FTC Fails to Protect Privacy in Facebook decision

Statement of Jeff Chester, executive director, Center for Digital Democracy—CDD helped bring the 2009 FTC complaint that is the subject of today’s decision on the Consent Order

Once again, the Federal Trade Commission has shown itself incapable of protecting the privacy of the public and also preventing ongoing consumer harms. Today’s announcement of a fine and—yet again! —improved system of internal compliance and other auditing controls doesn’t address the fundamental problems. First, the FTC should have required Facebook to divest both its Instagram and Whatsapp platforms. By doing so, the commission would have prevented what will be the tremendous expansion of Facebook’s ability to continually expand its data gathering activities. By failing to require this corporate break-up, the FTC has set the stage for what will be “Groundhog Day” violations of privacy for years to come.

The FTC should have insisted that an independent panel of experts—consumer groups, data scientists, civil rights groups, etc.—be empaneled to review all the company’s data related products, to decide which ones are to be modified, eliminated, or allowed to continue (such as lookalike modeling, role of influencers, cross-device tracking, etc.). This group should have been given the authority to review all new products proposed by the company for a period of at least five years. What was needed here was a serious change in the corporate culture, along with serious structural remedies, if the FTC really wanted to ensure that Facebook would act more responsibly in the future.

The dissents by Commissioners Chopra and Slaughter illustrate that the FTC majority could have taken another path, instead of supporting a decision that will ultimately enable the problems to continue.

Today’s decision also dismisses all other complaints and requests for investigation related to Facebook’s consent decree failures—a huge giveway.

The FTC should be replaced by a new data protection agency to protect privacy. The commission has repeatedly demonstrated that—regardless of who is in charge—it is incapable of confronting the most powerful forces that undermine our privacy—and digital rights.