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Why New U.S. Privacy Data Protection Law Will Preempt State Privacy Laws

Just like there is a strong inevitability case that it is a matter of when and not if U.S. online privacy/data protection legislation will pass, there is also a compelling common-sense case why U.S. Federal privacy and data protection legislation should and will effectively preempt or supersede state Internet-related privacy laws.   

California’s June passage of an EU “GDPR-light” privacy bill, has teed up the reality that states can and will fill the vacuum left by Congress’ long inaction in addressing consumer privacy protection in the 21st century – until Congress legislates.  

The fact that California is taking the lead in filling a Federal vacuum, does not mean that pending state Internet-related privacy laws will survive or be determinative long term when Congress ultimately fills the gaping vacuum.

What Most Stunts FTC Antitrust and Consumer Protection Law and Enforcement?

As the FTC prepares for their public hearings on “competition and consumer protection in the 21st century” this fall, it would be reasonable and instructive for the FTC to seek to better understand the root cause of the need for these once-in-a-generation FTC hearings and to confront some of the most evident serious effects of this root cause problem.

First this analysis asks and answers “what most stunts the FTC’s antitrust and consumer protection law enforcement mission?

Second it asks a dozen of the most important questions the FTC should be asking to zero in on what problems are evidently happening with competition and consumer protection in the marketplace that the FTC’s mission and efforts evidently have been unable to deter, address or resolve since the Pitofsky hearings in 1995.

The Unfair and Deceptive Online-Offline Playing Field – FTC Hearing Filing

Submission for: U.S. FTC  Fall 2018 Hearings on “Competition and Consumer Protection in the 21st Century” Topic #2: “Competition and Consumer Protection in Communication, Information, and Media Technology Networks” FTC Project # P181201 (PDF of this filing is here.)

The Unfair and Deceptive Online-Offline Playing Field of Divergent U.S. Competition and Consumer Protection Policy
Internet policy* has been the determinative dynamic of U.S. competition and consumer protection in the 21
st
Century. Government exemptions/immunities evidently heavily favor regulatory arbitrage over free market competition, and drive the evident divergent reality where most of U.S. competition and consumer protection problems occur online not offline.

A Google China Search Censorship App Is Not Neutral Free Open or Right

What business trade-offs must Alphabet-Google make to continue to grow revenues at its 25% annual rate -- i.e. +$27b in new revenues in 2018, +$35b more in 2019, and +$45b more in 2020 -- to become another company worth a trillion dollars?

Alphabet-Google has decided apparently, whatever it takes.    

Maybe no single Google action tells us more about where Alphabet-Google stands in its twentieth year as a company and what it believes it must do to succeed as it wants in the next twenty years, than “Google Plans to Launch a Censored Search Engine in China” – the main driver of Google’s apparent new China-first growth strategy revealed in The Intercept’s scoop this week.

Case Study of Google Serial Over-collection of Private Data for FTC Hearings

A Case Study of Alphabet-Google’s 2004-2018 Privacy Track Record of Evident Unfair and Deceptive Over-collection of Consumers’ Personal Data Exposes an Evident Gap in the FTC’s Remedial Authority to Protect Consumers

Submitted as a public comment for the FTC’s fall 2018 “Competition and Consumer Protection in the 21st Century Hearings.” Topic #5: “The Commission’s remedial authority to deter unfair and deceptive conduct in privacy and data security matters” FTC Project Number: P181201; (PDF FTC submission here)

July 30, 2018; By Scott Cleland; President, Precursor® LLC  info@precursor.com & Chairman, NetCompetition®

Conclusion

This case study of Alphabet-Google’s track record of unfair and deceptive privacy and data security practices provides a compelling body of evidence of 17 major business practice examples over a fifteen-year period that indicate the FTC evidently does not have enough remedial enforcement authority to deter Google, or other Internet platforms, from engaging in unfair and deceptive conduct in privacy and data security matters.

It is also evident from Google’s words and actions chronicled below that it legally does not believe its users have a “legitimate expectation of privacy” concerning the information they provide to Google.

Google-Android’s Deceptive Antitrust Defenses Presage a US v. Alphabet Suit

The likely probability of an eventual U.S. v. Alphabet Sherman monopolization case improved further now that we know how weak Alphabet-Google’s likely primary U.S. antitrust defense of Android is.

This means not only is a potential U.S. v. Alphabet antitrust case stronger than the seminal successful and upheld U.S. v. Microsoft precedent, but Google’s relative antitrust defense is much weaker too.

Google’s CEO Sundar Pichai’s public Android antitrust defense has fatal flaws.

First, Google-Android claims Apple iOS is a direct competitor when factually in an antitrust context it is not.

Why a US v. Google-Android Antitrust Case Is Stronger than US v. Microsoft

SUMMARY

The impending EU-Google-Android abuse of dominance conviction and expected record fine and substantial behavioral prohibitions, begs the question of how U.S. antitrust enforcers will eventually act on the outcome of their own Google-Android investigation?  

New U.S. Privacy & Data Protection Law Is Inevitable Like a Pendulum Swing

It is a matter of when, not if, Congress will pass national privacy and data protection law for the 21st century.

It’s inevitable, because the U.S. privacy policy to date is operating as predictably as a pendulum swinging. Consider the evident big picture, pendulum dynamic at work here.

The Sea Change Significance of Simons-FTC Privacy and Antitrust Hearings

Much bigger change is afoot at the FTC than many may appreciate. An awakened and reinvigorated Simons-FTC lies ahead as do eventual new FTC calls for 21st century privacy and data protection legislation. Don’t be fooled by the glacial pace of the 2017-18 FTC appointment/confirmation process for a near clean slate of FTC leadership.

We now have strong official directional evidence from FTC Chairman Simons that the next two-and-a-half years are going to be very different from the last five years, 2013-17.

Buying WhatsApp Tipped Facebook to Monopoly; Why Didn’t FTC Probe Purchase?

Anyone concerned with the anticompetitive state of digital advertising, and how to fix it, should focus like a laser on the circumstances surrounding the 2014 FTC’s pass on formally investigating if the Facebook-WhatsApp acquisition would “substantially lessen competition” under the Clayton Antitrust Act.

That obvious FTC mistake in hindsight, triggered a winner-take-all domino effect that not only tipped Facebook to a social advertising monopoly, but also tipped the overall digital advertising market to the anticompetitive digital advertising cartel that evidently predominates today.

Some brief context is helpful here. This big 2014 FTC mistake was the fourth of a pattern of big anticompetitive FTC mistakes concerning the digital advertising marketplace over the last decade.  

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