Can She Defend Facebook Like She Did the Patriot Act?

Jennifer Newstead, Facebook's new general counsel.

Why you should care

Because she’s at the front lines of the future battles over privacy, freedom of speech and disinformation.

Jennifer Gillian Newstead did not mention the Patriot Act by name, but its specter hovered over her confirmation hearing before the Senate Foreign Relations Committee in October 2017. Nominated by President Donald Trump to be the U.S. State Department’s top legal adviser, Newstead, a seasoned government and corporate lawyer who played a key role in the USA Patriot Act’s passage in 2001, told the committee how she had worked for the George W. Bush administration in the aftermath of 9/11, “to develop legislation to modernize long-standing law enforcement tools to better equip our government to fight terrorism.”

She cleared the Senate’s interview and, apparently, Mark Zuckerberg’s too. On Monday she was named to the arguably more important post of general counsel for Facebook. And with the social media giant increasingly at loggerheads with the government when it comes to developing new enforcement tools to combat the likes of terrorism, disinformation and hate speech, Newstead will find herself in a different posture from the days she spent endorsing the Patriot Act’s broad powers. Can the woman who helped sell Congress on the controversial counterterrorism law now help Facebook navigate the increasingly tricky waters of government investigations?

The 49-year-old has been a rising legal star for a while.

With Facebook facing growing criticism worldwide over how it manages its data and content, Newstead is tasked with overseeing the company’s legal matters. It wasn’t that long ago that Facebook and other social media companies were hailed for the roles their platforms played in democratic uprisings that toppled autocratic regimes in the Arab Spring. Now Facebook is under scrutiny for serving as a platform for the dissemination of hatred and disinformation, a problem that was highlighted yet again this week when the government of Sri Lanka, worried about the spread of hoaxes and falsehoods, blocked access to Facebook after Easter Sunday bombings killed more than 300 people. The United Kingdom, the European Union and Australia are also taking action to regulate Facebook’s content and probe its data management.

Which is one reason Facebook’s hiring of Newstead makes a lot of sense. Born on Fort Dix military base in New Jersey to a British mother and a military father, the redheaded 49-year-old has been a rising legal star for a while. A graduate of Harvard College and Yale Law School, Newstead clerked on the D.C. Circuit Court (for conservative Laurence Silberman, a Ronald Reagan appointee) and then for Supreme Court Justice Stephen Breyer, a Bill Clinton-selected liberal. She next joined George W. Bush’s Justice Department in 2001 as the chief deputy in the Office of Legal Policy, where she ended up working alongside another Harvard and Yale Law grad, John Yoo, the deputy assistant attorney general behind the Bush administration’s notorious ”torture memo.”  Newstead was the “day-to-day manager of the Patriot Act in Congress,” Yoo writes in his book War by Other Means: An Insider’s Account of the War on Terror, observing that she “was a quick study and an effective advocate — she went from zero to 60 on terrorism in the days after 9/11.”

 

Part of Newstead’s role was to brief members of Congress on the proposed Patriot Act, which greatly expanded the government’s ability to conduct surveillance and investigate terrorism suspects (parts have since been found to be unconstitutional). She next moved on to become an associate White House counsel, joining an outfit that included Brett Kavanaugh, recently confirmed to the Supreme Court, before moving to the Office of Management and Budget and then the Manhattan law firm Davis Polk & Wardwell, where, among other things, she advised corporate clients facing government scrutiny. In 2005, she was identified by the Observer as one of its up-and-coming “Little Supremes,” i.e., future Supreme Court justice prospects.

Overall, Newstead has kept a low profile, even while swimming in some controversial legal waters. But could her past associations with the likes of Yoo and the Patriot Act impede her effectiveness as a global representative of one of the world’s most powerful companies? It’s not likely. Newstead provides Facebook with not only an experienced lawyer who is fluent in government investigations, regulatory matters and data privacy; she also gives a company often accused of liberal bias a representative who has spent years inside Republican administrations, including the current one.

But her hiring also comes at a time when the company is under fire as never before and grappling with public and governmental backlash. Facebook and Newstead did not immediately respond to a request for comment on her background and the challenges she will face, but the new general counsel said in a press release Monday that she is “looking forward to working with the team and outside experts and regulators on a range of legal issues as we seek to uphold our responsibilities and shared values.”

What else might the future hold for Newstead, and could her upcoming tenure at Facebook be a steppingstone to greater jurisprudential heights for the former Little Supreme? Supreme Court watcher and Northeastern University law and policy expert Daniel Urman says that in-house stints at tech companies are becoming more common for competitive but risk-averse future judges as they build their résumés, including for the highest court in the land. But Urman says Newstead’s future will now likely be forever joined to how well Facebook and its army of lawyers perform under incredible worldwide pressure in the years ahead.

As Newstead herself said before Congress in 2017, a lawyer “must be willing to speak hard truths and identify limits where law and circumstances require.” And it’s hard to imagine a legal position that involves identifying more limits and hard truths than this one.

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