Wireless Giants To Get Off The Hook For Spying On Your Daily Movements For Years

from the corruption-by-any-other-name dept

There’s some endless, curious tensions within the corrupt Trump administration when it comes to their effort to completely destroy the government’s ability to hold corporations accountable for dodgy, nefarious, or even illegal behavior. Their own, lazy, circular logic and bad faith legal interpretations are creating vast new legal minefields we’ll be untangling for decades.

The wireless industry is a prime example.

For decades, major wireless carriers AT&T, Verizon, and T-Mobile collected vast troves of sensitive user location and movement data, then sold access to any random nitwit with two nickels to rub together. The result was a parade of scandals wherein everybody from stalkers, law enforcement (or people pretending to be law enforcement), car companies, governments (foreign and domestic), and right wing extremists all happily abused the data in myriad, dangerous ways never made clear to the end user.

Though this behavior had been going on for years generating untold millions, it only gained mainstream attention thanks to a 2018 New York Times story showcasing how police and the prison system routinely bought access to this data and then failed completely to secure it. In 2020 the Biden FCC finally proposed fining wireless carriers $196 million ($91 million for T-Mobile, $57 million for AT&T, $48 million for Verizon).

Those fines have been winding through the courts ever since, with wireless carriers (with varying degrees of success) insisting that the FCC lacks the authority to do, well, anything they don’t like. Like most corporations, wireless giants have been broadly helped in that endeavor by Supreme Court rulings dismantling regulatory authority across several different pillars of consumer protection law.

AT&T was also helped dramatically by a 5th Circuit ruling last year declaring that the FCC fines somehow violated wireless carriers’ Seventh Amendment right to a jury trial. This was one of several specious arguments telecom lawyers threw at a wall to see which one would satisfy the Trump-addled court system. The 5th Circuit was happy to oblige, vacating the FCC’s long-percolating fines of AT&T.

You were to ignore that AT&T has been at the vanguard of making jury trials impossible for customers through its use of fine print forcing users to pursue binding arbitration, a lopsided system that finds in favor of corporations a vast majority of the time. Or that AT&T spends millions of dollars annually successfully lobotomizing the entirely of telecom oversight, be it congressional, legal or regulatory.

Regardless, these debates are now winding their way to the Supreme Court, where a majority of justices this week expressed some skepticism about the wireless carriers’ claims (that they have to be found guilty via a jury trial in order to be fined by the FCC).

The FCC is kind of defending the Biden era fines (Brendan Carr wants to retain some FCC authority to force corporations to bend the knee to authoritarianism). But here’s the fun thing; even if the justices disagree with the wireless carriers (which can certainly change after a few late night chats with telecom lobbyists), the FCC’s inclined to change the language of their forfeiture orders anyway:

“But even if AT&T and Verizon lose this case, they could get a victory of sorts because the FCC and justices seem to agree that FCC fine decisions are nonbinding and require a court decision to enforce them. A government lawyer told justices that the FCC may change the language of its forfeiture orders to make it clearer that fines don’t have to be paid until after a jury trial.

“It seems like you’ve won on the law going forward, one way or the other,” Justice Brett Kavanaugh told attorney Jeffrey Wall, who represents AT&T and Verizon. “Your reply brief begins, ‘the government’s in retreat.’ That’s absolutely correct.”

With the Supreme Court poking holes in regulatory autonomy across countless fronts (SEC v. Jarkesy, Loper Bright), there’s no limit of options for corporate lawyers looking to avoid regulatory accountability. Nearly any serious attempt by a regulator to hold corporations accountable for pretty much anything can now pretty easily be bogged down in years of litigation, quite by design.

You’d think the broad, dire impact of that would be of more interest to journalists and policy folk.

This whole Ars Technica article by Jon Brodkin is worth a read, and is a good demonstration of (1) how the Trump administration’s legal lackeys have to trip over themselves to pretend they’re engaged in good faith, non-corporatist, non-corrupt interpretation of consumer protection law, (2) how all the weird holes created by Supreme Court rulings aimed at demolishing even basic corporate oversight have created a vast minefield it’s a nightmare for everyone to navigate, and (3) how the press likes to pretend this is somehow normal behavior by a serious country and not a byproduct of abject corruption.

But in short it’s likely that AT&T, Verizon, and T-Mobile will never have to actually pay any fines related to their decade+ decision to spy on users and monetize their sensitive movement data. That’s not only an act of overt corruption (dressed up as serious, furrowed-brow legalese), but also the failure to hold wireless carriers accountable for privacy and security issues will pose a lasting cybersecurity threat.

It genuinely doesn’t get enough attention that the Trump administration (specifically the Trump-friendly Supreme and circuit courts) have delivered a killing blow to the federal government’s already shaky ability to hold corporations accountable for anything. People and the press deny, ignore, downplay, or normalize it, but these choices will range from massively problematic to fatal, and will reverberate for a generation.

Filed Under: consumers, donald trump, fcc, fines, location data, privacy, security, surveillance, wireless

Companies: at&t, t-mobile, verizon