TikTok isn’t a national security threat and shouldn’t be subject to a government ban, said Georgia Institute of Technology’s Internet Governance Project in a report this week (see 2212270051). The group said all “evidence indicates that TikTok is a commercially motivated enterprise and not a tool of the Chinese state,” saying the app isn’t “exporting censorship” and the personal data it collects “is very similar to the data collected by its peer competitors.” A ban on the app, as several U.S. lawmakers have proposed (see 2212200074), would “impose unfair harms on millions of innocent American users of the app” and “risk retaliation against American businesses by China,” said the group, composed of professors, researchers and students at Georgia Tech's School of Public Policy. A ban could give other countries “fuel for hitting US firms with tech-nationalist and data protectionist policies." The “attack” on TikTok is “really a kind of proxy war waged by a specific political faction” in the U.S. that “wants to fully decouple the US and Chinese economies because it sees US-China relations entirely as a zero-sum struggle for world dominance, and rejects peaceful co-existence,” the report said. “This faction can further its agenda by presenting any form of economic interaction with the Chinese economy as a national security threat. The attack on TikTok takes this logic to an absurd extent. Our analysis of the national security risks of TikTok exposes how indiscriminate and weak their case is, and how destructive it can be.” The Biden administration and TikTok in September reportedly drafted a preliminary agreement to resolve national security concerns raised by ByteDance, TikTok’s Chinese owner, which would ultimately involve a mitigation agreement overseen by the Committee on Foreign Investment in the U.S.

Meta Ireland owes $414 million (390 million euros) for data processing breaches in connection with its Facebook and Instagram services, the Irish Data Protection Commission said Wednesday. It fined the company $223 million for EU general data protection regulation (GDPR) violations by Facebook and $191 million for those by Instagram. It gave Meta three months to bring its data processing operations into compliance. Meta said it will appeal. The 2018 cases involved complaints about the two services over whether Meta could lawfully, under the then newly effective GDPR, change the legal basis it relied on to legitimize the processing of users' personal data for such things as behavioral advertising from user consent to a "contract" basis. The DPC provisionally found several breaches and submitted its findings to other data protection regulators, some of which objected to various parts of the decisions. When no agreement could be reached, the DPC referred the disputed points to the European Data Protection Board. It largely upheld Ireland's position that Meta couldn't rely on the "contract" legal basis for delivery of behavioral advertising and that its processing of user data to date, in reliance on that legal basis, violated the GDPR. However, the DPC said, the board tried to order it to launch a new investigation into all of Facebook and Instagram's data processing operations. The EDPB, however, "does not have a general supervision role akin to national courts in respect of national independent authorities and it is not open to the EDPB to instruct and direct an authority to engage in open-ended and speculative investigation." If the EDPB is overreaching, the DPC said, it will ask the European Court of Justice to annul the order. Meta said it intends to appeal the "substance of the rulings and the fines." The debate on legal bases for processing personal data "has been ongoing for some time and businesses have faced a lack of regulatory certainty in this area." Meta believes it fully complies "with the GDPR in relying on Contractual Necessity for behavioural ads given the nature of our services."

Conflict between the FTC and DOJ over antitrust jurisdiction is “infrequent” despite jurisdictional overlap, the GAO said Tuesday. There have been questions about “areas of conflict” between DOJ and FTC over antitrust enforcement actions, the report said, citing a House report included in the Consolidated Appropriations Act directing GAO to study DOJ and FTC antitrust actions. GAO found DOJ and the FTC have “an interagency clearance process to identify which agency will take on an antitrust case, and instances of conflict rarely occur,” the GAO said. “In addition, after an investigative agency is determined through the clearance process, the other agency rarely interferes or comments on that investigation.”

One of President Joe Biden’s top advisers on competition and tech policy is leaving the White House. Tim Wu, special assistant to the president for competition and tech policy, confirmed the news Tuesday on Twitter, saying this is his last week at the White House: “It has been a terrific ride and we did more over the last 2 years than I would have imagined possible.” Wu’s progressive views on reining in Big Tech have been compared to those of FTC Chair Lina Khan and DOJ Antitrust Division Chief Jonathan Kanter (see 2107200070). The White House said Wu plans to return to teaching at Columbia University. Bharat Ramamurti, deputy director-National Economic Council, will oversee the White House’s competition and tech agenda. Elizabeth Kelly, NEC special assistant to the president, will cover tech policy, and Hannah Garden-Monheit, also special assistant, will cover competition policy, “with additions to the competition team in the coming months,” the White House said.

The tech industry’s “scare tactic” ad campaigns have resulted in weaker consumer protection in the U.S. than in the EU, former FCC Chairman Tom Wheeler blogged Wednesday. The estimated $100 million the industry has spent in recent ads against privacy and antitrust legislation doomed bipartisan bills that advanced through various committees on Capitol Hill, he wrote for the Brookings Institution, where he's a visiting fellow. Wheeler lamented the failure of Congress to pass the Kids Online Safety Act (see 2212200069), the Open App Markets Act and the American Innovation and Choice Act, as well as the American Data Protection and Privacy Act. Meanwhile, the EU enacted the Digital Markets Act. The “actions of American companies appear to only benefit European consumers,” he wrote. “It will be interesting to see what Big Tech and their industry association do in the next Congress” when confronted with consumer needs in the U.S.

The Supreme Court should “narrow the scope” of Communications Decency Act Section 230 and reverse the 9th Circuit’s decision shielding YouTube from liability in Gonzalez v. Google (docket 21-1333), Texas Attorney General Ken Paxton (R) wrote in a merits-stage amicus brief announced Thursday (see 2212070026). The 9th U.S. Circuit Court of Appeals in June 2021 dismissed a lawsuit against YouTube for hosting and recommending ISIS proselytizing and recruitment videos. The 9th Circuit affirmed a decision from the U.S. District Court for the Northern District of California shielding YouTube and its algorithms from liability. Plaintiff in the litigation and SCOTUS petitioner is the estate of Nohemi Gonzalez, an American student who was killed in Paris in 2015 during an ISIS attack. The petitioner asked SCOTUS to revisit the 9th Circuit's decision. Google didn’t comment. The case is scheduled for oral argument on Feb. 21 (see 2212190042). Though Section 230 was designed in 1996 to allow online publishers narrow protections from defamation liability, courts have “misinterpreted the law and allowed it to become a nearly all-encompassing blanket protection for certain companies, specifically internet and Big Tech companies,” Paxton said. These limitless legal protections prevent states from holding Big Tech accountable for law violations, even when infractions are unrelated to content publishing, said Paxton.

Kansas Gov. Laura Kelly (D) on Wednesday signed an executive order banning the use of TikTok on state-issued devices. Kansas joins a number of states and Congress in banning the Chinese-owned app on government devices (see 2212200074). “I am taking common-sense steps to protect Kansans’ privacy and security,” said Kelly in a statement. “TikTok mines users’ data and potentially makes it available to the Chinese Communist Party -- a threat recognized by a growing group of bipartisan leaders across the United States.” Politicians with “national security concerns should encourage the Administration to conclude its national security review of TikTok,” the company said in a statement. “The agreement under review will meaningfully address any security concerns that have been raised at both the federal and state level. These plans have been developed under the oversight of our country's top national security agencies -- plans that we are well underway in implementing -- to further secure our platform in the United States, and we will continue to brief lawmakers on them."

Amazon will stop using non-public marketplace seller data for its retail business, among other commitments accepted Tuesday by the European Commission after an antitrust investigation. The EC in 2020 said the company's reliance on marketplace sellers' non-public business data to calibrate its retail decisions distorted fair competition on its platform and prevented effective competition. It also preliminarily decided Amazon was giving preferential treatment to its own retail business and to sellers that use its logistics and delivery services over other sellers who used Buy Box and Prime. In response, Amazon made several commitments, which the EC market-tested. Amazon then revised its proposal and agreed to commitments such as making the Buy Box offer more prominent; being more transparent with sellers and carriers about the commitments and their new rights under them; and introducing a centralized complaint mechanism for all sellers and carriers to use in case of suspected non-compliance. The EC said the final commitment would ensure the company doesn't use marketplace seller data for its own operations and that it gives non-discriminatory access to Buy Box and Prime. Amazon will be bound by several of the commitments for seven years, and by others for five years, to be monitored by an independent trustee. In case of non-compliance, the EC can, as one option, fine Amazon up to 10% of its total annual revenue without having to first find an infringement of EU antitrust rules. Amazon is pleased it has addressed the EC concerns and resolved the matters, a spokesperson emailed. "While we continue to disagree with several of the preliminary conclusions the European Commission made, we have engaged constructively to ensure that we can continue to serve customers across Europe and support the 225,000 European small and medium sized businesses selling through our stores." The European Consumer Group (BEUC) said the agreement should mean Amazon "will offer consumers greater choice on its online marketplace so that consumers can more easily shop around for the best deals." However, users will benefit only if the EC closely monitors compliance, BEUC added. Separately, the EC notified Meta Dec. 19 it tentatively concluded the company violated EU antitrust rules by distorting competition in the markets for online classified ads: "The Commission takes issue with Meta tying its online classified ads service, Facebook Marketplace, to its personal social network, Facebook." It's also concerned the company is "imposing unfair trading conditions on Facebook Marketplace's competitions for its own benefit." Meta can review the EC documents and request a hearing to present its side. The claims are "without foundation," Meta Head of EMEA Competition Tim Lamb emailed. Instead, Meta's product innovation is "pro-consumer and pro-competitive."

NTIA shouldn’t amend GoDaddy’s contractual obligations for domain name management in a way that caters to the EU’s general data protection regulation, Reps. Bob Latta, R-Ohio, and Jan Schakowsky, D-Ill., wrote the agency in a letter dated Dec. 14. The letter raised concerns about “ongoing efforts to modify the contractual obligations for WHOIS between” the U.S. and GoDaddy for “management” of the U.S.’s "country code top-level domain (ccTLD), .US WHOIS" (see 2112170062). Congress has been hard at work for more than a decade on privacy issues, they wrote NTIA Administrator Alan Davidson: “Until Congress passes a privacy bill that addresses these issues, it is not appropriate for the NTIA to pursue the European Union’s General Data Protection Regulation (GDPR) position over the United States’ existing position.” NTIA and GoDaddy didn’t comment.

Senate authors of the Open App Markets Act made the bill worse by removing a “digital safety” clause that allows platforms to handle content moderation violations, the Computer & Communications Industry Association said in a statement Friday (see 2207190043). “Protecting digital safety is a justification companies could use for denying an app for violations of existing content moderation terms of service regarding hate speech, safety, and misinformation,” said CCIA. President Matt Schruers called the change a “deliberate effort to limit content moderation efforts that companies use to eliminate hate speech and misinformation to keep devices safe.”