Big Tech companies have been embroiled in legislative discussions in Washington D.C. for more than a year. Most of their attention has been devoted to discussing the pros and cons of a particular piece of proposed antitrust legislation: the American Choice and Innovation Online Act.
At the center of the debate surrounding this bill, and around similar bills that seek to regulate how Big Tech firms operate their platforms, is how companies should use their data — or rather, how not to use it (for instance, not using the data to favor its own products in detriment of its competitors) — and who has access to it, like how much data from online advertising or data from the app stores should be shared with third parties.
But on Thursday, June 23, Ken Walker, Google’s president of Global Affairs, wrote an opinion on the company’s blog sending a message to the government that citizens should know who has access to their data, even if it is the government who demands access to it.
In the post, Walker commended the bipartisan House passage of the NDO (non-disclosure orders) Fairness Act, a bill sponsored by Chairman Nadler and Representative Fitzgerald that would make improvements to the Stored Communications Act.
The Stored Communications Act sets the rules that control government demands to providers to disclose information about their users. One of those rules lets the government seek orders to prevent providers like Google from telling users about the demands for data. These so-called NDO or “gag orders” have become commonplace, Walker said.
According to Walker, the company has seen an increased use of NDOs, what means that providers can’t notify users their data has been shared until long after compliance, if ever, and people don’t have the opportunity to go to court to contest disclose orders. NDOs can cover requests for data of well-established reputable organizations, even though notifying the company is highly unlikely to do harm, Walker argued: “It is time to reform this practice, requiring more robust review before gag orders are issued.”
By endorsing the NDO Fairness Act, Google is seeking more transparency for users and the public, the company said. The proposed bill would provide for strict scrutiny analysis to grant a gag order request, it would establish time limits to the order (30-day limit) and it would require firms to notify the customer within 72 hours of the expiration of the delay, including what information was disclosed. Additionally, providers like Google could contest gag orders in court.
Public demands for data and adequate protection of citizens’ data against abuses may acquire a new dimension in the aftermath of the Supreme Court ruling on Roe v Wade. As many as thirteen states have trigger bans in place that will outlaw abortion. Big Tech firms may find themselves in the middle of legal battles about how their data may be used to track and locate abortion clinics, individuals or other providers that could facilitate an activity that will now be illicit. The Supreme Court ruling didn’t change the rules for data collection, but it surely added more food for thought about how to assess government and public prosecutors demands for citizens’ data.
