Michael Geist:
This is Law Bytes, a podcast with Michael Geist.
CBC News:
The world’s largest tech firms were on the defensive today in Ottawa. Canada hosted a committee of politicians from nearly a dozen countries which got the chance to grill representatives from Facebook, Google, and Twitter about how they manage data, how they handle the spread of misinformation, and whether they’re a potential threat to democracy. The committee also heard from observers of the industry who are worried about what they’re seeing.
Michael Geist:
The debate over big data, privacy, and its implications for democracy came to Ottawa last week as the so-called international grand committee brought together the world’s biggest tech companies, politicians from around the world and leading thinkers for three days of hearings. The international grand committee hearing the second of its kind was led by the House of Commons Standing committee on Access to Information, Privacy and Ethics who were joined by elected officials from the U.K., Germany, Ireland, Singapore, and many other countries. In the hot seat where the tech and social media companies: Facebook Google Twitter Apple Microsoft and Amazon. The discussion often became contentious.
MP Peter Kent:
Does Facebook still defend the concept that it doesn’t have to be true to be your platform.
Kevin Chan, FB:
I understand where you’re getting at. I do think that if I if you’ll permit me the way I would like to maybe talk about it a bit.
MP Peter Kent:
Yes or no it wouldn’t work yes or no would work.
Kevin Chan, FB:
That’s why we’re here. We would welcome basic safe.
MP Peter Kent:
So this is a learning experience for you.
Kevin Chan, FB:
To welcome basics Mr. Kent basic safe. I think.
MP Peter Kent:
I asked that with respect and civility.
Kevin Chan, FB:
We would welcome basic standards that lawmakers can impose on the platform about what should go up and what should come down.
Michael Geist:
The controversy didn’t stop with what the company said but also who said it the decision of top executives such as Facebook Mark Zuckerberg and Sheryl Sandberg to give the entire hearing a miss sparked widespread anger from across the political spectrum.
MP Charlie Angus:
It’s really important for Facebook and the other data giants to realize that their contempt of democracy is their contempt of citizen rights. Their belief that because their billionaire frat boys from Silicon Valley they’re there above all of us little people that they they’re running on a road and if they continue to show contempt for our democracies our democracies will push back.
Michael Geist:
Hours after the hearings concluded I sat down with Nathaniel Erskine Smith a Liberal MP from the Toronto riding of Beaches East York and vice chair of the committee to discuss the intensive three days, the prospect of global reforms, and what comes next for the international grand committee.
Michael Geist:
Thanks so much for joining me on the podcast.
MP Nathaniel Erskine-Smith:
Thanks for having me.
Michael Geist:
So we are just a few hours after the conclusion of three days of what I assume I’m exhausted was pretty gruelling hearings for the grand committee which made for a really good television or at least streaming for those that were following. That’s right and certainly attracted a lot of attention and I want to get your immediate thoughts given that it’s only been a few hours since it concluded. But first for those that weren’t following along. Can you just explain what the grand committee is.
MP Nathaniel Erskine-Smith:
Sure. So the grand committee the word grand by the way this would only have been created by UK parliamentarian. It is an international committee made up of more than 10 parliaments from around the world who are all focused on similar issues related to democracy big data and privacy. And this really was born out of an initial cooperation between our Canadian committee and the U.K. committee where we are both going down this rabbit hole of Cambridge analytics. And there was I communicated first with Christopher Wylie who connected me with the U.K. chair Damian Collins. We had direct interactions to assist one another in our investigations and out of that we went to a roundtable of parliamentarians in Washington in July of last year and started this conversation. We had Bob Zimmer our conservative chair was there with me in Washington and he and Damian then said What else can we do. What can we do next. And Damian at the time was adamant that Mark Zuckerberg needed to attend before the UK Parliament. He’d blown them off. And so the initial thought was well it’s much more likely that we get a serious witness like that if we join forces. And so started out with Canada the UK and then ballooned to 10 plus parliaments.
MP Nathaniel Erskine-Smith:
We had an initial meeting with Richard Allen a V.P. of global policy for Facebook in London in November December of last year and then so this is the second major meeting. And it really is one to raise awareness and to hold the platforms accountable for some of their bad practices and negligence. I would say and, two, to sort of build on the sense of global cooperation when we have problems that are global in nature because data so freely flows across borders and companies are global in their reach. How do we work as Parliamentarians across countries to have a global solution.
Michael Geist:
It’s interesting now. I won’t get into some of the that ability to cooperate on some of these issues and who shows up and who doesn’t show up even when you come together. But what are some of your immediate thoughts. How do you feel the last few days which of course included the platforms if not the senior executives along with any number of different experts as well.
MP Nathaniel Erskine-Smith:
So what I think is really important that we expanded beyond Facebook and we add Facebook Google Twitter on one panel together and then we had Amazon Apple and Microsoft on another panel together. We also had people who have been writing and thinking about this a great deal from Taylor Owen Ben Scott Heidi Tworek, and Shoshana Zuboff. So there was a lot of good thinking brought to bear at the outset that we could sort of draw from and then put questions to the platforms and big data companies. It was frustrating obviously at times. There were an initial frustration just because very senior people did not attend. When I think they ought to have attended. Also frustrating some of the answers that were given but I would also say I have reasons for optimism when I see. All of these companies now say we need stronger privacy data protections and that if you asked me three years ago they simply weren’t saying they’re pushing back against that. They were lobbying against the GDP. It’s true. Now they’re all saying GDP or potential GDP plus we have. An acknowledgement that they are all moderating content and there needs to be public accountability to that content moderation and different answers probably depending upon the jurisdiction but there needs to be some public facing cooperation between these companies and they can’t be policing this all themselves on their own. We had an acknowledgement that I wasn’t expecting actually that there should be corporate responsibility for the algorithmic impacts or the impacts of the algorithms that that they employ. So there were the beginnings I think of a pretty fruitful conversation and then some additional frustrations where they blew off I think a very useful conversation on competition didn’t really take consumer protection completely to heart. I don’t think. And obviously in the end they didn’t send people who were really gonna be able to make decisions for their companies.
Michael Geist:
Yeah that’s right. And that’s that last point really attracted a lot of attention. I know from you and from from a lot of other people given that particularly the senior executives at Facebook Zuckerberg and Sheryl Sandberg didn’t show up. But of course that’s true for a number of the larger companies.
MP Nathaniel Erskine-Smith:
It was true for all the companies I think Twitter took it the most seriously actually from the people that they sent. Interestingly though particularly with respect to Facebook because they had failed to attend before the previous committee in the UK we had taken the exceptional measure of issuing a summons and more than that I think just as a matter of basic honesty if you’re the CEO of a company and two months ago on March 30th you write I care about privacy I care about competition I care about protecting elections and addressing harmful content online. I want to discuss these issues with lawmakers from around the world. And then you have 10 countries represented in a forum discussing these very issues and you don’t even make an effort and there is no explanation as to why he couldn’t attend. I mean Tim Cook got back to us and said he had another engagement and he was interested in this conversation. Whether or not that’s true that at least engagement. So I found that pretty frustrating in the end.
Michael Geist:
So does that ultimately in a sense undermine the kind of message that the companies are bringing. I mean you talked about that they’ve shifted or moved somewhat in terms of the growing acceptance of privacy regulation perhaps algorithmic transparency and the like but still there’s still not at the point that once once you leave the United States the senior executives are going to show up in.
MP Nathaniel Erskine-Smith:
I think. Yeah in a way it ultimately comes out of trust. And we had Kevin Chan from Facebook before our committee well over a year ago deal with the Cambridge analytics scandal and he acknowledged there’s a loss of trust here and we need to rebuild that trust. I don’t think it goes a long way to rebuilding that trust when there are in some cases platitudes and in some cases even a serious effort to engage in a policy conversation but no effort to engage in a very senior level.
Michael Geist:
It is striking. They do appear at some of those top executives to appear in the United States. The US is not represented on your committee. Although there were U.S. representatives that appeared. Are there concerns that this ultimately becomes of rest of the world elected officials versus U.S. company type of dynamic or at least what’s the impact of not having the U.S. government at the table for these discussions.
MP Nathaniel Erskine-Smith:
Yeah I hope it doesn’t become that I don’t think we need the U.S. government as it were but it certainly would have been helpful to have someone like Mark Warner or Rubio or Amy Klobuchar three people who had participated in the parliamentary Roundtable in Washington last July. I don’t know I was not corresponding with those folks in the way that the clerk was so I don’t know why it was the case that it was declined. But I think you make a good point that in the end if you want to take these if you want to tackle these issues in a very serious way if you don’t have a body like the EU doing it with you or a body country like the US doing it with you it can be difficult to do in Canada and the UK are an incredibly important start we had Germany here that was incredibly important. Ireland is excellent on these issues as well. But. Does it help that you’re adding Morocco to the conversation if you’re not adding some of the bigger players. Maybe not. We did have France when we were in the U.K. and we had Mexico here. So I think there are substantive you know there are serious jurisdictions that are if you look at Germany in particular Germany has done a lot of different very interesting things. There was a German MEP that brought the GDP forward and their own laws dealing with harmful content online. Their German competition authority has had some very interesting things. So that was helpful to have them there. So yes we’d like the US along with saying of course we want the US there but I think it was positive regardless.
Michael Geist:
Yeah. No I’d certainly highlight countries where we’ve been doing some really innovative things. How do you feel Canada fits within that dynamic given that many of the countries you just mentioned have been more aggressive in terms both of some of their regulatory or regulatory approaches or their laws and certainly the enforcement powers that their enforcement agencies say the Privacy Commissioner data protection commissioners have differs from what we have here.
MP Nathaniel Erskine-Smith:
So my bias is to say. As a parliamentarian sitting on the privacy committee I think our Privacy Committee has been very strong on these issues over the last three years. So as parliamentarians we’ve been quite good at pushing these issues forward. As a parliament overall and certainly as a government I think we’ve come late to the to this issue in a serious way. I’m heartened by the fact that there’s now a digital charter saying here are some principles and they include addressing competition issues addressing privacy and data protection in a more serious way. But. Interestingly I was in Brussels I forgot how many weeks ago I met with the EU Data Protection Supervisor on a number of people who are who have thought and are working on privacy issues there and they all spoke very highly of academics here in Canada, of past privacy commissioners here in Canada who have in many ways laid the intellectual groundwork for the GDPR. So the EU looks to count Canadian ideas and Canada doesn’t look too good at that it hasn’t been a bit frustrating but I will say now I think we’re at a place where it’s likely that all three parties run on privacy and digital rights platforms and there’s a strong likelihood that whoever forms government after October that we’re likely to see these issues continue in some earnest.
Michael Geist:
Yeah I’m glad you mentioned that because it’s one of things that was notable and I think I saw someone comment on it on Twitter during the course of the hearing is that it’s tough to find many issues on Parliament Hill where everybody seems to be in agreement. This appears to be one of them where certainly all three of the major parties participating in this process seem to be coming at these issues from the same perspective.
MP Nathaniel Erskine-Smith:
Yeah someone said to me. They couldn’t tell which party we represented until they looked us up which I think is a testament to the non-partisan nature of our work.
Michael Geist:
I think that’s that’s notable and in some ways it does augur well for the better I suppose for the digital Charter One of the criticisms of the charter is it comes pretty late in the mandate and that’s fair. So then the question becomes well what happens post election. But if you’ve got all all the parties singing from roughly the same songbook on many of these issues there’s some promise that whoever forms government will see this as an issue they need to take forward.
MP Nathaniel Erskine-Smith:
I think that’s right and I think much depends upon what each party puts in the platform to build out that mandate. Post-election. I was I say I’m hardened by the digital charter because it’s been such a battle. I introduced a bill last June to give the Privacy Commissioner greater powers and enforcement powers looking at fines proactive audits and making orders. And to me this is the no brainer. We were recommended this at our committee twice now. This has been many previous commissioners have said we need these powers. Other countries have them. They work. The lack of engagement I got a year ago versus the really serious engagement is happening now with respect to the digital charter and looking ahead and I think it’s very positive and I’m I’m optimistic that we’re going to see in the Liberal platform at least a real effort to address privacy and digital rights issues.
Michael Geist:
Yeah well that is encouraging and it’s it’s clear just as the companies have shifted. That hasn’t happened by accident. It’s happened because committees like yours have called attention to this and the public is genuinely interested and I think increasingly concerned about some of these issues.
MP Nathaniel Erskine-Smith:
Half the battle at committees like ours is raising public awareness.
Michael Geist:
And one can see you guys have done a done a good job. I mean certainly the reports that you put up get referenced in the digital charter background they get referenced by people repeatedly as sort of providing the foundation for potential.
MP Nathaniel Erskine-Smith:
I now know at least one person read our committee.
Michael Geist:
There’s no doubt more than one now the committee just now these hearings dealt with a whole number of pretty interesting issues some of them really challenging I thought we might touch on a couple. Right off the bat is this challenge on the content side. We get to the privacy side of what expectations we have of companies like Facebook but of course and include others to play a moderating role over their content and the example that was used was the Nancy Pelosi video and you had some members some elected officials who were basically why are you Why did you not take this down and this YouTube took it down you haven’t taken it down and Facebook response was what we have. It’s not that we haven’t done anything. But no we have removed it. What are some of your thoughts about how we navigate what is an incredibly clearly incredibly challenging issue on content that one can make the case causes harm but at the same time it isn’t clear that it’s unlawful and the dividing line between content like that and other parody type videos can be really tough to navigate.
MP Nathaniel Erskine-Smith:
So a couple of things. One I think it is more helpful for a committee like ours and an international committee like ours to focus on areas where we can make real inroads and there isn’t the same level of disagreement. So I think it was Taylor Owen who made the point that there are some easy issues that you can tackle and there are some difficult issues and harmful content on his own is really difficult. And then we immediately went to this Pelosi video that is actually really difficult example even in the realm of the already difficult harmful content conversation.
MP Nathaniel Erskine-Smith:
There are two tracks at which we should regulate where one track at which we regulate content which is where it’s illegal. And the second track is where platforms will obviously have to look to our public rules but we’ll also have community standards that they want to enforce as private companies and so. Is that Pelosi video illegal no. Does it violate their community standards. If it’s up then no and the extent to which it has violated their community standards they’ve taken action by downgrading and providing more context. I don’t know. I think perhaps I could do a bit of a better job of framing that context. It’s not just when you share but when you repress view it. But my view which is consistent with committee recommendations that we’ve made. Whereas obviously illegal content that is being hosted. There are really easy categories. You take child porn or terrorism but it is obviously illegal and it’s flagged for companies and they don’t take it down within a timely way. I’m perfectly comfortable imposing financial sanctions. Germany has a rule like this and whether it’s that exact set of rules or something modelled on those rules. I’m I’m comfortable with that level of enforcement. When you’re balancing freedom expression and protecting harms protecting its harms hate speech. If it’s at the criminal level of hate speech was are already a really high bar. I’m OK with that too. Where we are forcing companies to take down criminal hate speech or criminal harassment criminal threats obviously illegal content where it’s a grayer area. I think.
MP Nathaniel Erskine-Smith:
And public appeal mechanism to determine the illegality would be more comfortable making sure there’s some public accountability to the content decisions and around outsourcing this to the platforms. I would be more comfortable with certainly where Facebook is and determine their community standards. There is no public appeal as far as it goes. But if they are making a decision not based on standards. But public law surely there should be some judicial review as far as that goes. So I would be more confident in the harmful conversation and harmful content side if we focused on clearly illegal content and how we address that first because that even can be quite hard just from an enforcement perspective.
Michael Geist:
We can. I mean I think your your response highlights how much nuance there has to be on this. I mean there there’s sometimes feels like there’s a tendency to say you know you broke it you bought it fix it and take action. But it’s clearly not that simple especially when you’re dealing with a wide range of content some of which we can understand why people object to it but it’s lawful.
MP Nathaniel Erskine-Smith:
Ok. So what do you think about this. I’ve been turning over my head this notion. So there are two factors when we look at content in a way there’s the nature of the content. And if it’s harmful. You know I mentioned child porn terrorism obviously take it down. It’s obviously illegal content. We can talk about liability rules even if they’re there otherwise. In a previous life they could they could look at safe harbor. No we’re just the hosts were out promoting this content. We say oh actually we’re going to chip away at Safe Harbor where is all this obviously illegal. And the EU is even now looking at doing that with respect to some copyright I’m not wholly familiar but I know there’s there’s now a sort of a path towards chipping away at Safe Harbor. More and more depending upon the jurisdiction but at least I understand where we’re not going to last Safe Harbor where obviously illegal content because of the nature of the content. Then there’s the active participation in the promotion of the content. And if they’re not a mere host but they are actively promoting the content through use of the recommendation function on YouTube or the news feed algorithm. More people are going to see that there will be more impressions because of their active participation and there I don’t know what the answer is but there does seem to me there is another path for liability and Section 8 of these arcane broadcasting rules in Canada. Broadcasters can’t broadcast false and misleading news I don’t know whether that should be a rule that we have or not but it is a rule we have. And if they are employing an algorithm that increases impressions. In theory I don’t really know what. Why they get treated differently from broadcasting content that only if you look at it.
Michael Geist:
Yeah well I mean the starting point would be to ask whether or not they’re in fact broadcasting which that I don’t think they are.
MP Nathaniel Erskine-Smith:
But I don’t think they are what I think they are. There’s no reason that you wouldn’t take rules that apply to other categories and say if you’re doing something similar we’re gonna deem you to be platforms that give me a new set of rules on platforms.
Michael Geist:
Well I certainly think we can look to our existing rules to identify a little bit with the contours are around potential liability and another thing of course that makes Canada differ from some of the other countries that were around the table today is we’ve got a Charter of Rights and Freedoms which invariably means that some of that our analysis is going to differ from a country.
MP Nathaniel Erskine-Smith:
So I’ve asked the online falsehoods bill that Singapore was referencing.
Michael Geist:
No we wouldn’t have that and I don’t I’m not sure that we’d have what we’re starting to see in Australia and even the U.K. around harms. I think that the we have stronger protections of free of expression. I think you’re absolutely right around clear cut criminal content and and from everything that I’ve heard from some of those large platforms they agree as well. Facebook will tell you that the they’re able to remove terrorist related content before it ever appears the vast majority of the time and the rest come down quite quickly and child porn has always been viewed as as different from other sorts of content. But even in hate as you mentioned that you know our history around that and the cases have gone up to Supreme Court highlight how challenging it sometimes can be around some of these issues.
MP Nathaniel Erskine-Smith:
And I know that I mean I references section 8 but I think it’s rarely if ever been used this applying a law against false and misleading broadcasting false or misleading is and probably that’s because there are standards councils the broadcasters are part of the same with our news media they have their own internal ethics and the standards councils and so I think Heidi Tworek was making the point that building that ethos would be a really positive development and that makes more sense to me in some ways as a first step than trying to figure out how do we create it or debate even should we be debating liability or rules that would take down a Pelosi video that would open up a whole can of worms about content control that we probably don’t want to have.
Michael Geist:
It would you know the response to Facebook would likely raise and I think they did reference their efforts around developing some sort of oversight system there are questions as to whether I will be global in nature is it local because of course many of these are localized questions both in terms of the law and what people are comfortable with. So there’s there’s a lot of work to be done. I guess what’s changed is there is discussion about the need to do some of that work though.
MP Nathaniel Erskine-Smith:
You know it’s interesting Facebook at the last session in the UK. Richard Allen. I mean he said Well obviously if it crosses the line we take it down. It’s obviously illegal we take it down he said but maybe we shouldn’t promote it if it’s right up against that line because there’s been enough written now where the algorithm in the News Feed It doesn’t matter what reaction it gets if it gets reactions then then it will be more easily seen and promoted and so YouTube similarly in 2016 there is an engineer that said oh maybe we shouldn’t promote borderline content and recommend where line content. And in January of this year they’ve now said we’re not going to do it. And I don’t know if you have any views of this. So it’s not about requiring companies to take things down but. It might be useful to find a way to change the incentive structure where something is clearly false and misleading. That if we are to think about the algorithms we employed more in broadcasting terms. Is there room and maybe there isn’t. I don’t know. But is there room to say how do we change the incentive structure so that there is not profit motive for it rather than a penalty there is more of a discouragement. I don’t know the answer to that.
Michael Geist:
Although one of the things that I liked about the digital charter was that it did put algorithmic transparency on the table. And so the fact that we are I think recognizing that these are choices that are being made and perhaps at least the starting point is to say we need to know more about how those choices are being made. And that may ultimately lead to greater accountability for the choices that are embedded within some of those algorithm.
MP Nathaniel Erskine-Smith:
Yeah that is a place I am much more comfortable with so I won’t talk about speech and harmful content if it’s not obviously illegal and you get into these conversations even about how do we hold companies responsible for the algorithms that they are employing. It’s much easier as a starting point to say let’s make sure that there is a public facing risk assessment so we understand that if YouTube is recommending videos we might like to see. That’s a very positive benefit. But if they are recommending far right nationalist videos after certain content that is you know if they recommend Alex Jones videos to two billion times it’s not illegal but that’s probably a negative externality of a fear of their algorithm. And that should be public facing our way so that we can properly assess it and hold these companies to account.
Michael Geist:
I mean it’s interesting that the conversations moved in this direction. I think you also one point in time it was you who asked Google about scanning of emails and looking at some of some of that content we had others talking about banning personalized advertising where even though there’s talk about essentially banning or putting a hold on social media altogether which is a little more intensive a recommendation it was. What does that say. Are we now at the point where if not talking about banning technologies at least talking about getting under the hood a little bit in terms of how some of this technology works and try and marrying tech mirroring the legislative regulatory side with how the technology functions.
MP Nathaniel Erskine-Smith:
Yeah I think you’re absolutely right that it’s about getting under the hood. I would say it’s about getting under the hood and about assessing how we can take existing first principles and other areas of regulation that have worked offline. How do we make sure these are fit for purpose online and so to your point about banning certain things. We have consumer protection laws and we protect people in a couple of different ways. One to require them to opt into certain. you know if I consent to have to sign a contract is consent there. Sure. But in a consumer and a consumer. context consent sometimes isn’t enough because if I buy the phone. if I buy my iPhone I don’t have to read the Terms and Conditions. I don’t have to know that there’s an implied warranty of merchantability. Just is there because we don’t want a situation where consumers are quickly signing things and not reading things and then liable for the things that they sign. They’re busy with their lives they shouldn’t have to read contracts for everything that they purchase. Why are we suggesting that they should read contracts for every app that they purchase. Is it isn’t. I think a useful conversation have often consents that are explicit go a long way. I think the next question is are they sufficient. In full and are there certain practices. So for example I think I put two but maybe there are others and maybe I’m wrong about these two I don’t know. But it occurs to me that nobody needs to read my emails to target me for advertising. We just take them off the table. It occurs to me that no one under a certain age should be have personalized profiles made up of them for targeting purposes. We would never allow companies to do that off line. Why are we allowed into it online. So I think there are certain categories that probably we could take off the table completely and then have a consent model for everything else and explicit opt in consent largely.
Michael Geist:
You have any thoughts about how we how we do that from a legal regulatory perspective. We’ve seen how hard it is least in our country. It’s probably true for many others to even get broad based privacy reform much less delving into these kinds of issues and what what you’re putting on the table I think is really interesting and I think intuitively sounds right in terms of identifying certain kinds of behaviour that we would see as unacceptable in one area and ought to be unacceptable in the online space to do we have right now the kind of system or model in place that allows that to be operationalized.
MP Nathaniel Erskine-Smith:
Probably not. So maybe if we’re looking at wins maybe the answer is the GDPR modeled often consents and for any secondary use or anything that isn’t within them one’s reason why expectations in signing up for the app. There has to be an explicit opt in consents which is I think part of a you know there’s a consensus I think among folks like you as its various part privacy people on the on that and so maybe that’s where you start and then people look at other practice and say where consensus is built up say well actually this should be taken off the table. Probably though for kids I think that I think that’s an easy one actually to just take that off the table entirely and I would flip it and I think maybe this should be flipped in other ways too but at least for kids the onus shouldn’t be on us to prove that kids should be off the table it should be the onus on the companies show us the positive benefits for targeting kids in some way and then maybe we’ll let you do it. What’s the positive benefit.
Michael Geist:
For me it’s really in the privacy realm. The US doesn’t have much in the way broad based privacy rules but it does for kids.
MP Nathaniel Erskine-Smith:
Exactly in the sense and politically if not later that’s in the same way we work in a very non-partisan way to establish some of these recommendations so far that would be very heavy the easiest thing.
Michael Geist:
Now that makes sense. One other issue that I just wanted to touch on that you raised and I think you indicated didn’t get a great response on was the competition side of the story which is also gaining a lot of traction. What are some of your thoughts about the growing momentum. In many ways to say break up these companies or at least use to look to competition law antitrust law as a mechanism to in a sense divide up a little bit these very large companies from the different lines of business that where I think there is a feeling that part of the problem is when they merge these different lines of business together that’s where some of the harm may occur.
MP Nathaniel Erskine-Smith:
So I have spoken to people far smarter than me on this and I think that they are right that in the same way we protect consumers on price and that is one of the foundational elements of competition laws to protect consumers on price. We should also protect consumers on privacy and so acquisition mergers and acquisition decisions that should be a key consideration I think of competition regulators when they when they look at acquisitions. So what is the public interest in Facebook acquiring Instagram. Is there a great utility to us. Not particularly is there a downside to us. Not on price but your privacy actually. I think there is a real one where you had a major competitor that is the closest competitor. Now Zuckerberg can’t name a competitor one day when he attends a Congress. But Instagram was the competitor and we know that because if they weren’t if they weren’t one company now Facebook is losing users to Instagram and not having that level of competition and that ability to move from one platform to another. That protects my privacy a little bit more and maybe provide a safer space for conversation whatever the case might be. But at least on privacy that I think without question should be a consideration for our competition regulators. I know that competition authorities in Canada are thinking about this too because there’s a data forum that the competition commissioner has held at the National Arts Centre here. The other thing that I try to wrap my head around though unconsciously I don’t have any views of this is not about privacy but about just big data and innovation and it occurs to me as Amazon is today but I think the same applies to Facebook. If we use the Amazon example. They are basically taking all of the purchase decisions of consumers and adding that all up and saying well our consumers are really buying iPhone Chargers let’s get on the business of iPhone chargers. It seems really a massive amount of market power that I don’t know if that’s a good thing or not. But our competition regulators should be looking at it. When Facebook acquires third party apps which they tend to do. Are they sharing the third party app data that they have or are they commingling that with the data that they hold about people and then they’re able to make much better decisions about the growth of those apps and which one is likely to grow the fastest in which one is likely to be the best. Again that seems if they are doing that. That would be of great concern to me if I was a competition regulator. So there are lots of existing abuse of dominance and sort of unfair competition rules as we have them. I think they could be playing a much stronger role in the space.
Michael Geist:
No I think there is a there’s been an awakening on some of those issues and just like we’re talking much more about algorithmic transparency and talking about some of the different kind of regulatory solutions clearly that discussion is going to continue and it’s interesting.
MP Nathaniel Erskine-Smith:
Now the conversation has moved not from debating whether we should do it although the companies denied that we should do it. Of course they did but on competition at least. But the real conversation is moved to operationalizing the ideas so algorithmic transparency and explainability in the GDPR is accepted. It’s more just a question of how do you effectively make it a reality. And I think similarly with competition. I think competition authorities now recognize we have to address privacy and we have to address big data. How do we properly do this.
Michael Geist:
So I think it’s right. I see the lights flashing which tells me to think you’re headed for a vote. A few minutes or so before I let you run though what next for the grand committee.
MP Nathaniel Erskine-Smith:
So we will be meeting in Ireland in November. We is maybe a generous term in the sense that I’m up for re-election however and we’ll see. But there hopefully there will be Canadians that then hopefully I’ll be there and hopefully Charlie and Bob will be there as well. And it will continue. It’ll be up to Ireland in the same way we frame the debate here and added more ideas to the conversation than the first meeting. It’ll be up to Ireland to decide where we take this next. And I think my view has generally been initially accountability for companies was required. They were there now at the point where the public cares. They understand the need to act in many ways. You know we constantly give him a hard time and grandstand a little but the companies aren’t really trying to act in many ways whether it’s election interference or you know improving privacy rules. They’re now saying the right things and doing some of the right things. And I think it’s about continuing to have as much of a constructive conversation as possible at this point. How do we get serious cooperation from legislators around the world. But with companies around the world.
Michael Geist:
So I mean that’s right. I think that represents a really positive outcome in the privacy world for many years now. There’s been a lot of talk about the rule that the international conference of privacy and data protection could data protection commissioners plays where you get kind of the cross cultural cross country discussion.
MP Nathaniel Erskine-Smith:
I aasked about that about to the U.S. Election Commission Commission because I think what the privacy commissioners around the world do is incredible and more regulators should look to do it.
Michael Geist:
It’s had a real impact. It’s striking to see it happening effectively at an elected official level where we get politicians come they’re so rarely in fact having that kind of discussion is really interesting and I think that the effect of getting those different perspective surely has an impact that you’re able to bring back domestically as well when you hear what’s happening elsewhere and what some of the perspectives are.
MP Nathaniel Erskine-Smith:
Yeah I think it helps move the conversation forward in governments in the end where you have parliamentarians. You mentioned earlier but the fact that it’s been non-partisan it the fact that the public now care is more and more and more about these issues obviously they do we live our lives increasingly online we want ourselves and our kids to be protected online. So I think governments not just ours but in the UK and France is trying to do is Germany is ahead of us. But all of these and California when you talk with the US is not the table but probably you know if we’re focusing on maybe we should try to tackle getting a legislator from California to Ireland because there are jurisdictions in the U.S. They’re doing really important work on this too. But I think governments are now seized with this in a really serious way in a way that they weren’t. If you asked me three years ago when we started toiling away on these privacy issues whether I thought the government was going do anything other than much more skeptical than I am today that’s it.
Michael Geist:
Well thanks so much for joining me.
MP Nathaniel Erskine-Smith:
Thank you.
Michael Geist:
That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s lawbytes at pobox.com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.
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