Deception creates its own harm: Facebook shouldn’t know if you’re ovulating; voting shouldn’t be rooted in lies

Yesterday the Federal Trade Commission voted to accept a settlement and consent decree with Flo Health, the maker of a widely used fertility-tracking app. After representing they would not disclose information regarding their users’ menstrual cycles and pregnancy to third parties, the FTC says they did that exactly. (The FTC lays out their case in just four pages.)

Between June 2016 and February 2019, Facebook used Flo App users’ personal health information for its own research and product development. Besides being an evocative example of data misuse, there are two elements of the case that I find instructive.

Lawyers and Marketers should read each other’s work more
There is a disconnect between the legal teams that create terms of use and privacy policies and the marketers and executives who create market expectations. It is common to find reassuring statements in digital products and their advertising, which the terms of use and policies entirely contradict.

Let’s recognize the natural tension between legal teams charged with gaining the “maximum grant” of rights from users, and the market-facing teams who seek to establish maximum commonality and trust. One side says: we value your privacy, wellness and community as much as you do. But then legal creates terms of use which say “expect no priviacy, health results, or recourse if things go wrong.” Too often, Marketers and those who write terms of use simply don’t read each other’s work; if they did, they’d disagree.

Deception creates its own harm
And that brings us to the second element in the case – deception. The FTC exists in part to prevent deceptive trade practices. So, even though privacy isn’t explicitly in its mandate, its brought over 60 high profile cases protecting user privacy under the umbrella of preventing deceptive practices. Promising not to share personal information, then doing so with third parties, who then may go on to make their own uses of the data, is a deceptive practice.

Deception is so erosive to trade, that the FTC’s complaint doesn’t need to assert a specific harm beyond this violative act. The case isn’t rooted in harm to a specific person, or a class of litigants suffering some aggregate injury. The deceptive act is addressable in itself, in the hope of preventing future harm.
Might political deception create an addressable harm?

The US has robust speech rights, which courts apply with the greatest care regarding political discourse. But as I think of this recent election season, disinformation, deception, and defamation have had an erosive effect for months, perhaps on us all.

Protecting the election commons: treat voters like consumers
Do we need some kind of protection or recourse against deceptive political speech? Lawyers for voting machine makers succeeded in gaining retractions of untrue narratives advanced by several networks after the election.

But what of the localities who bought these services? What about the political party or individuals tarred by conspiracy theorists as pedophiles? There is a point at which the informational Commons becomes a victim of at-scale distribution of known falsehoods.

This year’s election went beyond occasional false utterances. Groups of broadcasters, funders, and parties knowingly deceived voters out of self-interest. If deception is its own harm in commerce, to prevent it from stripping the trust needed for consumer trade, perhaps we need a mechanism for responding to willful political deception as well.

The two Georgia Senate races that just concluded each had campaign spending approaching $250,000,000. Much of that was spent on media to persuade voters. Democracy should have a watchdog against the worst electoral excesses, like the FTC, dedicated to preventing the use of massive amounts of advertising to construct false narratives as the rationale for our self-government.

Deception creates its own harm. Perhaps it’s time for voters to have consumer protections similar to what they enjoy in commerce from the FTC.

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