It’s been fascinating to watch American digital-rights activists react to Facebook’s hiring of three prominent privacy-focused lawyers, particularly the Electronic Frontier Foundation’s Nate Cardozo (the other hires were Open Technology Institute’s Robyn Greene and Nathan White from Access Now). Overall, reactions seem to be mostly optimistic, praising the new Facebook employees’ personal integrity and commitment to privacy rights.

Which is funny, because I had precisely the opposite reaction when I heard the news. Not only is it impossible in 2019 to give Facebook the benefit of the doubt on privacy, that after an eternity of treating their users as “dumb fucks” they now want to get serious about privacy, this hiring has the potential to destroy the EFF’s (and those of the other groups) credibility as grassroots, rights-oriented organizations that are not Silicon Valley lobbyists.

Even more importantly, these hires and the positive reaction to them raise serious questions about the distance between the American digital-rights community and the very companies that, as Shoshana Zuboff argues persuasively in her latest book, The Age of Surveillance Capitalism, pose a threat to liberal democracy every bit as severe as the threat posed by state surveillance.

EFF and regulatory capture

Rather than focusing on the personal integrity of the individuals in question, the best way to understand what’s going on and how it’s likely to play out is to think of EFF as the government and Facebook as the company it is trying to regulate. This analogy isn’t as far-fetched as it may seem. EFF has consistently expressed concern about overly onerous government oversight over the tech industry, often for reasons of protecting freedom of expression. Instead, it has thrown much of its energy into drafting voluntary principles, such as the Santa Clara Principles on Transparency and Accountability of Content Moderation Practices.

In EFF’s ideal political economy, civil-society groups play a central role in holding companies like Facebook to account, with government regulation coming into play only if absolutely necessary (they also see competition as an important restraint on companies, but I don’t see any competition heading Facebook’s way even in the medium term). Governments can use coercion to enforce its rules while non-governmental organizations like EFF must use persuasion, but the goal is the same: the implementation of rules that companies like Facebook will follow.

When it comes to actual governments, “regulatory capture” and the “revolving door” between industry and regulators are long-recognized problems. I would argue that Facebook’s hires are strongly suggestive of regulatory capture and have the potential to further weaken the independence of American digital-rights groups, many of which (it should be noted) already take money from the organizations they wish to influence.

A revolving door between the regulator and the regulated signals a baseline level of comfort with the industry status quo: while the industry in question may have problems, they are not so severe as to shock the consciences of the regulators.

Here’s what I mean. Can you imagine a nuclear-disarmament activist going to work for the Pentagon under any circumstances? Or think about any government regulator or administration staffer and ask yourself what your reaction would be if you heard that they were now going to be working for the company that just a day earlier they had been responsible for overseeing in the public interest.

Back to the matter at hand, how would the American digital-rights community have reacted if Cardozo had announced he would be working for the National Security Agency to try to make its surveillance protocols fairer and somewhat less intrusive? Would they have given him the benefit of the doubt, and argue that maybe the NSA, after an eternity of spying on the world, has finally gotten the message on surveillance? Maybe, but I would not be at all surprised if they saw it instead as a betrayal of fundamental values, because the problem with government surveillance is government surveillance.

And yet, moving from the activist side to Facebook – a company implicated in a genocide and the global rise of authoritarian populism – for some reason has not generated a similarly negative reaction. This is the same company that, on the same day that these hires were announced was revealed to be paying “users as young as 13 to install an app that gave the company access to everything their phone sent or received over the internet.”

The positive reaction itself suggests that the relationship between Silicon Valley and the American digital-rights community is far too cozy, particularly if groups like EFF are serious about being de facto public-interest watchdogs/regulators of this sector.

New incentives for EFF and privacy activists to pull their punches

These hirings potentially pose an additional credibility problem for those activists at EFF who truly are committed to improving privacy rights (I should note that I’m focusing on EFF because they are the United States’ most prominent digital-rights group). Cardozo’s move to Facebook effectively opens up a new career path for young activists. I don’t know what either EFF or Facebook pay, but I do know that activism is a young person’s game, these aren’t lifetime jobs, and the money is usually much better in corporate America. Knowing that this employment path exists and that people in the privacy-activist community are cool with it, EFF’s new hires might well temper their criticisms of companies like Facebook lest they endanger future employment prospects. And even if they don’t, they won’t be able to escape that perception.

It’s also getting much harder to ignore the argument that while EFF and similar groups are outspoken on government surveillance, they are much less concerned with the regulation of its corporate cousin, what Zuboff calls surveillance capitalism. This was the whole point of April Glaser’s Slate article last April, which called out groups like EFF for their relatively weak activism when the Facebook shit started to hit the fan. Glaser’s article came to mind immediately when I heard about these hires; her critique continues to resonate.

The problem isn’t privacy; it’s the business model

What’s more, the argument about changing the system from the inside, implicit in all the talk about personal integrity, is fundamentally misguided. As Siva Vaidhyanathan points out in his recent book, “The problem with Facebook is Facebook.” The issue isn’t that Mark Zuckerberg and Sheryl Sandberg (the “Typhoid Mary” of surveillance capitalism, in Zuboff’s words) hate privacy; it’s that their fundamental business model depends on constant, expanding, ubiquitous surveillance.

Unless Cardozo and his fellow hires can convince Zuckerberg and Sandberg to give up the model that has made them billions, all their efforts will almost certainly amount to no more than a Band-Aid on a gaping chest wound. At worst, prevented by Facebook from talking to the media, they will be deployed as human shields against criticisms that Facebook isn’t taking privacy seriously.

It would be great if instead of treating Facebook’s hires as just another job announcement, American digital-rights activists took this moment as an opportunity to reconsider their relationship with surveillance capitalists like Facebook, and surveillance capitalism in general. For everyone else, trying to deal with the damage caused by the business model used by companies like Facebook and Google, at least it’s helpful to know where everyone stands.