Weekend Law: Meta, Blue State Bias & Privacy Risks

June Grasso talks to top legal experts about the biggest stories of the week.

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Episode Transcript

Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.

Speaker 2 (00:08):
We're going to work with President Trump to push back
on governments around the world. They're going after American companies
and pushing to censor more.

Speaker 1 (00:17):
Meta CEO Mark Zuckerberg has been courting President Donald Trump
since his election, scrapping content moderation policies criticized by conservatives,
donating a million dollars to Trump's inauguration, promoting Republicans to
top roles in Meta, and visiting the White House several times.
Despite all that lobbying, the historic antitrust case against Meta

(00:42):
that was started in the first Trump administration went to
trial this week in DC. The Federal Trade Commission is
trying to force METTA to divest Instagram and WhatsApp, calling
Zuckerberg as its first witness. Joining me is anti trust
expert Harry First, a professor at NYU Law School. Harry,
what's the main issue the FGC has to prove? Here?

Speaker 2 (01:05):
There are a few main issues. The first issue is
the definition of the market. So the question is who
are Facebook's competitors? That sort of in some ways a
simple question. Who will consumers turn to? What sellers? If
the sellers they're looking at offers a bad deal. Usually
it's raises price, they switch to something else. We do

(01:25):
this all the time. So the question is who are
the rivals of Facebook and who do consumers switch to
if they wanted to switch. Market definition always critical issue
in any trust cases, and the first issue to resolve.
The second issue is are they a monopolists in this market?
You know, do they have a large enough share of

(01:46):
the market. Is it hard to enter the market so
they can sort of have power to do what they want?
Do we see them doing the bad things that monopolists do,
which often means, you know, selling something at a high price.
Of course, Facebook says, hey, we give our thing away
for free. So what's their problem? And then the third
thing is, okay, if they are monopoly with monopoly power,

(02:09):
have they engaged in anti competitive conduct that excludes competitors
unreasonably from the market. And so that's the third thing,
and that's where the acquisitions of Instagram and WhatsApp come in.

Speaker 1 (02:22):
Let's start with the market definition, which was one of
the key points Zuckerberg was questioned about. So tell us
how the FTC and Meta are viewing the market.

Speaker 2 (02:34):
Facebook contends that the market, you know, whatever it was
maybe in twenty eleven. Now there are lots of competitors
and Facebook is doing things similar to particularly TikTok. So
the Pedroal Trade Commission has called the market we always
love these names and anti trust, the Personal Social Networking

(02:56):
Services market, and then they use an acronym, so you
think it's something special, the PSN market, And basically that's
friends and family. You know where Facebook started out putting
people together and creating the social network, as the name
of that movie was way back at the start. So
the Federal Trade Commission says, that's really the core of

(03:18):
their services, and it's not something that actually other platforms
except for Instagram offer, They don't really offer that sort
of friends and family network. You know, TikTok and follow people,
but you know, not for keeping up on what your
high school buddies are doing. So the first question is
how broad is that market? So Facebook says, hey, you know,

(03:39):
lots of choices for consumers. They don't want to watch
reels on Facebook, they go to TikTok and vice versa,
so we have to include them in the market, says Meta,
And you know that's what a lot of the argument's
going to be with data and consumer surveys and so forth.
And the analogy that the Commission has used and I

(03:59):
think we'll continue to use, is supermarkets. So there was
a famous case involving Whole Foods and an acquisition that
Whole Foods did, and the Federal Trade Commission called the
markets the PNOS market got it premium natural organic supermarkets.
And when Whole Foods made this acquisition of another market

(04:23):
like that, they said, ah, that's the market. Other supermarkets
are not in this market, you know, like stopping shopper
and so forth. And the court in which this case
is being tried, the PC Circuit, accepted that definition. And
the point is sort of a simple one. Yeah, they've
got lots of things in the supermarket, but you go
to certain supermarkets sort of a core of users for

(04:44):
a core of things. So you go to Whole Foods
because you like to pay high prices. Oh wait a minute,
that's wrong. You go to Whole Foods because you want
the organic, natural, premium stuff that they specialize in. And
then you buy milk, so you know, you go to
Facebook do you want to communicate with your friends and family?
And then you know, maybe you'll look at some reels

(05:05):
or maybe do some other things or what whatever other
fees they've got. But the core is still the friends
and family. So that's going to be the legal and
sort of factual contention that the parties are going to
litigate over during the course of this trial, and to.

Speaker 1 (05:20):
The point of bad conduct or anti competitive conduct. The
FTC showed Zuckerberg some smoking gun emails, including one from
twenty twelve where he described the Instagram deal as a
way to neutralize a competitor.

Speaker 2 (05:35):
Yeah, that's a good one. Yeah. I could see the
lawyers looking at that going, oh my god, did you
write that. There's a good reason why that would be
called a smoking gun. You know, not every acquisition that
a major platform or a monopoly, let's say, makes is illegal.
It's not illegal for that reason. Firms make acquisitions all
the time. The ones that are illegal in this context

(05:58):
are those that are done to u out a threat
to the monopolists. As they said, a buyer bury strategy.
They would just buy up the competitions they were worried about.
So on its face it could be neutral. Well, they
made an acquisition, what the heck? And maybe they have
some alleged good reasons, but then you read the email
in Zuckerberg says, hey, we're worried about this company, we

(06:19):
better buy it. And their effort at incorporating photographs into
Facebook and making it the kind of thing that Instagram
was doing was not going well. So they were really
being challenged by Instagram, and you know, they responded to
that challenge not by making a better product, but by
buying their competitor. Classic move, but not a competitive move.

(06:43):
It's an anti competitive move, so the government says, and
so Mark Zuckerberg apparently said.

Speaker 1 (06:50):
At one point, Zuckerberg said that Facebook's feed has turned
away from family and friends and toward quote more of
a broad discovery entertainment space.

Speaker 2 (07:01):
Right, Yeah, sure, we compete with television, Yeah, and tennis
and the national football. They're not going to go that far,
but you know the game if you want to call
it that. But the idea is you broaden that consumers
do have lots of choices, do do different things. You know,
they don't only look at Facebook, and Facebook over time

(07:22):
has tried to bring more things within his ecosystem, within
the platform. So they're gone into virtual reality. That's why
Zuckerberg renamed the company meta because he wants the metaverse.
So true that, but that doesn't take away from the
fact that they still sell groceries. You know, they may
want to have espressos, you know, in the grocery store,

(07:44):
but they're not an espresso store. So you know, they
still sell their core function and that's why people put
up with all the junk pardon my French that they
see with these ads constantly.

Speaker 1 (07:57):
Can we read anything into the fact that Judge Bosberg
has sounded skeptical about the FTC's case. He dismissed the
initial case in twenty twenty one, and in November he
said the agency faces hard questions about whether it's claims
can hold up in the crucible of trial.

Speaker 2 (08:17):
Right, well, he's running the crucible like an Arthur Miller play.
So Judge Bosburg, just from reading his opinions, is sharp,
he's critical. He is not a pushover for the government,
but he's not a pushover for the defendants either. So
you know, I read this as saying he'll come out

(08:39):
with an opinion that will prove challenging for the losing
party on appeal, wherever that is. And I don't predict
that he's necessarily going to come out in favor of Facebook, frankly,
because he's been willing to accept, at least as a
legal matter, important arguments from the government and dismissed some
of Facebook's defenses. And you're not going to fool a.

Speaker 1 (09:03):
Judge if the judge does find against Meta. How likely
is in order to divest Instagram and WhatsApp, I mean,
a breakup of that size hasn't happened since AT and
T forty years ago.

Speaker 2 (09:16):
Well, we haven't taken on companies of this size. We
did take on Microsoft, I didn't order structural relief. The
AT and T breakup was by agreement, so it's not
a decree entered by a court after losing a case.
So we don't do divestitures that often, you know, not never,

(09:38):
it does get done, but this is certainly of an
important magnitude, and you know, puts the court in a
difficult role of trying to separate companies that Facebook frankly
has done its best to smush together, to use the
technical term. So that's sort of an obvious remedy but

(09:58):
not necessarily going to be the one the court will accept.
But there are lots of steps before we would see
an order to separate those companies.

Speaker 1 (10:09):
Mark Zuckerberg has been closing up to Trump for a
while now. Could Trump bail Meta out if it does
lose the case.

Speaker 2 (10:17):
I guess the answer is sure. At least at this point,
he has pretty much seized control. I don't know what
you want to call it. A hostile takeover of the
Federal Trade Commission. He fired the two Democratic members of
the commission, supposed to be balanced bipartisan commission. He's fired
the two for no reason other than the Democrats. The

(10:38):
chair is slavish in his praise of the President. I
think that's a fair work. So yes, I think Trump
could very well order whatever he wanted to order, and
if the chairman or the other commissioners didn't want to
go along, you can just fire them. At least that's
how he sees the law. It may turn out that
that's not going to be the law. Maybe the Supreme
Court is going to not take that final step in

(11:01):
terms of ending the independence of regulatory agencies, but we'll
have to see. That's in litigation. But if he has control,
then he can do that. Even before he did try
to pressure in his first administration, pressure the chair of
the Federal Trade Commission who resisted things. But now the
ability and willingness of the chairman who resists whatever the

(11:23):
president wants is zero. That's said, I'm not quite sure
I know or understand, and maybe the President doesn't either
what he might want and what he would pressure the
Federal Trade Commission to do. Obviously he's not pulled the
plug on this litigation, which he could have, so we'll
just have to see how it goes.

Speaker 1 (11:41):
Always a pleasure, Harry, Thank you. That's Professor Harry First
of NYU Law School. Coming up next. How the Blue
states could fight back when they're targeted. I'm June Grosso.
When you're listening to Bloomberg. In the past, President Trump
has even blamed the criminal case against him on blue
states being out to get him.

Speaker 3 (12:03):
Can we fly over a Democrat state?

Speaker 4 (12:06):
I get it, grand jury subpoena?

Speaker 3 (12:10):
So what happened?

Speaker 2 (12:11):
What do you do?

Speaker 4 (12:11):
Sir?

Speaker 1 (12:12):
They're investigated you.

Speaker 3 (12:13):
You flew over the state.

Speaker 1 (12:14):
They think something's up. So now is he targeting those
states for retribution? On April first, the Trump administration announced
the closing of five of ten regional offices of the
Department of Health and Human Services, all in blue states.
On April eighth, an executive order was aimed at the
blue states of New York, Vermont, in California for state

(12:36):
overreach with respect to climate change policies. And six of
the seven universities that have lost funding on the grounds
that they didn't adequately address anti semitism on campus are
in blue states. The seventh is in a purple state.
But even if Trump is in fact targeting Blue states,
what can they do about it? Joining me is retired

(12:58):
federal judge Nancy Goer, a senior lecturer at Harvard Law School.
She's the co author of an article on Bloomberg Law
entitled Trump's Blue state bias could rip the US apart.
Judge tell us how President Trump has been discriminating against
the Blue states.

Speaker 3 (13:16):
Well, the most recent one was when he closed five
of the ten AHHS offices, and significantly the five were
all in blue states. In addition, he has suspended the
funding for various kinds of programs to hospitals. But really

(13:37):
he's listening, we believe, only to the red states that
are begging for these two return. So you know, Katie
Britt from Alabama calls him to rein state and we
believe that he will do that. So he's basically doling
out federal funds who had vanished the red states over
the blue. And we think that that's going to be

(13:57):
a pattern going forward. You know, the pattern has not
been completed. We haven't seen all aspects of it, but
clearly this is what we have seen so far, particularly
the thing that happens with respect to AHHS. I mean,
why do you shut down the regional offices that do
the most business, the most business, namely you know, New York, Boston, Chicago,

(14:19):
San Francisco, Seattle. It's really pretty transparent what's going on.

Speaker 1 (14:23):
And has the Supreme Court been clear that the Constitution
requires the federal government to treat all states the same.

Speaker 3 (14:31):
Well, in a decision that I mostly disagreed with, which
is the Shelby County decision, that was dealing with preclearance
requirement of the Voting Rights Act. Preclearance was a requirement
that really reflected the discrimination against black people that had
occurred in certain states in the South, that was documented,
that was well known. The Supreme Court eliminated preclearance, which

(14:52):
basically was a situation in which the government would review
any changes in voting rights procedures in those states to
make certain that it didn't continue to disadvantage black people
or didn't re disadvantage black people. And what happened was
the court eliminated that preclearance on the theory that there
was a requirement of equal treatment of all states. And

(15:14):
so if that is a principle reaffirms now only a
few years ago, then Trump simply does not have the
right to discriminate against blue states in favor of red.
He can't use the federal spending power to disadvantage blue
states at the expense of red.

Speaker 1 (15:31):
In the article, you talk about tax dollars, and a
recent report from the Rockefeller Institute of Government shows that
only thirteen states send more money to the federal government
than they receive, and ten of those are Blue states.

Speaker 3 (15:46):
Every state is an employer and is oftentimes the major
employer in any given state, and as with any employer,
the state has to withhold money for federal taxes. And
in the case of the blue states that we mention,
it is a substantial amount of money. In fact, as
we note in the article, the blue states are net donors.

(16:07):
In other words, they give more money to the federal
government and they get in the form of services. Now,
it would be illegal, and I have to say that
quite candidly, for the Blue states to withhold federal dollars.
In other words, the withholding that you do on your taxes,
you withhold for the purpose of turning it over to
the federal government at the appropriate time. This would be

(16:30):
illegal to withhold it, frankly, until the government makes the
allocations among the states equal. It would certainly be illegal.
But it is leverage, what we say, and the piece
is that the government, if they continue to favor Red
states over blue, will be acting illegally and unconstitutionally. And
so we speculate that this is something the Blue states

(16:51):
could do, although it is illegal.

Speaker 1 (16:54):
And California has a ballot issue where voters are already
considering this.

Speaker 3 (16:59):
So California Balid initiative goes even further. The Baalid initiative
is to secede from the Union, which is extraordinary. It's
asking the voters to endorse the idea of secession. It's
not clear what legal authority that would have, but that's
certainly what California voters are indulging in. Again, you know,
both withholding federal tax dollars and obviously, seceding from the

(17:21):
Union are patently illegal. But the notion here is the
government is behaving illegally. Were they to punish Massachusetts and California,
for example, in favor of the Red States. The government
is behaving blatantly illegally. There's no question. When the government
behaves illegally, citizens have to decide what to do. Citizens

(17:42):
have to decide what the appropriate response is. And make
no mistake, this government is behaving illegally on numbers of fronts,
as numbers of federal courts have found.

Speaker 1 (17:52):
Have we reached a constitutional crisis yet?

Speaker 3 (17:55):
I don't think there's any doubt that we are in
a constitutional crisis, whatever the name you put on it,
I don't think that there's any doubt. So far. There
isn't a situation, you know, with a Southern politician now
barring federal truths from coming into Mississippi or Georgia or
Alabama or anything like that. That's not what we have
seen yet. What we have seen, as with for example,

(18:15):
the most recent case of mister Abrago Garcia, this is
an individual who is wrongly deported to El Salvador. What
we have seen is the government effectively ignoring a Supreme
Court decision. We've seen the government effectively ignoring decisions of
the lower courts. We've seen sophistry men outright lying. The

(18:37):
sophistry is describing the Supreme Court's decision in a way
which is patently false, patently false. You know, they saying
things like the Supreme Court in dealing with the Abrago
Garcia case didn't really demand that the government do anything,
but only they can passively make certain that if El
Salvador releases a man he could come into the countries.

(18:58):
I mean, that's absolutely not the Supreme Court said. It's
not at all what the Supreme Court said. So that's
sort of really sophistry in dealing with Supreme Court decisions.
And then there's been outright ignoring and disobedience of them.
You know, in the cases involving the funding freezes on
government funds across the country, a court will require that

(19:19):
the funding be restored, and the government is just ignoring it,
just ignoring it, requiring you know, courts to essentially get
to the point to the moment of contempt. So I
don't think there's any question we're in a constitutional crisis
when the government can lie as they did in the
Oval office, in the meeting with El Salvador's who Cale

(19:41):
about again, this gentleman Albrego Garcia, when the government can
lie flat out that he had been found to be
an MS thirteen member, not true anywhere that the government
can lie about its arrangements with with Cale. I don't
think there's any doubt that we're in a constitutional crisis.

Speaker 1 (20:00):
And not only did the Attorney General misinterpret the Supreme
Court's decision, but Trump advisor Stephen Miller actually said that
the Supreme Court had ruled unanimously for the Trump administration.

Speaker 4 (20:12):
Right.

Speaker 3 (20:13):
Again, this is not even close to truth. When the
Supreme Court says the government has to facilitate its return,
and clearly in the context of a decision that is
about how there was no right to deport him. When
they say it has to facilitate his return, that doesn't
mean well, El Salvador, if you wish to send him,

(20:33):
we will allow him in. It's clear that it meant
more than that. It meant affirmative steps to right or wrong.
The government was responsible for a wrong and they had
to take affirmative steps to write it. I mean also
the notion that this is a foreign policy issue is
pure poppycock. This is a commercial issue. This is not

(20:54):
like returning Brittany Griner from Russia, which was a matter
of delicate diplomatic negation. This is about a commercial contract
between a two big dictator and the United States dealing
with a contract for six million dollars to receive deportees
from the United States. And clearly the United States has

(21:14):
rights under the contract and the United States has power.
If in the meeting, before the public meeting, Trump had
said to Bouquele, return this guy, it would have been over.
It would have been over. And the fact that they
don't even think that this is a wrong that needs
to be righted is stunning.

Speaker 1 (21:34):
The Fourth Circuit agrees with you. It denied an emergency
motion by the Trump administration to halt a federal judge's
effort to facilitate Garcia's return, saying the Justice Department's conduct
were shocking to American sense of liberty. Is this the
most serious constitutional crisis we've faced since the Civil War?

Speaker 3 (21:56):
I think that that's true. It's one thing to have,
you know, the pictures of the Southern States defying a
constitutional directive to desegregate, requiring troops to be sent to
southern states to enforce the prohibition against segregation. That was
a confrontation as between a unified federal government and particular states.

(22:19):
This is a confrontation between the federal government as a
whole individuals, and a confrontation between the federal government as
a whole and the states. It's about to involve almost
every aspect of our lives. The federal government is asserting
control over universities. The federal government is seeking to control
who is in the country and who is not, seeking

(22:42):
to control who is a citizen, and flouting the Constitution
in numbers of ways. So in both the scope of
the disobedience the scope of the violations by the federal
government on every front. So yes, I would call it
the most serious constitutional crisis in the Civil War.

Speaker 1 (22:59):
And capitulation by some of the country's largest law firms.

Speaker 3 (23:04):
Well, I think we're beginning to see something different. And
let me make a more general points. So, the strength
of the United States is not just in representative government,
not just having Congress and the president elected by the people,
not just having local governments. The strength of the United
States is also having civil society, namely organizations like universities,

(23:26):
and law firms that are independent of the government. They
stand for principles that the government can't control. So what
Trump has done is he's taken over the government we
elected him. That was the product of the voters, namely
that he has a House of Representatives, the Senate, and
the Lighthouse. But the judges are supposed to be independent,
and the judges have been holding the judges have reflected

(23:48):
that independence. What he is doing is trying to dismantle
civil society. And the way you dismantle civil society is
you dismantle the universities, and you'd sort of tried to
co opt the law firms. I think we're seeing a
change now. I think there was a certain kind of
shock at the beginning of this administration. People didn't quite
understand how far he was prepared to go. I think

(24:09):
that the firms that have sued the government for its
illegal actions, I think are going to be the wave
of the future. And Harvard's standing up to Trump, I
think will forecast other universities doing exactly the same. I
think there was a certain amount of shock. Surely he
didn't mean to go as far as he went, was
the sense, And the answer is yes, he has an

(24:32):
indeed further.

Speaker 1 (24:33):
Thanks for joining me. That's retired federal judge Nancy Gertner
coming up. Can you keep your data private? I'm June
Grosso and you're listening to Bloomberg Holden.

Speaker 4 (24:46):
Almost missed it.

Speaker 1 (24:48):
That's for your wife. Yeah, I thought your wife liked roses.

Speaker 4 (24:56):
Excuse me?

Speaker 3 (24:58):
Do I know you?

Speaker 1 (24:59):
No?

Speaker 3 (25:00):
But I know you Bill little relationship advice.

Speaker 1 (25:04):
If you're going to step out on your wife, you
need to think it through. Do work here, because if
you do, you're fired.

Speaker 3 (25:12):
I'm more like an independent contract.

Speaker 1 (25:14):
In the TV series Person of Interest, a computer program
known as the Machine monitors all electronic communications and surveillance
video feeds in order to find people planning to commit crimes.
The Machine knows all about you. The series is science fiction,
but is it that far from reality? Our online activities

(25:36):
and data are increasingly being tracked, collected, and analyzed, so
our digital data, including photos, documents, emails, finances, and even
health information, isn't really private anymore. For example, according to
a class action lawsuit, weight Watchers websites allegedly shared users'

(25:57):
personal information, including health related data, with third party tracking
services like Google, Facebook, and Amplitude. Joining me is an
expert in cybersecurity and data privacy. Colin Walkee a partner
at holestal So Colin what kind of information did WeightWatchers
allegedly give out and how.

Speaker 4 (26:18):
So WeightWatchers was able to give out this information utilizing
pixels that were on their website from companies like Facebook, Splash, Meta,
Google for analytics purposes. And their allegations are that essentially
every question that you answered on their website up to
and including you know, are you living with Type two diatabetes?

(26:40):
Have you used any weight loss medication? You know, do
you have a history of cancer? Blood pressure? All of
these sorts of sensitive information, low testosterone, All of these
were questions that you were supposed to answer when you
went to the website that had these pixels on them
and share that information then with third parties.

Speaker 1 (26:58):
The sharing with third party was deliberate or was it
a mistake?

Speaker 4 (27:03):
Well, it appears that it was deliberate. I mean, according
to the allegation, certainly WeightWatchers knew about utilizing pixels in
relation to healthcare information because the Federal Trade Commission has
issued warnings to that, and in fact, Weight Watchers was
sued once before regarding these types of issues, and so
weight watchers knew that pixels were being utilized and continue

(27:25):
to do so in spite of warnings from the Federal
Trade Commission. So, for example, like fitbit, it collects healthcare information,
but it's not a hipoprotected entity, and so they can
do whatever they want with that information. So consequently, the
FDC came out and said, no, you need to start
treating healthcare information wildly different than any other type of
information and protect it better, ie, don't use pixels on website.

Speaker 1 (27:47):
They had a privacy policy, right, and they pledged that
they wouldn't share the information without written consent.

Speaker 4 (27:53):
That's correct, but you have to read between the lines
on their privacy policy because they do know that they
share this information with third parties. And that's part of
the problem with privacy policies. One, if you actually took
the time to read all of them, you know, you
would never actually utilize a website. You'd just be reading
all of these vague details. And then two, because there
aren't requirements on what privacy policies have to contain with

(28:16):
certain nominal exceptions, they can get away with making broad
statements like we don't sell or share your data to
third parties, and at the same time, they can still
do it because they'll share that information for marketing purposes
or other sorts of quote unquote internal business purposes. And
so if you're utilizing the information for internal business purposes
i e. Analytics, then you can get away with sharing

(28:38):
this type of information with third parties. So it's really
all about wordsmithing.

Speaker 1 (28:42):
Weight Watchers is reportedly facing bankruptcy. If it does go
into bankruptcy, what happens with the data?

Speaker 4 (28:48):
So that's all part of the questions, right. So first
and foremost, this class action law to filed against weight
Watchers was filed on April nine, so they're still at
the beginning stages. And in fact, I do not believe
that weight Watchers has answered yet. If it the case
that WeightWatchers isn't fact going to file for bankruptcy, the
question becomes is it going to be like a twenty
three and me situation in which they're looking for buyers,

(29:09):
ie a Chapter seven or something along those lines, or
is it going to be something more like a Chapter
eleven where it's a true restructuring, in which case WeightWatchers
wouldn't necessarily sell or give away this information to any
third parties, but we retain it for their future use,
you know, after they've addressed all of their debt issues.
But all of that said, it goes right back to
what we saw with twenty three and meters filing bankruptcy,

(29:31):
which is, if it's the case that they go ahead
and liquidates company, these are assets, which is part of
the reason why the PLANEFF sued for unjust En Richmond.
And this is the private type of information that's going
to be sold in a bankruptcy proceeding.

Speaker 1 (29:43):
So you can go on these sites and they give
you options about whether you want to share your information
or not. Does any of that matter in reality?

Speaker 4 (29:52):
Well, so you've got to remember there's a slight difference
between for example, accepting cookies, right or rejecting cookies, which
is one way that they can obtain your information.

Speaker 2 (30:03):
But anytime you.

Speaker 4 (30:04):
Fill out a form, the form and that information is
going to be stored with that company. So even if
you opt out of all cookies, you might still be
consenting to them utilizing this information. Because remember all state
laws at this stage are opt out. What's the exception
of Colorado, which is a minor exception for sensitive information,
But otherwise, these are all opt out statuses. And what

(30:25):
that means is is while you may decline cookies, once
you've submitted your information to that company, they can basically
do anything that they want with that information, up to
and including selling it to third party.

Speaker 1 (30:36):
So then as you respond to the questions or fill
out forms, you should just consider that information is gone,
whatever information I'm giving them.

Speaker 4 (30:45):
I don't think that most consumers realize how unprotected their
data is. Once you go on the Internet and you
interact with the third party for all intents and purposes,
that information is then going to be retained by them
and they can pretty much do whatever they want with it.
And so the concept of privacy no longer exists because
we have divided human beings from their data. What the

(31:09):
reality is is human beings are data. What we do
on a daily basis is being collected, and so consequently
we need to make sure or we need to try
and obtain right to our data, not just privacy laws
and those sorts of things, but actual rights, because then if,
for example, weightwatcher says we don't sell your information or

(31:29):
give it away to third parties, and meta gets hacked
and all of a sudden you find out that they've
got WeightWatchers information in their website. You now have a claim,
plain and simple because they stole your property and used
it without your consent. But right now, there are no
laws on the books they even except for a few
minor exceptions, that say your data is yours. Otherwise your

(31:51):
data is whoever you.

Speaker 1 (31:52):
Give it to, So then it would take a law
to change this.

Speaker 4 (31:57):
That's correct. So for example, in Oklahoma, and this is
the only law that I'm aware of on the books,
but I would love to see it in other states.
In Oklahoma, there's a law that says if you upload
health care information to Oklahoma's Health Information Exchange, which is
a database that most states have where if you get
injured in one part of the state, a doctor in
another part of the state can look up that information

(32:17):
and the Health Information Exchange. And the law says that
all of the information and data that you upload to
the Health Information Exchange, you quote retain a property right
in that healthcare data, but then give them a license
to use it. So there is a statutory instantiation of
your property rights in your healthcare data. Now how far

(32:39):
does that extend, Probably not much further. Than your healthcare data.
But you can see how we would be able to
pass the law that would cover any type of data
that you'd give over to third parties.

Speaker 1 (32:47):
So a few months ago I got to notice that
a company had been hacked, and it was a company
that was somehow involved in processing claims for one of
my doctors. So you're giving information to your doctor and
somehow that information is getting hacked.

Speaker 4 (33:03):
So that's another great example. So within HIPPA, there are
rules that permit third parties to utilize this data on
behalf of the covertant. So for example, your doctor, he
gives this over to a third party so that they
can essentially manage it, but not utilize it without his permission.
Here's the problem is that I would be shocked in
astounded whether many, if any health care entities actually then

(33:26):
go to their business associates and bet their cybersecurity protocol instead.
The business associated agreements typically say that you know you're
going to comply with HIPPA, and you're going to comply
with my instructions, but there's no verification, there's no auditing
that in fact, that's what they're doing with that data.
And in healthcare space, it is all over the place

(33:46):
because you're sharing information with testing facilities, with third parties,
billing companies, so your data gets spread all over the
place and you're hoping and praying that somebody's actually can
imply with that business associate agreement.

Speaker 1 (33:58):
And their solution is usually to give you something like
a year of free credit monitoring. But what can you do?
You really don't have a choice but giving information in
some of these situations.

Speaker 4 (34:09):
That's a very good point. And not only that, but
what are you going to do about the data breaches themselves?
I mean, in HIPPA, if somebody has breached in less
than five hundred healthcare records or access, the reporting entity
does not have to report that hack until February one
of the following year. So you, as a consumer, how
are you going to protect yourself when you find out
about this hack a year later? You're not. And in fact,

(34:31):
I've been an advocate that we need to rethink our
breach notification laws altogether, because just like you said, what
do you do when you get that piece of paper?
You throw it away or you call a credit agency
to monitor your credit. That's about all that you can
do at the moment. There needs to be more meat
on the bones when it comes to data breach notification requirements.

Speaker 1 (34:50):
And what about all the information that the government has
about us?

Speaker 4 (34:54):
And it's not just information that you've supplied through for example,
social security information in those works, but it's all that
information plus whatever else that the government can aggregate from
data brokers, which they have full rain and free access to,
just by asking the data brokers to give them copies
of that information. And just think about it this way.
Every time that you go to the airport, you have
that bioinformation screenpace check when you go to check in.

(35:17):
That information is then stored and utilized so that, for example,
if you're in New York City and there's a street
camera that can pick you up, they can then reidentify
you fairly quickly. And not just that, but your gate.
All sorts of unique aspects about you are stored not
just by third parties but by the government as well.
The thing is is that I do not think that
people appreciate the surveillance state that we live in at

(35:39):
the particular moment. If we want to identify any particular
person in the United States right now, at this moment
where they're at, if they have a cell phone. We
can do that fairly.

Speaker 1 (35:48):
So it's like the TV shows where they can track
people no matter where they are.

Speaker 4 (35:52):
It is, it is Unfortunately, it's a very scary situation
in which we're living in. So I mean, for example,
you know, one of the questions on wait Watchers was
have you made yourself vomit within the past week? What
you could imagine then that information being sold to some
diet pill company who then sends a targeted ad towards you,
And now you're getting, you know, fluff medication from some

(36:13):
third party that probably doesn't work as opposed to from
your actual healthcare provider. And so it's really concerning how
we're giving away this information, how can be utilized.

Speaker 1 (36:23):
So what do you do when a website ask for
your information?

Speaker 4 (36:26):
So again it's all about risk and so certain websites
I have to use, But I will tell you I
don't use apps on my phone at all. I have
like five apps that didn't come pre stored, and it's
because I'm more concerned about them tracking me on my
phone and where I'm at, more so than necessarily what
I'm uploading the website. Because the reality is is we
live in the world in which we have to upload
information to websites every day, so it's a matter of

(36:47):
managing your risk.

Speaker 1 (36:49):
So then when you check, don't follow me. Uh huh,
that doesn't work.

Speaker 4 (36:53):
Well, it can, I mean it can to some degree,
but you just never know. I mean there's a lot
of backdoor and so I just prefer not to even
risk it.

Speaker 1 (37:02):
So I guess the only solution is to go back
to an analog world.

Speaker 4 (37:06):
I think that's the way people are going to realize
they need to be safe.

Speaker 1 (37:09):
Yes, whenever I talk to you, Colin, I resolve to
be more careful about my personal information. Thanks for the warnings.
That's Colin Walkee of hall Estell and that's it for
this edition of The Bloomberg Law Show. Remember you can
always get the latest legal news on our Bloomberg Law Podcast.
You can find them on Apple Podcasts, Spotify, and at

(37:30):
www dot Bloomberg dot com, slash podcast Slash Law, and
remember to tune into The Bloomberg Law Show every weeknight
at ten pm Wall Street Time. I'm June Grosso, and
you're listening to Bloomberg