The FTC has telegraphed what appears to be a now inevitable investigation into Twitter’s internal data handling practices as the company continues to shed significant staff and improvise new features. “No CEO or company is above the law,” the agency said in a statement – and if Elon Musk’s Twitter continues its current frenzy, they could find themselves in breach of the law enforcement order. FTC and face serious consequences.
To be clear from the outset, the FTC has not announced any investigation of Twitter, Elon Musk, or even that they are collecting information in service of such an investigation. Nor would he be able to confirm that he was investigating if that was the case. But the circumstantial evidence, common sense and the disturbing statement released today leave little doubt that the company is in the agency’s sights.
As part of its regular oversight functions, the FTC investigates complaints from consumers, businesses, and anyone with a bone to choose about things like misleading advertising, broken promises of confidentiality, illicit trade agreements, and more. . But in 2011, Twitter agreed to a consent decree with the regulator after being found guilty of misusing user data. It was also found to have done so again for many years in an investigation resulting in a $150 million settlement earlier this year, so this is not a bureaucracy gone by.
This executive order required Twitter to establish and maintain a program to ensure and regularly report that its new features do not further distort “the extent to which it maintains and protects the security, privacy, confidentiality, or integrity of any nonpublic information. consumers”. The revised order adds more oversight and gives more power to the FTC, as Twitter obviously needed a stick as well as a carrot.
The bottom line is that Twitter is already in the doghouse with the FTC, and it has specific, legally binding requirements regarding what it can and cannot do with the data, and how it checks for compliance.
At settlement time, Elon Musk came into the picture and now we have it all… this. But the news from last night multiple data controllers, no doubt important to walk the line with an alert regulator, all would be gone at the same time. Literally within minutes of writing that paragraph, corporate trust and safety officer Yoel Roth also reportedly quit.
This would be troubling for any company, at any time, under any level of federal control. But for Twitter, the outgoing chiefs might as well have hired a skywriter to spell out “INVESTIGATE ME” in big letters above Twitter’s headquarters. (Of course, normally that would apply to a number of businesses in downtown San Francisco, but for now, there’s little doubt.)
The amount of changes, new products, eliminations of various departments and processes (many of which were related to privacy, fairness, data processing and other crucial topics) does not mean that Twitter necessarily violates the decree of consent. But with things going the way they are, it’s pretty hard to imagine that she’s compliant now, or that she is, and will be for long.
It’s important, however, to understand that the FTC is not like the FBI, opening doors and organizing evidence into damning dioramas. The FTC conducts its investigations privately and thoroughly – it cannot and does not make public the fact that it is investigating a company for one violation or another until there is a legally binding consequence like a signed consent decree, settlement, or decision to go to court through the Department of Justice.
Although many expected the FTC, under the leadership of highly intelligent and tech-skeptical Lina Khan, to be more proactive, the law limits what it can do. It’s actually a little surprising that the agency got so spicy as in the full statement:
We are following recent developments on Twitter with deep concern. No CEO or company is above the law, and companies must follow our consent decrees. Our revised consent order gives us new tools to ensure compliance, and we are ready to use them.
Although he stops short of saying, “We’re sharpening our knives,” that statement is nonetheless about as strong as they’ll give Twitter a call as soon as they can. (A juicy treat discovered by CNN’s Brian Fungalthough attractive, could be related to ongoing talks regarding the $150 million settlement, so don’t get too excited.)
If they decide to pursue an investigation, which would likely happen if there were red flags, let alone as many, it would be done on a confidential basis – but more importantly, it’s not secret.
This means that although the FTC has a policy of not disclosing or commenting on an investigation, a company or person under investigation can do so at any time if they choose. So if the FTC makes a formal request for certain data from Twitter, or deposes its executives (current or former), they can decide to make that information public.
In fact, Twitter did it in late 2020, long before the FTC deal was finalized. After all, you don’t want your investors to be the last to hear about something like a $150 million charge, even if telling them you risk being found out by hawk-eyed reporters.
So if the FTC investigates Twitter, we’re far more likely to hear about it from the company — in a filing with investors or, more likely, from its reckless and verbose CEO in one of its executive meetings. more frequent emergencies.
The state of chaos on Twitter makes the banal observation that we don’t know what it will look like six months from now a gross understatement, meaning the whole company may have changed hands or business models before until the FTC has finished its (hypothetical) work. Still, that won’t pull the troubled company. Twitter’s management, or what’s left of it, may want to prioritize survival and compliance with federal regulators before returning to its now regularly scheduled chaos.
Tech
