Breaking: In decisions just out, Meta is not only on the hook for privacy fines totaling nearly €400 million, but it must also — quickly — find a new legal basis for its sprawling targeted advertising empire. 🧵
https://pro.politico.eu/news/158293
🐦🔗: https://twitter.com/vmanancourt/status/1610652904188174338
Or that the social network is one service, and the ads are another, so the GDPR rules for the social network can presume that ads are not relevant?
That one also seems like a competition policy question.
9/
@daphnehk This is a great thread and it's something that confuses me too about some of the European rulings I've seen come out.
It seems like the rulings boil down to "Internet companies offering any non-paid service in Europe must offer it free of any obligation whatsoever to the people using the service for free."
@DiogoConstantino @daphnehk I'm probably speaking much more broadly than Daphne was, sorry for being confusing there.
Beyond this specific law and case, just seems to me that the collection of EU perspectives on tech in general seems to be "You can offer free services, but you can't ask anything in return from their users"
I can totally understand from a privacy perspective why that's desirable, I'm having a harder time seeing how that's a feasible way to run tech businesses.
And I'm personally happy to just pay a small fee for ad-free, pro-privacy things but I doubt I'm in the majority.
@amuse @DiogoConstantino @daphnehk isn't this a bit like saying:
seems to me that the collection of EU perspectives on tech in general seems to be "you can offer ride sharing services, but you have to treat your full time workers as employees, not independent contractors"
I can totally understand from a labour law and worker rights perspective why that's desirable, I'm having a harder time seeing how that's a feasible way to run a tech business.
@DiogoConstantino @amuse @daphnehk There is obviously a tension between allowing companies to operate without too much of a regulatory burden, and protecting users, but if you take it to the extreme, you could as easily argue that we can't tax CO2 emissions because it makes it too hard to be an oil company, or that we can't require pharma to run clinical trials, because it makes it too hard for them to be profitable.
If a company can't find a legal business model, good riddance I say.
@MechanicalTurk @DiogoConstantino @daphnehk I think it's actually a lot more like the government saying "You can offer ride sharing services, but you can't require the user to enable location sharing to summon the vehicle".
That's technically do-able, but completely changes a major pillar of what the business actually does to operate.
@MechanicalTurk it needs to go from where I want to go, to where I want to get, not to track where I'm.
@amuse they made their choice. Also personalized advertisng is far from being the only form of avdvertising, it's not even the only form of doing advertising for specific audiences.
@daphnehk @MechanicalTurk @DiogoConstantino @joris I appreciate your input!
For me, the question becomes "What is the alternative to take it or leave it basis?"
Like, can FB say "You can have our full service if you consent to tracking, but if you don't you can only have Facebook Lite with videos capped at 360p" ?
If the answer is that FB can provide a lesser service for users who provide less value (to FB) then that seems totally fair.
If the answer is no, FB must provide completely equivalent service to both its money-making users and its money-losing users, then it does still seem like EU is saying "You cannot require users to provide anything at all in exchange for free services" which seems to me like it'd lead, ultimately, to people not offering any free services at all in EU.
Note: I personally loathe Facebook and haven't logged in for a long time, but this is less about defending FB to me and more about thinking through what commerce on the internet looks like under these rules.
@amuse the alternative is to follow the law and change or adjust business model. Both asking for consent and not having personalized advertising (maybe use contextual advertising instead) are definitively viable.
Your proposal/sugestion wouldn't be lawfull because it has nothing to do with the necessity of the user data processing to provide the service.
@amuse
Your conclusion of the availability of services depends on the wrong premise that it's not possible to provide service if you're not either charging money for it, or doing a particular type of advertising, and that is simply not correct.
@amuse
Other types of advertising can be as much or even more effective, even if many business people don't think so. Most of them are not educated on the matter and never tried it, because: "it's what everybody does, so it must be the best".
@amuse
Even if alternative advertising models would be less effective they woud still be effective, and profitable. Having less profits for respecting human rights is a no brainer for most people here in Europe, so laws that reinforce this are very popular, and companies that don't want to accept that wouldn't be very much missed. However they woukdn't leave because the market is too big.
@amuse
And we do have proof that they wouldn't leave the all EU, because of similar things in the past.
As an example google did stopped providing some services in some countries for some time because of regularion, but not only turned back on that, as it didn't left the EU/stopped offerig affeected services when similar regulation was appproved in the EU.
@MechanicalTurk @DiogoConstantino @amuse
@joris
The sex example makes sense as a thing you can’t transact for in most places. (Along with votes, organs, babies, indentured servitude, etc.) But the contract basis means you *can* transact for a data use as long as it’s necessary for the performing of the service. So doesn’t that put you back into needing regulators to make a bunch of weird decisions about these deals?
@tknarr
You're mistaken. Consent can only be requested if it can be meaningful refused without detriment. If the subject feels compeled to consent, the consent is not freely given, and subjects may obviously and easily feel compeled to have the service. It has nothing to do with being before or after.
@DiogoConstantino @tknarr @amuse
It seemed like the lynchpin of DiogoC’s point was “If the subject feels compeled to consent, the consent is not freely given, & subjects may obviously & easily feel compeled to have the service.”
So is this reasoning about contract basis for processing unique to services that are essential or dominant (Facebook, arguably)? If there were 100 social media companies, could one offer targeted ads on a take it/leave it basis?
@daphnehk @DiogoConstantino @amuse 2/ The problem is that you don't have a legal right to a Facebook account. Even if Meta saying "If you don't consent, we won't offer service.", the user has no legal right to receive service from them until _after_ they've agreed to the terms and Facebook has agreed to provide them service.
Now, once Facebook _has_ agreed to provide them service, it's another matter. Then they do have a legal right to receive service under the agreed-on terms.
@daphnehk @DiogoConstantino @amuse 3/ In the case of the existing user, Meta is now using the threat of terminating service if the user doesn't do something they have every legal right to refrain from doing: accepting a change in the terms of service.
Had Meta changed the terms to require express consent at the time the GDPR went into effect, they could've cited the change in the law as the basis for requiring a change in terms to comply with the law. But it's too late for that now.
I scanned the replies. Did a lawyer ever respond?
The social media behavior where people respond to a question for input by “expert”, by starting with “I’m not expert, but in my opinion…” really makes life challenging.
Daphne
Matt Linton 
Diogo Constantino
MechanїcalTurk
Dan Veditz
Todd Knarr
Suzanne Vergnolle
Dr James J Teeth
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