Anonymity: Interview with Robert Fellmeth, by Ralph Nader

Gathered together in one place, for easy access, an agglomeration of writings and images relevant to the Rapeutation phenomenon.

Anonymity: Interview with Robert Fellmeth, by Ralph Nader

Postby admin » Sun Dec 09, 2018 12:02 am

Anonymity: Interview with Robert Fellmeth
Ralph Nader Radio Hour
July 7, 2018

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.


[David Feldman] Robert Fellmeth is a Professor of Public Interest Law at the University of San Diego School of Law. He’s Executive Director of the Center for Public Interest Law. His areas of expertise include child advocacy, children’s rights, consumer law, family law, and professional responsibility. He recently contributed an op ed to the Washington D.C. newspaper, The Hill, entitled, “Millions of Strangers Can See Facebook posts by and about your kids.” Welcome back to the Ralph Nader Radio Hour Robert Fellmeth.

[Robert Fellmeth, Professor of Public Law, Univ. of San Diego School of Law, and Executive Director of the Center for Public Interest Law] Thank you. Nice to be here.

[Ralph Nader] Welcome indeed, Bob. You are arguably the leading child advocacy lawyer in the country. Your writings, your litigation, the bills you’ve passed in California, your leadership of children’s protection councils around the country. And you’ve been sounding the alarm, although not so much on the mass media, which doesn’t seem to be interested, on how Facebook and other companies are tying children up in fine print contracts they never see but just click on, and involving pseudo-approval by the kid’s parents to send this private information all over the world. And we’re talking about millions of children. You quote an estimate of 10.5 million U.S. subscribers to Facebook between the ages of 13 and 18. Can you talk about these Facebook contracts and how after Mr. Zuckerburg’s Apology Tour, they are still at it, exploiting people and violating privacy right down to little children.

[Robert Fellmeth, Professor of Public Law, Univ. of San Diego School of Law, and Executive Director of the Center for Public Interest Law] I think the jig may be up, though, at least in California and maybe otherwise as well. But the problem is a Term and Condition in the Facebook agreement, which of course nobody ever reads, and it applies to teen subscribers who theoretically cannot have contracts selled against them, but theoretically, simply by subscribing, because of a Term and Condition, they agree that not only have they consented to the capture of anything they post, whether it be a photograph or a comment or whatever, and its re-transmission by Facebook to anybody Facebook chooses for any purpose whatever, and they also agree that their parents have consented. That’s all in a Term and Condition that of course none of them ever know about. And it allows Facebook to basically send something to the rest of the school that you’re at, or whatever. Now usually Facebook is not doing it malevolently, they have a commercial purpose. They just want to take something that you’re doing or buying or saying and use it to go to a community that may know you, and convince them to buy that product. It’s a sponsored link type of thing. But it has these collateral impacts for the children. They may be making a comment about someone at the school or whatever, it may have a commercial implication, but to them it’s a tragedy if someone else finds out about it other than the friends to whom it was directed.

[Ralph Nader] Just to interrupt, you say a posting intended for 11 friends by these teenagers might be shared with millions of strangers around the world.

[Robert Fellmeth, Professor of Public Law, Univ. of San Diego School of Law, and Executive Director of the Center for Public Interest Law] Well yes. Facebook has over 1 billion subscribers, and they could very easily think, “Well, this is commercially blah, blah, blah …” and there it goes. I think for all these kids it’s not so much people in China getting their post, it’s their schoolmates who they don’t want to get their post getting their post, or whatever. And that’s a real problem, and the American head of Pediatrics came in with a brief supporting our position on that, and the 9th Circuit when we contested the Fraley vs. Facebook agreement, which would have in some other case, a class action case, which would have allowed the continuation of that Term and Condition, a fact that would have specifically permitted it, they depublished their opinion, which is good, it was a terrible opinion, and I’m glad they depublished it, but now we have some statutes and initiatives in California that might affect this, and Facebook concedes that California law applies to them because they are located and headquartered in Menlo Park.

[Ralph Nader] Your other cause is anonymity. So much on the Internet is brutish, coarse, slanderous, vicious, unsubstantiated charges that are reaching billions of people, raising anxiety levels, getting children to wallow in deep depression, sometimes suicide. And we’ve talked about this in the past, Professor Fellmeth, that if you get rid of anonymity, you get rid of a lot of this stuff. Letters to the editor in newspapers have to be signed. People have to stand up for their opinions. Now, make the case for anonymity, and then go to the other side of the aisle and make the case against anonymity.

[Robert Fellmeth, Professor of Public Law, Univ. of San Diego School of Law, and Executive Director of the Center for Public Interest Law] Well, the case for anonymity, of course is that there may be whistleblowers who will be sanctioned if their identity is disclosed, and this gives them the freedom to expose harms and wrongs. And there is some merit to that; however, you have a number of remedies that can address that. One, of course, is your whistleblower statutes which protect state employees and federal employees who would whistleblow, and another, of course, is the anti-SLAPP laws in many states now which limit the ability to go after someone for libel unless it allows the defendant to perhaps get their attorney’s fees paid, and so forth. And those are two very effective laws to protect actual whistleblowers.

The problem is that anonymity is everywhere, and you have all of these hubs or websites, whatever, who are transmitting messages to and from. And my point, Ralph, is that I really think the First Amendment doesn’t just involve uttering. It doesn’t involve making noise, it doesn’t involve speaking. It involves receiving. The audience has First Amendment rights, too. And to me, one of the most basic First Amendment right as an audience is to know who is talking, that allows you to judge bias, it allows you to judge expertise, it allows you to arrive to a way at what is being said. And if the Koch brothers, or Russian bots are communicating to you, it gives you the right to know whether or not you want to listen to them, and so forth. And now that we have a new telecommunication system in this country that involves one person being able to communicate to 10 million, 20 million, 50 million people to a device that is 8 inches from their face, it’s really important that the receiver there has the right to choose what they want to see and hear and listen to, and the way they should get it. And that means no anonymity. You have a right to know who is talking.

[Ralph Nader] And where is this going? Is there a move to restrict anonymity? I know newspapers, they don’t have anonymity to print letters to the editor, but they give anonymity to their websites because they want to generate more traffic. That’s what they’ve told me.

[Robert Fellmeth, Professor of Public Law, Univ. of San Diego School of Law, and Executive Director of the Center for Public Interest Law] Well, Huffington I think is banning anonymity, and I think others will. But I think what’s needed is for people to demand it of Facebook and the major webs or hubs of communications.

I think that if you want to consent to anonymity, fine. If you want to say, “send me everything,” fine. But the point is you should have the right to at least know who is talking to decide whether or not you want to hear it. Now I don’t know if it should be a statute or whether it should be a policy, but I do think that the hubs involved here would be well-advised to do it. Because I think that if you get competitors – heaven forbid that Facebook should have a competitor – but if you do get competitors, and they have that policy, I think they are going to prevail in the market.

[Ralph Nader] You have a bill in the California legislature. It’s Assembly Bill 2511, recently endorsed by the State legislature’s Committee on Privacy & Consumer Protection, that would make the bogus parental consent in the fine print to these teenagers illegal. Anything developing there around the country?

[Robert Fellmeth, Professor of Public Law, Univ. of San Diego School of Law, and Executive Director of the Center for Public Interest Law] We’re having very good luck with that bill. It does that first of all in California, which would be a very big deal. And it also addresses the issue of Amazon selling all sorts of dangerous stuff to kids, with kids being very “in the know” on how to order things and how to disguise themselves as adults. It’s not just getting beer from the supermarket. They know how to do this. And they are getting everything from BB guns, to drug paraphernalia, to all sorts of things they are not permitted to have. And so the other part of that bill, 2511, requires some level of verification of age, which I think is important.

But there is another bill in California now, AB 375 that addresses this issue beyond the child issue. And think it is a very important bill. It was precipitated by an initiative. Alistair McTaggert here in California has started an initiative, and he actually got 650,000 signatures now, The Consumer Privacy Protection Act for 2018, and it’s about to be on the ballot. And because of that, Facebook and others are saying, “Whoa! Wait a second.” And the legislature now is considering 8375 authored by the Assembly Chair of Privacy Committee, and it has a lot of provisions in it which are very interesting and very laudable. And the major one is that you have the right to request all categories and specific uses of personal information being collected by anybody on you, and the right to know to who it has been sent, and for what purpose, and the right to then say, “Delete, Delete.” And that’s a very big and important change in the law, and it looks like that might pass.

[Ralph Nader] Well, before we get to your three reforms, and Professor Robert Fellmeth of the University of San Diego Law School is all about reforms, not just diagnosis and exposure, I don’t think it’s an exaggeration to say these corporations, like Facebook, Amazon, Google – they are just relentless. They are merciless. And they’ll apologize and bob and weave, and say they’re going to shape themselves up, but they continue exploiting these kids, never mind the adults. I’ve called them “electronic child molesters.” And they just can’t be allowed to regulate themselves. They are never going to do it. The history of the last decade has demonstrated that with increasing intensity. So let’s go to your three, relatively simple reforms that need to be legislated either at the state or national level.

[Robert Fellmeth, Professor of Public Law, Univ. of San Diego School of Law, and Executive Director of the Center for Public Interest Law] Well, I think one is I think people should have the option to at least know who is transmitting a message to them. That’s number one. And they can opt out of that if they want to, but it should at least be presumptively that they have the right to know, and if they want to say, “send me everything,” fine. But that’s Number One.

And Number Two is that children should not have their personal information stolen. By the way, this bill I just mentioned, prohibits any capture of any personal information of any child under 16. I think that should be under 18. But at least this bill has it under 16. I think it’s going to pass, Ralph. And even Facebook is beginning to fold on it a little bit. They were opposing it, but now they see this initiative that is even stronger, they’re saying, “Well, okay. Maybe the bill is okay.”

[Ralph Nader] This is all in California, right?

[Robert Fellmeth, Professor of Public Law, Univ. of San Diego School of Law, and Executive Director of the Center for Public Interest Law] Yeah, it’s in California, but Facebook will follow California law, because in the cases that I litigated in the 9th Circuit, their argument was, “Oh, California law applies.” They conceded that. So I think this will be a big change for them. It’s coming I think. I predict it will happen, it will be effective, I predict in January, 2019.

[Ralph Nader] And that’s the second reform. And the third reform?

[Robert Fellmeth, Professor of Public Law, Univ. of San Diego School of Law, and Executive Director of the Center for Public Interest Law] Well, obviously you don’t want to allow postings of children to be transmitted without consent of parents to a person to whom it’s not intended. So it’s not just a question of knowing who is speaking to you, and being able to know personal information that is being collected about you. It’s also the issue of your children having their messages captured and re-transmitted without their consent. And so that’s the third thing. I think that’s going to happen, too. I think that will begin to happen, I think, probably if this bill passes, and it may require a follow-up bill in 2019, depending on the final form of this bill, but we have some movement on our side here on some of these issues. Not so much on the anonymous issue, unfortunately, but on the other issues.

[Ralph Nader] I need to add another reform which is, Facebook users have been trying to form consumer groups, like Facebook User Groups, and Facebook has militantly blocked them in all kinds of ways, including not letting them use the word “Facebook” User Group. What do you know about that, and what kinds of rights would you give Facebook user groups to organize? And that would hold true for Google, Amazon, and other similar companies.

[Robert Fellmeth, Professor of Public Law, Univ. of San Diego School of Law, and Executive Director of the Center for Public Interest Law] It would be good if they could do that. My advice would be not to use the trade name of the company you are examining. But I don’t think you have to do that. I think that will happen. And it’ll happen more and more. But the key to the potency of that is competition. The problem we really have underlying Facebook, etc. is the lack of competition. If you had competitive choice, a lot of these problems would go away, because the competition would drive it away.

[Ralph Nader] Well, in that respect we interviewed last week Professor Galloway at NYU School of Business, and he had a number of start-ups in the early Internet age. He’s very familiar with the whole scene. And he is recommending breaking up the big four -- Facebook, Amazon, Google and Apple -- on the grounds that you just suggested, that you have to have more competition, they are stifling competition, they are blocking start-ups who can’t even get capital invested if the investors think they are going to take on one of the Big Four, and he makes a very, very strong case going deep, going broad, as to what these companies are doing in terms of minimal job development, what they’re doing underpaying their taxes, what they are doing outside the consumer circle, in addition to stifling innovation and competition. So I urge you to get in touch with him. There are not many critiques of Apple and Facebook and others that go as deep as you and he does. The few critics who are publicizing these changes before it’s too late and these quasi-monopolies really become monopolies and start raising their prices have got to get together, whether it’s done on a state level or on a national level.

How can people get in touch with you, or any website that you think would help them take this to a new civic level?

[Robert Fellmeth, Professor of Public Law, Univ. of San Diego School of Law, and Executive Director of the Center for Public Interest Law] Well, we’re at http://www.cpil.org., but as a former anti-trust prosecutor, the first thing you look at is what is called “relevant market.” And the relevant market for each of these four is different, and therefore they are each a monopoly in separate relevant markets. And that’s a strong argument to break them up in the sense that you require competition in each relevant market so that you have 3, 4 or 5 competitors, and then the world would be very different. The world is always bad when you have one relevant market dominated by a single monopolist.
admin
Site Admin
 
Posts: 25942
Joined: Thu Aug 01, 2013 5:21 am

Re: Anonymity: Interview with Robert Fellmeth, by Ralph Nade

Postby admin » Sun Dec 09, 2018 1:58 am

Facebook legal settlement risks teens’ privacy
by Robert C. Fellmeth
The Sacramento Bee
August 09, 2016 03:05 PM
Updated August 09, 2016 02:11 PM

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.


A class-action settlement covers adult users of Facebook, but also 11 million teenagers whose need for privacy is underlined by their immaturity and the angst when they discover their posts or photos have been seen by the wider world. The results can range from memorable embarrassment to occasional suicide.

The teens had no real legal representation in Fraley v. Facebook, which, if upheld, will give the social media giant with more than 1 billion subscribers worldwide a blank check to capture, revise and republish any posting. There will be no advance permission required, and not even advance notice.

The approved contract terms will include a condition that if you are under 18 “you represent that at least one of your parents or legal guardians has also agreed to the terms of this section (and use of your name, profile picture, content and information) on your behalf.”

This result is an indictment of our class-action system that assumes all sides are represented and the ignorance of some courts about social media, the internet and children.

First, this is not a legitimate settlement. The attorney representing the teen plaintiffs also represents the adults, who do get some remedy. The teens get crushed, and in a way that makes it actually a net win for Facebook. The company gave the attorney millions in fees and threatened to make the teen representatives pay Facebook’s attorneys’ fees if they lost that part of the case. This is called “forced collusion.”

Second, the settlement violates the law. Facebook conceded that California law applies to its operations, but contends that all state laws are pre-empted by the federal Children’s Online Privacy Protection Act. But that act only applies to children under age age 13, as pointed out in briefs by the California attorney general Attorney General and the Federal Trade Commission.

There is a series of California statutes that this settlement violates, and there is also the state Constitution’s “inalienable right of privacy.” They were not raised by lawyers or considered by the trial court or any other judge.

Not everyone is blind to what is happening. A dozen major public interest and privacy rights groups, including Public Citizen, joined the Children’s Advocacy Institute and the American Academy of Pediatrics in objecting to the settlement.

All of this was ignored by the trial court and then by a three-judge panel of the 9th U.S. Circuit Court of Appeals. The panel treated the case as a matter of housekeeping and depublished its decision under the false impression that this eliminated its legal effect. But when one of the parties to the settlement includes 11 million teens, the result is indeed a precedent, and a profound one. A petition for review has been filed with the U.S. Supreme Court, but they are very rarely granted, especially where decisions are not published.

The Supreme Court needs to look at this case, both because of the flaws in class-action settlements it reflects and for its profoundly dangerous precedent. There is no more extensive surrender of teen privacy and parental supervision rights than this one.

Robert C. Fellmeth is professor of public-interest law and director of the Children’s Advocacy Institute at the University of San Diego School of Law. He can be contacted at cpil@sandiego.edu.
admin
Site Admin
 
Posts: 25942
Joined: Thu Aug 01, 2013 5:21 am


Return to A Growing Corpus of Analytical Materials

Who is online

Users browsing this forum: No registered users and 1 guest

cron