Talking points from Facebook executives — like the ones founder and CEO Mark Zuckerberg provided this week on the company's earnings call to explain its refusal to ban ads from politicians — can be complicated for everyday people to judge.
Facebook's first privacy chief Chris Kelly was also speaking about the future of the internet this week, but a message the former senior Facebook official gave about life in the big tech era was straightforward in a way every consumer can understand and should remember: You are living in your own personal surveillance state, thanks to the smartphone in your pocket.
"Everyone is carrying a surveillance device in their pocket every day," said Kelly, while speaking at the CNBC Technology Executive Council summit in New York last Tuesday. "It's only been a few years with phones ubiquitous, crowdsourced information about what is going on at any time, anywhere. Figuring out the rules will take experimentation but you can evolve to decent, straightforward practices."
In an era in which tech companies are hoarding "honeypots of user data," Kelly still hews closely to one Facebook philosophy: giving consumers "choice" is better than being overbearing, such as through bans enforced by company fiat (e.g. Twitter's ban on political ads announced as Facebook's earnings call began) or through federal regulation.
Pressure is building for the federal government and technology companies to take greater steps to protect internet consumer data privacy through national legislation, but many technology executives are not hopeful about government action. A recent CNBC survey of its Technology Executive Council members found that the majority support the passage of a nationwide data privacy protocol similar to the EU's General Data Protection Regulation (GDPR). But 72% of respondents said they are "not at all confident" in the ability of the U.S. government to protect consumers' data privacy.
Some internet companies are not waiting around for politicians, or big platforms like Facebook, to act.
"I don't pay much attention to all this talk about national legislation. It's incredibly hard for Congress to do anything and even harder in privacy which requires lots of tradeoffs," said Megan Gray, general counsel and policy advocate at DuckDuckGo, a search engine alternative to Alphabet's Google which does not track its users' individual data.
Gray, who previously worked at the Federal Trade Commission, said she does not have an objection to a national privacy law, but supports what is known as "Do Not Track" legislation because it is a more realistic goal. It is more focused on privacy protection by blocking third-party ads from tracking users, and would be easier to pass more quickly, in her opinion. In a nutshell, it is like the Do Not Call registry for robocalls, but focused on internet users. The company wrote its own Do Not Track bill in May, revisiting a standard that was created a decade ago but was abandoned by the tech industry and which has failed in multiple attempts on Capitol Hill.
Gray said as tech companies look for ways to avoid the most severe regulatory scrutiny, the Do Not Track legislation is something big tech might support as an alternative to antitrust action — requiring Facebook to not share Facebook data with Instagram; Alphabet to not share Gmail data with Doubleclick, or Google search data with cloud services.
On the Facebook earnings call this past week Zuckerberg was adamant about never selling Instagram as part of a deal with the government as calls come from politicians like Democratic Party nominee for president Elizabeth Warren to break up Facebook and other big companies.
"If you could just pass that law that would go a really long way to fixing the problem," Gray said. And she thinks action needs to occur sooner rather than later, because, "By definition, almost all ads are stalker ads."
Kelly, who also served as Facebook's first general counsel, continues to express confidence that Facebook would win any antitrust challenge — he said at the CNBC TEC summit that antitrust law does not even apply to social media as it exists today. Kelly did not dismiss the Do Not Track legislation as having potential to find friends on Capitol Hill, but he insisted it's not the legislation all consumers want.
"Of course it could be implemented and if ever passed companies generally speaking follow the law, but is that what consumers want? Certainly not all consumers. One of the things we seized on from the beginning, and I joined Facebook when it was 25 people, was we built architecture around choice from the get-go. The privacy in that context means you get to choose who you share with. You always share with Facebook because it has to run the platform."
Kelly continued: "Some people may want to say 'never share Whatsapp data with Facebook or Instagram, but why ban it? The whole idea is you get to choose 'do not track', it is a setting. And the law says companies have to comply with your choice. If we want to absolutely forbid certain practices it can be done well with permissioning. Tracking of data can have benefits to consumers."
Gray said DuckDuckGo's user growth shows that not being tracked is a choice more consumers are making.
"DuckDuckGo gets over a billion searches a month, and we don't know who our users are, but we can see how many times people go to our search engine. It's a traditional hockey stick, just straight up," she said, referring to the term used in the business world for sudden, rapid growth.
Alan Davidson, v.p. of global policy, trust and security at Mozilla, which runs the Firefox internet browser, said consumers don't have to wait for legislation or antitrust cases to make informed decisions today, and he added of the escalating antitrust debate, "Breaking up big tech is pretty hard to do."
The Mozilla executive said Mozilla's Firefox browser was built to block third-party traffic and tracking by default, and he took issue with Kelly's idea of "choice" as accurately reflecting the situation Facebook users encounter. "Those settings are buried in Facebook or in a browser and it's very hard for most users to find. We will see more consumers demanding that."
He thinks that technology companies believing the privacy issue is not front of mind for a growing chorus of consumers are making a mistake. "This is becoming a campaign trail issue," Davidson said. "They don't put it out there unless people care. We don't know if people will vote with their feet, but we will see. That is our business model."
Davidson thinks there should be more support in the U.S. for concepts like the European GDPR regulation idea of data portability, meaning individuals control their data even if they want to leave one service and take their data to another, which would provide more opportunity for new internet businesses to scale. It's an idea that received support on Capitol Hill last month from Democratic Senator Mark Warner of Virginia and a bipartisan pair of Senate colleagues, Missouri Republican Josh Hawley and Connecticut Democrat Richard Blumenthal.
"The fact is that regulation is coming," Davidson said. "It may not be happening here [at the federal level], but it is happening all over the world and all over U.S. [state-by-state]."
"The problem is, if there is no U.S. leadership, we get privacy rules that won't be innovation friendly," Davidson said.
The current patchwork of state data privacy laws, which is currently headed in the direction of 50 different laws, is not a new problem for U.S. regulatory regimes, Gray said, but it is not efficient and far from ideal.
The idea that a few state laws would lead Washington D.C. to act has been proven wrong. "I'm sure you will not be shocked they did not, so we will have this patchwork for a while," Davidson said. "This is not the internet we want," he added.