By Dr. Nick Oberheiden, Esq.
When political and military leaders from around the world convene this week for the annual Munich Security Conference, one attendee does not seem to quite fit the convention’s profile: Mark Zuckerberg. The CEO of Facebook will sit next to over 40 heads of state, intelligence officers, and military commanders at the world’s preeminent international security conference.
Zuckerberg’s visit marks a dramatic shift in world politics. Governments and law enforcement agencies have discovered the enormous utility of platforms like Facebook, WhatsApp and Instagram to connect people, places, and events. China and Russia have expanded their definition of national security to include virtually any data set: from military drone footage to online tracing to consumer behavior. Zuckerberg does not wear a military uniform, nor is he an elected or appointed official, but Facebook plays a pivotal role on this intensifying cyberspace battlefield.
With over 2 billion Facebook users, Facebook controls an unimaginable amount of digital data such as user contact information, physical whereabouts, cell-site locations, email addresses, IP addresses of websites visited, and records of interpersonal communications. Zuckerberg is the king of information. Facebook has transformed into a hybrid platform where commercial businesses and political activists spread messages, inform (and misinform) to influence politics, the economy, and society. The few publicly available numbers confirm this heightened political dimension of Facebook. Year over year, Facebook reports an increase of FBI National Security Letter (NSL) requests pursuant to 18 U.S.C. Section 2709 (Section 201 of the Electronics Communications Privacy Act of 1986).
In this war of information, the United States is at a crossroads. While some lawmakers support consumer activists who attack Facebook for its criticized handling of privacy rights, too many American politicians still overlook the strategic value Facebook plays in what Zuckerberg himself called an “ongoing arms race” with Russia and China in his 2018 congressional testimony. Others hesitate to introduce legislation that could be seen as infringing on the First Amendment rights of speech and association – which apply to corporations as well as natural persons.
When governmental agencies begin to depend on commercial businesses for information, it’s time to rethink national security in this country. For example, how should U.S. companies respond when a foreign country that is considered an enemy of the United States requests sensitive economic information from such a private company? Revised legislation may be needed to capture the geopolitical threats of our time. Congress may need to step in to define how much intel U.S. companies may share with foreign governments and whether the dissemination of certain national security data to non-NATO partner countries may be penalized. Checkpoint Charlie does not exist anymore. Today’s files are carried digitally, no longer by spies with a suitcase. The need for prevention and deterrence, however, remains. Traitors and defectors tempted to cash out by offering critical data are the spies of our time.
Zuckerberg knows that he is holding the oil of the 21st century: sensitive information. Coincidence or not, Zuckerberg’s journey takes him from Munich to Europe’s capital Brussels to negotiate Facebook’s tax and antitrust deal with European lawmakers, many of whom will fawn over him at the Munich Conference. Zuckerberg will enter these negotiations from a position of strength.
Dr. Nick Oberheiden is the founder of federal litigation and trial law firm Oberheiden P.C., which is largely comprised of former Justice Department attorneys.
