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Featured Post | Policy

Confused about section 230? You’re not alone.

Hint: Try thinking about it in terms of user-submitted content

Passed in 1996, the Communications Decency Act includes a line under the Section 230 heading which reads: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. 

Written by (then) United States Representatives. Chris Cox and Ron Wyden, that line has been the shield online outlets have used to protect themselves from liability for certain kinds of content posted by users to their websites. It is important to note that Section 230 has nothing to do with content composed by publishers (user comments certainly count, though). Because of this, the law as become mired in the debate about online speech and the role moderation plays on online content platforms. 

The statute is the focal point of the two sides of the American political spectrum—for almost diametrically opposite reasons. Republicans have claimed that it is at the source of infringement of conservative voices on popular online social media platforms. On the other hand, Democrats question why racist or violent content remains online despite calls for increased moderation. 

Resolving these different perspectives won’t be easy. But what certainly isn’t helping things is the recurring problem of statue 230 being misinterpreted and misrepresented. These problems only confound the confusion over this already-complex issue. Corrections have been issued: Vox needed to rewrite a piece back in May with a mea culpa and more recently The New York Times took back a claim that Section 230 protects online publishers of hate speech (that’s the first amendment).

Conspiracy theories

Some have accused legacy of media being behind some sort of coordinated attack to undermine the power of big tech. However, Jeff Kosseff, an expert on the subject, offers another explanation.

“I think the problem, really, is just that it’s a complex issue,” he says. “And people don’t think it’s a complex issue because it’s a short law. I mean, the core of it is 26 words. But the problem here is that it’s not intuitive.”

Kosseff is a cybersecurity law professor at the United States Naval Academy and the author of The Twenty-Six Words That Created the Internet, the 328-page book that tackles the story of Section 230. One thing Kosseff is pretty sure about: there’s no conspiracy. “I seriously doubt that the Sulzburger family is telling the New York Times business section to write that Section 230 protects hate speech. That seems a bit too far fetched for me,” he says.

Historical perspective

That’s not to say all of the media coverage has been wrong either. Kosseff, who worked over seven years as a reporter at the Oregonian, points to pieces in Wired and The MIT Tech Review (both of which cite him) as successfully communicating Section 230’s intricacies. Going forward though, Kosseff recommends that reporters covering the online speech beat develop a better understanding of the statute and its history. 

Although passed in 1996, Section 230 originally came about as a way to carry forward a legal principle decided in the 1950s and apply it to the online medium. Since the case Smith v. California in 1959, distributors of content have enjoyed protections against liability of the nature of content they do not produce, as was found in the California. (At that time “distributor” meant an outlet like a bookstore.) 

The need for further clarity emerged after legal battles in the early 1990s. Two internet companies were targeted by people who felt they were harmed by the content found on the respective services. The cases resulted in two different legal outcomes. The first company, CompuServe, was spared liability for content on its platform as it had decided to not perform moderation. However, Prodigy, which did edit what was found on its service, was deemed liable for the content on its site.

Net not neutral

These two distinct outcomes are likely at the root of a common misinterpretation of the law: that a content platform needs to be a neutral party to defend itself from any legal claims. That is not the case. Section 230 was written so that content providers could decide what was added their sites by third parties without the risk of legal action.

According to Kosseff, this misinterpretation could be connected with  the way the legal departments of news sites have historically navigated the law in relation to examples like crowdsourced projects, user-submitted reviews, and comment forums . “A huge misconception that even lawyers at news organizations have is that if you make any edits or moderate user content, you lose your Section 230 protections,” says Kosseff.

This point of confusion has manifested itself in the debate between the roles of publishers versus platforms. A May op-ed authored by GOP Senator Ted Cruz explained that Facebook risks losing its protection as a neutral platform and instead risked the liability of being a publisher. Except Section 230 specifically means that if you allow third party posting, you do not count as a publisher of that content (with some exceptions like content breaking federal criminal and intellectual property law). The difference between publishers and platforms is “not really a distinction under the law for Section 230,” says Kosseff.

In addition to encouraging reporters on the topic to do their due diligence, Kosseff recommends that publishers retain legal council with the most up to date knowledge. That’s the key to not only reporting correctly on topic of Section 230, but also managing news and other media websites with user generated content, as there could be negative consequences in the most common misunderstanding the law.

“It’s terrible for business reasons,” says Kosseff. “Because if you’re just sort of voluntarily keeping up all the worst content, you’re going to be driving readers away. And there’s no reason for you to do that.”

Featured Post | Perspectives | Policy

The echo chamber effect

Echo Chamber: a room with sound-reflecting walls used for producing hollow or echoing sound effects 
—often used figuratively.

Most of the time, echo chambers are amazing, secret shared spaces, acoustic marvels. See the Whispering Gallery of St. Paul’s Cathedral in London or the famous subterranean chambers at Capitol Studios in Hollywood.

Unfortunately, “figurative” echo chambers just don’t produce the same vibe. A prime example is my renewed optimism every March that this is finally the year for the Washington Nationals. I spend all winter reading and talking with other fans about which free agents the Nats have signed and why this will finally get them over the hump. Players talk about how they incorporated hot yoga into their offseason conditioning program, which I’ll translate to mean there will be a surge in home runs in the hot, humid DC summer. Advanced stats project breakout seasons for practically the entire roster.

Of course, there are plenty of critics out there to counterbalance my irrational optimism. Some are less articulate than others (hello, Phillies fans!). Even my loving wife cautions that the Nats will break my heart again. But, in the cold, dark winter, I willfully shut out all the haters in favor of my sweet summer dreams. And, yet, here we are still waiting for the Nationals to win their first playoff series.

Public policy is another arena in which echo chambers don’t support balanced, rational thinking. There are two recent prime examples surrounding major tech companies that are suffering from the echo chamber effect:

A more balanced approach

Facebook recently announced that it would develop its own digital currency, Libra. It’s a big swing with grand slam potential. Quite frankly, it makes a ton of sense as Facebook has massive scale and a well-suited combination of services. However, Facebook dramatically underestimated the reputational harm caused by the Cambridge Analytica scandal, its previous settlement with the FTC for privacy violations, a key area for banking and other regulators concerned about the ability of dark money to flow through Libra.

The company also failed to anticipate basic questions from lawmakers such as how much anonymity would be granted to users of the service. Their rollout strategy basically amounted to “we got this, bro!” At a Senate Banking Committee hearing this week, Facebook’s David Marcus was forced to concede that they will not launch Libra until regulators’ concerns are addressed.

Manipulation and the market

The Senate Judiciary Committee also convened a hearing to look at whether (and how) Google tweaks its algorithms to impact speech and profits. Admittedly, there is a lot we don’t know here. Even Subcommittee Chairman Ted Cruz (R-TX) acknowledged that he has only seen anecdotal evidence that Google deprioritizes conservative voices.

However, Google clearly prioritizes its own sites in search as well as the ads that net the biggest profits for Google. As the dominant player in the ad serving landscape, it’s clear that the company’s algorithms are tuned to make the most money for Google to detriment of consumers and competitors.

Free speech

There are major concerns about real and perceived behaviors that have major impacts on a wide swath of democratic discourse and commercial activity. So, against that backdrop, Google’s new global head of government relations wrote and testified that Google’s algorithms do not factor in political views. As evidence, he cited Google’s diverse workforce and one study. But, as Senator Josh Hawley (R-MO) reminded his colleagues, Google has a history of ideological censorship, such as when they accommodated the Chinese government to operate in that country.

Despite the duopoly’s posturing, lobbying, and academic influence, there’s a rising sentiment that they can’t be trusted. In fact, Senator Hawley pointedly asked Google’s head lobbyist “why would we believe you about anything?” Despite direct pleas from Senators Hawley and Richard Blumenthal (D-CT), Google wouldn’t even agree to have a 3rd party conduct an independent audit to ensure compliance with Google’s stated claims of non-bias. The whole interaction underscores the fact that Google has essentially evaded Congress and the industry about how its algorithms work – often to the detriment of competitors and consumers alike.

Both Facebook and Google’s approaches to Congress felt like they had been developed in an expensive, lobbyist-enabled echo chamber. We can shake our heads at the ludicrousness of these situations. But the reality is that these duopoly built echo-chambers yield far greater consequences than the dashed dreams of a middle-aged baseball fan. These two companies shape public discourse throughout the world. They also dominate the digital advertising landscape, raking in massive profits, and deciding the winners and losers in the marketplace. Echo chambers are not the place in which balanced, constructive strategies are conceived. It is time we demand more from Google and Facebook than obfuscation and the raw exercise of market power.

Featured Post | Policy

Kids digital video is a perilous place and regulation may not be keeping pace

As children’s digital content consumption has come under the microscope and parents are realizing the extent to which popular online video services fall short of their expectations, federal regulators have voted to take away some of the guarantees protecting traditional sources of educational media. At the same time, others are calling on the Senate to leverage COPPA to reign in platforms’ approach to digital video and to enact new legislation to better keep pace with the rapidly evolving digital video marketplace. Clearly, the industry is at a crossroads and children are increasingly dodging traffic in the form of data collection, ad targeting, and unconscionable content—all of which would be unthinkable in the carefully moderated world of kids TV. 

Unsurprisingly, YouTube is often found in the crosshairs when talking about objectionable digital experiences for kids. With issues stemming from lackluster privacy protections enabling extensive collection of childrens’ data to recommendations algorithms pitching inappropriate videos, the video social media network faces pressure from the Federal Trade Commission to turn around its platform. One idea from the company is to double down on its YouTube for Kids platform and effectively quarantine kids content from the rest of the site. However, to date, that approach has had some significant problems of its own. 

Of course, it’s easy to see why parents like the service: It’s got tons of available content, it’s easy to find, and probably most appealing of all, the large majority of it is free.

Other services, from new market entries to the larger video services like Netflix, Hulu, and Amazon Prime Video (as well as upcoming competitors like Disney+), to traditional media networks have implemented features to better safeguard children. Companies like SuperAwesome are developing video platforms that take the risk out of kids content online for parents and advertisers. And Superawesome demonstrates the level of interest in this space, having raised $13 million in funding earlier this year, led by Harbert European Growth Capital. It was also ranked one of the U.K.’s fastest growing companies. 

What’s changed

While YouTube holds great appeal and attracts massive audiences, it has yet to unseat one medium that has been guided by rules to protect children’s content for almost 30 years. That would be broadcast television. “It’s certainly the most powerful way to reach the biggest audience. You know, the demise of linear TV has been greatly exaggerated,” says Harold Chizick CEO of Chizcomm and Beacon, the largest media buyer in the children’s programming sector. 

While the digital offerings from content companies are more robust than ever, and kids end up watching on more screens, Chizick says that there is a key difference: cowatching. Parents and kids are more able to catch content together when it’s on a larger screen where broadcast TV is usually found.

Additionally, the advertising industry has taken advantage of the dearth of younger eyes. And, in practice, kids end up not being able to avoid targeting technology that leverages collected personal information. That’s challenging as there additional protections for kids and their data under the Children’s Online Privacy Protection Act (COPPA) which advocates say the federal government is not doing enough to enforce. 

Kid Vid

Although the online kids programming business doesn’t necessarily feel ready for prime time, the Federal Communication Commission voted this week to change the rules and regulations surrounding “Kid Vid” or the broadcast licensing requirements of children’s programming called. The changes were originally larger in scope when first proposed by Republican commissioner Mike O’Rielly last winter, in a vote of three to two among the commissioners, the FCC decided to enact an earlier start time for the programming (6 a.m. instead of 7 a.m.), removal of a mandatory 30 minute length for individual programs, and a reduction in reporting requirements for the broadcasters. Broadcasters will still need to air at least three hours a week of educational and informative content.

These changes make sense because broadcast stations need more flexibility to air other important content like local news and coverage of community events, as O’Rielly said in an op-ed at The Hill. As well, encroaching modernity has heralded the shift from linear TV to digital options meaning the burden of regulations falls only on part of the industry. “Notwithstanding this extensive competition in the video marketplace, local broadcasters are the only ones forced to operate under our Kid Vid rules,” he wrote.

In her dissenting opinion, Commissioner Jessica Rosenworcel said that she was concerned about the reliance on algorithmic recommendations for kids who watch content online. “This [proposal] follows on the heels of reports that automatic recommendation systems can present disturbing videos on the screen, one after the other. As a mother, I am not at ease when my kids before the computer and rely on algorithms to deliver their next video,” said Rosenworcel during arguments before the vote.

Modern regulation

Early on, the changes to Kid Vid had children’s programming advocates—and more recently a group of Senate Democrats—concerned. “The FCC’s assumption that children’s television guidelines are no longer necessary because programming is available on other platforms is simply wrong,” as three children’s television groups said in a fall 2018 filing to the FCC. “To obtain access to non-broadcast programming, households must have access to cable or broadband service, and be able to afford subscription fees and equipment. Many families, especially low-income families and families in rural areas, cannot access or afford alternative program options.” 

Christopher Terry, assistant professor at the University of Minnesota Hubbard School of Journalism and Mass Communication agrees. In a phone call, Terry levied criticism at the shifting motivation behind the changes. Originally proposed as a first amendment issue in 2018, he said that was unlikely to fly due to the fact that the FCC has full mandate to regulate the content found on broadcast channel as licensing conditions. The reframing of the changes as a competition problem in an era of changing viewing habits, only came later. Even then, Terry questions who is actually benefiting from more competition. 

“There is absolutely no upside for the people who use this programming in this proposal,” says Terry. “The only people who benefit from this is the FCC—they’ve got less paperwork to deal with—and the companies that are going to have more opportunities to figure out ways to get around this.”

With the FCC’s new rules moving forward nonetheless, the need for mature, responsible online platforms for kids content delivery is more critical than ever. Regulators want people to embrace the new online platforms, so there should be a destination which protects the interests of kids and their parents equally as any bottom line.

Featured Post | Perspectives | Policy

Behavioral advertising: The mirage built by Google

Important new research was recently presented at a major economics conference and reported on by the Wall Street Journal. The comprehensive study was conducted over nearly five years by Veronica Marotta, Vibhanshu Abhishek and led by Alessandro Acquisti, who is globally recognized for his work studying behavioral economics and the impact of privacy on digital society. The bottom-line: Acquisti’s team found that behavioral advertising, as measured and delivered based on third party cookies, increased publisher revenues by a mere 4%.

If you’re nodding your head unsurprised by this statistic, then you’re likely in the 67% of publishers surveyed recently by Digiday who answered that behavioral advertising doesn’t help their business. But make no mistake, the findings are profound as to how they inform the future of digital advertising. They will also have a strong influence on the next steps in US privacy legislation. Put simply, nearly all of the growth touted by the industry benefits intermediaries rather than the publishers who provide the news and entertainment. And for the first time ever, there is empirical research to dismiss long-touted industry arguments that privacy rules will kill the golden goose that pays for free content.

Implementing new rules

This empirical study makes it clear that the absence of rules has overwhelmingly benefited intermediaries. (This would also explain the market caps of a few of the biggest intermediaries.) And now, there remains a singular challenge: No individual publisher can change tactics unless all significant publishers move in lock step. That’s because individual companies would lose significant revenues moving on their own, even on behalf of consumers. Therefore, the bar must be raised equally, through a combination of tech and regulation.

Google is the most critical company with the most to lose and will have a seat at the head table no matter where the market or regulators take us. It will be critical for individual publishers to be able to move in the best interests of consumers and their fellow publishers without being held back by Google’s stronghold. Reuters reports that “Google has repeatedly said that it acts in the best interest of its users and offers sufficient warning to industry partners potentially affected by its moves.” We’ll see.

Recent experience suggests that Google will not cede ground. A friendly reminder that when GDPR rolled out last May in order to better protect the privacy interests of EU citizens, Google waited until the final days to push through its own interests. Global publishers had to send a formal letter of concern to Google’s CEO. They also filed a copy with every major competition authority in the western world.

Built on a shaky foundation

Much of the digital advertising marketplace and Google’s business have been built on direct-response advertising in which clicks and audience targeting are valued more than the media that surrounds it. This presents a challenge for media companies which have invested heavily in high-quality, premium news, and entertainment environments. Unfortunately, the largest part of the digital advertising market was whittled down to little more than an efficient delivery vehicle for cookies auctioned off to the highest bidders. And little has been done to dismantle this poorly-built foundation. Rather, our entire industry – data brokers, ad tech platforms, agencies and publishers have fueled these direct-response metrics by doubling down on them through behaviorally-targeted advertising.

The premise? That the new capabilities to collect and use browsing data across the web eliminate the waste in advertising, giving marketers their long-sought dream of one-to-one targeting with real-time measurement and publishers a share in the spoils to help fund their digital growth. And, through these same data reservoirs, advertisers could focus on cherry-picking consumers as efficiently as possible. This spawned a slew of sites optimized not for long-term relationships with loyal audiences but instead for their ability to create diverse cookie pools for these real-time markets.

The 800lb gorilla

Google was a company built for the direct response economy post-2009. Due to several years of belt tightening after the 2008 financial crisis, chief financial officers had more pressure to ensure that marketing investments met the quarterly demands of shareholders. And boy did Google deliver. Google did everything it could to maximize the personal data in its coffers and to minimize friction for advertisers who wanted to micro-target people based on it.

Some history:

  • When web browsers were on the cusp of consumer privacy innovation by restricting tracking cookies, Google lobbyists hindered industry progress.  At the same time their own browser, Chrome, took a dominant seat in the market.
  • When consumer ad blockers became a risk to Google’s data collection, Google began a series of secretive deals and payments in order to whitelist their own data collection tags and later commandeer a browser solution to protect its own ad formats. This saved the company billions in revenue while everyone in industry took a hit.
  • When a more privacy-focused mobile environment emerged from Apple, Google continued investing in its privacy-porous Android device. It earned a $5.1 billion fine for its efforts. Google also launched its own code layer in AMP. This provided the company deeper influence on what can be on publishers’ websites.
  • Google wrestled control and influence over the ad tech supply chain used by competing publishers through a series of targeted acquisitions.

Market dominance

The fruit of its labors is an advertising market optimized for its own interests.

  • Who conducts the most bids to buy advertising in these real-time markets? Google.
  • Who offers up the most bid requests to sell advertising in these real-time auctions? Google.
  • Who operates the most negotiations between buyer and seller? Google.
  • What is the most valued asset in digital advertising? Personal data.
  • Who owns the most personal data? Google.

Put another way. Google is the largest buyer, seller, and transaction vehicle for digital ads that leverage personal data. And Google has by far the most personal data. At this point, it should hardly be a question whether this is a rigged market.

The numbers are startling. In the past decade, Google’s SEC filings show that the advertising revenues Google delivers across its vast network of millions of publishers have barely doubled, having grown from $9 billion in 2010 to $20 billion last year. However, in the same ten years, Google has quadrupled its owned and operated advertising revenues from $28 billion to a whopping $116 billion last year.

Search was (and is) the monopoly that privileges entry into any other business by Google. However, the rich interest profile that can be assembled by harvesting personal data across its operating system, browser, ad services, analytics, and its own properties comprises a behavioral advertising fortress.

The anticipated Department of Justice decision to investigate Google is the company’s worst nightmare in terms of timing on these issues. Already we’re seeing influencers and former competitors begin to open up about bad conduct in Mountain View. Inevitably, there will be more details and more reports. It’s critical to the process—and the future of digital media—that light be shone on their activities.  

Without a doubt, the investigation means that Google will have a harder time finding friends in the publisher and ad tech communities. However, it’s unlikely you’ll hear publicly from many of them. And therein lies the ultimate symptom of antitrust: No company wants to cross Google. But the word “frenemy” will cut in a different direction now: You won’t find anyone watching your back when you’re under the regulatory microscope.

The rise of ad tech intermediaries

All of this said, Google wasn’t alone in its attempts to reap the spoils of the behavioral advertising marketplace. In the period between 2010 and 2016, hundreds (if not thousands) of new companies spawned in the ad tech wild west. By my count, there were 78 ad tech companies starting with the letter “A” in 2016 and today 64 of the 78 have either been acquired or disappeared from the industry. History will determine whether most (if any) of these companies had a lasting impact on the industry.

The core proposition of nearly all of them was to serve a burgeoning programmatic marketplace in which third parties could be inserted into the supply chain in return for value. The typical webpage went from dozens of third parties to hundreds. This triggered a real-time competition for eyeballs, most often represented by third-party cookies.

Personal data was collected by these third parties without consumer knowledge or control. The data was then used to target consumers across the web, as cheaply as possible. All of this was done outside of consumer expectations which led to the “adtechlash” with the rise of ad blockers, various levels of tracking protection launched into Chrome’s “competition” web browsers Safari, Brave and Firefox, and new privacy laws like 2018’s GDPR and CCPA rolling out in 2020.

Now we find ourselves on the eve of new laws globally to better align with consumer expectations. Publishers need to be fierce defenders of these consumers and protecting their experiences. Ultimately, the fight to defend behavioral advertising likely isn’t worth it. At the very least, every publisher and their representative organizations should make certain whose interests they’re fighting for. This will determine who benefits over the next ten years.

Featured Post | Perspectives | Policy

What policy makers can learn from privacy-focused products

The legal and policy community continues to debate the impact of General Data Protection Regulation (GDPR), the ins and outs of the California Consumer Privacy Act (CCPA), and how (or whether) Washington should regulate consumer privacy. While the debate rages on, we are seeing a stream of consumer-focused privacy-oriented product rollouts. It is interesting to look at what these controls actually do and how they might inform the policy debate.

In a concession to consumer privacy, Google recently announced that it would allow consumers to block companies from tracking them across the web when they are using Chrome. Specifically, they will differentiate between 1st party and 3rd party cookies. As such, they will allow consumers to delete 3rd party cookies while preserving the 1st party cookie, which, for example, allows a website to remember a consumer’s log-in information. In addition, Google will soon roll out features to prevent companies from identifying consumers via device fingerprinting, another method used to track consumers across the web.

Let’s be clear, Google is late to the privacy game given the long history of privacy protections offered by Apple and Mozilla. Apple has famously blocked 3rd party cookies by default in Safari and recently introduced Intelligent Tracking Prevention (ITP), restricting the ability of companies to access cookies when a consumer is not interacting with that company.  

Services that care for consumers

When a consumer visits YouTube on Safari, Google can access the cookies they have set on their browser. However, as soon as the consumer navigates to another website, Google can no longer access those cookies. ITP essentially breaks the ability to track consumers around the web.  Apple has also worked to block loopholes where cookies, set by companies like Google and Facebook, pretend to be 1st party but are then used for tracking and secondary use. Unfortunately, it is hard to muster much confidence that Google will be anywhere as diligent as Apple in closing loopholes, given its business model is built on its ability to expertly track consumers.

Mozilla, on the other hand, offers multiple ways for consumers to block third party tracking in Firefox. Mozilla is also considering rolling out a “Super Private Browsing” mode, which would incorporate Tor privacy features into Firefox.

Beyond the most commonly used browsers, a whole suite of new services have popped up. Duck Duck Go, a search engine, and Brave, a browser, offer strong privacy controls as their primary value proposition. As we’ve noted for several years now, more and more consumers are turning to ad blockers to protect themselves and/or improve their web experience. Forcing these massive platforms to once again compete on privacy will be good for everyone, particularly consumers. The question, of course, is whether some of these companies are simply too big to change at this point.

Policy implications

Back to my original question: What can policymakers learn from these new consumer privacy controls?

For starters, consumers increasingly demand more and stronger protections of their data and digital lives or the market wouldn’t be headed that direction. You can reasonably debate whether Google’s recent announcement went far enough. But the fact that a multi-billion-dollar company like Google did anything at all speaks volumes.

It’s also worth pointing out that all of these new controls, which curtail the ability of companies to collect consumer data at scale, are not actually breaking the internet despite the frequent claims of ad tech lobbyists. In fact, given this push to meet consumer demand for greater privacy controls, it’s funny and a little sad to look back at the hysteria from some of these lobbyists.

Meeting consumer demand

The big takeaway is how these companies and their engineers are designing services and features to meet consumer expectations for privacy. This new wave of privacy controls gives consumers the ability to stop companies from tracking them across the web. Yet, these services preserve the ability for websites and apps to collect and use consumer data when the consumer is interacting directly with that company.

This approach makes sense. Consumers share their data so that companies can use it to provide a service or content. In this fair value exchange, the consumer can choose to engage or not. Consumers do not expect companies to track them outside of that fair value exchange and doing so is simply bad business.  

It isn’t a question of whether consumers want their privacy protected, these market moves demonstrate the demand and inevitability. And, as policymakers consider how best to craft consumer privacy protections, it’s worth noting how today’s best engineers have attempted to meet consumer demand and expectations for privacy.

Featured Post | Perspectives | Policy

Fines are fine. But they’re not enough to shake the duopoly’s dominance

Armed with consent decrees, new laws and new hooks into old laws, regulators around the world appear to be fed up with Google and Facebook. With good reason. The Google Facebook duopoly continues to maintain an unhealthy dominance of the digital marketplace. Nearly all of the growth in digital advertising continues to go to these two companies.

The impact is significant. Revenue that might otherwise flow into a healthy marketplace of known and emerging competitors instead is flowing directly to only two uber-dominant companies. As a result, a well-known strategy for startups was to simply position themselves for acquisition by the duopoly but over time and big tech scrutiny those opportunities have even evaporated resulting now in a “kill zone” where no venture capital will even invest. For more mature businesses, the counteracting strategy has been to merge and, thereby, try to achieve competing scale. So, it’s either get big or get bought—if you can.

Meanwhile, devoid of any real competition, Facebook and Google find themselves increasingly at odds with consumers. A new unappealing revelation seems to hit every few weeks. This is not a healthy environment that fosters growth and stability, much less any sort of ethical data framework that matches consumer expectations.

Here come the Regulators

Recently, the French data protection authority fined Google $50 million euro for violations of the General Data Protection Authority. In its ruling, they took issue with the unlawful way in which Google asked consumers for consent. Essentially, Google appears to offer a take-it-or-leave consent to consumers with pre-checked boxes and little transparency. Particularly from such a dominant company, the regulators said this approach is a no no.

Google’s tech lobbyists will say this ruling is bad for all of industry. But really…it’s just bad for Google. The French specifically noted that Google’s dominant market position played a big part in the ruling. The reality is that there are not very many companies whose business model (or at least the anti-competitive dominance of it) is so utterly dependent on tracking and targeting consumers everywhere they go. Not all of industry wants to be lumped in with the toxic duopoly. Nor should they. Many companies offer a value proposition to consumers (and advertisers) that doesn’t hinge on web-wide tracking.

Then, there is news that the Federal Trade Commission (FTC) is close to issuing a record-setting fine on Facebook for violating a consent decree. The FTC’s previous record fine for a consumer privacy case was in 2012 levied at (you guessed it!) Google for $22.5 million.

At this point, even the state regulators are getting involved. The DC Attorney General recently sued Facebook for failing to protect consumers’ data in their Cambridge Analytica scandal.  It’s a simple approach that many other attorneys general may follow. 

More than Money is at Stake

All that said, the headlines seem to focus on the amount of the fines. However, what I’m watching most closely are the behavioral or structural changes that come as a result. For instance, will the FTC require tighter oversight by Facebook of their third party partners? Will the FTC recommend that Facebook divest itself of Instagram and WhatsApp, thereby creating instant competition in the social media space? And, how will the EU’s enforcement of GDPR impact Google’s ability to track consumers’ every move?

As the French ruling seems to insist, Google may have to unbundle its requests for consent which would surely lead to fewer consumers agreeing to be tracked by Google. It’s subtler – but if EU regulators are successful in ensuring that companies are plainly and transparently asking for consent for secondary uses of data, will that improve the prospects of companies which have trusted relationships with consumers?

At the end of the day, a $50 million euro fine probably feels like an annoying mosquito bite for a company with over $100 billion in annual revenue. The biggest benefits for consumers and the marketplace will only come if there are changes in how the duopoly operates.

Featured Post | Perspectives | Policy

The Midterms are over: Sizing up what it means for big tech

For the last two years, Congress has increasingly focused on big tech platforms. Lawmakers have summoned executives, consumer advocates, and academics for hearings on consumer privacy, market dominance, data breach scandals and perceived political bias. However, with the exception of a bill to amend Section 230 of the Communications Decency Act to clarify  companies’ liability for facilitating  sex trafficking on their sites, Congress has not yet moved significant legislation to regulate the tech industry.

Some are wondering whether a new Democratic majority in the House means Congress will start legislating, particularly with the President saying that he is interested in discussing with Democrats whether or how to regulate the technology industry. Let’s take a look at how the 2018 midterm election results might impact a few high-profile tech issues.

Market Dominance of Big Platforms

Even before the elections, Democrats and Republicans raised concerns about the outsized influence of Google, Facebook, and Amazon – albeit for different reasons. Many Democrats are concerned about the data surveillance business models of big tech companies. Republicans, on the other hand, distrust social media algorithms, which they believe favor liberal points of view over conservative voices.

I expect both parties’ concerns will only grow, especially as we get closer to the 2020 Presidential election. And those concerns might fuel action on other issues. Congress is not likely to do anything to directly address the dominance of the big technology platforms. The expectation is that the Department of Justice and the Federal Trade Commission will work with Congress to provide guidance on what, if anything, lawmakers should do. Thus far, discussions have focused on how various digital business models function and what remedies or regulations would be needed to enhance consumer experiences.

Net Neutrality

Over the past decade, Congress and the Federal Communications Commission (FCC) have been bickering about net neutrality without final resolution. Most recently, the Republican-controlled FCC rolled back net neutrality regulations promulgated by President Obama’s FCC.

With Democrats set to take the reins in the House, they are more likely to move a bill to reinstate those Obama-era net neutrality rules. But the Republican-controlled Senate is likely to completely ignore any bill sent over by the House. That dynamic could change if the courts rule on the pending challenges to the FCC’s rollback. Until the incessant shouting stops, this is likely an insular technology discussion and fodder for future campaigns.

Consumer Privacy

Congress has held dozens of hearings on consumer privacy over the years. This year was no different. However, the tone of the conversation has changed dramatically just in the past few months. As mentioned before, many Democrats have long advocated for a consumer privacy bill of rights, saying that Congress needs to step in to protect consumers. Now, a few key Republicans agree. Many in the industry are calling for the same as the California Consumer Privacy Act and the EU’s General Data Protection Regulation go into effect.

Just last month, Senate Commerce Committee Chairman John Thune (R-SD) stated, “It is increasingly clear that industry self regulation in this area is not sufficient.” Clearly momentum was building on this issue before the midterm elections and there is reason to believe it will continue. Senator Thune is likely to move into a leadership position in the Senate, thus relinquishing his position as Chairman of the Senate Commerce Committee.

However, the next likely chairman is Senator Roger Wicker (R-MS), who signed a bipartisan letter with three other key senators in September saying they want to work with the Administration to “provide consumers with more transparency and control over the collection and use of (consumers’) personal data while preserving the innovation at the heart of the internet.” The House Energy and Commerce Committee is likely to be chaired by Representative Frank Pallone (D-NJ), who included consumer privacy legislation on his agenda for 2019. On top of that, a host of other policymakers, including Senators Wyden (D-OR), Blumenthal (D-CT), and Markey (D-MA), have recently introduced their own legislative proposals. Comprehensive consumer privacy legislation appears to have early bipartisan and bicameral support.

All that said, our nations’ founders intentionally made it difficult to pass legislation. And, 2019 will be no different. For any meaningful legislation to advance through both chambers of Congress, Democrats and Republicans will have to put aside partisan differences long enough to find middle ground. That will be hard for elected officials to do in the current highly polarized political environment. Odds-makers would say the chances are slim that Congress can enact comprehensive consumer privacy legislation, but it’s got a better chance than most.

Featured Post | Perspectives | Policy

Has Google outgrown democracy?

Last week, the Senate Intelligence Committee held a hearing to examine the extent to which foreign actors manipulated digital platforms to meddle in the 2016 elections. To their credit, Committee Chairman Richard Burr (R-NC) and Ranking Member Mark Warner (D-VA) side-stepped the partisan wrangling and focused on how these bad actors attempted to undermine our democracy. And, for the first time, Senators Burr and Warner insisted the top executives from the big tech platforms testify in person. Given the dysfunctional state of the American political discourse, it’s especially remarkable that a group of Senators agreed to tackle an issue in a bipartisan fashion. Facebook agreed to send COO Sheryl Sandberg (Facebook CEO Mark Zuckerberg already testified in the spring). Twitter sent its CEO, Jack Dorsey. Remarkably Google declined to send Alphabet CEO Larry Page.

It’s anyone’s guess as to why Google didn’t feel it needed to participate. Its dominant role in the distribution and monetization of content, through its search and advertising platforms respectively, certainly would have been relevant to the Committee’s work. And that is before you even get to YouTube, which helped make Russia Today its #2 news property through much of 2017 and spread of misinformation in Chemnitz last week. Google certainly has enough lobbyists on retainer to fully prepare. Whatever the reason, the fact that “declining” was even an option demonstrates just how big Google has become.

Data Wars

One area not well understood in Washington is the relationship between data collection and the incentives that allow foreign actors to manipulate them. Damian Collins, the Tory MP of UK Parliament, has led a brilliant multi-party effort to document its findings in this area. Other policy experts have also begun to explore how data protection may help curb disinformation.

Again, this is where Google’s role as the company that collects enormous amounts of data on the public needs to be more clearly explored. A few weeks ago, we distributed research entitled Google Data Collection, by Vanderbilt Professor Douglas Schmidt which, for the first time, cataloged the expansiveness of Google’s data collection machine. Google owns the #1 browser (Chrome), the #1 mobile platform (Android), and the #1 search engine (Google Search). On top of that, Google’s analytics and advertising tools are impossible for consumers or publishers to avoid. All of these touchpoints allow Google to conduct a massive surveillance operation on consumers who have no way to avoid it.

Professor Schmidt’s research shows that a dormant, stationary Android phone (with the Chrome browser active in the background) communicated location information to Google 340 times during a 24-hour period. That’s an average of 14 data communications per hour – with location information constituting 35% of all the data samples sent to Google.

When an iOS device was running Safari in the background, but not Chrome, Google could not collect any appreciable data unless a user was interacting with the device. Conversely, an idle Android phone running the Chrome browser sends back to Google nearly 50 times as many data requests per hour as an idle iOS phone running Safari.

Perhaps the most striking revelation in Professor Schmidt’s research is that approximately two-thirds of the data that Google collects about consumers is collected in passive ways. That’s an incredible amount of information being gathered in the background, where consumers wouldn’t expect it.

Power Play

Google’s pervasive surveillance have enabled the company to rake in massive profits and squash competition in a variety of ways. However, there probably is no surer sign of their dominant position than their ability to decline – with no worry for the consequences – a bipartisan request to testify from the Senate Intelligence Committee.

At the same time they declined to participate in this hearing, rumors began to circulate that Google is creating a search engine just for the Chinese market that will allow Communist leaders to block access to content they don’t like. Google appears to be a willing participant in the suppression of over 1 billion people.

Is it time to start asking whether Google has outgrown democracy?

Featured Post | Industry-Research | Policy

Google data collection research

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While the public has been focused on the ongoing Facebook and Cambridge Analytica scandal, Google has largely avoided public scrutiny about its data collection practices despite having the ability to collect far more personal data about consumers across a variety of touchpoints. There have been efforts to document individual practices by Google such as their efforts to circumvent controls on Safari.  More recently, an investigation by the Associated Press revealed that Google continues to track location data even after a consumer has turned off the setting.  While these research efforts have been important to the public policy dialogue, no research exists which looks at the breadth and depth of data collected by Google.

In “Google Data Collection,” Douglas C. Schmidt, Professor of Computer Science at Vanderbilt University, catalogs how much data Google is collecting about consumers and their most personal habits across all of its products and how that data is being tied together.

The key findings include:
  • A dormant, stationary Android phone (with the Chrome browser active in the background) communicated location information to Google 340 times during a 24-hour period, or at an average of 14 data communications per hour. In fact, location information constituted 35 percent of all the data samples sent to Google.
  • For comparison’s sake, a similar experiment found that on an iOS device with Safari but not Chrome, Google could not collect any appreciable data unless a user was interacting with the device. Moreover, an idle Android phone running the Chrome browser sends back to Google nearly fifty times as many data requests per hour as an idle iOS phone running Safari.
  • An idle Android device communicates with Google nearly 10 times more frequently as an Apple device communicates with Apple servers. These results highlighted the fact that Android and Chrome platforms are critical vehicles for Google’s data collection.  Again, these experiments were done on stationary phones with no user interactions. If you actually use your phone the information collection increases with Google.
  • Google has the ability to associate anonymous data collected through passive means with the personal information of the user. Google makes this association largely through advertising technologies, many of which Google controls. Advertising identifiers—which are purportedly “user anonymous” and collect activity data on apps and third-party webpage visits—can get associated with a user’s real Google identity through passing of device-level identification information to Google servers by an Android device.
  • Likewise, the DoubleClick cookie ID—which tracks a user’s activity on the third-party webpages—is another purportedly “user anonymous” identifier that Google can associate to a user’s Google account. It works when a user accesses a Google application in the same browser in which a third-party webpage was accessed previously.
  • A major part of Google’s data collection occurs while a user is not directly engaged with any of its products. The magnitude of such collection is significant, especially on Android mobile devices, arguably the most popular personal accessory now carried 24/7 by more than 2 billion people.

DCN is grateful to support Professor Schmidt in distributing this research. We offer it to the public with the permission of Professor Schmidt.

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Policy

DCN Comments on Hearings on Competition and Consumer Protection in the 21st Century

 

 

Before the
Federal Trade Commission
Washington, D.C.

Competition and Consumer Protection Docket Header

COMMENTS OF DIGITAL CONTENT NEXT

I. Introduction

Digital Content Next (DCN) appreciates the opportunity to submit comments in the above-captioned proceeding.[1]  Founded in 2001, DCN is the only trade organization dedicated to serving the unique and diverse needs of high-quality digital content companies which enjoy trusted, direct relationships with consumers and marketers. DCN’s members are some of the most trusted and well-respected media brands that, together, have an unduplicated audience of 223,098 million unique visitors or 100 percent reach of the U.S. online population.

II. Consumer Expectations and Trust

As the FTC considers the complex public policy issues related to the digital ecosystem, we encourage you to view each issue from the perspective of the consumer. Consumers have a wide variety of places where they can find quality investigative reporting, breaking news, sports, entertainment or comedy. When they visit a site or app, they expect their data may be collected to ensure the service works properly, combat fraud, authorize subscriptions, personalize content or advertising, and recognize a return visitor among other things. These data collection and use cases tend to meet consumer expectations because there is a direct benefit to the consumer experience and because the consumer’s data is collected and used transparently within the same context. If the consumer does not like how their data is being used, the consumer can communicate their dissatisfaction or they can choose to visit a competing site or app. Given the plethora of choices for consumers, publishers are acutely aware that preserving consumer trust is key to building a relationship with the consumer.

Consumer trust can be eroded when their data is collected in one context but used in another without transparency or an opportunity for the consumer to exercise choice. The ongoing scandal involving Facebook and Cambridge Analytica is a good example. In this case, Facebook allowed an outside company to collect data about Facebook users and their friends for what consumers expected was a benign purpose and solely within the confines of the Facebook service. However, the data was ultimately shared with multiple parties and used for unexpected purposes. Also, it is important to note that the data collection provided no benefit to the consumer.

In June, DCN commissioned[2] a survey of consumers to better understand consumer expectations with regard to how Facebook collects and uses data. The results underscore that consumers generally expect their data to be collected and used within the same context. However, our survey found that 72% of consumers do not expect Facebook to collect data about a person’s online activities on a non-Facebook webpage if a person does NOT click the ‘Like’ button.

Similarly, Google collects massive amounts of data about consumers. In some cases, consumers expect this data collection in order to facilitate the use of a service such as Google Maps. However, consumers are not likely to expect that Google collects and merges data about consumers from every consumer-facing and non-consumer-facing digital service they operate.

While these examples highlight data collection that does not meet consumer expectations, it is also important to note that consumers have no way to avoid this data collection or to exercise meaningful choice over how their data is used.

III. Competition

DCN is concerned that the current digital marketplace is unfairly tilted in favor of two companies – Google and Facebook. Combined, these two companies account[3] for 73% of digital advertising dollars and 90% of all growth[4] in the market. This revenue is generated by selling advertising on their platforms but also selling taking a cut of the growing advertising technology services used by publishers to sell advertising on their own websites. The revenue gained from their dominant advertising businesses allows them to offer “free” services. What makes these two companies so dominant is their ability to collect data about consumers at an unmatched scale and to use that data to sell targeted advertising against publishers’ content without paying a fair share.

While they offer “free” services such as Facebook, Instagram, Gmail, Google Maps and Android devices, the scale of their data collection is broadened by their ability to collect data as the provider of non-transparent 3rd party services such as social media widgets (e.g. the “like” button) and ad serving technologies. According to 2016 research[5] by Steven Englehardt and Arvind Narayanan over 70% of the top 1 million websites included Google code on their sites which allows Google to track users browsing history. Facebook recently disclosed to UK Parliament, it can track consumers across an estimated 8.4 million websites. As a result, it is impossible for consumers or publishers to avoid interacting with Facebook and Google.

However, given the asymmetry of market power, it is very difficult for any company to negotiate fair terms or to pull their content from these aggregators. For example, with only a few weeks before European regulators began to enforce the General Data Protection Regulation (GDPR), Google notified[6] the industry of the legal terms that companies would need to accept in order to continue using Google services. The non-negotiable terms asserted broad control over all data on a publisher’s site, assigned all liability for data misuse (even by Google) to the publisher and required the publisher to gain consumer consent for Google’s data collection and use activities. While other companies in the ecosystem deployed similar terms, it is notable that only Google has refused to negotiate or even engage in a meaningful conversation.

Another example is Google’s Accelerated Mobile Pages (AMP), which is a set of code and guidelines developed by Google to improve the load times of webpages. Essentially, AMP pages are copies of a webpage that have been automatically pre-loaded on Google’s servers, which enables these pages to be shown much more quickly. However, the code and guidelines for AMP restrict some types of display advertisements and rely heavily on standardized banner ad units, which is a core offering of Google. In addition, while AMP is voluntary, Google prioritizes AMP pages in search results for all users and without giving a choice; Google also only includes AMP pages in the carousel at the top of the mobile search page. As a result, publishers must use AMP if they simply want to maintain their search traffic. Finally, because the AMP pages are loaded on Google’s servers, Google gains access to first party data, which further cements their ability to collect massive amounts of consumer data to sell targeted advertising.

We are concerned about the impact these dominant companies are having on the digital ecosystem and we urge the FTC to investigate how best to ensure the marketplace is healthy and competitive.

IV. Conclusion

We appreciate the FTC’s leadership on public policy issues of importance to consumers. Thank you for the opportunity to submit these comments and we look forward to participating in the proposed workshops.

Sincerely,

Jason Kint Signoff
Jason Kint
CEO
Digital Content Next

Chris Pedigo Signature
Chris Pedigo
SVP, Government Affairs
Digital Content Next

 

 

[1] Hearings on Competition and Consumer Protection in the 21st Century, Docket ID: FTC-2018-0048

[2] http://www.niemanlab.org/2018/04/jason-kint-here-are-5-ways-facebook-violates-consumer-expectations-to-maximize-its-profits/

[3] https://www.cnbc.com/2017/12/20/google-facebook-digital-ad-marketshare-growth-pivotal.html

[4] http://adage.com/article/digital/iab-digital-ad-revenue-catapulted-88-billion-2017/313464/

[5] http://randomwalker.info/publications/OpenWPM_1_million_site_tracking_measurement.pdf

[6] https://digiday.com/media/googles-gdpr-approach-raises-publisher-concerns/

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Policy

DCN analysis of the California Consumer Privacy Act of 2018

Important Note: If you are a DCN publisher member, please be sure to log in or register to access this special members-only document, which will appear once you have logged in.

Janet Peyton and Bethany Gayle Lukitsch, partners at McGuireWoods LLP, prepared an analysis of The California Consumer Privacy Act of 2018 (AB 375) for Digital Content Next.  The bill, which was was recently approved by the California Legislature and signed by Governor Jerry Brown, provides consumers with significant controls over how their personal information is collected and disseminated by businesses.

Perspectives | Policy

Why the IAB GDPR Transparency and Consent Framework is a non-starter for publishers

The most significant opportunity in more than a decade to steer value towards our members is playing out now in Europe.

It is DCN’s role to help shape the future of the digital ecosystem to bend towards the interests of trusted content companies while your team focuses on the day-to-day operations. We work every day to do this and to raise the bar of trust with both advertisers and consumers.  Unlike other parts of the web media industry, we’re fortunate these efforts often align.  That is, by increasing trust for consumers and advertisers, the brands of DCN will prosper in the long-term. We are starting to see the pendulum swing in our favor – both in consumer subscriptions and the trust and transparency of the advertising market – and are working hard to accelerate it.

Since DCN exclusively represents content companies, we occasionally have a different point of view from other parts of the media ecosystem including intermediaries (e.g. ad tech companies, Google, Facebook). The business model of these intermediaries has for many years relied on harvesting the data generated from advertiser and consumer relationships with our members’ websites and apps. Right now, there is significant debate over how to best participate in the General Data Protection Regulation (GDPR) in the EU and what the effects of the roll-out of will be.  The rules of GDPR, which set a new bar for consumer privacy, were finalized years ago and since that time have inspired a rich amount of misinformation, disagreement and fear, only increasing as the GDPR enforcement date of May 25, 2018 approaches.

The IAB and IAB Europe, which are charged with representing a much broader set of stakeholders including hundreds of ad tech companies, Google, Facebook, Oath, and many others with significant intermediary interests, has released its plan to handle the GDPR roll-out.  The IAB framework, which was submitted for industry commenting, was clearly designed by ad tech companies and included endorsement from 23 ad tech companies and, most notably, zero publishers.

The IAB GDPR Transparency and Consent Framework should be considered a non-starter by all publishers as it fails on several levels and requires significant changes.

Details will be discussed in other forums but can be summarized as it:

  1. relies on cookies which are unreliable in many experiences;
  2. pushes all liability to the publisher without providing any control over the CMPs, SSPs, DSPs, exchanges and how they use this data;
  3. outsources the consent relationship with the user to a “Consent Manager Provider” (CMP) operated by an IAB-friendly;
  4. does not leverage the direct relationship between a publisher and its audience to manage consent and store it persistently in the browser (e.g. DNT);
  5. fails to reduce friction for users giving consent for purposes most important to publishers and most acceptable to users;
  6. unintentionally creates more friction with your audience for editorial and product features for the sake of protecting ad tech vendors.

Thus, it will most likely enable a practical use case where global consent is enacted to protect the status quo of maximum behaviorally-targeted advertising and unbridled data collection. In other words, their goal is to use “free” services to encourage users to click, “Turn All On” and opt back into the status quo.

Please reach out to us directly and make certain your business leaders and partners understand there are serious flaws with the IAB Consent Framework.  We strongly urge publishers to hold off signing up with the 23 companies (and Google and Facebook behind the scenes) to support the framework in its current form.

Once again, there is a window here in which publishers can rebuild consumer and advertiser trust. The most significant advertisers in the world are aligned with us on this as they begin to see their pursuit of truly one-to-one advertising across the wider web as economically and legally challenging.  GDPR will create opportunity for audience selection based on cohorts and context which is a significant risk to Google and Facebook. GDPR moves advertisers away from their current buying habits supported by the myth they can simply harvest demand through microtargeting personal data. Creating new demand through context and true relevance is the sweet spot of trust and true publishers.

And where there is significant risk to Facebook and Google and opportunity for growing consumer trust, you will come out ahead.