This is part of a defunct newsletter/podcast in which I summarized news in surveillance. This interview was a bonus episode. I still enjoy thinking and writing about surveillance and privacy.

I recently highlighted a Wired article reporting on the group behind the website A coalition of organizations posted an open letter to the website calling on law makers to ban trageting advertisements shown to a user based on their behavior, browsing habits, purchase history, etc. The business model, perhaps most famously used by Facebook and Google, has recently come under intense scrutiny in both the public and private sectors. Apple soon will roll out prompts on iOS devices asking if a user wants to allow apps to track them. The planned feature has caused quite a feud between Apple and Facebook and their respective CEOs.

The coalition published the open letter just days before a congressional hearing with the Jack Dorsey, Sundar Pichai, and Mark Zuckerberg, CEOs of Twitter, Google, and Facebook respectively. During the hearing, Representative Anna Eshoo of California, and the congressional representative of both Pichai and Zuckerberg, stated that “Representative Schakowsky and I are doing a bill that is going to ban this business model of surveillance advertising” after calling the practice “dangerous.”

I was able to sit down and discuss the letter and Representative Eshoo's comments with Jesse Lehrich, co-founder of Accountable Tech, the nonprofit organization behind the letter. I also got his thoughts on how the events of 2020 particularly brought the issue to the forefront of public dialogue, what he thinks about Facebook defending its surveillance by masquerading as the hero of small business owners, and what he thinks needs to happen in order for enact lasting legislation that addresses the issue effectively. You can read our conversation in its entirety below, or listen to it by playing the audio above.

What do you think about the idea of banning surveillance advertising? Drop a comment and let's discuss!

The following text has been slightly edited for clarity.

Ethan Gregory Dodge: Today I got with me Jesse Lehrich from Accountable Tech. Why don't you go ahead and introduce yourself and your organization before we get started?

Jesse Lehrich: Yeah, how's it going? Thanks for having me. I'm Jesse Lehrich, as you say, co-founder of Accountable Tech. We're a nonprofit that's focused on holding tech accountable, as the name would suggest, with a particular interest in the information ecosystem, but spanning a lot of issues that touch that space as well. We launched last year and we've been hitting the ground running ever since.

EGD: Fantastic. What was your motivation behind starting the organization?

JL: Well, it's something I've been super interested in for a long time. I was actually a foreign policy spokesman for Hilary Clinton's campaign in 2016 so I was sort of dealing first hand with the foreign influence campaigns and the manipulation of social media platforms and information warfare in general and seeing the effect that has on our democracy. And, it's certainly not a vengeance type thing, but before then and certainly since then, I'm just keenly aware of the effect that social media platforms and the modern flow of information has on democracy and society at large. So I just felt that it was important to do something to try and hold these companies accountable and push thing in a more democracy-friendly direction.

EGD: So what you're saying if you're experiencing the problem first hand than most people have?

JL: Yes. I mean, I think we're all living it. But I was definitely living in in a very direct and day to day...

EGD: Right. Excuse me, I meant to say before most people have. There's always been rumblings ever since Facebook and Google launched, but then it was never really highlighted until 2016, but it didn't get the attention of all of society until this past year. But as I said, you experienced it first hand before most.

JL: Yeah, I think that's totally right. It's been interesting to watch people waking up. As you say, there's been a society-wide recognition obviously with the Capitol siege on January 6th, it was something that you couldn't really ignore anymore. But we've come a long way in four years, that's for sure.

EGD: Right. So you're organization's letter, which can be can found on the website and which I've already highlighted to my listeners and readers, it came just before a congressional hearing with the CEOs of Facebook, Google, and Twitter. Am I correct to assume that the timing of its release was intentional?

JL: Yeah, absolutely. Some of these hearings in the past, the most infamous one back in 2018 was sort of when you had octogenarian Senators asking Mark Zuckerberg how they can make money if they don't charge for their product and he said, famously, “Senator, we sell ads.” But there's been progress since then in terms of fluency levels amongst members of Congress, but still I think a lot of the hearings have taken the shape of people holding up giant poster boards of blown up tweets or whatever and yelling about “Why wasn't this taken down?” So we've been eager to move the conversation away from individual pieces of content and content moderation to the underlying business model that drives so many of the harms we're seeing today. That's why we wanted to roll this out in advance of this last hearing. I do think, as I say, slowly but surely, we're making progress on that front where members of Congress were drilling down on the business model and the underlying incentive structure.

EGD: Yeah. I love that you pointed to Orrin Hatch that asked that question. I actually grew up in Utah and he was my Senator my whole life until very recently when I moved out the state. I remember writing letters to him when I was in elementary school for class assignments. So it was particularly funny to me when that happened because I've been shaking my head at Senator Hatch my whole life.

To you're last comment, we have seen some Senators more actively go after this business model of surveillance advertising. In that same congresional hearing with those CEOs, [Representative]* Eshoo made a comment that her and Representative Schakowsky from Illinous are planning a bill to ban surveillance advertising. Do you know if you letter had anything influence over that comment.

*I mistakenly said Senator Eshoo. She is not a Senator but a member of the House of Representatives.

JL: So I think there's growing momentum across the board. One of the cool things about the coalition is that we have partners in Europe and have been engaging a lot with them because there's momentum as they move forward with things such as the Digital Services Act. They're eager to push this on that side of the pond as well. So it's been fun to see the momentum building across the board.

And certainly Congresswoman Eshoo has been a leader on these issues for quite some time. We've engaged with her office previously and I knew that last year she rolled a bill to ban political micro-targeting, which is a more narrowly-targeted version of this. We gut-checked with their lead policy guy as we were laying the groundwork for this grassroots efforts just to see what kind of appetite their might on the Hill for something like this. It is pretty bold and we wanted to make sure that we were not misreading the tea leaves. So I don't want to say we get sole responsibility or anything, and I am excited to see what the actual legislation looks like, but we did engage with them about the concept broadly. It's exciting to see this concept hopefully be turned into legislation.

EGD: I don't know if you'll be allowed to say this if the answer is yes, but have they engaged with you since then as they're writing this bill?

JL: Not necessarily on like “What do you think of this exact phrasing of legislative text.” But anytime you're introducing legislation on something like this, it's helpful to have support from grassroots organizations. So I think that if you're Congresswoman Eshoo or Schakowsky it's very encouraging to see so may groups across the spectrum lining up behind this policy. So they're definitely eager to engage with not just us but others in the coalition and make sure that we're loosely on the same page. Ultimately, they're going to write the legislation and they know better than we do how to do that in the best way. But, as is typical on these kinds of things, I think that they'll continue engaging with grassroots civil society organizations. And hopefully they'll put something forward that's great and we can get behind it.

EGD: Yeah. Let's hope, right? So in your letter and on your website, you cite a survey that Accountable Tech conducted this past January. It shows that roughly 80% of 1000 registered voters surveyed are opposed to surveillance advertising. I'd like to hear more about how the survey as conducted and why you think those finding are particularly significant.

JL: Yeah, I do think they were particularly significant. I'll candidly that those were stronger numbers than I was expecting. I thought maybe we're get like 60/40. To be clear, in the survey it doesn't say “Do you support surveillance advertising?” but we asked something along the lines of “Would you support Congress banning companies from using peoples' personal data for the purposes of digital ad targeting?” It was 80% Democrats and Republicans, pretty much exactly the same levels of support across partisan lines, which was interesting. We asked a second question which I thought was particularly noteworthy. It was a pair statement. We basically quoted Facebook's language on “relevant ads” and presented two statements. One of them being “I'd rather see relevant ads even if companies are using my personal data to target them” or “I'd rather keep my personal private even if it means seeing less relevant ads” and, again, 81% support for the first statement. That's basically using the generous framing that Facebook has about personalization and there was still overwhelming support for privacy. So that was really encouraging to see that support across the political spectrum.

EGD: That's awesome. Can you speak a little bit to how the survey was conducted. Did a 3rd party conduct it? Who was surveyed?

JL: It was GQR Research which is a very well respected pollster. They do a lot of political polling. We've been working with them dating back to last year. They work with candidate and what not as well. I think it was pretty standard, the same way they would conduct one of their political polls measuring support for Trump or Biden and what not. So pretty standard methodology for a respected pollster. Maybe you can link to the results in the post and folks can see the exact methodology.

EGD: Happy to link to those, for sure. The reason I ask the question is the tedency of some people is to write off surveys as not legitimate, so it's good to know its sourcing.

I want to take the conversation to what we were talking about towards the beginning. It feels like this problem of surveillance advertising has particularly come to a head this past year sine the pandemic started. Can you speak a little bit to that? Do you agree with that statement? If so, why?

JL: Yeah. It's certainly the case that these big tech companies are making more money than I've ever made before. Which is quite the accomplishment given their previous earnings. I think it's just the reality of people being stuck at home and they're spending that much more time going down YouTube rabbit holes and hanging out on Facebook and whatever social media platforms and the internet in general. So I think it's definitely created an opportunity for these companies to take advantage of and hit people with even more digital ads. I think there may have been a little dip at the beginning with the advertisers, folks in the travel industry and what not, were saying “Maybe we'll pull down ads for a little bit since people aren't traveling,” but ultimately, I think there was a pretty major boom. I think Facebook and Google ended up having their most profitable years on record. And at the same time, people have been isolated and, I don't want to tie all bad things that have happened in the world to surveillance advertising, but I think part of the reason there's been so much attention on it is because you've seen everything from people running scam ads, pushing coronavirus miracle cures to Facebook running ads targeting insurrectionists with military tactical gear. So I think there's an added aspect about the awareness and concern about the way this advertising system works because it's been tied to so many unseemly practices.

EGD: We're actually seeing a very interesting phenomenon happen between Apple and Facebook right now where Apple is going to roll out, if they haven't already, the prompt of whether or not you want that app tracking you and Facebook has responded with ads saying it's going to affect small business owners. What do you say to that? What do you say to Facebook?

JL: I say that I don't think Facebook is quite the champion of small businesses that it presents itself as. I think that Facebook is very good at doing whatever is the most tactical play at the time, presenting themselves as whatever light they think is advantageous for them. Certainly, small businesses existed and, indeed, thrived before Facebook. We've actually seen less small businesses started over the last decade than ever before. Obviously I don't blame that on Facebook, but the notion that Facebook is this god send for small businesses and, in particular, that they need to use surveillance advertising in order to support small businesses, it just doesn't support a lot of water. I think BuzzFeed did reporting on internal communications, where it seems like even Facebook employees were rolling their eyes at this notion of Facebook as the savior of small businesses.

We speak to some of this on the website, but the reality is that Facebook and Google they charge monopoly rents for access to the digital economy. Then they turn around and say “What would small businesses do without us?” Right now, they don't have a choice but to use these tools, but if we level the playing field I think that it will be better for small businesses, better for publishers, and maybe a little bit worse for Facebook and Google and I think that that's ok.

EGD: Yeah. So I got two more questions for you. One, we talked about at the very beginning, but I would like to get your take, if that's ok, as somebody who was part of the Clinton campaign and saw so closely the political effects that surveillance advertising had on our country and in turn on the world. Then four years later, when Trump lost, what his supporters, who were so vile against Clinton in 2016, did at the U.S. Capitol and continue doing online. Was the outcome that we've seen after the 2020 election all that surprising to you?

JL: No. I actually just wrote an op-ed for Crooked Media, not to tout any of your podcast competitors, but the Pod Save America guys are run out of Crooked Media, but I basically made that exact point: what did you think was going to happen? I do like to caveat, because I don't think it's helpful to anyone when we blame tech for all of our societal problems. I think that part of it is that we elected a President, perhaps with the help of Facebook, but nevertheless 60 million people voted for a President who traffics disinformation and conspiracy theories and riled up his base. But when you see a demogague-like figure with a cult-like following like Trump and his party, at least his loyal followers within in it, hyping this notion that the election was going to be rigged and then, of course, as the votes started getting counted pivoting to “Here, it's happening. We told you it was going to happening and it's happening!” You look at QAnon and Boogaloo and all these explicitly extreme and violent organizations that grew and recruited and were born out of the modern social media ecosystem and I just don't know what anyone expected to happen when these people are speaking in apocalyptic terms.

I made the point in this op-ed that it's almost a reasonable reaction if you truly believe that our democracy before your very eyes, certainly if you believe it's being stolen by a bunch of Satan-worshipping child traffickers, as the QAnon folks would have you believe, then of course you're going to storm the Capitol. I don't want to say it was inevitable, but I don't find it surprising at all. I think that not all of this a product of the ads in particular, but the entire business model is optimized for maximum engagement so that they can keep people on the platforms for as long as possible and serve them more targeted ads. So, a lot of times, that manifests in pushing people into more and more extreme content or connecting them with groups that support QAnon, like “This person is vaccine hesitant. Have you heard of QAnon?” They've just built the platforms in such a way that by virtue of optimizing for engagement at all costs to support the surveillance advertising business model, the societal costs are just enormous.

EGD: Right. Thank you so much for giving us that take. No worries at all. I don't view other podcasts as competitors, by any means. And I will link to that op-ed, for sure.

Last question. Let's say surveillance advertising is banned. It's gone, it's illegal. Do we need to have measures in place to make sure that some algorithm isn't going to pop up that's going to have similar effects. Or maybe not similar effects but a detrimental effect on society?

JL: First of all, I always like to say, and I say this about anything we propose, but it's true about surveillance advertising too, that banning surveillance advertising is not a silver bullet. There is no panacea to the moment that we're in when it comes to disinformation and extremism and surveillance. Don't get ge me wrong, there are plenty of great things about technology and the internet. I'm not a techno-phobe and I don't hate tech at large. But there are a lot of things that have spiraled in a way that without any check or regulation and now I find very concerning. So I don't think there is a silver bullet and I certainly think that when you look at GDPR or CCPA in California, privacy laws that have been passed that have definitely moved the ball forward, you still see these companies that are some of the most profitable companies in the world and they're going to continue to find — if 98% of your revenue is rooted in advertising the was Facebook is, in particular surveillance advertising, claiming to advertisers that you have greater capacity to target people by comprehensive profiles than anyone in human history, they're going to continue to find every possible corner they can cut, loophole they can exploit. So any piece of legislation, one, needs to be very well tailored, two, needs to be cognizant of any unintended consequences, because I think that we've sometimes when people rush to pass tech reforms they end up having totally unintended consequences because they weren't thought through or they're difficult to think through, and three, I would say that even if it happens — which I would be stoked if it did — w're going to need to continue to push for comprehensive privacy legislation to address the surveillance state more broadly. We're probably going to have to start pushing for more algorithmic transparency and accountability so that we can understand exactly how these systems are functioning and what content they are recommending and amplifying. And I think we need antitrust solution as well because these companies are just too big and, without competition, it becomes a lot easier to exploit your users and subject them to hate speech and privacy violations and they don't really have anywhere else to go. I think there's a lot of work to do, but hopefully we can move the ball forward.

EGD: What would better algorithmic transparency and oversight to you look like?

JL: One example of a step in the right direction would be Twitter having opened up their API so that academic researchers can take a look under the hood and see. Facebook and YouTube are just assuring us saying “We caught 99% more hate speech than last year,” making all these self-referential claims that nobody can verify so it's just really hard to make. And then, on the flip side, they use it to criticize the critics by saying “Oh you don't actually understand how this all works.” Well, nobody does because nobody has access to the data! Of course policy making isn't going to be perfectly tailored until we have access to the data to understand what the problem and what the scope of it is and then you can figure out how to address it properly.

EGD: Right. Cool, well, thank you so much for your time. I super appreciate it. I loved this conversation, it was fantastic.

JL: Same. I really appreciate the conversation and the work that you're doing to educate folks and advocate around these issues as well.

#surveillance #SurveillanceCapitalism #google #facebook #twitter #SurveillanceToday

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This is part of a defunct newsletter/podcast in which I summarized news in surveillance. This interview was a bonus episode. I still enjoy thinking and writing about surveillance and privacy.

Yesterday in Surveillance Today I highlighted a lawsuit filed in California by a coalition of activists. They're suing Thomson Reuters for selling utility records without consumers' knowledge. Last month, the Washington Post reported that ICE was using these records to track down and detain undocumented individuals.

In that piece, I included an excerpt from a conversation I had with one of those activists who is also an attorney listed on the suit: Albert Fox Cahn. Albert is the founder and executive director of the Surveillance Technology Oversight Project and based in New York City. Below you'll find our conversation in its entirety where discuss the legal strategy, why the suit is important to our Fourth Amendment rights, and what kind of legislation could help fix this problem.

Now here's the interview. Please note that the text has been slightly edited for clarity. You can also listen to it above.

Ethan Gregory Dodge: Can you put the legal argument and strategy into simple terms?

Albert Fox Cahn: Of course. Well first off, thank you so much for having me. It's really a pleasure to be here. In terms of this lawsuit, it's actually a little more complicated. So we filed it with our co-counsel at Justice Catalyst, Gibbs Law, and Gupta Wessler back in December. But we weren't actually advertising it to the public, we weren't highlighting it to the press until after it was more recently removed to federal court. This gets into some of the complexities of state vs. federal and all of that.

But basically, what the lawsuit is trying to do is leverage California common law and this right of publicity, this right to own the monetization of your own likeness. The simplest way of thinking about it is, if they put Michael Jordan's face on a box of Wheaties, they have to pay him for it. They have to compensate him for taking his likeness and using it.

But what we're seeing is, according to our complaint, CLEAR, this service that's used by Thomson Reuters, is allegedly taking lots of people's photos, taking our utility records, taking our credit records, taking all of these data points from our lives — really intimate and invasive information — and selling it. Not to just law enforcement, not just ICE, but even private companies and it's really violating that principle that someone shouldn't be able to profit off of your likeness without your consent.

EGD: Is your legal argument enhanced by the California Consumer Privacy Act?

AFC: So this is something that actually predates the California Consumer Privacy Act. I think there's been some great headway made in protecting privacy in California privacy. We've seen CalECPA being used, we've seen CCPA starting to come into it's own. But really, the claims here largely are going back to much older principles of who owns your likeness, your information. It's trying to update those common law principles for the 21st century.

And I think that when you take a step back and look at so many of the vendors out there that are scraping our data and selling it, it really is absurd that we've allowed this invasive model to flourish.

EGD: Interesting. So was there a particular reasoning for filing in California?

AFC: Yes, because of the California common law protection. California law is its own separate beast. For every one law that's different, that's top of mind, there are a hundred on the books that are very different. We also brought a claim under section 17200, the unfair competition law in California which is one of the strongest in the country.

There are so many different factors that come into play when thinking about where to file. We've seen some bad case law from the federal courts trying to push back against nationwide class action under state laws. I think those should exist, those should be permitted. But just to file the strongest case we could, we limited this to a class of California residents. I can't wait until there are similar federal laws or state laws in every state that let us protect everyone's privacy.

EGD: The Post reported yesterday that Senator Wyden plans on introducing federal legislation. We don't know a ton about his bill because it hasn't been presented yet, but according to what he told the Post, it will law outlaw law enforcement from obtaining data through commercial sources without a warrant. Is that the type of legislation that you're referring to that you would like to see? Or is it much more expansive than that?

AFC: I think that's a huge part of it. This lawsuit is much broader than just the law enforcement piece. But the law enforcement piece, outside of that case, is something that I focus on day-in and day-out on the policy level. I helped author and introduce the first bill in the country that would ban law enforcement purchases of location data. It's a bill pending here in New York that we hope it will help make it illegal for the police to come in and buy up these really invasive data sets. And also ban new types of warrants that we think are completely inappropriate like geo-fence warrants, which try to obtain all the location data for everyone in a specified area. Or keyword search warrants, which we only learned about last year. These are warrants that say “give us the name of everyone who searched for the following phrase, address, or information.”

The common thread here between our bill in New York that was introduced by Dan Quart and Zellnor Myrie and Senator Wyden's fantastic legislation is this idea that you shouldn't be able to buy your way around the Fourth Amendment. Our Fourth Amendment jurisprudence was written in the 18th century, it never contemplated this world where police, if denied a warrant application, could simply go to a data broker and buy the information they want instead.

The way our legal system is set up, if the police want to come to you directly and seize your data, often times they need a warrant or a subpoena. There is that sort of check, as flimsy as it can be. But when they want to get that data from someplace else, they can just buy it a lot of the time.

We've seen really grotesque examples of this. We saw the U.S. Air Force buying the location data for 90 million users of a popular Muslim prayer time app. They could have never gotten a warrant to compel the production of 90 millions peoples information, but they could just go out and pay for it. And we have no idea how often this happening in American policing. We know it's happening, but there's no reporting on it so there's no way to know if it's happening every day, every week or even multiple times a day. We don't know if law enforcement are purchasing data sets just in the thousands or if they're continuing to purchase data in the tens of millions.

Thomson Reuters, who we sued, there was great research from Georgetown Center of Privacy and Technology last week, I believe, where they highlighted that CLEAR, the same tool that we're suing over, they were selling utility records to ICE. So ICE could use the fact that you signed up for a phone line in order to deport you or your family. It's nightmarish and it has to stop.

EGD: That's a nice segue into CLEAR. How involved were you in investigating what data CLEAR had on your clients?

AFC: When it gets to the specifics of the litigation, I have to be a bit high-level. But what I would say is, I was very deeply involved in evaluating the information we could obtain to really understand the harm the was posing to our clients.

EGD: If you can, what would you say is the most notable thing you found out about CLEAR in your investigation?

AFC: Let me just speak in general terms about what's been reported by others. We've seen reporting that there are arrest records in this database. We've seen that there are photos that could be run through facial recognition in this database. We've seen reporting that there's potentially other biometric data. We've seen reporting that there is credit history, job history, and location history.

Without getting into specific information that was there about our clients, one thing to keep in mind is that, depending on who you are, maybe that doesn't sound so frightening, but imagine if you were someone with an order of protection because you're getting death threat. Imagine you're someone who's constantly scared for your safety. That's not an abstract, that is the reality for one of our clients, who has constant security concerns because of the death threats she receives. And yet, even though she's paying to scrub this information from the internet and paying services to prevent her personal data from getting out there, you still have a service like CLEAR that's profiting from selling that same exact data. That's something that I think is completely at odds with even the most basic guarantees of privacy.

EGD: Is there anything reasonable that somebody can do to avoid being in CLEAR's database?

AFC: That's the thing, I haven't seen a really meaningful way to really opt out of it. I haven't seen a way to remove your data, effectively. There are some forms on the website, but I believe many of them require you to submit government ID as part of your request, giving them even more information as part of a process purportedly designed to remove that information.

This is why we need stronger privacy laws and litigation. Even if there is a great way to opt out by navigating to some really obscure page and clicking a bunch of forms, that's not meaningful privacy protections. We need this to be something that is there by default for all Americans, not something that only is available to those who invest huge amounts of time in finding some obscure little form.

EGD: Overall, how do you expect the suit to turn out?

AFC: I feel like lawyers very early on that you can't make predictions. But I think the facts here are very compelling. I think the law here is quite clear. I'm really hopeful that this will have a really substantial impact in both protecting our clients and other Californians and hopefully laying the foundation for more work against other data brokers who are doing similar things.

The scary part is that this is such a profitable industry. There are so many firms in this field that we need some really sweeping and comprehensive action to address the scope of the harm that's being done.


To learn more about Albert's organization, the Surveillance Technology Oversight Project (STOP) visit They've also got a great podcast that I highly recommend called Surveillance and the City.

To learn more about what data CLEAR had on Albert's clients, be sure to read my report on it from yesterday.

#surveillance #SurveillanceCapitalism #interview #CLEAR #california #SurveillanceToday

Thanks for reading! I don't ask for money, but if you liked it, I'd appreciate a follow via the RSS feed, on the fediverse—search “@[email protected]” on your federated app of choice such as Mastodon—or via email below!

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