ride-hailing; personal and shared mobility properties; and drones and autonomous vehicles.

Utilities, are further divided across the 5 elements of: electric and gas; wind, solar, and water; nuclear; biomass and multi-utility; and other.

SPECIALIZED GOODS AND SERVICES SECTOR:

Here, I have placed the 8 key groups of Conglomerates, Financial Services, Food, Health and Wellness, Information Communications Technologies, Information and Data Techniques, Personal Services,  and Shelter.

Conglomerates, are further divided across the 5 elements/variants of: food, beverage, and consumer products; information communications technologies and information and data techniques; leisure, property, and transportation; technology, industry, and manufacturing; and services.

Financial Services, are further divided across the 5 elements of: consumer, trade, and business banking and finance, and cash and payment provision and processing; mortgages, home equity lines of credit, and real estate investment trusts; financial planning and advising, and portfolio and asset management; trusts and estates; and insurance and reinsurance.

Food, is further divided across the 5 elements of: crops; kept animals and kept animal products; beverages and other consumables; wholesale, retail, and restaurant; and processing, packaging, and distribution.

Health and Wellness, is further divided across the 5 elements of: medical and surgical services; medical and surgical equipment; pharmacology; mental and spiritual health; and fitness and alternatives.

Information Communications Technologies, are further divided across the 5 elements of: publishing, and printed media; cable, over-air, over the top, and satellite television; radio and satellite radio; fiber optics, telephone, and voice over internet protocol; and audio-visual and peripherals.

Information and Data Techniques, are further divided across the 5 elements of: collection and collation; privacy, security, and anonymization; storage and retrieval; transactions and analysis; and disposal.

Personal Services, are further divided across the 5 elements of: professional services; personal assistants, managers, and agents; virtual assistants; crisis, wardrobe, image and media consultants; and household staff.

Shelter, is further divided across the 5 elements of: single family; multi-family; mobile accommodations; hotel, motel, cruise and resort; and plant, office, maintenance and janitorial.

DIGITAL TOOLS, APPLICATIONS, AND SERVICES SECTOR:

Here, I have placed 8 key groups, and without any further division across elements because the developed and developing options are still far too broad to be coherently and comprehensively captured, if ever.  These 8, are:

  • Consumer Software, and Productivity applications.
  • eBooks, eNews, and other eMedia.
  • eCommerce.
  • eLearning.
  • Employment and Contracting.[23]
  • Entity Clouds and data centres for Big Data, storage, hosting, managed solutions, and analytics.
  • Online advertising, including by profile, location, nearfield communication, and radiofrequency identification;
  • Online search, mapping and geo-tagging or tracking, and navigation.

SOCIAL INFOTAINMENT SECTOR:

Here, I have placed the 2 key groups of Hardware; and Services.

Hardware, is further divided across the 5 elements of: phones; tablets; desktop devices; virtual and augmented reality; and content creation through interactive and autonomous devices with and without artificial intelligence.

Services, are further divided across the 5 elements of: standard and streaming live theatre, motion pictures, and video; standard and streaming live concerts, performance arts, and audio; social and chat, and introductions and networking; gaming, group casts, and similar interactions; and content creation, experiential learning, and immersive transactions.

GIG E-CONOMY SECTOR:

So now, let us use a “gig” e-conomy approach to assess the dominance issue across the preceding market sectors.  I think that you may well find yourself agreeing that there is no dominance at play, and that the competition is still quite healthy across the board.  Here, I have placed those “on demand” goods and services available through rapidly advancing technology that are or may be applicable.  Please note that no single person can possibly name all members of any subgroup and the Apps and Bots of competitors, as they multiply, morph, and merge on both daily and intraday bases; but I will, however, try to give sufficient coverage to convey the depth, breadth, and scope of offerings available.[24]

On-demand General Goods and Services, and their related providers or aggregators would be found here, such as Baidu Baike, The Canadian Encyclopedia, Encyclopedia Britannica, Encyclopedia.com, The Free Dictionary.com, Wikipedia and World Book Online (Government: libraries and archives); 3D printers (Materials: CAD-CAM, and GIS and other services); Alibaba, Amazon, Costco, WalMart, and Yandex (Retail and Wholesalewhole group); AppRiver, Bitdefender, Symantec/Norton, Kaspersky, McAfee, and Webroot SecureAnywhere Antivirus (Security: virtual security); and Uber, Lyft, Ourbus, Didi Chuxing, BlaBlaCar, and Yandex (Transportation: carriage for hire and ride-hailing).

On-demand Specialized Goods and Services, and their related providers or aggregators would be found here, such as Apple, Alphabet and Microsoft (Conglomerates: Information communications technologies – smartphones of iPhone, Pixel and Lumia, along with Watch, Mac, iPad, Surface, OneNote, and the operating systems of iOS, macOS, Linux, Android, Windows, and other solutions based on non-proprietary or open-source code); Amazon and Microsoft (Conglomerates: information and data techniques – cloud services); Consumer, trade, and business banking and finance (Financial Services: portals and standalone Apps of the major banks, worldwide, along with Fintech disruptors like rate.com and Kreditech); Android Pay, Apple Wallet, Bitcoin, Etherium, LG Pay, Microsoft Wallet, Samsung Pay or Samsung Pay Mini, Yandex Money, Alipay, PayPal and Stripe[25] (Financial Services: smartphone-based and web-based cash and payment provision and processing); Fund Razr, Indiegogo, Kickstarter, GoFundMe, AngelList, and CrowdCube (Financial Services: Consumer, trade, and business banking and finance); AlphaStreet, MyLo, Robinhood, and WealthBar (Financial Services: financial planning and advising, and portfolio and asset management); Deliveroo, Grubhub, Just-eat, Postmates, Door-Dash, UberEATS, Amazon, and Instacart (Food: processing, packaging, and distribution); SiriusXM and free AM/FM radio around the world[26] (Information Communications Technologies: radio and satellite radio); Netflix, Spotify, NotJustOk, YouTube, Hulu, Sling, HBO, and Amazon (Information Communications Technologies: cable, over-air, over the top, and satellite television); Google, Alibaba, Yandex, Amazon Web Services, Facebook, Tencent, Microsoft Cloud/Azure (Information and Data Techniqueswhole group, as also listed in Conglomerates, above); Monster, LinkedIn, Upwork, TaskRabbit (Personal Services: – whole group); Airbnb, Love Home Swap, Onefinestay (Shelter: hotel, motel, cruise and resort); and Handy, Homejoy, Merry Maids, Molly Maid, Life Maid Easy, and Bee Clean (Shelter: plant, office, maintenance and janitorial).

On-demand Digital Tools, Applications, and Services, and their related providers or aggregators would be found here, such as Apple’s App Store, Google’s Play Store, Adobe, Corel, Microsoft/Windows, Etherium, Intuit and QuickBooks (Consumer software and productivity applications); Amazon Kindle, Voyage, and Oasis, Barnes & Noble Glowlight, Nook, and Touch, and the Kobo and Aura (eBooks); Amazon, Alibaba, Costco, Craigslist, DaWanda, eBay, Etsy, Shopify, WalMart and Yandex (eCommerce); ADrive, Apple iCloud, Box, Dropbox, Google Drive, iDrive, Media Fire, Mozy, Microsoft OneDrive, and PhotoBucket (Entity Clouds – storage); Accenture Cloud Hosting Services, Amazon Web Services, CSC Cloud Computing Services, Canadian Cloud Hosting, Canadian Web Hosting, CenturyLink, Cloud Sigma, Dimension Data Cloud Surround, Distil Networks, Fujitsu Cloud Solutions, Google App Engine/Cloud Platform, Helion Public Cloud, Lunacloud, Microsoft Azure/Cloud, OpenShift, OpenStack Cloud, Rackspace, Softlayer, Verizon Terremark, ViaWest KINECTed Cloud, and VMware (Entity Clouds and Data Centres for Big Data, hosting, managed solutions, and analytics); Google, Facebook, Snap, Twitter and Youtube (online advertising, including by profile, location, nearfield communication, and radiofrequency identification); and Google, Baidu, and Yandex (online search, mapping and geo-tagging or tracking, and navigation).

On-demand Social Infotainment, and their related providers or aggregators would be found here, such as Apple iOS/macOS ecosystems, Blackberry smartphones and data centres, Facebook Oculus Rift, Google Android ecosystem along with Cardboard, Daydream Viewer, and robotics and autonomy, HTC Vive, Huawei smartphones, LG smartphones, Microsoft Windows ecosystem along with HoloLens and Windows Mixed reality, Samsung Gear and robotics and autonomy, Sony Playstation VR and robotics and autonomy, Linux, and other environments and platforms created using open source or non-proprietary code (Hardwarewhole group); Netflix, NotJustOk, Spotify, YouTube, Hulu, Sling, HBO, Pokemon, and Amazon (Serviceswhole group); and Facebook, WhatsApp, Tencent, WeChat, Vodi, Instagram, LinkedIn, Monster, Match.com, Lavalife, eHarmony, and Zoosk (Services – social, chat, and introductions and networking; gaming, group casts, and similar interactions; and content creation, experiential learning and immersive transactions.  You may have noticed that “on-demand Social Infotainment” anticipates content creation by both the hardware makers and the service providers with ever more collaboration, hence the lines become consumers and producers of content have become irrevocably blurred and blended.  Similarly, the gig e-conomy’s “on-demand social infotainment” and “on-demand digital tools, applications, and services” sectors rely upon one another for continuity – the social infotainment needs all that the digital has to offer, and the digital feeds the rising ubiquity of the social infotainment.

  1. Considering the above and now fuller picture of the competitive landscape, is any one of these FAAN/FAANG entities really dominant in any meaningful way?

The answer to this, must therefore be a resounding No. There are a number of groups in which a few players have literally occupied the entire field.  However, in no place is there only one entity.  Clearly, then, competition is alive and fierce in all sectors and groups, as laid out in this analytical scheme.

Any Facebook domination alleged for social media fades away with the diversity of competitors and offerings found within the converged gig e-conomy’s “on-demand social infotainment”;

Any Amazon domination alleged for e-commerce and for search, fades away with the diversity of competitors and offerings under the converged gig e-conomy Sector’s “on-demand general goods and services”, and “on-demand specialized goods and services”.

Any Alphabet/Google domination alleged for online search, online video, and online advertising revenue yield, fades away with the diversity of competitors and offerings under the converged gig e-conomy’s “on demand digital tools, applications, and services”.

Similarly, any Apple domination alleged in smartphones, wearables and tablets, fades away with the diversity of manufacturers and operators found in the converged gig e-conomy sector’s “on-demand specialized goods and services”, as conglomerates offering information and communications technologies, and undertaking information and data techniques.

Finally, any Netflix domination alleged for “over-the-top” (OTT) movie, performance, and documentary streaming, fades away with the diversity of entities competing to deliver services within the converged gig e-conomy’s “on-demand social infotainment”.

SUMMARY:

It is only if, and when, well-funded market operators start to occupy whole sectors (in the new schema laid out here), taking out whole swathes of their competitors and content providers[27] in Pacman “gig”-abites to become the sole players in many of the specific groups within those sectors, that we should start to worry about abuse of dominant positions, monopolies, and over-concentration in the control of personal data[28] – incessant data breaches[29] and global ransomware events,[30] notwithstanding.

Perhaps, you agree now?![31]

********************************************************************

Author:

Ekundayo George is a lawyer and sociologist.  He has also taken courses in organizational and micro-organizational behavior, and gained significant experience in regulatory compliance, litigation, and business law and counseling.  He has been licensed to practise law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America.  See, for example: http://www.ogalaws.com.  A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, e-commerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors.  He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

Trained in Legal Project Management (and having organized and managed several complex projects before practising law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams.  Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: healthcare; education and training; law and regulation; policy and plans; statistics, economics, and evaluations including feasibility studies and business cases; infrastructure; and information technology/information systems (IT/IS) – also sometimes termed information communications technologies (ICT).  See, for example: http://www.simprime-ca.com.

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

 

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred.  The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.  Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

[1] Jonathan Taplin.  Is It Time to Break Up Google?  Published on nytimes.com, April 22, 2017.  Web: >https://www.nytimes.com/2017/04/22/opinion/sunday/is-it-time-to-break-up-google.html?_r=2<

[2] David McLaughlin.  Are Facebook and Google the New Monopolies?: QuickTake Q&A.  Published on Bloomberg.com, July 12, 2017. Web: >https://www.bloomberg.com/news/articles/2017-07-13/antitrust-built-for-rockefeller-baffled-by-bezos-quicktake-q-a<  See also Ayanna Alexander.  Mobile App Location Sharing Brings Awesome Opportunities, Privacy Fears.  Published on bna.com, July 11, 2017.  Web: >https://www.bna.com/mobile-app-location-b73014461529/<

[3] Ramsi Woodcock.  EU’s Antitrust ‘War’ on Google and Facebook Uses Abandoned American Playbook.  Published on observer.com, July 14, 2017.  >http://observer.com/2017/07/eus-antitrust-war-google-facebook-uses-american-playbook-margrethe-vestager-european-union/<

[4] Alex Epstein.  Vindicating Standard Oil, 100 years later.  Published on dailycaller.com, May 13, 2011.  Web: >http://dailycaller.com/2011/05/13/vindicating-standard-oil-100-years-later/2/<

[5] David McLaughlin.  Are Facebook and Google the New Monopolies?: QuickTake Q&A.  Published on Bloomberg.com, July 12, 2017. Web: >https://www.bloomberg.com/news/articles/2017-07-13/antitrust-built-for-rockefeller-baffled-by-bezos-quicktake-q-a<

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Sarah Perez.  Netflix reaches 75% of US streaming service viewers, but YouTube is catching up.  Published on techcrunch.com, April 10, 2017.  Web: >https://techcrunch.com/2017/04/10/netflix-reaches-75-of-u-s-streaming-service-viewers-but-youtube-is-catching-up/<

[10] Joe Nocera.  Can Netflix Survive in the New World It Created?  Published on nytimes.com, June 15, 2016.  Web: >https://www.nytimes.com/2016/06/19/magazine/can-netflix-survive-in-the-new-world-it-created.html<

Quoting Reed Hastings – Chairman of the Board, President, Chief Executive Officer, Netflix.

[11] Patrick Seitz.  Move Over FANGs, China’s BAT Stocks Go From Copycats To Fat Cats.  Published on investors.com, July 14, 2017.  Web: >http://www.investors.com/research/industry-snapshot/move-over-fangs-chinas-bat-stocks-go-from-copycats-to-fat-cats/?src=A00220&yptr=yahoo<

[12] IdSee also infra, note 14.

[13] Eric Auchard and Anastasia Teterevleva.  Uber and Yandex to combine ride-hailing in Russia and beyond.  Published on reuters.com, July 13, 2017.  Web: >http://www.reuters.com/article/us-uber-tech-m-a-yandex-idUSKBN19Y10V<  The new entity will operate regionally, in Russia, Armenia, Azerbaijan, Belarus, Georgia and Kazakhstan.

[14] Scott Cendrowski.  Uber Had No Way Out of China Except Through a Merger With Didi.  Published on fortune.com, July 31, 2016.  Web: >http://fortune.com/2016/08/01/uber-didi-merger/<

[15] Jason Aycock.  Facebook eases into crosshairs of EU antitrust watchdogs.  Published on seekingalpha.com, July 3, 2017.  Web: >https://seekingalpha.com/news/3276761-facebook-eases-crosshairs-eu-antitrust-watchdogs<

[16] Peter Sayer.  EU Competition Commissioner spells out priorities: Google as Alphabet is still under investigation.  Published on pcworld.com, October 26, 2015.  Web: >http://www.pcworld.com/article/2997529/android/eu-competition-commissioner-spells-out-priorities-google-as-alphabet-is-still-under-investigation.html<

[17] Sean Farrell and Henry McDonald.  Apple ordered to pay €13bn after EU rules Ireland broke state aid laws.  Published on theguardian.com, August 30, 2016.  Web: >https://www.theguardian.com/business/2016/aug/30/apple-pay-back-taxes-eu-ruling-ireland-state-aid<

[18] Charles Arthur.  Microsoft loses EU antitrust fine appeal.  Published on theguardian.com, June 27, 2012.  Web: >https://www.theguardian.com/technology/2012/jun/27/microsoft-loses-eu-antitrust-fine-appeal<

[19] These 11 S&P 500 market sectors are: Energy, Materials, Industrials, Consumer Discretionary, Consumer Staples, Health care, Financials, Real Estate, Information Technology, Telecommunications Services, and Utilities.

See S&P 500 Factsheet – Sector Breakdown.  Published on ca.spindices.com and visited on July 13, 2017.  Web: >http://ca.spindices.com/indices/equity/sp-500<

[20] These 10 NASDAQ market sectors are: Oil and Gas, Basic materials, Industrials, Consumer Services, Consumer Goods, Healthcare/Financials, Technology, Telecommunications, and Utilities.  See NASDAQ Composite Index – COMP Fact Sheet – Industry Breakdown.  Published on nasdaqomx.com and visited July 13, 2017.  Web: >https://indexes.nasdaqomx.com/Index/Overview/COMP<

[21] These 7 TSE market sectors are: Clean Technology, Diversified Industries, Energy and Energy Services, Life Sciences, Mining, Real Estate, and Technology.  See The Toronto Stock Exchange, Sector and Product Profiles.  Published on tsx.com and visited July 13, 2017.  Web: >http://tsx.com/listings/listing-with-us/sector-and-product-profiles<

[22] Patrick Gillespie.  Intuit: Gig economy is 34% of US workforce.  Published on money.cnn.com, May 24, 2017.  Web: >http://money.cnn.com/2017/05/24/news/economy/gig-economy-intuit/index.html<

[23] Including this as a standalone group has become a necessity, thanks to the enabling rise of the “gig” e-conomy.  See e.g. Nick Wells. The ‘gig economy’ is growing — and now we know by how much.  Published on cnbc.com, October 13, 2016.  Web: >http://www.cnbc.com/2016/10/13/gig-economy-is-growing-heres-how-much.html<

[24] All names and marks mentioned herein are and remain the property of their respective owners, and no good or service or provider of same that is mentioned or omitted or referenced whether in whole or in part within this article or within its attached notes is either endorsed or disdained.

[25] Memberful.  Stripe vs PayPal: Who should you choose?  Published on memberful.com and visited on July 15, 2017.  Web: >https://memberful.com/blog/stripe-vs-paypal/<

[26] John-Erik Koslosky.  Sirius XM’s Strongest Competition May Surprise You.  Published on fool.com, September 12, 2015.  Web: >https://www.fool.com/investing/general/2015/09/12/sirius-xms-strongest-competition-may-surprise-you.aspx<

[27] Nick Wingfield and Michael J. de la Merced.  Amazon to Buy Whole Foods for $13.4 Billion.  Published on nytimes.com, June 16, 2017.  Web: >https://www.nytimes.com/2017/06/16/business/dealbook/amazon-whole-foods.html<

[28] Business Leader.  Google dominates search. But the real problem is its monopoly on data.  Published on theguardian.com, April 19, 2015.  Web: >https://www.theguardian.com/technology/2015/apr/19/google-dominates-search-real-problem-monopoly-dataSee also Ben Thompson.  Facebook and the Cost of Monopoly.  Published on stratechery.com, April 19, 2017.  Web: >https://stratechery.com/2017/facebook-and-the-cost-of-monopoly/<

[29] Dave Burton.  Minimize “Dwell Time” to Cut the Cost of Data Center Breaches.  Published on infosecisland.com, October 20, 2016.  Web: >http://www.infosecisland.com/blogview/24835-Minimize-Dwell-Time-to-Cut-the-Cost-of-Data-Center-Breaches.htmlSee also Jessica Davis.  Former Bupa employee posts 1 million records for sale on dark web.  Published on healthcareitnews.com, July 14, 2017.  Web: >http://www.healthcareitnews.com/news/former-bupa-employee-posts-1-million-records-sale-dark-web<   See Generally Ekundayo George.  Cybersecurity: Its not just about “B” for Bob, but also eCommerce, Structure, and Trust.  Published on ogalaws.wordpress.com, November 3, 2014  Web: >https://ogalaws.wordpress.com/2014/11/03/cybersecurity-its-not-just-about-b-for-bob-but-also-ecommerce-structure-and-trust/<

[30] Jesse McKenna.  WannaCry: How We Created an Ideal Environment for Malware to Thrive, and How to Fix It.  Published on infosecisland.com, July 12, 2017.  Web: >http://www.infosecisland.com/blogview/24941-WannaCry-How-We-Created-an-Ideal-Environment-for-Malware-to-Thrive-and-How-to-Fix-It.html<

[31] Ekundayo George.  Monopolies and Market Dominance in the “Gig” eConomy?  We are Getting There!  Posted February 19, 2018 on ogalaws.wordpress.com.  Online: >https://ogalaws.wordpress.com/2018/02/19/monopolies-and-market-dominance-in-the-gig-economy-we-are-getting-there/<

PREFACE:

The British Prime Minister, the Right Honourable Theresa May, presented her government’s plan for Brexit negotiations in a speech to the nation on Tuesday, January 17, 2017.[1]  Consisting of 12 distinct points,[2] the plan makes it quite clear that the U.K. does indeed want a clean break from the European Union and the freedoms and rights to control its own immigration and make its own laws,[3] but, at the same time, the U.K. wants to enjoy a good deal of continued access to the E.U. common market.[4]  This is quite some progress since: (i) the High Court ruling of Thursday, November 3, 2016 that the prime minister could not unilaterally trigger the Brexit process[5] – which is still pending on appeal to the U.K. Supreme Court[6] that many knowledgeable Members of Parliament fear the government might ultimately lose;[7] and (ii) the overwhelming 448:75 vote in the U.K. House of Commons on Wednesday, December 7, 2016 to endorse and follow the prime minister’s plan to trigger the Brexit process by or before the end of March, 2017 – providing, of course, that both houses of the U.K. Parliament see and consider the final deal reached.[8]  That parliamentary accord was effectuated and made public in point 1 of the Prime Minister’s Brexit plan.[9]

ANALYSIS:

In my original Brexit post,[10] made shortly after the June 23, 2016 vote, I had posited 7 actual, and 1 potential and as then undefined, model of what the UK’s future relationship with Europe might be.[11]  Now, looking to the full transcript of prime minister May’s speech,[12] we can clearly see that several of these models – with all of them working well for their adherent nations, were rejected outright.

Model I: Full membership[13]

This model, the prior status quo, is rejected by the seeking of a full exit from the European Union and self-determination within the U.K. under both point 1 and point 2, as stated by the prime minister.[14]

Model II: Norway[15]

This model, used by Norway, is rejected in the fact that the U.K. will no longer make significant and blanket contributions to the E.U. budget and programs, but retains the right to make limited contributions on select E.U. initiatives on which it has a vote and in which it acknowledges a continuing stake: “There may be some specific European programmes in which we might want to participate.  If so, and this will be for us to decide, it is reasonable that we should make an appropriate contribution.  But the principle is clear: the days of Britain making vast contributions to the European Union every year will end.”[16]

Model III: Switzerland[17]

This model, used by Switzerland, involves free movement but it is rejected in point 5 and the U.K. prime minister’s stated desire to “[…] get control of the number of people coming to Britain from the EU.[18]

Model IV: Turkey[19]

This model, used by Turkey, also involves acceptance of cash contributions from the E.U. with mandatory enforcement of certain E.U. trade laws in Turkey, and the right of Turkish nationals to access E.U. welfare structures.  As implied by the rejection of all the above models and as specified by the prime minister, this option is also off the table as it would not accomplish the full split from the E.U. that Britons want: ““European leaders have said many times that membership means accepting the “four freedoms” of goods, capital, services and people.  And being out of the EU but a member of the Single Market would mean complying with the EU’s rules and regulations that implement those freedoms, without having a vote on what those rules and regulations are.  It would mean accepting a role for the European Court of Justice that would see it still having direct legal authority in our country.””[20]

Model V: Canada (signed on Sunday October 30, 2016)[21]

This model, used by Canada, eliminates duties on most exports for each counterparty and gives Canada access to the E.U. market at a time when access to the U.S. market to Canada’s immediate south, is under strong query by the incoming Trump administration.[22]  Signed by Canada and the E.U. on October 30, 2016, it does still require approval by each and every one of the parliaments of the “current” E.U. member states, including the U.K.[23]  That requirement could therefore still pose some problems regarding the deal’s entering into full force and effect.  The prime minister also rejected this model in the preamble of her speech: “Not partial membership of the European Union, associate membership of the European Union, or anything that leaves us half-in, half-out.  We do not seek to adopt a model already enjoyed by other countries.  We do not seek to hold on to bits of membership as we leave.[24]

Model VI: Hong Kong and Singapore[25]

The unilateral free trade policies adopted by Hong Kong and Singapore are not an option for the U.K., as the domestic economy would not be able to withstand the onslaught of cheap goods from all corners of the globe.  On the contrary, the prime minister stressed the renewed U.K. desire to be and remain global and pursue as many free trade deals with as many free trading partner nations and groups of nations, as possible, in point 9: “We want to get out into the wider world, to trade and do business all around the globe.  Countries including China, Brazil, and the Gulf States have already expressed their interest in striking trade deals with us.  We have started discussions on future trade ties with countries like Australia, New Zealand and India.  And President Elect Trump has said Britain is not “at the back of the queue” for a trade deal with the United States, the world’s biggest economy, but front of the line.[26]

Model VII: WTO Default Rules[27]

WTO default rules are generally used by trading nations where there is no existing trade agreement between them.  Considering the prime minister’s intent in point 9 to set U.K. tariff lines at the WTO, and her call for a “phased approach” to implementation in point 12, it is quite likely that some form of WTO regime will be applied during the transition process: “But the purpose is clear: we will work to avoid a disruptive cliff-edge, and we will do everything we can to phase in the new arrangements we require as Britain and the EU move towards our new partnership.[28]  On the other hand, if the U.K. Parliament votes against the final deal as tabled, seeking amendments or issuing a total rejection of same, then advisable best practices of having WTO Rules ready to fill the void while that was all sorted out, and the stated and mutual intention for a phased implementation of the Brexit and its successor conventions would prevent one or a few hiccups from ending or permanently handicapping the process altogether.

Model IIX: the “unknown unknown”[29]

As is now abundantly clear, the overall intention of Mrs. May’s government is to craft a relationship with the E.U. that does not fit squarely within the parameters of any of the foregoing options, but includes: significant customs and regulatory cooperation (but not full integration) with the E.U. through a broad free trade agreement; strong cooperation and integration with the E.U. in matters of science and technology; deep security cooperation with the E.U.; a plethora of free trade agreements with other nations; maintaining the free movement of Britons within the U.K. as well as a somewhat semi-porous E.U. border through the Irish Republic; greater worker rights and protections within the U.K.; and solidification of the ties binding the UK’s constituent parts together by means of greater power devolution of powers from England to local lawmakers in Wales, Scotland, and Northern Ireland.[30]

In any case, the eventual model must achieve Mrs. May’s overarching vision for the future Britain:

“I want this United Kingdom to emerge from this period of change stronger, fairer, more united and more outward-looking than ever before.  I want us to be a secure, prosperous, tolerant country – a magnet for international talent and a home to the pioneers and innovators who will shape the world ahead.  I want us to be a truly Global Britain – the best friend and neighbour to our European partners, but a country that reaches beyond the borders of Europe too.  A country that gets out into the world to build relationships with old friends and new allies alike.”[31]

To underline that fact and to let both the European nations and the British voters at home know that she and her staffers would be very serious, deliberate, and focused in their approach to and conduct of those Brexit negotiations, the prime minister also made it abundantly clear that she would walk away from a bad deal for Britain if that were the last or sole option that the Europeans put on the table: “I am equally clear that no deal for Britain is better than a bad deal for Britain.”[32]

PROGNOSIS:

While the path ahead for prime minister May and her party is fraught with dangers, today’s inauguration of Donald J. Trump as the 45th president of the United States of America,[33] has left many nations queasy, uneasy, and seeking free trade deals of their own – Canada with 70% of pre-Trump exports going to the United States,[34] will now likely consider deeper ties with China, Japan and India,[35] and China is already considering and sealing deals with everyone.[36]  As a result of this deal frenzy, the Britons will therefore find very many parties willing to talk trade with them.  Indeed, China’s President, Xi Jinping, best summed-up the current global thinking on trade[37] amidst the tweet-fuelled apprehension caused by Mr. Trump and his protectionist leanings,[38] when the former said:

““Pursuing protectionism is like locking oneself in a dark room, [w]ind and rain may be kept outside, but so is light and air.””[39]

Once again, then, the “great game”[40] for geopolitical and economic leverage is on.  This time, however, the landscape is global, and Britain and Russia – the protagonists of yore trying to shoulder their way back-in, have given significant ground to the new prime movers of China, the E.U., and at least until now, the United States of America.

Let us therefore wait and see what the British Supreme Court has to say on Brexit, which nations end-up locking themselves into those dark rooms, and which nations throw open their doors and windows to get the best access to the shared light and air of trade that gives jobs, mutually assured security, and life itself.[41]

**********************************************************************

 

Author:

Ekundayo George is a lawyer and sociologist.  He has also taken courses in organizational and micro-organizational behavior, and gained significant experience in regulatory compliance, litigation, and business law and counseling.  He is licensed to practise law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America.  See, for example: http://www.ogalaws.com.  A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors.  He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux. Trained in Legal Project Management (and having organized and managed several complex projects before practising law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams.  Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: healthcare; education and training; law and regulation; policy and plans; statistics, economics, and evaluations including feasibility studies; infrastructure; and information technology/information systems (IT/IS) – also sometimes termed information communications technologies (ICT).  See, for example: http://www.simprime-ca.com.

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

 

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred.  The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.  Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

[1] Dan Bloom.  Theresa May’s 12-point plan for Brexit in full: PM finally reveals basis for EU exit negotiation.  Posted January 17, 2017 on mirror.co.uk.  Web: <http://www.mirror.co.uk/news/uk-news/theresa-mays-12-point-plan-9637039>

[2] Id.

[3] Id at point 2: “Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast.  And those laws will be interpreted by judges not in Luxembourg but in courts across this country.

[4] Id at points 8 and 9: “Instead we seek the greatest possible access to it through a new, comprehensive, bold and ambitious Free Trade Agreement“.  “Whether that means we must reach a completely new customs agreement, become an associate member of the Customs Union in some way, or remain a signatory to some elements of it, I hold no preconceived position”.  “I have an open mind on how we do it.  It is not the means that matter, but the ends“.

[5] Sky News.  Brexit court case: Government loses, May cannot trigger Article 50.  Posted November 3, 2016 on sky.com.  Web: <http://news.sky.com/story/may-cannot-trigger-brexit-government-loses-high-court-case-10642756>

[6] Anushka Asthana and Heather Stewart.  Government will lose Brexit supreme court case, ministers believe.  Posted January 11, 2017 on theguardian.com.  Web: <https://www.theguardian.com/politics/2017/jan/11/government-brexit-supreme-court-theresa-may-article-50>

[7] Id. “Losing”, in this context, means that a majority of the 11 Supreme Court judges will rule that the government “must” seek parliamentary approval to trigger a Brexit.  “Losing badly” means said majority of judges will either (a) specify what the government must seek or achieve from Brexit negotiations; or (b) that the government must secure “specific” approvals from Scotland and Ireland (which voted to remain) – and which would require advance concessions to secure that approval; or (c) that a patchwork of other conditions or preconditions must be met, and which would both severely constrain the government in its negotiations, and publicize its strategy to its detriment.

[8] Tim Ross and Alex Morales.  U.K. Lawmakers Back Theresa May’s March 2017 Brexit Schedule.  Posted December 7, 2016 on bloomberg.com.  Web: <https://www.bloomberg.com/news/articles/2016-12-07/u-k-weighs-swiss-norwegian-style-eu-customs-deals-davis-says>

[9] Time Staff.  Posted January 17, 2017 on time.com.  Read Theresa May’s Speech Laying Out the U.K’s Plan for Brexit.  Web: <http://time.com/4636141/theresa-may-brexit-speech-transcript/> at Point 1: “I can confirm today that the government will put the final deal that is agreed between the UK and the E.U. to a vote in both Houses of Parliament, before it comes into force.”

[10] Ekundayo George.  Analyzing the 2016 Brexit: A Classically Complex Conundrum.  Posted June 30, 2016 on ogalaws.wordpress.com.  Web: <https://ogalaws.wordpress.com/2016/06/30/analyzing-the-2016-brexit-a-classically-complex-conundrum/>

[11] Id.

[12] Time Staff.  Posted January 17, 2017 on time.com.  Read Theresa May’s Speech Laying Out the U.K’s Plan for Brexit.  Web: <http://time.com/4636141/theresa-may-brexit-speech-transcript/>

[13] Ekundayo George.  Analyzing the 2016 Brexit: A Classically Complex Conundrum.  Posted June 30, 2016 on ogalaws.wordpress.com.  Online: <https://ogalaws.wordpress.com/2016/06/30/analyzing-the-2016-brexit-a-classically-complex-conundrum/> at note 89 (full E.U. membership).

[14] See Supra note 12 at points 1 and 2.

[15] Ekundayo George.  Analyzing the 2016 Brexit: A Classically Complex Conundrum.  Posted June 30, 2016 on ogalaws.wordpress.com.  Web: <https://ogalaws.wordpress.com/2016/06/30/analyzing-the-2016-brexit-a-classically-complex-conundrum/> at note 90 (Norway model).

[16] See Supra note 12 at point 8.

[17] Ekundayo George.  Analyzing the 2016 Brexit: A Classically Complex Conundrum.  Posted June 30, 2016 on ogalaws.wordpress.com.  Web: <https://ogalaws.wordpress.com/2016/06/30/analyzing-the-2016-brexit-a-classically-complex-conundrum/> at note 91 (Switzerland model).

[18] Time Staff.  Posted January 17, 2017 on time.com.  Read Theresa May’s Speech Laying Out the U.K’s Plan for Brexit.  Web: <http://time.com/4636141/theresa-may-brexit-speech-transcript/> at point 5.

[19] Ekundayo George.  Analyzing the 2016 Brexit: A Classically Complex Conundrum.  Posted June 30, 2016 on ogalaws.wordpress.com.  Web: <https://ogalaws.wordpress.com/2016/06/30/analyzing-the-2016-brexit-a-classically-complex-conundrum/> at note 92 (Turkey model).

[20] See Supra note 18 at point 8.

[21] Ekundayo George.  Analyzing the 2016 Brexit: A Classically Complex Conundrum.  Posted June 30, 2016 on ogalaws.wordpress.com.  Web: <https://ogalaws.wordpress.com/2016/06/30/analyzing-the-2016-brexit-a-classically-complex-conundrum/> at note 93 (Canada model).

[22] Jared Bernstein.  Trump promises to tear up trade deals. Here’s what he should do.  Posted November 14, 2016 on washingtonpost.com.  Web: <https://www.washingtonpost.com/posteverything/wp/2016/11/14/trump-promises-to-tear-up-trade-deals-heres-what-he-should-do/?utm_term=.7ba295aa5e94>

[23] Robert-Jan Bartunek and Philip Blenkinsop.  EU, Canada sign free trade deal but battle not over.  Posted October 30, 2016 on reuters.com.  Web: <http://www.reuters.com/article/us-eu-canada-trade-idUSKBN12U0HU>

[24] Time Staff.  Posted January 17, 2017 on time.com.  Read Theresa May’s Speech Laying Out the U.K’s Plan for Brexit.  Web: <http://time.com/4636141/theresa-may-brexit-speech-transcript/> at A message from Britain to the rest of Europe.

[25] Ekundayo George.  Analyzing the 2016 Brexit: A Classically Complex Conundrum.  Posted June 30, 2016 on ogalaws.wordpress.com.  Web: <https://ogalaws.wordpress.com/2016/06/30/analyzing-the-2016-brexit-a-classically-complex-conundrum/> at note 94 (Hong Kong and Singapore model).

[26] See Supra note 24 at point 9.

[27] Ekundayo George.  Analyzing the 2016 Brexit: A Classically Complex Conundrum.  Posted June 30, 2016 on ogalaws.wordpress.com.  Web: <https://ogalaws.wordpress.com/2016/06/30/analyzing-the-2016-brexit-a-classically-complex-conundrum/> at note 95 (World Trade Organization default rules).

[28] See Supra note 24 at point 12.

[29] Ekundayo George.  Analyzing the 2016 Brexit: A Classically Complex Conundrum.  Posted June 30, 2016 on ogalaws.wordpress.com.  Web: <https://ogalaws.wordpress.com/2016/06/30/analyzing-the-2016-brexit-a-classically-complex-conundrum/> at note 96 (the hitherto unknown model, yet to be developed).

[30] See generally Time Staff.  Posted January 17, 2017 on time.com.  Read Theresa May’s Speech Laying Out the U.K’s Plan for Brexit.  Web: <http://time.com/4636141/theresa-may-brexit-speech-transcript/>

[31] Time Staff.  Posted January 17, 2017 on time.com.  Read Theresa May’s Speech Laying Out the U.K’s Plan for Brexit.  Web: <http://time.com/4636141/theresa-may-brexit-speech-transcript/> at the preamble.

[32] Id. at A new partnership between Britain and Europe.  See also Peter Dominiczak, Political Editor and Michael Wilkinson, Political Correspondent.  The 12-point Brexit plan explained: Theresa May warns EU she will walk away from a ‘bad deal’ for Britain.  Posted January 17, 2017 on telegraph.co.uk  Web: <http://www.telegraph.co.uk/news/2017/01/17/theresa-may-warns-eu-will-walk-away-bad-deal-britain/>

[33] USA.Gov.  Presidential Inauguration 2017.  Posted on usa.gov.  Visited January 18, 2017.  Web:

<https://www.usa.gov/inauguration-2017>

[34] David Israelson, Special to The Globe and Mail.  Canada’s trade alternatives post-Trump and Brexit.  Posted December 6, 2016 on theglobeandmail.com.  Web: <http://www.theglobeandmail.com/report-on-business/international-business/canadas-trade-alternatives-post-trump-and-brexit/article33208634/>

[35] Id.

[36] Zhong Nan.  China eyes more FTA deals in 2017.  Posted December 28, 2016 on chinadailyasia.com.  Web: <http://www.chinadailyasia.com/business/2016-12/28/content_15548398.html>

[37] Larry Elliott and Graeme Wearden in Davos.  Xi Jinping signals China will champion free trade if Trump builds barriers.  Posted January 18, 2017 on theguardian.com.  Web: <https://www.theguardian.com/business/2017/jan/17/china-xi-jinping-china-free-trade-trump-globalisation-wef-davos>

[38] Jurek Martin.  Apprehension ahead of President Trump’s first words.  Posted January 18, 2017 on ft.com.  Web: <https://www.ft.com/content/b4cba008-dcda-11e6-86ac-f253db7791c6>

[39] Supra note 37.

[40] See Wikipedia.  The Great Game.  Visited January 18, 2017.  Web: <https://en.wikipedia.org/wiki/The_Great_Game>

[41] Ekundayo George.  Calling the Brexit end-result at this point, is a guessing game!  Posted March 11, 2019 on ogalaws.wordpress.com.  Web: <https://ogalaws.wordpress.com/2019/03/11/calling-the-brexit-end-result-at-this-point-is-a-guessing-game/>

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