[Matt] You’re listening to the Berkeley Technology Law Journal Podcast. I’m Matt Sardo.
[Ibrahim] I’m Ibrahim Hinds.
[Ximena] And I’m Ximena Velazquez-Arenas. Here are some headlines about what’s been happening This Week in Tech Law.
[Ibrahim] Today we’ll be covering the increasing privacy concerns surrounding COVID-19 tracing apps, recent Senate hearings with the CEOs of Facebook and Twitter, and the Federal Aviation Authority’s clearance of the Boeing 737 MAX to resume flights in American skies.
[Matt] On Monday, November 16th, the Electronic Frontier Foundation, or EFF, issued a press release urging universities to ensure transparency and privacy protections for their communities when deploying contact tracing apps to monitor the spread of COVID-19.1 Many entities, such as universities, local governments, and workplaces have built their own systems to track, screen, and report exposure to COVID-19.2 But the EFF’s Grassroots Advocacy Organizer Rory Mir has stated that “forcing people to install COVID-related technology on their personal devices is the wrong call,” noting that such programs often “invade privacy and lack transparency.”3
The EFF’s call for COVID-19 app transparency and privacy follows the October publication of a study by Jonathan Albright, the director of the Digital Forensics Initiative at the Tow Center for Digital Journalism at Columbia Journalism School.4 Albright’s independent study analyzed the data collection, management, and sharing practices of 493 COVID-19 iOS apps from around the world.5 Albright found fifty-eight percent of the apps asked for a user’s location while the app is in use, and thirty-eight percent requested location data at all times.6 The intent of the study was, in part, to highlight the pervasiveness of data collection via device permissions and the extensive reach of apps engaged in sophisticated data tracking and analytics.7 According to Wired, some of these contact tracing apps may also attempt to profit from the data they collect.8 Former Federal Trade Commission Chief Technologist Ashkan Soltani told Wired that “[t]he name of the game in the apps space is to collect data and then monetize it . . . [a]nd there is essentially an opportunity in the marketplace because there’s so much demand for these types of tools.”9
The University of California system also developed its own COVID-19 tracking app, with the hope that the app will be available to everyone in California.10 On November 16th, UC Berkeley began encouraging the voluntary use of the “California COVID Notify” app.11 The app first debuted this fall at UC San Diego and UC San Francisco,12 and it has reportedly been “successful in slowing the spread of COVID-19 on those campuses,” while putting privacy first in its contact tracing method.13 The California COVID Notify app privacy policy describes how the app shares anonymous “keys”—randomly generated strings of numbers—via Bluetooth to detect exposure, and stores data only on the user’s device.14 The data is not shared with devices or entities outside of the user’s device “until the user has a positive COVID-19 diagnosis and elects to share this information within the system.”15
UC Berkeley Chancellor Carol Christ called for community participation to mitigate the spread of COVID-19, while highlighting the privacy-centric nature of the app to quell concerns and increase trust in the app.16 In response to the app’s release, UC Berkeley Law Professor Catherine Crump tweeted that, given the app’s use of anonymous keys exchanged via Bluetooth, she “would not hesitate to download [the app] for *privacy* reasons.”17
[Ximena] On Tuesday, November 17th, the U.S. Senate Judiciary Committee held a hearing on Facebook and Twitter’s responses to the 2020 election.18 Facebook’s CEO Mark Zuckerberg and Twitter’s CEO Jack Dorsey were questioned on a variety of topics regarding communication on their social media platforms.19 In particular, Zuckerberg and Dorsey were asked about their companies’ policies on election misinformation and hate speech, as well as the platforms’ alleged anti-conservative biases.20 Zuckerberg and Dorsey repeatedly defended their policies and made commitments to contain the spread of misinformation.21
The Senate’s grievances with the two companies were split down party lines.22 During the questioning of the two CEOs, Democrats were more concerned with moderation efforts Facebook and Twitter could engage in to reduce hate speech, calls for violence, and other harmful content on their platforms, such as conspiracy theories.23 On the other hand, Republicans were interested in how Facebook and Twitter could “employ less moderation,” probing especially into the alleged censorship of conservatives and the influence of their employees’ potential liberal bias.24 Facebook and Twitter asserted that political affiliation does not affect their policies.25
Facebook and Twitter have both created policies to moderate content through misinformation labels, fact-checking of content, and blocks on sharing misleading content.26 According to Dorsey, Twitter flagged approximately 300,000 tweets between October 27th and November 11th as disputed or potentially misleading election-related content.27 Facebook also displayed fact-checking warnings on more than 150 million pieces of content and responded to and removed potential threats to the election, such as false polling conditions and attempts at voter suppression via threats of the coronavirus.28 Perhaps most notably, the Monday following the election, Twitter flagged a tweet by President Trump where he falsely claimed he had won the election.29 Twitter added a note to the tweet saying, “[o]fficial sources called this election differently,” and prevented users from retweeting President Trump’s tweet.30 According to the New York Times, Democratic Senator Dianne Feinstein of California “argued that Twitter should have taken more direct action against President Trump’s tweets that made baseless claims of election fraud,” while Republican Senator Ted Cruz from Texas argued that the company has over-moderated the President’s tweets.31 At the hearing, Democratic and Republican lawmakers expressed their support for reforming Section 230 of the Communications Decency Act, which “largely protects tech companies from the liability for what their users post . . . .”32 The New York Times predicts that Section 230 legislation reform will “take center stage” during the next session of Congress.33
[Ibrahim] On Wednesday, November 18th, the Federal Aviation Authority, or FAA, cleared airplane manufacturer Boeing to resume flights of the Boeing 737 MAX model in American skies, following a twenty-month ban on use of the aircraft.34 Regulators worldwide implemented the ban in March 2019, following two crashes of the 737 MAX that resulted in the deaths of 346 people.35 The first crash occurred near Indonesia, when a 737 MAX operated by Lion Air crashed into the Java Sea.36 The second crash, which prompted regulators to ground the plane, involved a 737 MAX operated by Ethiopian Airlines.37
According to the New York Times, investigators believe the crashes were caused by “a range of problems, including engineering flaws, mismanagement and a lack of regulatory oversight.”38 The investigations centered around a software known as MCAS, which stands for “maneuvering characteristics augmentation system.”39 The software was designed to automatically “push the plane’s nose down in certain situations” in order to counter an upwards tilt caused by the installation of larger engines in the new aircraft model.40 Rather than release a new model, Boeing employed incremental updates to its 737 line, which The New York Times said “resulted in a patchwork design that sometimes required workarounds” in the functioning of the plane, such as the use of the MCAS software.41
In both crashes leading to the ban, the MCAS system was activated by a single faulty sensor, which caused a “nose-down pitch” that the pilots were unable to overcome.42 According to CBS News, Boeing was faulted in recent congressional hearings for “rushing to implement a new software system that put profits over safety . . . .”43 Dennis Muilenburg, the since-fired CEO of Boeing, initially suggested that the pilots were to blame for the two crashes.44 However, the House Transportation and Infrastructure Committee uncovered internal Boeing documents showing that employees raised concerns about MCAS that were never adequately addressed.45 The FAA was also criticized for lack of oversight, including allowing Boeing to issue an Airworthiness Certificate for its own aircrafts.46 Following the House investigation, the FAA is now responsible for issuing the Airworthiness Certificate for Boeing’s planes.47
In order to gain clearance for the 737 MAX, Boeing was required to make several fixes and create new safety training procedures.48 The fixes included updates to the MCAS and display softwares to avoid erroneous activations and flag conflicting sensor data,49 as well as prevent the MCAS from overriding commands from the pilot.50
European regulators have signaled they will also likely approve the changes to the 737 MAX.51 Canadian and Chinese regulators are currently conducting their reviews as well.52 American Airlines is slated to resume passenger flights using the aircraft as early as December 29th, 2020, on a route from La Guardia to Miami.53
[Matt] Thank you for listening! The BTLJ Podcast is brought to you by Podcast Editors Andy Zachrich and Haley Broughton. Today’s episode was written by Matt Sardo, Ximena Velazquez-Arenas, and Ibrahim Hinds, and was produced by Kavya Dasari. Our Executive Producer is BTLJ Senior Online Content Editor Allan Holder. BTLJ’s Editor-in-Chief is Emma Lee.
[Ibrahim] We are committed to bringing you interesting news at the intersection of technology and the law. If you enjoyed our podcast, please support us by subscribing and rating us on Apple Podcasts, Spotify, or wherever you listen to your podcasts.
[Ximena] If you have any questions, comments, or suggestions, write us at btljpodcast@gmail.com. We look forward to hearing from you, and, since this is the final weekly episode of this semester, we hope to have you back once we get started again in early 2021.
[Matt] The information presented here does not constitute legal advice and is only up-to-date as of Friday, November 20th. This podcast is intended for academic and entertainment purposes only.
