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Live Thread: U.S. Senate Commerce Hearing with Facebook Whistleblower [UPDATE-5]

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[NB: Check the byline, thanks. /~Rayne]

The Senate Commerce Committee is conducting a hearing right now; Facebook whistleblower Frances Haugen is currently testifying before the committee.

You can watch the hearing at C-SPAN at:

https://www.c-span.org/video/?515042-1/whistleblower-frances-haugen-calls-congress-regulate-facebook

You can also catch up with the backstory leading into this hearing by catching CBS’s 60 Minutes feature from this past weekend at:

https://www.cbsnews.com/news/facebook-whistleblower-frances-haugen-misinformation-public-60-minutes-2021-10-03/

Haugen is the former Facebook insider who leaked corporate documents to the Wall Street Journal several months ago, culminating in reports published a couple weeks ago. Sadly, the work is paywalled.

These are the key points WSJ reported on based on the documents:

– Facebook internal documents outline an exempt elite who can operate without prohibitions.

– Facebook’s Instagram platform knowingly relies on toxicity dangerous to teen girls.

– Facebook’s 2018 tweaks to algorithms heightened polarization between users.

– Facebook’s response to known use by organized crime from trafficking to drugs is grossly ineffectual.

– Facebook’s own algorithms undermined Zuckerberg’s efforts to encourage COVID-19 vaccinations.

All this in addition to its complicity inciting genocide of more than 25,000 Rohingya minority members in Myanmar means that Facebook is beyond toxic. It’s deadly.

I’ll update this post with additional content. Share your comments related to Facebook, social media, and today’s hearing in this thread.

~ ~ ~

On a personal note: I don’t use Facebook for many of the reasons outlined in Haugen’s disclosures and the reasons that the Federal Trade Commission issued a consent decree against Facebook back in 2011 (which Facebook violated, resulting in a $5 billion fine in 2020).

I already had strong doubts about Facebook because my oldest child was bullied by a classmate on the first day they opened a Facebook account. They had begged me to let them open an account and in spite of all my precautionary measures and coaching, they were still tormented immediately and out of view of the other student’s parents.

That was more than 14 years ago. Think of what 14 years of this kind of behavior alone will do to our children and young adults, let alone what troll farms masquerading as children on line will do to them.

And now we know Facebook has known about this toxicity targeting young women and girls, and that it has continued to develop a platform aimed at monetizing children and teens’ use of social media.

Kill it now.

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UPDATE-1 — 12:30 PM 05-OCT-2021 —

I missed the earliest part of the hearing, am now going back through earlier portions.

Sen. Cynthia Lummis (R-WY) at 9:27 am expresses reluctance to break up companies or deem social media platforms to be utilities, calling it heavy handed.

Uh, not heavy enough. Yesterday’s outage proved Facebook is a communications system when WhatsApp went down with Facebook and Instagram.

Sen. Dan Sullivan (R-AK) is prodding about regulatory oversight. Haugen says Facebook’s closed system traps the company and prevents them from changing their operations – a closed loop which it can’t break – and government intervention through oversight would break that loop for them.

Nation-state surveillance comes up next; Facebook could see other countries surveilling users. Haugen says the U.S. has a right to protect Americans from this kind of exposure.

UPDATE-2 — 12:36 PM 05-OCT-2021 —

Live hearing again. Sen. Rick Scott (R-FL) says he sent a letter to Facebook about related concerns well before this hearing. He asks Haugen about age restrictions for users; she feels the restriction should be changed to 16-18 years of age because of teens’ weaker impulse controls and concerns about addictive behaviors.

How to screen for age is tricky, IMO. Kids have gotten around this and parents have been just plain neglectful.

UPDATE-3 — 12:47 PM 05-OCT-2021 —

Sen. Richard Blumenthal (calls Facebook a “black box,” designed as such by Mark Zuckerberg, referencing legal obligations under Section 230.

Haugen adjusts the point he’s making by noting Facebook had said it could lie to the courts because it had immunity under Section 230.

Well that explains why Zuckerberg believes he can lie to Congress as well, as he has in at least one hearing, and why a representative for Facebook lied just this week to Congress in spite of Facebook documents liberated by Haugen proving otherwise.

Haugen says she doesn’t like seeing people blaming parents. Sorry, too bad — as a parent I know the ultimate authority over internet use at home with parent-funded devices is the parent, and I know far too many parents are just plain lazy when not willfully uniformed about social media use. More parents should have been up in their representatives’ faces all along about social media’s impact on their children.

UPDATE-4 — 12:55 PM 05-OCT-2021 —

Haugen is responding to questions from Sen. Todd Young (R-IN). She says Facebook knows how vulnerable people are who’ve had big life changes like divorce or death of a friend/loved one, how they can lose touch with surrounding community in real life because they are framing their perspective on thousands of distortive posts on Facebook.

She also doesn’t believe in breaking up Facebook.

Too fucking bad. The outage yesterday proved Facebook needs to be broken up.

Sen. Marsha Blackburn (R-TN) has been given a copy of a tweet by a Facebook employee, Andy Stone, who rebuts Haugen’s credibility based on her work experience. Blackburn invites Mr. Stone and Facebook to be sworn in and testify instead.

You know there will be more concerted attacks on Haugen’s credibility. Sure hope there’s nothing on her in Facebook’s data.

UPDATE-5 — 1:06 PM 05-OCT-2021 —

Sen. Amy Klobuchar (D-MN) asks about Facebook studying children under 13 about eating disorder and whether the company is pushing eating disorder-related content children that age. Haugen implies they are getting ground this by encouraging inauthentic accounts.

Klobuchar asks about banning outside researchers; Haugen says the blocking is an indication that federal oversight is necessary when Facebook goes so far out of its way to block them.

Sen. Ed Markey (D-MA) says he sent a letter to Facebook ten years ago asking if the company was going to collect data on child users on its platform, and now Congress is back revisiting the issue. He plugs further regulation including controls on AI.

Haugen earlier in this hearing said AI was a known problem referring to bias.

Markey brings up the Children’s Television Act of 1990 he authored which protects kids up to age 12.

Sounds like Facebook must have used this as a jumping point for its existing prohibition on accounts for those under age 13.

Haugen responds to Markey saying removing Likes/Comments/Reshares which encourage more engagement aren’t enough to protect children. They’re still exposed to dangerous “extreme and polarizing” content.

Markey asks if Haugen thinks any visible measures of content popularity should be removed on content for children – she’s not quite as forceful on this as his question about removing targeted ads aimed at children to which she’s firmly agreed.

ODNI GC Klitenic: President Has Sole Authority Over Security Clearances, But Is Not Member Of Intelligence Community

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Jim here again.

I want to go all the way back to September 13 in the Ukraine whistleblower saga. Recall that at this time, we strongly suspected but did not yet know that the complaint centered on President Trump. Congress was clamoring for the report from the Inspector General of the Intelligence Community to be released and for testimony from ICIG Michael Atkinson and/or Acting Director of National Intelligence Joseph Maguire. In response to those Congressional demands, the General Counsel of the Office of the Director of National Intelligence, Jason Klitenic, issued a letter in which he provided the rationale for his decision that Atkinson was not required to pass the complaint along to Congress even though Atkinson had come to the conclusion that the report was credible and represented an urgent concern that merited sharing with Congress. Because Trump eventually relented on the issue of the report and released it, the narrative has moved quickly beyond Klitenic’s actions. But let’s look at his primary justification for ruling that this report should not be disclosed:

Yesterday, Marcy went into the details of what transpired within DOJ in the Office of Legal Counsel during these deliberations, but here I want to concentrate just on how Klitenic relied on OLC’s interpretation to come to the conclusion that one of the two most important determining factors in stating that Atkinson could not forward the complaint to Congress was that it applied to “someone outside the Intelligence Community”. Knowing as we do now that the complaint did indeed focus on Trump’s words and actions, Klitenic is stating clearly that the President is outside the Intelligence Community. This is really rich coming from Klitenic, because just about two weeks before the Trump-Zelensky phone call, Klitenic had helped to shut down the Congressional investigation of the scandal surrounding the issuance of security clearances within the Trump White House.

I’ve not yet found Klitenic’s letter of July 10, 2019 that was sent in response to a letter from Senators Warner, Feinstein, Menendez and Reed on March 8, 2019 demanding that then-Director of National Intelligence Dan Coats and Atkinson “review compliance by the Executive Office of the President (EOP) with policies and procedures governing security clearances and access to secure compartmented information (SCI)”. Note that Klitenic’s response is well past the 60 day window the Senators granted for a response. Here is Atkinson on July 22, where he cites Klitenic’s letter and interpretation:

So, on July 10, 2019, Klitenic ruled that the President alone has authority of who is granted a security clearance and even who gets access to SCI. Recall that one of the central figures of this security clearance scandal was none other that Jared Kushner. His clearance was originally denied and Trump overruled the denial. One whistleblower on the security clearances, Tricia Newbold,was so incensed over Trump’s actions that she went public, as noted in this April 1 article in the Washington Post.

Lucky for Kushner that he still has SCI access since it appears that records of Trump conversation’s with Jared’s BFF Mohammad bin Salman have been stashed at that level of classification. It is even more lucky for Kushner that although his father-in-law is not a member of the Intelligence Community, many of his most important conversations live well-buried within it.

Finally, many of you know that I am a diehard fan of college baseball. So of course when I looked at Klitenic’s biography, I couldn’t help noticing that he claims to have been an All-American baseball pitcher in college. That claim does indeed check out, although in true trash talk fashion I would add the asterisk that Johns Hopkins competes in Division III in baseball. One can’t help wondering at this point when Chief Justice John Roberts, who at his confirmation stated his job is to “call balls and strikes” will be ruling on pitches made by Klitenic.

702 Reauthorization: The Anti-Leak Package

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As part of the draft Section 702 Reauthorization released this week, the House Judiciary Committee included what I’ll call the anti-leak package. They’re not actually presented in the same Title, but I want to consider them as a group as a way to consider whether they’ll do anything to make leaking less useful than internal whistleblowing.

The package consists of three things:

  • Increased penalties for improperly handling classified information
  • New protections for FBI whistleblowers and contractor whistleblowers
  • A GAO report on whether classification works

Increased penalties for improperly handling classified information

The first part of the package changes 18 USC 1924, which criminalizes unauthorized retention of classified documents, to make knowingly retaining classified information a felony, while creating a new misdemeanor for negligently retaining classified information.

SEC. 302. PENALTIES FOR UNAUTHORIZED REMOVAL AND RETENTION OF CLASSIFIED DOCUMENTS OR MATERIAL.

Section 1924 of title 18, United States Code, is amended—

(1) in subsection (a), by striking ‘‘one year’’ and inserting ‘‘five years’’;

(2) by redesignating subsections (b) and (c) as subsections (c) and (d), respectively; and 13 (3) by inserting after subsection (a) the following new subsection (b):

(b) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, negligently removes such documents or materials without authority and knowingly retains such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

I think this was done to make what Hillary Clinton did a clear felony, so Republicans can squawk about it, rather than solving any real problem.

Which is a pity. Because those who want to write new laws criminalizing the retention and leaking of classified information (something I’m not advocating, but I understand the sentiment), it might be useful to write laws that address the problems we’re actually seeing.

For example, the Espionage Act should be rewritten to make it clear it only applies to real Espionage — the secret sharing of “national defense information” (which should be better defined) with an adversary for some kind of personal benefit. By all means, create something else that applies to the Edward Snowdens and Chelsea Mannings of the world, if you feel the need to. But in that law, do something to ensure that the David Petraeuses of the world — who leaked information to get laid and tell nice stories about himself — don’t get a wrist slap, while people who at least believe their acts to be benefitting the country face life imprisonment.

The degree to which the Espionage statute specifically, and leak prosecutions generally, have become the means to pursue arbitrary retaliation against people who don’t hew a party line undermines the legitimacy of the classification system, which (in my opinion, as someone who has covered most recent leak prosecutions) just leads to more leaking.

In related news, one of the reasons why magistrate Brian Epps Cobb denied Reality Winner bail yesterday is because she admires Snowden and Assange.

In addition, this week’s news that an NSA TAO hacker brought files home and used them on his machine running Kaspersky, thereby alerting Russia to them, suggests the need to consider the impact of even negligent improper handling, because it can have an impact akin to that of Snowden if it is compromised.

Finally, there should be some controls over abuse of Original Classification Authority, both in Prepublication Reviews, to prevent the selective censorship of important stories. And there should be some recognition that OCAs are often not the only source of information (which is one of the problems with the Hillary emails — her staffers were reporting widely known facts that the CIA later claimed a monopoly on, thereby making the information “classified”).

Perhaps the GAO review, below, can go some distance to making this happen.

New protections for contractor whistleblowers

There’s a section that extends the (still inadequate) whistleblower protections of the National Security Act to contractors, while adding protection (just for contractors!) for the reporting of “evidence of another employee or contractor employee accessing or sharing classified information without authorization.” It also adds additional reporting vehicles for FBI contractors (to DOJ or FBI’s Office of Professional Responsibility, to FBI’s Inspection Division, or to the Office of Special Counsel).

The bill also adds contractors to those you can’t retaliate against by stripping of security clearance if they’ve made a protected disclosure.

Contractor is defined as “an employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor, of a covered intelligence community element.”

As I said, this is just the protection extended to intelligence community employees, with enforcement by the President, the same guy who orders up the illegal activities (such as torture or domestic spying) of the IC.

Plus, I’m not sure the language protects against two other problems that have happened with contractors. First, the loss of a contract, which doesn’t seem to be included in the definition of personnel decisions. So an agency could retaliate not by denying a promotion, but simply denying a contract. And, for similar reasons, I’m not sure the language prevents a contractor from retaliating against one of their employees directly, particularly if they’re threatened with losing work.

As I said, I’m not sure on this. I await analysis from the people who work whistleblower issues all the time.

That said, while this is an important improvement that will extend the same inadequate protection that IC employees get to IC contractors, I think it doesn’t necessarily protect against some known kinds of retaliation.

A GAO report on whether classification works

Perhaps most interestingly, the bill asks GAO to conduct on a story on why we’re having so much leakage.

SEC. 303. COMPTROLLER GENERAL STUDY ON UNAUTHORIZED DISCLOSURES AND THE CLASSIFICATION SYSTEM.

(a) STUDY.—The Comptroller General of the United States shall conduct a study of the unauthorized disclosure of classified information and the classification system of the United States.

(b) MATTERS INCLUDED.—The study under subsection (a) shall address the following:

(1) Insider threat risks to the unauthorized disclosure of classified information.

(2) The effect of modern technology on the unauthorized disclosure of classified information, including with respect to—

(A) using cloud storage for classified information; and

(B) any technological means to prevent or detect such unauthorized disclosure.

(3) The effect of overclassification on the unauthorized disclosure of classified information.

(4) Any ways to improve the classification system of the United States, including with respect to changing the levels of classification used in such system.

(5) How to improve the authorized sharing of classified information, including with respect to sensitive compartmented information.

(6) The value of polygraph tests in determining who is authorized to access classified information.

(7) Whether each element of the intelligence community (as defined in section (4) of the National Security Act of 1947 (50 U.S.C. 3003(4))—

(A) applies uniform standards in determining who is authorized to access classified information; and

(B) provides proper training with respect to the handling of classified information.

(c) COOPERATION.—The heads of the intelligence community shall provide to the Comptroller General information the Comptroller General determines necessary to carry out the study under subsection (a).

(d) REPORT.—Not later than 180 days after the date of the enactment of this Act, the Comptroller General shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the study under subsection (a). (e) FORM.—The report under subsection (d) shall be submitted in unclassified form, but may include a classified annex.

I really like the idea of doing such a report (though am not sure GAO can get it done in just 6 months, especially since I’m sure some agencies will filibuster any cooperation). And what a novelty, to finally consider whether polygraphs actually do what they’re claimed to do (rather than get people to confess to dirt that can later be used against them or leaked to China in an OPM hack).

As mentioned above, a really thorough such study should also look specifically at the Prepublication Review process, which is one of the most notorious forms of arbitrary use of classification.

It should also try to quantify how much classification does (abusively) hide mismanagement or law-breaking, especially in the FOIA process.

A truly thorough study would have to include leaks by members of Congress, up to and including the Gang of Four — but that’s never going to happen and so that means of leakage will remain untouched.

A study should also not only review recent leak prosecutions, with a particularly focus on the selectivity with which they’ve been taken, but compare leak prosecutions with the efficacy of internal measures (like stripping someone of clearance), which ODNI has been using more in recent years, at least before Reality Winner.

And a study should do a macro review of the initiatives put in place since Chelsea Manning’s leaks, to review overall compliance (we know NSA and CIA had not fully complied as of last year), and to measure whether those initiatives have done any good.

Finally, for the classified version, the report should include a full measure of how much internal spying is being targeted at government employees and contractors in various CI programs, and whether those are overseen adequately (they’re absolutely not).

Will this all do any good?

As I said, I’m the one lumping these together into a package, not the bill’s authors. I did so, though, to better weigh whether this will do any good — whether we’ll move the balance on necessary discussions for democracy being weighed against genuine need to protect secrets. I think an actual assessment is worthwhile.

But ultimately, I suspect our leak problem stems, in large part, from the degree to which classification (and clearances and leak prosecutions) have all been designed to give the Executive Branch unfettered ability to run an arbitrary system of secrets that does as much to serve nexuses of power as it does to keep the country safe.  Secrets, in DC, have become the coin of power, not the necessary tool to ensure a vibrant and secure democracy.

And I’m not sure this effort will do much to change that.