It’s not like Congress would say “we want to regulate your data collection practices” and Facebook would say “hmm no we’d rather you didn’t” and Congress would say “okay you have good lawyers we give up.” Facebook’s main leverage against the FTC—“we don’t think we did anything wrong and if you insist on restricting our data collection we will see you in court”—just wouldn’t work to stop Congress from making a law, because it is irrelevant. Congress can make a law about data privacy even if no one has broken any previous laws. In fact that’s the best reason to make a law! “There is a bad thing that is happening, and there is no law against it, so we should make a law against it”: That is a perfectly sensible line of reasoning!
The idea of passing a law to ban bad stuff is not to give the FTC more power to negotiate stricter settlement conditions. The idea of passing a law to ban bad stuff is to ban the bad stuff. If Congress passed a law restricting social media companies’ data collection practices, then the FTC wouldn’t need to include those restrictions in a consent decree with Facebook, because those restrictions would be in the law. Facebook would be bound by them, not because it agreed to them, but because they would be the law. Twitter and Google and other yet-to-be-invented internet services would also be bound by them, even without agreeing to them, because they would be generally applicable national rules about internet privacy passed by the legislative body in the name of the people, rather than the product of negotiations with one company.
Matt Levine on.
It’s almost like there’s been half a century of a concerted effort towards getting the public to stop thinking about the government as a tool through which it may use its collective will to curb the excesses of multi-million-dollar corporations and instead replacing that with an arrangement whereby the entire legislative and executive branches of government are replaced by the judicial. I mean. Almost. You remember that thing about the GOP not letting Obama appoint a SCOTUS judge? It’s almost like this is exactly the reason why. Who needs the affect of a representative democracy when you can have a panel of life-appointed plutocrats running the country as a kritocracy where he who has the most expensive lawyers almost always by-default wins?