The Industry

Facebook Is Preparing to Fight Privacy Legislation From Both Sides of the Aisle

It just hired the co-author of the Patriot Act and a policy director who helped fight it.

Mark Zuckerberg turns to talk to colleagues at a hearing.
Facebook CEO Mark Zuckerberg prepares to testify before Congress in the Rayburn House Office Building on Capitol Hill on April 11, 2018. Chip Somodevilla/Getty Images

Facebook made some new hires this week. On Monday, the company shared that it’s bringing on Jennifer Newstead to join the company as its general counsel. Newstead comes to Facebook from the State Department, where Trump appointed her as its top lawyer in 2017. She is perhaps best known for her role as one of the primary engineers of the Patriot Act and her success selling the bill to Congress in the days following the attacks of Sept. 11, 2001, as John Yoo outlines in his 2006 book, War by Other Means.

The Patriot Act opened the doors to massive expansions of government surveillance, authorizing the National Security Agency to collect the phone call data of virtually everyone in the United States. The post-9/11 law also expanded the federal government’s ability to secretly demand Americans’ personal data from internet companies. Last year, Facebook shared that U.S. government demands for user data rose 27 percent from 2017 to 2018. In the first half of 2018, Facebook received more than 42,000 requests from the U.S. government for user data. Now, it will be Newstead, the same person who helped expand the government’s power to demand access to your data, who is tasked with attempting to narrow or reject such requests on the behalf of Facebook users. Cold comfort at best.

Newstead is also taking the helm as federal regulators are grappling with how to hold Facebook CEO Mark Zuckerberg accountable for seriously mishandling the personal data of its users. Beyond the Cambridge Analytica scandal—which revealed that the voter targeting firm hired by the Trump campaign had inappropriately accessed the data of as many as 87 million Facebook users and forced Zuckerberg to testify to Congress—we’ve recently learned that hundreds of millions of users’ personal information has been improperly stored and exposed by the company for years.

Newstead’s predecessor, Colin Stretch, represented Facebook in congressional hearings in 2017 when the company was called in to answer questions about Russian operatives’ use of its platform during the 2016 election. Those hearings led to more rounds of questions from lawmakers in 2018. In both hearings, many Republicans have spent some of their time accusing Facebook of harboring a pro-liberal bias. Newstead’s conservative bona fides may come in handy in deflecting those concerns.

The day after the Newstead announcement, news broke that Facebook made a very different hire: Kevin Bankston, the director of the Open Technology Institute at New America, a D.C. think tank, announced he would join Facebook as its director of privacy policy.* (Disclosure: New America is a partner with Slate and Arizona State University in Future Tense, and Bankston has written for Future Tense. I also previously worked at New America.) Before joining New America, Bankston worked at the Electronic Frontier Foundation (another place I have worked), where he advocated for reforms limiting surveillance permitted under the Patriot Act. According to disclosures on its website, New America has received between $50,000 and $99,999 from Facebook—a relatively small amount compared with other donors.

Bankston has been supportive of privacy legislation. He has also said that he believes passing legislation forcing transparency about what data is being collected should be a priority for Congress and that new rules on data portability, the idea that you can take your data with you when you leave a social media site, should also be considered. In the wake of the Cambridge Analytica drama last year, Bankston wrote on Twitter that “transparency is especially important to focus on b/c it addresses what the public seems most upset about here: not so much ‘privacy’ but the possibility they were *manipulated*.” Bankston also was with the Open Technology Institute when the organization signed on to a letter with a coalition of civil rights groups stressing the importance of addressing how data collection and subsequent profiling enables discrimination against marginalized communities.

Facebook is clearly gearing up for what may be another year of target practice from lawmakers on both sides of the aisle who appear to be moving toward consensus that the social media network has some serious problems it needs to address—from user privacy to disinformation to discriminatory ad targeting to just generally muddying our civic life. Making sure that any legislation that’s adopted doesn’t harm Facebook’s bottom line will mean having players on its team who can hit a home run no matter who’s pitching.

Correction, April 24, 2019: This article misstated that Facebook shared the news of Kevin Bankston’s new position. Bankston announced his new role in a blog post.