back to article Pack your pyjamas, Zuck: US bill threatens execs with prison for data failures

A proposed law bill in the US aims to give regulators genuine powers to go after companies that fail to protect citizens' privacy up to and including jailing bosses. The brilliantly titled "Mind Your Own Business Act" (PDF) would give the Federal Trade Commission, which is responsible for privacy protections, the power to do …

  1. Carpet Deal 'em Bronze badge

    up to and including jailing bosses.

    And there goes any hope it had of passing. Hopefully it at least makes a good enough showing to have some effect.

    1. Keven E

      Preempt

      The last line of the bill says:

      SEC. 14. NO PREEMPTION.

      Nothing in this Act may be construed to preempt any State law.

      **

      So State laws would preempt it? Even if with smaller fines? Or would that just mean *if it ever gets to the FTC level of enforcement. What's the point of law I'm missing here?

      1. Crazy Operations Guy Silver badge

        Re: Preempt

        It means that if there is a conflict between something in the Federal Law, and a State Law, then the State Law wins. The preemption clause is standard boiler plate language to comply with the 10th Amendment of the Constitution. EG, if a company violates parts A, B, and C of the FTC's regulations, but the state allows for B, the FTC can only hold the company liable for violating A and C in that state. Although they can go after the company for violating B in other states. Or if the State has a specific law applying to B, its the State AG's prerogative whether to enforce it, cede the case to the FTC, or just do nothing (Although that doesn't stop the FTC's case for violations A and C).

        This doesn't apply to fines, though, since law can only provide guidance for fines, the actual fine is up to a judge to decide during the sentencing / restitution part of the trial.

        1. JohnFen Silver badge

          Re: Preempt

          "It means that if there is a conflict between something in the Federal Law, and a State Law, then the State Law wins."

          The general rule of thumb is that state laws can impose greater restrictions than federal laws, but can't reduce the effect of federal laws. The idea is that federal laws can only apply to federal issues (which means things that cross state borders, etc.). That's why there's no federal law against ordinary murder, for instance -- that sort of thing is a state issue.

          However, this is a very, very complicated area full of gotchas, byzantine reasoning, and counterintuitive rulings, so you can't take anything for granted.

          1. Dusty

            Re: Preempt

            Re Murder. I may be wrong. But my understanding is that in the US, a suspect of a Murder committed in, say NY, who has fled to, say, Florida does actually have to be formally extradited to face trial. He cant just be picked up by the Police and taken back to NY just because they want him.

            1. kat_bg

              Re: Preempt

              I think that murder is considered federal crime, so there is no way to hide from this in the US.

              1. JohnFen Silver badge

                Re: Preempt

                Simple murder is not a federal crime, it's a state crime. That doesn't mean you have somewhere to hide, though, because of extradition laws.

                Also, there are ways that a murderer can cause their murder to become a federal crime, but they all involve murder in conjunction with a formal federal issue, such as if a state line is crossed. Here's an interesting writeup on the issue: https://www.wklaw.com/10-ways-murder-becomes-a-federal-crime/

            2. This post has been deleted by its author

        2. Charles 9 Silver badge

          Re: Preempt

          "The preemption clause is standard boiler plate language to comply with the 10th Amendment of the Constitution."

          What about the Fourteenth Amendment and its Supremacy Clause. As it's a later Amendment, it takes precedent, doesn't it?

          1. Carpet Deal 'em Bronze badge

            Re: Preempt

            The Fourteenth concerns itself only with civil rights. This is far outside that scope, even before we consider how narrowly the Supreme Court has tended to interpret it.

            1. Charles 9 Silver badge

              Re: Preempt

              Since when has the Full Faith and Credit Clause been a matter of civil rights? And if that isn't, then the Supremacy Clause isn't, either, and both are in the same Amendment.

          2. JohnFen Silver badge

            Re: Preempt

            "As it's a later Amendment, it takes precedent, doesn't it?"

            No, that's not how amendments work. If a later amendment is intended to override an earlier one, that has to be specifically spelled out in later amendment.

            When two parts of the Constitution contradict each other, then its up to a combination of Congress (who can make laws clarifying the compromise) and the courts (who have the final say on what is or is not Constitutionally allowable) to achieve a balance between the two parts.

    2. John Brown (no body) Silver badge

      "And there goes any hope it had of passing."

      It'll be interesting see how much lobbying funds go against this bill and to follow the trail to the sources, as well what the arguments against the bill will be.

  2. chivo243 Silver badge
    Trollface

    175 extra staff!

    Whoa! Are you sure that's not a bit overkill? I'm sure Rhode Island and Delaware don't need 3.5 extra FCC plods.

    1. Crazy Operations Guy Silver badge

      Re: 175 extra staff!

      First, this is the FTC, not FCC. Second, those staff are hired at regional offices. Since most businesses are incorporated in Delaware (For tax purposes), Delaware may receive 100 or more of those new staffers.

      These staff members receive complaints from citizens, then do research into the complaint, then if they found something actionable, it gets passed up the chain to the FTC's legal team to establish a case, then to the Justice Department to actually prosecute the case.

      1. chivo243 Silver badge

        Re: 175 extra staff!

        FCCfat finger, long week, but I was commenting on adding 175 staff on a Federal level, seems too few in my opinion. I picked those states, being small in size as an example. Bad example?

  3. Palpy

    Ron Wyden gives me cognitive whiplash.

    Recently a pundit opined that the US has, essentially, legalized corruption in government: since money is free speech and corporations are people, a corporation bribing a congressman is just a constituent engaging in free speech with his representative. I am pretty well on the way to internalizing the idea that I live in a corrupt oligarchy, like Russia, albeit with an as yet less-developed authoritarian / totalitarian tilt.

    And then comes Ron Wyden. A politician attempting to something which would put teeth into corporate accountability, actually trying to do something that would piss off corporate moneybags no end. The opposite of a corrupt politician. The opposite of an enabler of oligarchy.

    His measure is a bit of tilting at windmills, of course, especially as long as conservatives hold a majority in the Senate. Some would say such a proposal is nothing more than a cynical publicity stunt. But given Wyden's record on similar matters, I don't think it is. He does not mean it cynically at all. The measure will fail, but it will remain as a cri de couer: "This is what we should have done". Unfortunately, it is a cry issued in a wilderness of duplicity, partisanship, and corruption.

    1. Crazy Operations Guy Silver badge

      Re: Ron Wyden gives me cognitive whiplash.

      This isn't likely to succeed, but that isn't the point. I've followed similar bills in the past (Especially in my local legislative bodies), and they start like this, giving citizens something to rally around and pressure -their- representatives to also support it. It will likely fail a few times, growing stronger until it actually gets the requisite amount of votes to pass.

      I've also found that if an issue keeps getting raised in a legislative body year after year, a lot of your status quo centrists will finally recognize its not something that won't just blow over and decide to take action on it.

      1. Doctor Syntax Silver badge

        Re: Ron Wyden gives me cognitive whiplash.

        "It will likely fail a few times, growing stronger until it actually gets the requisite amount of votes to pass."

        I suppose the usual tactic is to water it down a little on each iteration until the proponents and opposition meet in the middle. I think I'd be tempted to be a bit contrarian and strengthen it each time until the lobbyists' clients get the message that maybe it's be a good idea to get it passed this year because next year may be even scarier.

        1. ThatOne Silver badge

          Re: Ron Wyden gives me cognitive whiplash.

          > strengthen it each time until the lobbyists' clients get the message

          While I like the idea, it's unfortunately bound to fail, as lobbyists will have no difficulties blocking increasingly extreme versions of the same law: Making it weaker says publicly "we made an effort towards a compromise, you can't refuse to consider this new version", while making it stronger means it's just the same old rejected proposition, only uglier.

          Since lobbyists vote the laws, the whole point of the negotiation is to find the point where lobbyists can't or won't fight anymore. Obviously it means the resulting law is toothless (or totally inert), but that's not really a problem, because the perps will have bought the institution supposed to handle it (see FCC) anyway, making sure that law is never applied. And then they would use a change of government to make that law disappear "in the name of privacy" (see net neutrality).

          It's a very steep uphill battle...

    2. Mark 85 Silver badge
      Pint

      Re: Ron Wyden gives me cognitive whiplash.

      Well, we have to give Widen points for effort even if it fails. He's been tenacious in his efforts to protect us from the corporates. I serious doubt that this bill not passing will stop him. And for that, I offer him any beverage of his choice.

    3. The Nazz Silver badge

      Re: Ron Wyden gives me cognitive whiplash.

      Time for a serious third party? They'd only need the slogan "Build the Gaols".

      a) many, many more will be required, if only in the short/medium term.

      b) something similar, around 2015/6 worked didn't it?

    4. DougS Silver badge

      Ron Wyden sponsors a lot of lost cause bills

      Bills for privacy, bills that limit government spying, bills that limit a president's ability to start their own wars.

      He gets a few co-sponsors from both parties, but they never go anywhere, because the majority on both sides are in lock step with the corporate TLA military industrial complex, and the millionaires and billionaires who fund their campaigns.

    5. macjules Silver badge

      Re: Ron Wyden gives me cognitive whiplash.

      Don't care. If he can get that f&^&ing , lying, b^&*^*d Zuckerberg into jail then Ron Wyden is my God.

  4. Daedalus Silver badge

    Well.....

    This is on a par with Jeremy Corbyn proposing a bill to nationalize North Sea Oil. Given the balance of power it has zero chance of passing and may not even have been seconded to get on the docket.

    1. Stork Silver badge

      Re: Well.....

      There isn't that much left to be nationalised, is there?

      1. Cederic Silver badge

        Re: Well.....

        I'm sorry but that's a scurrilous assault on Scottish independence and we're going to have to ask Ian Blackford to spend 28 minutes each morning giving you a lecture on how you're an evil imperialist brutalising poor innocent Scotland.

        (I may have heard the word 'Scotland' too many times in Parliament this afternoon)

        1. Anonymous Coward
          Anonymous Coward

          Re: Well.....

          >Ian Blackford

          Sadly, at the moment, he's one of the few credible party leaders left in Parliament. Along with Jo Swinson..

    2. Anonymous Coward
      Anonymous Coward

      Re: Well.....

      >This is on a par with Jeremy Corbyn proposing a bill to nationalize North Sea Oil

      I think you mean renationalise - it wasn't flogged off by Thatcher's mob until the 1980s.

      No-one seriously thinks that was a good idea on reflection - the debate is just whether or not it makes financial sense to undo the damage now so much of the reserve has gone.

  5. Claverhouse Silver badge

    I look forward to Mr. Sugarmountain sharing a cell with his President and Old Joe Biden, with Bigfoot and Shergar allowed as cell-pets.

    Even genial Harry Grout had a pigeon.

  6. Imhotep

    Because I said so, that's why

    I'm not comfortable with giving bureaucrats the ability to imprison anyone, unless the accused is guaranteed the protections of a public trial, the ability to provide a defense, an impartial arbiter of guilt and the right to appeal.

    I haven't seen any of this discussed in any of the news articles I've read and, more worryingly, I don't see anyone asking those questions.

    1. Paul Crawford Silver badge

      Re: Because I said so, that's why

      Er, they make a law then the courts deal with it, and occasionally throw it back if unfit? That sort of process?

    2. JohnFen Silver badge

      Re: Because I said so, that's why

      "unless the accused is guaranteed the protections of a public trial, the ability to provide a defense, an impartial arbiter of guilt and the right to appeal."

      All of those things are as guaranteed as ever. They need not be (and never are) specifically spelled out in a law unless some sort of exception is being made, because they are already spelled out in the Constitution.

    3. CrazyOldCatMan Silver badge

      Re: Because I said so, that's why

      giving bureaucrats the ability to imprison anyone

      You obviously don't understand how the process works:

      1. Congress makes a law.

      2. Government bodies ('bureaucrats') enforce the law by taking law breakers to court

      3. Courts decide guilt or innocence and, if guilty, pass sentance. Said sentancing options are decided by law established at (1).

      So the is no differnce between the proposed law and (say) the FTC taking someone to court for fraud.

  7. Imhotep

    Not a lawyer, so I'm summarizing my understanding as best I can: the FTC brings charges, which are voted on by a vote of the FTC commisioners. Their finding is referred to the local Federal judge for action.

    These are my concerns: in that process there is no jury of your peers for a decision that can result in a person's imprisonment. If there are safeguards, great - what are they?

    1. Anonymous Coward
      Anonymous Coward

      Out of touch a bit?

      Dude, you've been under that pyramid thingy too long. We've got this whole civilization thing with legal rights and procedures and everything.

    2. doublelayer Silver badge

      You just pointed out the judge. Where do judges work? Courtrooms. What do they do? Trials. What happens when someone's broken the law? They go on trial. Who runs that? A judge. So how have you come to the conclusion that the judge is just going to sentence the person without holding a trial. It happens to be completely against the constitution, and, oh yes, nobody's ever advocated for it and they're not now. You're raising a completely pointless and wrong objection.

      1. ThatOne Silver badge
        Devil

        > You're raising a completely pointless and wrong objection.

        But one you'll hear a lot as a counter-argument against this law. Along with "it will make the poorest among us even poorer (and the sickest even sicker)" and of course the ubiquitous "won't someone think of the children (alternatively, the terrorists)?".

        Why? In politics arguments don't need to have any connexion to reality as we know it. They just need to trigger enough FUD to create a "subject = BAD!!!" association.

    3. Crazy Operations Guy Silver badge

      The process works like this:

      1) A complaint is made, either by a citizen or trough another investigative body discovering evidence of violations

      2) An FTC agent do a cursory investigation using public information, information in the complaint, information the FTC has in their archive, and non-binding letters sent to the company.

      3) The agent then presents the case to the board of commissioners for permission to do a full investigations

      4) If the investigation does go forward, the FTC forms a task force, which is allowed to request subpoenas and warrants from a federal court and witnesses / victims are interviewed.

      5) If this investigation produces a solid case, the case is handed over to the US Department of Justice for prosecution in federal court.

      6) If the case is accepted by the courts, an arraignment occurs where the company can make pro-forma arguments over venue, scheduling, and so on.

      7) The trial is actually held after venue and schedule has been agreed upon, witnesses for both sides are informed, a public notice is published to inform both the public and the press, and all the rest that happens with a standard trial

      8) once the federal case is done, the results and evidence can be used by state bodies to prosecute their own cases and private individuals / group can use it in civil courts for law suits.

      1. Mike 16 Silver badge

        Step 3.5

        When it is found that the corporation was acting on orders in a secret National Security Letter issued by a secret hearing by FISA, a quiet word is had with the board of commissioners (off the record, of course, but including a lovely photo album of all the family and friends of those commissioners). And there are no steps 4-8

  8. Doctor Syntax Silver badge

    From the one and a bit page summary: "(6) Require companies to assess the algorithms that process consumer data to examine

    their impact on accuracy, fairness, bias, discrimination, privacy, and security."

    I'd go a bit further. For businesses that exceed some function of number of data subjects and sensitivity of data the FTC should be required to make that assessment on a regular basis and maybe have the ability to make pre-emptive strikes just to ensure that businesses that look borderline aren't being tempted to under declare. It'd need more than 175 extra bodies to do that.

  9. Oengus Silver badge

    Long drawn out process

    If these proposals actually become law I can see these trials becoming long drawn out processes. If you think the Oracle vs Google Java copyright or the SCO vs IBM argument have been going on forever... think about it. Those are over money. The cases brought about by the proposed laws will be about the personal freedom of very rich and influential individuals. They certainly will have the largest army of lawyers ever assembled to try to keep them out of jail. Of course these corporations will continue to exploit the individual's private data for profit during the process.

  10. Blackjack

    Too late for going after Bill Gates...

    He is no longer the Boss of Microsoft.

    1. Crazy Operations Guy Silver badge

      Re: Too late for going after Bill Gates...

      He still sits on the board as an 'advisor' so if he advises the board to pass something that violates FTC regulations, he can be held responsible, especially if he lied in his recommendation. He can also be hauled in for policies he enacted while CEO or Chairman of the Board.

      EG, if he implemented a business deal back in 2013 that violates consumer privacy, and the deal is still violating privacy laws, he may be found responsible.

      Or if the board is making a decision on some new technology or deal (Like sharing information from the Telemetry feature with other companies). He then tells the board that the technology is perfectly safe and carries no risk of privacy violations. It is then found that the feature is leaking a lot of personal information and he either intentionally lied or neglected to carry out his due diligence, he could be sentenced.

      1. MiguelC Silver badge

        Re: Too late for going after Bill Gates...

        Laws don't generally apply retroactively unless otherwise specified into them (ex post facto laws), and it usually requires congressional authorization

  11. Anonymous South African Coward Silver badge

    Zuck will just relocate to another country.

    1. Pascal Monett Silver badge

      Relocate ?

      Have you forgotten how many governments still want to ask him questions ?

      He can't relocate to the UK, they want his head on a spike. He most likely won't relocate to Canada, there's been some grumblings there too. I highly doubt that he'd relocate to anywhere that doesn't speak English, but even if, it wouldn't be anywhere in Europe because of GDPR and the fact that both France and Germany want to speak with him very intently.

      So, what's left ? Mexico ?

      Yeah, that would go down well.

      1. Anonymous Coward
        Anonymous Coward

        @Pascal Monett - Re: Relocate ?

        Canada ? The government will be on their knees bowing down with respect each time his Zuckness inadvertently happens to look towards the Northern US border.

      2. doublelayer Silver badge

        Re: Relocate ?

        There are places he could run to, but he almost certainly wouldn't. Even if you stick with English-speaking only, you've got countries on every continent meeting that criterion*, and you can find someone who speaks English well and willing to translate for you in exchange for a bunch of money anywhere you go.

        But even if this law got passed, he would have a team of lawyers so massive that it would be years before anything at all happened to him, years that would be spent trying to get the law repealed or modified, a pardon issued, or a loophole found so that nothing would happen at all. And, by some leap of imagination we actually consider that he got convicted, I doubt the prison sentence would be very long or onerous. A life in exile isn't so desirable if you can pretend you've learned your lesson, go wherever you'd like, and leave with billions.

        *I count at least nineteen countries with English as the primary official language and lingua franca across six continents, and at least another twenty with English as an official language spoken by a large enough community. Not that all of those are places you'd want to live on a full-time basis, but they at least exist.

    2. SImon Hobson Silver badge

      Nah, his get-out will be to preface every statement with something like "according to the briefing notes I've been given ..." That way, as long as he only states what's in the briefing notes, then he hasn't knowingly lied. That will be the tricky bit - and the various committees etc will have to do a bit more probing along the lines of "yes, we've heard what your briefing notes say, we want to know what YOU have to say", followed by "well if you don't know that, then go and find out, we'll re-convene tomorrow for your answers".

      1. Doctor Syntax Silver badge

        One of the things about being a witness is that you speak for yourself. In the US, of course, he could take the fifth.

    3. Crazy Operations Guy Silver badge

      Moving would gain him nothing. They'll just try him in absentia and seize his assets (Such as the stock that makes up 95% of his wealth), until he turns himself over for his sentence. And since Facebook is a publicly traded company, Zuck can be forcibly removed from the board and his stock striped of voting capabilities (like so many executives that had been convicted of things like insider trading and financial fraud).

      I'm sure that Zuck would choose to spend a little while in Club Fed than lose his fortune. He would be sent to the same kind of "minimum security luxury" type facility that Martha Stuart and other rich folks have been sent to in the past.

      Despite how easy it would be, there is no reason to flee.

    4. Anonymous Coward
      Anonymous Coward

      ... or buy it.

  12. Danny 2 Silver badge

    PJs

    I hate to break this to you but you aren't allowed to take your own pyjamas into prison. Ach, maybe Zuckerberg would, Jeffrey Effing Epstein was allowed to spend six days a week at his office during his first arrest. But for you or me, no silk pillow cases and a very low thread count on the Egyptian cotton sheets.

  13. Anonymous Coward
    Anonymous Coward

    Lock all the FB execs up

    Let them use the prison toilet pipes to start their own social media channel.

  14. Marty McFly
    Pint

    Great stuff!!!!

    Just think of all the job opportunities for us IT types to help make companies compliant! Jobs program for techies!

  15. Rich 2 Silver badge

    If only....

    Despite the obviously good intentions of the bill, I fear that the head of faecesbook (the head shit?) won't see the inside of a prison. Not as an inmate, anyway.

    It just won't happen. Good things like this never do.

  16. disgruntled yank Silver badge

    So

    Who goes to jail when the Internal Revenue Service dumps many citizens' data?

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