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 –

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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/>

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