UNITED LAND COUNCILS IN THE NEWS AGAIN: Nicholas Petroulias appears before NSW Independent Commission Against Corruption and represents himself at hearings

*This post will be updated whenever additional information becomes available*

The NSW Independent Commission Against Corruption (ICAC) began a public inquiry on 27 March 2018. 

ICAC’s media release of 7 March 2018 stated in part:

“….as part of an investigation it is conducting into allegations concerning the Awabakal Local Aboriginal Land Council (LALC) (Operation Skyline).

The Commission is investigating whether any public official, being a Awabakal LALC Board director, acted dishonestly and/or in breach of their duty as a Board member in relation to a scheme involving proposals from 2014 to 2016 for the sale and development of properties (“the Sale and Development Scheme”) owned by the land council.

The Commission is also investigating whether any Awabakal LALC Board director acted dishonestly and/or in breach of their duty as a Board member in purporting to retain, or retaining, Knightsbridge North Lawyers or anyone else to act for the land council in respect of the Sale and Development Scheme.

Further, the ICAC is investigating whether any Awabakal LALC Board director: acted dishonestly and/or in breach of their duty as a Board member by participating in, or aiding or assisting any person in relation to, the Sale and Development Scheme including dealings with Sunshine Property Investment Group Pty Ltd, Sunshine Warners Pty Ltd, Solstice Property Corporation Pty Ltd and Advantage Property Experts Syndications Pty Ltd and/or Advantage Property Syndications Ltd; and whether they received any financial or other benefits as a reward or payment for their involvement in, or for their assistance or services rendered in relation to, the Sale and Development Scheme or any connected matter.

The Commission is also examining whether any person or persons encouraged or induced any Awabakal LALC Board director to dishonestly or partially exercise any of their official functions in respect of the Sale and Development Scheme and any other land council property, or otherwise engaged in conduct connected with corrupt conduct within the meaning of the Independent Commission Against Corruption Act 1988.

The public inquiry will start at 10:00 am and will be held in the Commission's hearing room on Level 7, 255 Elizabeth Street, Sydney. Chief Commissioner the Hon Peter Hall QC will preside at the public inquiry, and Counsel Assisting the Commission will be Dr Nicholas Chen SC and Ms Juliet Curtin.

The inquiry is set down for approximately three weeks. A witness list for at least the first week of the proceedings will be published on the ICAC website prior to the commencement of the public inquiry.”

Transcripts of Operation Skyline public hearings can be found here.

Note: PURSUANT TO SECTION 112 OF THE ICAC ACT, A SUPPRESSION ORDER IS MADE PROTECTING AGAINST ANY DISSEMINATION OF ANY PRIVATE EMAIL ADDRESSES, PRIVATE ADDRESSES OR PHONE NUMBERS CONTAINED IN EACH OF THE EXHIBITS TO BE UPLOADED ONTO AND PUBLISHED ON THE COMMISSION’S WEBSITE. I MAKE THAT ORDER SUBJECT TO ANY FURTHER ORDER OF THE COMMISSION.

WEEK 1 WITNESS LIST

Tuesday 27 March 
Terrence Henry Lawler - government appointed Administrator of the Awabakal Local Aboriginal Land Council.

Wednesday 28 March 
Terrence Henry Lawler - government appointed Administrator of the Awabakal Local Aboriginal Land Council.
Omar Bin Abdullah - building design consultant & sole director/shareholder Alamco Pty Ltd (currently under external administration) 
Steven Mark Slee - former CEO Awabakal Local Aboriginal Land Council, former director 
Awabakal Cooperative and Yarnteen College
Cyril Philemon Gabey - one of three directors at The Indigenous Business Union Pty Ltd (IBU) (deregistered 15/01/2017)

Thursday 29 March
John Terry Hancock - former board member Awabakal Local Aboriginal Land Council Eleanor Swan - former board member Awabakal Local Aboriginal Land Council

Deborah June Swan - former board member Awabakal Local Aboriginal Land Council, sister to Elanor

Bernard Michael "Mick' Walsh - former board member Awabakal Local Aboriginal Land Council 

WEEK 2 WITNESS LIST

Tuesday 3 April

Eleanor W Swan - former board member Awabakal Local Aboriginal Land Council

Deborah June Swan - former board member Awabakal Local Aboriginal Land Council 

Larry Warren Slee - former board member Awabakal Local Aboriginal Land Council, father of Steven Mark Slee

Wednesday 4 April

Matthew Fisk - employee of Tony Zong first at Sunshine Property Investment Group and later at Luxeland Group

Tony Zong (Shuxin Zong) - sole director and shareholder of Sunshine Property Investment Group Pty Limited, a commercial fitout & building company

Diane "Dan Dan" Ren - property developer, co-director and co-shareholder of Luxeland Group Pty Ltd with Tony Zong *not questioned on the day*

Thursday 5 April
Tony Zong (Shuxin Zong) - sole director and shareholder of Sunshine Property Investment Group Pty Limited, a commercial fitout & building company

Nicole Steadman - former interim chair of Awabakal Local Aboriginal Land Council *not questioned on the day*

Friday 6 April
Tony Zong (Shuxin Zong) - sole director and shareholder of Sunshine Property Investment Group Pty Limited, a commercial fitout & building company
Larry Warren Slee - former board member Awabakal Local Aboriginal Land Council, father of Steven Mark Slee

Ronald Wayne Jordan - former board member Awabakal Local Aboriginal Land Council, employed by family business

Candy Towers - member Awabakal community, former employee Awabakal Local Aboriginal Land Council *not questioned on the day*

WEEK 3 WITNESS LIST

Monday 9 April
Larry Warren Slee - former board member Awabakal Local Aboriginal Land Council, father of Steven Mark Slee
Leonard James Quinlan - former board member Awabakal Local Aboriginal Land Council
Dr. Raymond Kelly - former board member Awabakal Local Aboriginal Land Council

Tuesday 10 April
Dr. Raymond Kelly - former board member Awabakal Local Aboriginal Land Council
Ronald Wayne Jordan - former board member Awabakal Local Aboriginal Land Council, employed by family business

Clayton Hickey - accountant with PKF Lawler *not questioned on the day*
Ian Sheriff - solicitor *not questioned on the day*

Wednesday 11 April

Keith Kang Rhee - co-director and one of two shareholders in of Keeju Pty Ltd a family sushi business

Sammy Sayed aka Sam Say - said to be in real estate/properties

Thursday 12 April

Sammy Sayed aka Sam Say - said to be in real estate/properties

Ian Sheriff - solicitor

Diane "Dan Dan" Ren - property developer, co-director and co-shareholder of Luxeland Group Pty Ltd with Tony Zong

Friday 13 April

Nicole Steadman - former interim chair of Awabakal Local Aboriginal Land Council 

Candy Towers - member Awabakal community, former employee Awabakal Local Aboriginal Land Council

The Sydney Morning Herald report on Day One of the hearings, 27 March 2018:

Disgraced former assistant tax commissioner Nick Petroulias has resurfaced at the centre of a corruption probe into a series of deals to sell off up to $30 million worth of Aboriginal land in the NSW Hunter region.

Mr Petroulias was one of the country's most senior public servants before his high-profile jailing in 2008 for corrupt conduct and unauthorised publication of Commonwealth documents.

The first day of public inquiry by the Independent Commission against Corruption (ICAC) has heard that Mr Petroulias played a "central role" in three deals - and one attempted deal - to sell off land belonging to the Awabakal Local Aboriginal Land Council.

In one of the more extraordinary allegations, Mr Petroulias was accused of signing a 2014 deal on behalf of a company director who was already dead at the time he was appointed.

The deals took place between 2014 and 2016, with the most lucrative worth $30 million, the inquiry heard.

In his opening address, counsel assisting Nicholas Chen SC alleged that Mr Petroulias used a "two dollar company" he controlled - known as Gows Heat - to obtain purchase rights over several parcels of Awabakal land.

"Mr Petroulias at that time had recently been made a bankrupt," Mr Chen told the inquiry. "Neither Gows Heat nor Mr Petroulias paid any money to the land council to secure this 'right'."

It was alleged Mr Petroulias on-sold the purchase rights to a new buyer and then attempted to on-sell the rights again to another buyer, while both remained unaware of the other's existence.

"Gows Heat and Mr Petroulias secured a significant windfall: he sold this "right", around six months later, and received around $1.1 million as a result," Mr Chen said.

Whether Awabakal's board was aware of these deals - and how the deals could go ahead without disclosure to the board - will be investigated by the inquiry.

The inquiry will also examine the actions of two former Awabakal board members involved in the transactions - Richard Green and Debbie Dates - and a lawyer who executed the deals on the land council's behalf.

That solicitor, Despina Bakis, was the sole director of Sydney firm Knightsbridge North Lawyers. Mr Chen noted that she had been in what could be described as an "on-again, off-again" relationship with Mr Petroulias for about 20 years.

Mr Chen noted that neither Ms Bakis or Mr Petroulias were Indigenous and Ms Bakis had "no relevant experience" in undertaking the kind of work she was tasked to do by the land council.

The inquiry heard Mr Petroulias has adopted a string of aliases, including Nick or Nicholas Piers; Nick or Nicholas Pearson and Nick or Nicholas Petersen.

A number of corporate entities with links to Mr Petroulias had been created using the identities of people that knew nothing of their involvement, Mr Chen alleged.

The Newcastle Herald reporting on Day One, 28 March 2018:

The land council's administrator, Terry Lawler, took to the witness box on Tuesday afternoon, testifying that he found no copies of any agreements to sell Awabakal land when he was installed by the state government in 2016. 

Mr Petroulias, representing himself, grilled Mr Lawler over what he told Awabakal members before they voted on one of the land deals.

"Did you mention that I was a criminal to the membership of the meeting?," he asked. 

Mr Lawler responded that a solicitor acting for him may have, but added “fact’s facts”. 

When he put the issue to a vote, there was a "sea of hands" against the proposal, Mr Lawler said. 

“One of the members actually said: ‘are you a comedian?’,” he recalled. 

Mr Lawler told the inquiry that when he was first made aware of the deal, involving a company called Advantage Property Experts Syndications, he “didn’t have any information” about whether it was a good or bad deal.

However he was stunned at proposals relating to the post office. 

“The thing that did really strike me, and I remember thinking ‘this bloke’s delusional’, is that he said to me ‘part and parcel of this is we're going to do up the post office and hand it back to the NSW state government so as they’ll provide us with a strategic state development approval for the development of Hillsborough Road,” Mr Lawler told the inquiry.  

“I found that an interesting statement, because that's just not the way things work.” 

Mr Lawler also noticed a number of typos within the agreement. 

“To be frank some of the agreements I found extremely difficult to read, understand, there were differing parties … one party on the cover sheet another party in the agreement, there were references to agreements even then that I hadn’t seen,” he said.  

Mr Lawler claimed he has since been the target of abusive, defamatory and inaccurate letters and a “slanderous” social media campaign. 

He alleged a businessman associated with Advantage and two other people stood outside a recent Awabakal meeting, handing out flyers making similar allegations.

“My local residential area was letter-boxed with those flyers that same evening and it’s clear from the Facebook post from Advantage that I’m being stalked,” he said. 

“There are quite a lot of photos that are nothing other than me just going about my business.” 

Mr Lawler has reported the matters to police....

 Mr Chen described Ms Bakis’ appointment as “more than a little curious”, given that the land council had been making use of a “highly experienced” commercial and property lawyer. 

He further alleged that Ms Bakis was appointed by Mr Green without the board’s authority until a motion to ratify her appointment more than a year later. 

It’s understood that Ms Bakis will argue that she was always given to understand her appointment was authorised. 

Mr Lawler told the hearing that when he was installed he did not find any records relating to Ms Bakis’ appointment and when he asked for them, it triggered a “flow” of abusive material. 

“Abuse, complaints, accusations and being told that she’s not my secretary and that I’m a thief, it just goes on,” he said. 

“I have never experienced – let alone from a professional person – I’ve never experienced the style in which Ms Bakis writes … clearly [she was] an angry little ant.” 

The Newcastle Herald reporting on Day Two, 28 March 2018:

 A corruption inquiry has been told board minutes of the Awabakal land council appear to have been falsified to show it voted in favour of selling land to a company tied to disgraced former assistant tax commissioner Nick Petroulias. 

It came as a Sydney developer told the Independent Commission against Corruption (ICAC) he did not understand how a reference to the same company – Gows Heat Pty Ltd – ended up in documentation he prepared on the development of the land…. 

Mr Petroulias was a “common feature” in all of the deals and Gows Heat a shelf company he controlled, it has been alleged.  

In the witness box on Wednesday was Omar Abdullah, a building designer and new home specialist based in Sydney. 

He made an overture to the land council in late 2014, after he was informed by a business contact it had property ripe for development. 

Mr Abdullah told the inquiry he was given an opportunity to meet with Awabakal’s board and present it with discussion material on potential developments. 

He felt the presentation was met with a “positive reaction”, but Mr Abdullah did not pursue a deal when he got “nothing formal back” from the board.

The inquiry previously heard a “critical matter” will be an allegation from Mr Petroulias that the presentation was made jointly with Gows Heat. 

When asked if he had ever heard of Gows, Mr Abdullah replied “absolutely not”. 

Mr Abdullah was then shown a document that appeared to be identical to the one he circulated during the presentation, but included a reference to Gows Heat. 

“I’ve never seen this document,” he said. 

The land council’s chief executive at the time, Steven Slee, was questioned over his recollection events. 

Mr Slee told the inquiry the board resolved to contact Mr Abdullah to pursue the land proposal, a resolution reflected in typed and signed minutes and a “running list” of resolutions kept at the land council’s offices.  

Council assisting Nicholas Chen SC tendered those documents as evidence, before presenting Mr Slee with an additional book containing handwritten minutes. 

Mr Slee agreed it appeared someone had written extra words around the resolution. 

He was unable to decipher what they said, but observed they started with the letters “Go”. 

Mr Slee was then shown a different resolution that appeared to have been stapled into the minute book, recording a decision to push ahead with the sale of the land to Gows Heat. 

“Mr Slee, whilst you were CEO was it the practice of the board to staple resolutions into minute books?” Mr Chen asked. 

“No,” Mr Slee responded, agreeing it appeared someone had tampered with the minutes. He was unable to pinpoint who it might be. 

The Newcastle Herald reporting on  Day Five, 5 April 2018:

As an experienced property developer and qualified valuer based in Sydney, Matthew Fisk knew his way around a land deal.

But as he bargained with the Awabakal Local Aboriginal Land Council over land it owned at Warners Bay, there were aspects of the negotiations that struck him as strange.

One of the more “unusual” elements, Mr Fisk told an Independent Commission against Corruption inquiry, was the role of disgraced former assistant tax commissioner Nick Petroulias and an instance where Mr Petroulias allegedly “scribbled out” a figure in a contract….

Mr Zong later took – and dropped – legal action against the land council, claiming he was not informed the deal did not have proper authorisation.

Mr Zong’s involvement began in 2015, when he attended a meeting at Warners Bay McDonalds over a potential land deal. 

Mr Fisk told the inquiry he accompanied Mr Zong to the meeting, also attended by Mr Green and Mr Petroulias.

The parties were allegedly brought together by a former inmate who served time with Mr Petroulias at Silverwater jail – Sammy Say  – who was acquainted with a contact of Mr Zong. 

Mr Fisk recalled one of the third parties introducing Mr Petroulias as a lawyer acting for the land council. 

So he was surprised – at the end of a tour – when he was informed that Mr Petroulias had a “larger interest”.

“I believe it was Sammy Say that had used words to the effect that Nick has already put the deal together,” Mr Fisk recalled. “Then Nick proceeded with he already has an option to acquire these five parcels of land and it would be, in fact, us … acquiring Nick’s option moving forward.” 

An option is where a potential buyer pays a vendor for the right to purchase their property at a fixed price at a later time. The vendor can not sell the property to a third party in that period. 

Council assisting Nicholas Chen asked Mr Fisk if he thought it unusual that the land council’s lawyer would have an option over its land. 

“I thought it was quite unusual, particularly that when I asked what the purchase price was I was told that it was to be subject to valuation,” Mr Fisk said. 

According to Mr Fisk, another odd twist came as a contract was being signed with the amount to be paid out to Gows Heat. 

“After Mr Zong had signed the document Mr Petroulias then lent over, scribbled out $250,000, wrote $673,000 and then initialled it,” Mr Fisk said. 

“Tony [Zong] said, look, he said to Nick, ‘what are you doing?’ I don’t recall the response that was given but I found it very unusual.” 

Other media reports on Operation Skyline hearings:

Tax man and elder locked horns: ICAC

Knightsbridge North Lawyers and Despina Bakis attempt to have Awabakal ICAC inquiry thrown out

No grand plan for land with Nick Petroulias, ICAC hears from businessman Tony Zong

ICAC’s attention on Candy and Dates

ICAC hears of threats after CEO sacking 

North Coast Voices’ readers might recall that Nick Petroulias (using the name Nicholas Peterson) and Richard Green gave sworn evidence before the NSW Legislative Council General Purpose Standing Committee No. 6 INQUIRY INTO CROWN LAND, as part of United Land Councils' lobbying for the potentially environmentally destructive Yamba Mega Port proposal.

Before Operation Skyline’s public hearing began, one of those named in the inquiry began short-lived and unsuccessful proceedings in Knightsbridge North Lawyers Pty Limited v Independent Commission Against Corruption.

The matter of the proposed Awabakal land sales was also before the NSW Supreme Court in 2017….

The Newcastle Herald, 21 October 2017:

The matter is the subject of a Supreme Court legal battle that veteran lawyers have described as one of the most extraordinary cases they have seen in their careers.

Labelled by a lawyer familiar with the case as a real-life version of “Alice in Wonderland”, its cast of characters includes an international fugitive known as Robbie Rocket, a convicted drug dealer and a dead company director who somehow continued signing agreements a year after he was cremated in a Sydney cemetery.

The existence of an international money laundering syndicate and a karaoke junket intended as a bribery attempt are among the other sensational allegations contained within thousands of pages of evidence that have been tendered to the court.

Last year in an unrelated matter Mr. Petroulias was the defendant in Director of Public Prosecutions (Cth) v Petroulias [2017] NSWSC 1290 (28 September 2017), excerpts:

When this matter came on for hearing before me there was no appearance on behalf of the defendant. The defendant now goes by the name Michael Felson. For abundant caution both of his names were called outside court three times….

During the hearing I was informed that the defendant is an undischarged bankrupt. He was declared bankrupt by a sequestration order made by the Federal Circuit Court on 23 October 2014. His statement of affairs was filed on 10 March 2015. He will thus be eligible to be discharged from bankruptcy on 10 March 2018.

Turns out that Facebook Inc is the biggest baddie of all on the Internet

“The FTC is firmly and fully committed to using all of its tools to protect the privacy of consumers. Foremost among these tools is enforcement action against companies that fail to honor their privacy promises, including to comply with Privacy Shield, or that engage in unfair acts that cause substantial injury to consumers in violation of the FTC Act. Companies who have settled previous FTC actions must also comply with FTC order provisions imposing privacy and data security requirements. Accordingly, the FTC takes very seriously recent press reports raising substantial concerns about the privacy practices of Facebook. Today, the FTC is confirming that it has an open non-public investigation into these practices.”  [US Federal Trade Commission (FTC), Statement, 26 March 2018]

It may have been the Cambridge Analytica-Facebook situation as first set out by Carole Cadwalladr at The Guardian & The Observer (UK) that recently alerted the average Internet user to the issue of digital privacy on social media and, it was certainly the situation which caught the eye of the US Federal Trade Commission which is now investigating.

The story of that data harvest so far.....

The Guardian UK, 25 March 2018:

The story of how those data made the journey from Facebook’s servers to Cambridge Analytica’s is now widely known. But it is also widely misunderstood. (Many people were puzzled, for example, by Facebook’s vehement insistence that the exfiltration of a huge trove of users’ data was not a “breach”.) The shorthand version of what happened – that “a slug of Facebook data on 50 million Americans was sucked down by a UK academic named Aleksandr Kogan, and wrongly sold to Cambridge Analytica” – misses an important point, which is that in acquiring the data in the first place Kogan was acting with Facebook’s full knowledge and approval.

In 2013, he wrote an app called “Thisisyourdigitallife” which offered users an online personality test, describing itself as “a research app used by psychologists”. 

Approximately 270,000 people downloaded it and in doing so gave their consent for Kogan to access information such as the city they set on their profile, or content they had liked, as well as more limited information about friends who had their privacy settings set to allow it. This drew more than 50 million unsuspecting Facebook users into Kogan’s net.

The key point is that all of this was allowed by the terms and conditions under which he was operating. Thousands of other Facebook apps were also operating under similar T&Cs – and had been since 2007, when the company turned its social networking service into an application platform.

So Kogan was only a bit player in the data-hoovering game: apps such as the insanely popular Candy Crush, for example, were also able to collect players’ public profiles, friends lists and email addresses. And Facebook seemed blissfully indifferent to this open door because it was central to its commercial strategy: the more apps there were on its platform the more powerful the network effects would be and the more personal data there would be to monetise.

That’s why the bigger story behind the current controversy is the fact that what Cambridge Analytica claimed to have accomplished would not have been possible without Facebook. Which means that, in the end, Facebook poses the problem that democracies will have to solve. [my yellow highlighting]

However, it is not the only way Facebook is collecting personal information to enrich Zuckerberg and his shareholders.

Now we find out that Facebook Inc is scraping information from Android devices such as mobile phones and adding phone logs to its Big Brother database.

Global News, 25 March 2018:

In the same week Facebook found itself in the middle of a massive data scandal, recent reports indicate that the social media giant has also scraped records of phone calls and SMS data from its users with Android devices without explicit permission.

New Zealand-based software developer Dylan McKay tweeted earlier this week that upon downloading his Facebook data in zip file (which is an option for all users) he claims to have discovered records of phone calls and a historical data of every contact on his phone., including contacts he no longer had, from a period between 2016 and 2017.

Downloaded my facebook data as a ZIP file

Somehow it has my entire call history with my partner's mum pic.twitter.com/CIRUguf4vD

— Dylan McKay (@dylanmckaynz) March 21, 2018

After he made the discovery, McKay set up a Google poll to gather evidence from other users who’ve been affected.

So far, just under 900 people have responded to the poll, and more than 20 per cent confirmed they found call records and/or text metadata in their Facebook data archive. Another 74 people responded to the poll saying that MMS data was collected, 106 people responded saying that SMS data was collected, and 104 responded saying that cellular calls were collected.

READ MORE: Here’s who’s using your Facebook activity to get inside your head

The story was first published by the tech news website Ars Technica on Saturday, who interviewed several Facebook users, and had a member of its staff download their Facebook data archive. Following, this, the site could confirm that the data file downloaded by the staff member contained call logs from a device that individual used between 2015 and 2016, as well as SMS and MMS message data.

Several Global News staff members also requested their data archives as well in the preparation of this story and some found that the contact lists from their mobile devices were recorded in the file. No one noted any text message or call logs in the data files they downloaded.

Ars Technica reached out to Facebook for comment before the publication of its story, who said that the practice was a common one among social networking and messaging apps.

“The most important part of apps and services that help you make connections is to make it easy to find the people you want to connect with. So, the first time you sign in on your phone to a messaging or social app, it’s a widely used practice to begin by uploading your phone contacts.”

Following McKay’s tweets, other users came out on social media expressing similar concerns about what they discovered after downloading their data archives.

Oh wow my deleted Facebook Zip file contains info on every single phone cellphone call and text I made for about a year- cool totally not creepy.

— Mat Johnson (@mat_johnson) March 23, 2018

I’ve just looked at the data files I requested from Facebook and they had every single phone number in my contacts. They had every single social event I went to, a list of all my friends (and their birthdays) and a list of every text I’ve sent.

— Emma Kennedy (@EmmaKennedy) March 25, 2018

…In recent years, the company has updated this process to clarify that when requesting access to your contact list, it intends to access all call logs and SMS text messages as well, but Android users in the past may have unknowingly given Facebook access to this data. [my yellow highlighting]

It is also wise to remember that even Internet users who do not have a Facebook account have their PC or other digital device scanned for information each time they click on a link to Facebook. 

Facebook image via ZDNet, 3 January 2014

ZDNet on 3 January 2014: By "content" Facebook means “anything you or other users post on Facebook”. By "information" Facebook means “facts and other information about you, including actions taken by users and non-users who interact with Facebook”. [my yellow highlighting]

Nor should we ignore this report about Facebook's surreptitious activities.......

Law360 (March 2, 2018, 7:02 PM EST) -- A California federal judge held Friday that Facebook can’t shake a proposed class action over its allegedly unlawful collection and storage of non-users’ facial scans, declining to toss the matter for lack of standing, just as he recently did in a related suit involving users of the site.

U.S. District Judge James Donato rejected Facebook Inc.’s renewed motion to dismiss litigation led by Frederick William Gullen for lack of subject-matter jurisdiction, pointing to his Feb. 26 decision in a related proposed class action accusing the social media... [my yellow highlighting]

Then there is the lobbying to discourage federal regulation of Facebook.......

According to SOCIAL MEDIA CASEROUNDUP (selected cases) in April 2015, by 2013 Facebook Inc had spent more than US$1 million on lobbying efforts to water down the US Children's Online Privacy Protection Act (COPPA). It was particularly concerned about any change of status of third party "add ons"/"plug-ins" which might by default make platforms like Facebook legally liable for any harm to a minor/s which occurred, as well asbeing resistant to any increase in general protections for minors or any expanded definition of protected "personal information" being included in the Act.

Quartz, 22 March 2018:

Facebook CEO Mark Zuckerberg said yesterday that the company welcomes more regulation, particularly to bring transparency to political advertising online. But in recent months, Facebook has been quietly fighting lawmakers to keep them from passing an act that does exactly that, campaign transparency advocates and Congressional staff tell Quartz.

The Honest Ads Act was introduced last October to close a loophole that has existed since politicians started advertising on the internet, and was expected by many to sail through Congress. Coming as Congress investigated how Russia used tech companies to influence the 2016 election, it was considered by many in Washington DC to be the bare minimum lawmakers could do to address the problem.

The act introduces disclosure and disclaimer rules to online political advertising. Tech companies would have to keep copies of election ads, and make them available to the public. The ads would also have to contain disclaimers similar to those included in TV or print political ads, informing voters who paid for the ad, how much, and whom they targeted.

“The benefit of having disclaimers on all political ads [is] the more suspicious ads would be more identifiable,” said Brendan Fischer, the director of federal and Federal Election Commission reform at theCampaign Legal Center (CLC) in Washington.

In a vote of confidence from bitterly-divided Washington, the act was rolled out by a bipartisan group of senators—John McCain, the Republican from Arizona, and Democrats Amy Klobuchar from Minnesota and Mark Warner of Virginia—and it currently has the support of 18 senators. But it hasn’t moved from the committee on “Rules and Administration” since was first introduced, thanks in part to Facebook’s lobbying efforts.

Fischer, who is a co-author of a CLC report on US vulnerabilities online after the 2016 election, accuses Facebook of “working behind the scenes using the levers of power to stop any legislation from moving forward.”

Facebook’s lobbying clout

Lobbyists for the company have been trying to dissuade senators from moving the Honest Ads Act forward, some Congressional aides say. 

Facebook’s argument to Congress behind the scenes has been that they are “voluntarily complying” with most of what the Honest Ads Act asks, so why pass a law, said one Congressional staffer working on the bill. Facebook also doesn’t want to be responsible for maintaining the publicly accessible repository of political advertising, including funding information, that the act demands, the staffer said.

Facebook spent nearly $3.1 million lobbying Congress and other US federal government agencies in the last quarter of 2017, on issues including the Honest Ads Act according to its latest federal disclosure form. It also signed on Blue Mountain Strategies, a lobbying firm founded by Warner’s former chief of staff, an Oct. 30, 2017 filing shows.

It’s part of a massive uptick in lobbying spending in recent years. [my yellow highlighting]

Despite all its lobbying Facebook Inc is not immune from official censure for its deceptive business practices.

Take this analysis of a 2011 binding agreement between the US Federal Trade Commission and Facebook Inc.....

Federal Register / Vol. 76, No. 233 / Monday, December 5, 2011 / Notices

FEDERAL TRADE COMMISSION [File No. 092 3184], 2 December 2011:

The Federal Trade Commission has accepted, subject to final approval, a consent agreement from Facebook, Inc. (‘‘Facebook’’)……

The Commission’s complaint alleges eight violations of Section 5(a) of the FTC Act, which prohibits deceptive and unfair acts or practices in or affecting commerce, by Facebook:

* Facebook’s Deceptive Privacy Settings: Facebook communicated to users that they could restrict certain information they provided on the site to a limited audience, such as ‘‘Friends Only.’’ In fact, selecting these categories did not prevent users’ information from being shared with Apps that their Friends used.

* Facebook’s Deceptive and Unfair December 2009 Privacy Changes: In December 2009, Facebook changed its site so that certain information that users may have designated as private— such as a user’s Friend List —was made public, without adequate disclosure to users. This conduct was also unfair to users.

* Facebook’s Deception Regarding App Access: Facebook represented to users that whenever they authorized an App, the App would only access the information of the user that it needed to operate. In fact, the App could access nearly all of the user’s information, even if unrelated to the App’s operations. For example, an App that provided horoscopes for users could access the user’s photos or employment information, even though there is no need for a horoscope App to access such information. 

* Facebook’s Deception Regarding Sharing with Advertisers: Facebook promised users that it would not share their personal information with advertisers; in fact, Facebook did share this information with advertisers when a user clicked on a Facebook ad.

* Facebook’s Deception Regarding Its Verified Apps Program: Facebook had a ‘‘Verified Apps’’ program through which it represented that it had certified the security of certain Apps when, in fact, it had not. 

* Facebook’s Deception Regarding Photo and Video Deletion: Facebook stated to users that, when they deactivate or delete their accounts, their photos and videos would be inaccessible. In fact, Facebook continued to allow access to this content even after a user deactivated or deleted his or her account.

* Safe Harbor: Facebook deceptively stated that it complied with the U.S.-EU Safe Harbor Framework, a mechanism by which U.S. companies may transfer data from the European Union to the United States consistent with European law.

The proposed order contains provisions designed to prevent Facebook from engaging in practices in the future that are the same or similar to those alleged in the complaint.

Part I of the proposed order prohibits Facebook from misrepresenting the privacy or security of ‘‘covered information,’’ as well as the company’s compliance with any privacy, security, or other compliance program, including but not limited to the U.S.-EU Safe Harbor Framework. ‘‘Covered information’’ is defined broadly as ‘‘information from or about an individual consumer, including but not limited to: 

(a) A first or last name; 

(b) a home or other physical address, including street name and name of city or town; (c) an email address or other online contact information, such as an instant messaging user identifier or a screen name; 

(d) a mobile or other telephone number; 

(e) photos and videos; (f) Internet Protocol (‘‘IP’’) address, User ID, or other persistent identifier; (g) physical location; or 

(h) any information combined with any of (a) through (g) above.’’

Part II of the proposed order requires Facebook to give its users a clear and prominent notice and obtain their affirmative express consent before sharing their previously-collected information with third parties in any (a) through (g) above.’’ Part II of the proposed order requires Facebook to give its users a clear and prominent notice and obtain their affirmative express consent before sharing their previously-collected information with third parties in any way that materially exceeds the restrictions imposed by their privacy settings. A ‘‘material . . . practice is one which is likely to affect a consumer’s choice of or conduct regarding a product.’’ FTC Policy Statement on Deception, Appended to Cliffdale Associates, Inc., 103 F.T.C. 110, 174 (1984).

Part III of the proposed order requires Facebook to implement procedures reasonably designed to ensure that a user’s covered information cannot be accessed from Facebook’s servers after a reasonable period of time, not to exceed thirty (30) days, following a user’s deletion of his or her account.

Part IV of the proposed order requires Facebook to establish and maintain a comprehensive privacy program that is reasonably designed to: 

(1) Address privacy risks related to the development and management of new and existing products and services, and 

(2) protect the privacy and confidentiality of covered information. The privacy program must be documented in writing and must contain controls and procedures appropriate to Facebook’s size and complexity, the nature and scope of its activities, and the sensitivity of covered information. Specifically, the order requires Facebook to:

* Designate an employee or employees to coordinate and be responsible for the privacy program;

* Identify reasonably-foreseeable, material risks, both internal and external, that could result in the unauthorized collection, use, or disclosure of covered information and assess the sufficiency of any safeguards in place to control these risks;

* Design and implement reasonable controls and procedures to address the risks identified through the privacy risk assessment and regularly test or monitor the effectiveness of these controls and procedures;

* Develop and use reasonable steps to select and retain service providers capable of appropriately protecting the privacy of covered information they receive from respondent, and require service providers by contract to implement and maintain appropriate privacy protections; and

* Evaluate and adjust its privacy program in light of the results of the testing and monitoring, any material changes to its operations or business arrangements, or any other circumstances that it knows or has reason to know may have a material impact on the effectiveness of its privacy program.

Part V of the proposed order requires that Facebook obtain within 180 days, and every other year thereafter for twenty (20) years, an assessment and report from a qualified, objective, independent third-party professional, certifying, among other things, that it has in place a privacy program that provides protections that meet or exceed the protections required by Part IV of the proposed order; and its privacy controls are operating with sufficient effectiveness to provide reasonable assurance that the privacy of covered information is protected. Parts VI through X of the proposed order are reporting and compliance provisions. Part VI requires that Facebook retain all ‘‘widely disseminated statements’’ that describe the extent to which respondent maintains and protects the privacy, security, and confidentiality of any covered information, along with all materials relied upon in making such statements, for a period of three (3) years. Part VI further requires Facebook to retain, for a period of six (6) months from the date received, all consumer complaints directed at Facebook, or forwarded to Facebook by a third party, that relate to the conduct prohibited by the proposed order, and any responses to such complaints. Part VI also requires Facebook to retain for a period of five (5) years from the date received, documents, prepared by or on behalf of Facebook, that contradict, qualify, or call into question its compliance with the proposed order. Part VI additionally requires Facebook to retain for a period of three (3) years, each materially different document relating to its attempt to obtain the affirmative express consent of users referred to in Part II, along with documents and information sufficient to show each user’s consent and documents sufficient to demonstrate, on an aggregate basis, the number of users for whom each such privacy setting was in effect at any time Facebook has attempted to obtain such consent. Finally, Part VI requires that Facebook retain all materials relied upon to prepare the third-party assessments for a period of three (3) years after the date that each assessment is prepared. 

Part VII requires dissemination of the order now and in the future to principals, officers, directors, and managers, and to all current and future employees, agents, and representatives having supervisory responsibilities relating to the subject matter of the order. Part VIII ensures notification to the FTC of changes in corporate status. Part IX mandates that Facebook submit an initial compliance report to the FTC and make available to the FTC subsequent reports. Part X is a provision ‘‘sunsetting’’ the order after twenty (20) years, with certain exceptions.

The purpose of the analysis is to aid public comment on the proposed order. It is not intended to constitute an official interpretation of the complaint or proposed order, or to modify the proposed order’s terms in any way. 

By direction of the Commission. 

Donald S. Clark, Secretary. [FR Doc. 2011–31158 Filed 12–2–11; 8:45 am [my yellow highlighting]