In re Facebook
- Facebook Overrode Users’ Privacy Settings And Allowed Device Makers To Access Personal Data: Facebook had secret arrangements with at least 60 device makers granting them access to users' personal data, according to a report by the New York Times. Facebook overrode users privacy settings to allow companies to access sensitive information that users' had explicitly set to private. These arrangements directly contradict Facebook's previous statements that it cut off third party access to user data in 2015. Facebook is already under FTC investigation for violating a 2011 Consent Order that EPIC and consumer privacy organizations obtained. The Order bars Facebook from disclosing data to third parties without explicit consent. EPIC recently urged the FTC to enforce the Consent Order following revelations that Facebook allowed Cambridge Analytica to access the data of 87 million users. In a recent memo, FTC Commissioner Rohit Chopra stated that "FTC orders are not suggestions." (Jun. 5, 2018)
- EPIC Obtains Partial Release of 2017 Facebook Audit: EPIC has obtained a redacted version of the 2017 Facebook Assessment required by the 2012 Federal Trade Commission Consent Order. The Order required Facebook to conduct biennial assessments from a third-party auditor of Facebook's privacy and security practices. In March, EPIC filed a Freedom of Information Act request for the 2013, 2015, and 2017 Facebook Assessments as well as related records. The 2017 Facebook Assessment, prepared by PwC, stated that "Facebook's privacy controls were operating with sufficient effectiveness" to protect the privacy of users. This assessment was prepared after Cambridge Analytica harvested the personal data of 87 million Facebook users. In a statement to Congress for the Facebook hearings last week, EPIC noted that FTC Commissioners represented that the Consent Order protected the privacy of hundreds of millions of Facebook users in the United States and Europe. (Apr. 20, 2018)
- Senator Blumenthal Calls On FTC To Enforce Consent Order Against Facebook: Senator Richard Blumenthal (D-CT) has called for "monetary penalties that provide redress for consumers and stricter oversight" in a letter to the Federal Trade Commission. Senator Blumenthal focused on the FTC's 2011 Consent Order that EPIC, and a coalition of consumer groups obtained, after preparing a detailed complaint in 2009. Referring to the Cambridge Analytica scandal, Senator Blumenthal wrote that "three of the FTC's claims concerned the misrepresentation of verification and privacy preferences of third-party apps." Senator Blumenthal also raised questions about the FTC's monitoring of the consent order, noting that "even the most rudimentary oversight would have uncovered these problematic terms of service." And the Senator stated, "The Cambridge Analytica matter also calls into question Facebook's compliance with the consent decree's requirements to respect privacy settings and protect private information." EPIC and other consumer groups recently urged the FTC to reopen the investigation. The FTC has confirmed that an investigation of Facebook is now underway. (Apr. 20, 2018)
- EPIC Urges Senate to Focus on FTC Consent Order with Facebook: In advance of a joint hearing about Facebook's failure to protect the personal data of users, EPIC has sent a comprehensive statement to the Senate Committee on the Judiciary and the Senate Committee on Commerce. EPIC is urging the Senators to focus on the 2011 Consent Order between Facebook and the Federal Trade Commission. In 2009, EPIC and a coalition of consumer groups presented the FTC with a complaint, containing detailed evidence, legal theories, and proposed remedies to address growing concerns about Facebook. The FTC adopted a Consent Order in 2011, based on EPIC's Complaint, but failed to enforce the Order even after EPIC sued the agency in a related matter. In numerous comments to the FTC, EPIC and others urged the FTC to enforce its consent order. In the statement to the Senate this week, EPIC contends that the Cambridge Analytica debacle could have been prevented if the FTC enforced the Order. (Apr. 9, 2018)
- UPDATE - EPIC, Consumer Groups Urge FTC to Investigate Facebook's Use of Facial Recognition: EPIC and a coalition of consumer groups have filed a complaint with the FTC, charging that Facebook's use of facial recognition techniques threaten user privacy and "in multiple ways" violate the 2011 Consent Order with the Commission. "The scanning of facial images without express, affirmative consent is unlawful and must be enjoined," the groups wrote. Last week the organizations urged the Federal Trade Commission to reopen the 2009 investigation of Facebook, arguing that the disclosure of user data to Cambridge Analytica violated the consent order, and noting that the order also prohibited Facebook from "making misrepresentations about the privacy or security of consumers' personal information." In 2011 EPIC and consumer groups urged the FTC to investigate Facebook’s facial recognition practices. In 2012 EPIC advised the FTC "Commercial actors should not deploy facial techniques until adequate safeguards are established. As such safeguards have not yet been established, EPIC would recommend a moratorium on the commercial deployment of these techniques." EPIC President Marc Rotenberg said today, "Facebook should suspend further deployment of facial recognition pending the outcome of the FTC investigation." (Apr. 6, 2018)
- EPIC, Consumer Groups to Urge Federal Trade Commission to Investigate Facebook's Use of Facial Recognition: EPIC and a coalition of consumer groups will file a complaint with the FTC on Friday charging that Facebook's use of facial recognition techniques threaten user privacy and violate the 2011 Consent Order with the Commission. "The scanning of facial images without express, affirmative consent is unlawful and must be enjoined," the groups wrote. Last week the organizations urged the Federal Trade Commission to reopen the 2009 investigation of Facebook, arguing that the disclosure of user data to Cambridge Analytica violated the consent order, and noting that the order also prohibited Facebook from "making misrepresentations about the privacy or security of consumers' personal information." The FTC has confirmed that an investigation is now underway. The FTC said, "Companies who have settled previous FTC actions must also comply with FTC order provisions imposing privacy and data security requirements." Facebook CEO Mark Zuckerberg will testify next week before the Senate Judiciary Committee and the House Commerce Committee. In 2011 EPIC urged the FTC to investigate Facebook's facial recognition practices. In 2012 EPIC advised the FTC "Commercial actors should not deploy facial techniques until adequate safeguards are established. As such safeguards have not yet been established, EPIC would recommend a moratorium on the commercial deployment of these techniques." (Apr. 5, 2018)
- State AGs Launch Facebook Investigation: A bipartisan group of 37 State Attorneys General is investigating Facebook's business practices and lack of privacy protections. "Businesses like Facebook must comply with the law when it comes to how they use their customers' personal data," Pennsylvania Attorney General Josh Shapiro said. "State Attorneys General have an important role to play in holding them accountable." The Federal Trade Commission also announced today that it is investigating Facebook. Senate Judiciary Chairman Grassley has also said there will be hearings on the Facebook matter when Congress returns. (Mar. 26, 2018)
- FTC Confirms Investigation Into Facebook about 2011 Consent Order: The Federal Trade Commission has confirmed an investigation into Facebook for the company's failure to protect the personal data obtained by Cambridge Analytica. Facebook likely violated the FTC's 2011 Consent Order with the company. Last week, EPIC and a coalition of consumer organizations urged the FTC to reopen the investigation. EPIC and other consumer organizations brought the complaint that led to the FTC's 2011 Order. Thomas Pahl, the Acting Director of the FTC's Bureau of Consumer Protection stated today, "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." In a recent article for Techonomy, EPIC President Marc Rotenberg emphasized that "the transfer of 50 million user records to the controversial data mining and political consulting firm could have been avoided if the Federal Trade Commission had done its job." (Mar. 26, 2018)
- EPIC FOIAs FTC, Seeks Facebook's Privacy Assessments: EPIC has submitted an urgent Freedom of Information Act request to the Federal Trade Commission, seeking the privacy assessments required by the FTC's 2012 Consent Order. Facebook is required to produce independent privacy assessments every two years for the next 20 years. Each assessment should "identify Facebook's privacy controls maintained during the reporting period, explain the appropriateness of these controlsin relation to Facebook's activities and sensitivity of information, as well as explain how these controls meet or exceed the protections" required in the 2012 Consent Order. Facebook is also required to identify an independent privacy auditor, approved by the FTC. EPIC previously obtained the 2012 Initial Compliance Report as well as the 2013 Initial Assessment through an earlier FOIA request. EPIC is now seeking the 2015 and 2017 reports which cover the period for the data transfers to Cambridge Analytica. (Mar. 20, 2018)
- EPIC, Consumer Groups Urge FTC To Investigate Facebook: In a statement issued today, EPIC and a coalition of consumer groups have called on the Federal Trade Commission to determine whether Facebook violated a 2011 Consent Order when it facilitated the transfer of personal data of 50 million Facebook users to the data mining firm Cambridge Analytica. The groups had repeatedly urged the FTC to enforce its own legal judgements. EPIC even sued the agency in 2012 for its failure to enforce a consent order against Google. "The FTC's failure to act imperils not only privacy but democracy as well," the groups warned. Between 2009 and 2011 EPIC and other consumer groups undertook extensive work to document Facebook's privacy abuses that led to the consent order in 2011. (Mar. 20, 2018)
- Notable Commentary on EPIC's Facebook Complaint
- Chloe Albanesius, FTC Examines Privacy Complaint Against Facebook, PC Mag (January 19, 2010).
- Peter Kafka, Feds to Facebook Privacy Critics: Let's Talk, All Things Digital (January 19, 2010).
- John Letzing, FTC has 'particular interest' in Facebook Privacy, MarketWatch (January 19, 2010).
- Frank Reed, Facebook Gets the Attention of the FTC, Marketing Pilgrim (January 19, 2010).
- Wendy Davis, FTC Probes Facebook's EPIC Privacy Fail, Mediapost (January 18, 2010).
- Benny Evangelista, As Facebook Thrives, Does Privacy Have to Fade?, San Francisco Chronicle (December 30, 2009).
- Scott Duke Harris, Facebook: Social Networking Giant Extends Reach, Plans to Grow More in 2010, Chicago Tribune (December 24, 2009).
- Jacqui Cheng, FTC Complaint says Facebook's Privacy Changes are Deceptive, Ars Technica (December 21, 2009).
- Rahul Chatterjee, Facebook Faces Privacy Backlash with FTC Complaint, EBrandz (December 21, 2009).
- Jenna Greene, Privacy Advocates Target Facebook, Law.com (December 21, 2009).
- Lesly Simmons, EPIC Files FTC Complaint against Facebook over Latest Privacy Changes, BlackWeb 2.0 (December 21, 2009).
- Brian Prince, Facebook Privacy: Just How Much do Users Want?, eWeek (December 20, 2009).
- Wendy Grossman, Little Black Facebook, Pelican Crossing (December 19, 2009).
- Mark Hefflinger, Privacy Groups File FTC Complaint over Changes to Facebook, Digital Media Wire (December 18, 2009).
- Alexei Oreskovic, Facebook Privacy Backlash in FTC's Hands, Reuters (December 18, 2009).
- Lalee Sadighi, Facebook Faces FTC Complaint, Red Herring (December 18, 2009).
- Lora Bentley, Watchdog Files FTC Complaint on Facebook Privacy Changes, IT Business Edge (December 17, 2009).
- Larry Dignan, Privacy Groups File Complaint with FTC over Facebook Settings, ZDNet (December 17, 2009).
- Fox 5 Top 5, Fox 5 News (December 17, 2009).
- Kashmir Hill, Did Facebook Break the Law when it Changed Privacy Settings?, True Slant (December 17, 2009).
- Tim Jones, The World Reacts to the New Facebook, EFF News Roundup (December 17, 2009).
- Peter Kafka, Next Step in Facebook Privacy Blowback: The FTC Complaint. The Real Question: Will Advertisers Care?, All Things Digital (December 17, 2009).
- Scott Kleinberg, Privacy has Facebook in Hot Water, Chicago Now (December 17, 2009).
- Richard Koman, FTC Complaint Escalates Facebook's Privacy Woes, Newsfactor (December 17, 2009).
- John Letzing, Privacy Groups File FTC Complaint against Facebook, MarketWatch (December 17, 2009).
- Paul McDougall, Facebook Hit with FTC Complaint, InformationWeek (December 17, 2009).
- Robert McMillan, Privacy Groups Bring Facebook Complaints to FTC, Computerworld (December 17, 2009).
- Barbara Ortutay, Privacy Watchdog Files Complaint against Facebook, Washington Post (December 17, 2009).
- Privacy Groups Complain to FTC about Facebook, Silicon Valley/San Jose Business Journal (December 17, 2009).
- JC Raphael, Facebook Privacy Complaint Ignites War of Words, PC World (December 17, 2009).
- Mark Sachoff, Privacy Group Files FTC Complaint about Facebook, WebProNews (December 17, 2009).
- Ryan Singel, Facebook Privacy Changes Break the Law, Privacy Groups Tell FTC, Wired (December 17, 2009).
- Brad Stone, Privacy Group Files Complaint on Facebook Changes, N.Y. Times (December 17, 2009).
- Berin Szoka, Facebook Privacy Controls Change & EPIC's FTC Complaint, The Technology Liberation Front (December 17, 2009).
- Joseph Tartakoff, Groups File Complaint with FTC over Facebook's New Privacy Settings, paidContent (December 17, 2009).
- Jessica Vascellaro, Privacy Groups File Complaint on Facebook to FTC, Wall Street Journal (December 17, 2009).
- Mark Walsh, Follow the Bouncing Valuation, MediaPost (December 17, 2009).
Facebook is a social networking site founded in 2004 by Harvard student Mark Zuckerberg. The site “connects people with friends and others who work, study and live around them.” As of December 2009, Facebook has nearly 150 million users in the United States.
Facebook offers a service called Facebook Platform, referred to as “Facebook-enhanced” applications. Facebook Platform “enables anyone to build social applications on Facebook and the web” in order to “make the web more open and social.” The Facebook Platform allows Facebook to transfer user personal data to other entities without their knowledge or meaningful consent.
Facebook and Privacy
Facebook has had a controversial history with respect to privacy. In 2006, Facebook launched a feature called “News Feed” which allowed users to track their friends’ Facebook updates and activity in real time. Within 24 hours, hundreds of thousands of the site’s users protested the feature. One Facebook group, “Students against Facebook News Feed” grew to 284,000 members within just a few days. As a result of the widespread protest, Mark Zuckerberg wrote an open letter to Facebook users, apologizing for doing a “bad job of explaining what the new features were and an even worse job of giving you control of them." Facebook then updated its privacy settings to allow for more user control over the News Feed Feature.
In 2007, Facebook launched Facebook Beacon, which allowed a Facebook user’s purchases to be publicized on their friends’ News Feed after transacting with third-party sites. Users were unaware that such features were being tracked, and the privacy settings originally did not allow users to opt out. As a result of widespread criticism, Facebook Beacon was shut down in 2009.
In February 2009, Facebook changed its Terms of Service. The new TOS allowed Facebook to use anything a user uploads to the site for any purpose, at any time, even after the user ceased to use Facebook. Further, the TOS did not provide for a way that users could completely close their account. Rather, users could “deactivate” their account, but all the information would be retained by Facebook, rather than deleted. EPIC planned to file an FTC complaint, alleging that the new Terms of Service violated the FTC Act Section 5, and constituted “unfair and deceptive trade practices.” In response to this planned complaint, and user criticism, Facebook returned to its previous Terms of Service.
Privacy Settings Update
In response to a complaint prompted by the Canadian Internet Policy and Public Interest Clinic (CIPPIC) and submitted to Canadian Privacy Commissioner Jane Stoddart, Facebook announced plans to change its privacy policies and settings to provide for more user control over information and stronger privacy settings for its users. The changes were introduced in November 2009, and each Facebook user was prompted to review and update his privacy settings. Facebook also made changes to its privacy settings, which included making certain information, such as name, gender, friends lists, and current city, publicly available, with no option to limit searchability. Facebook submitted a complaint to the Federal Trade Commission, alleging that Facebook engages in unfair and deceptive trade practices. The complaint "urges the Commission to investigate Facebook, determine the extent of the harm to consumer privacy and safety, require Facebook to restore privacy settings that were previously available as detailed below, require Facebook to give users meaningful control over personal information, and seek appropriate injunctive and compensatory relief." For more information, visit EPIC's FAQ page on Facebook's new privacy settings.
EPIC’s FTC complaint is signed by a number of other organizations, including the American Library Association, the Center for Digital Democracy, the Consumer Federation of America, FoolProof Financial Education, Patient Privacy Rights, Privacy Activism, the Privacy Rights Now Coaltion, the Privacy Rights Clearinghouse, and the U.S. Bill of Rights Foundation. The complaint highlights several aspects of Facebook’s recent changes that threaten its users’ privacy. The complaint focuses on the unfair and deceptive trade practices of Facebook with respect to sharing of user information with third-party application developers. First, the complaint argues that Facebook’s mandatory disclosure of information is an unfair practice. Second, the complaint argues that Facebook’s policies regarding third-party developers are misleading and deceptive.
Facebook does not allow for an easy way to opt out of Facebook Platform, or opt out of having information shared when a friend uses an application. Even when a user unchecks all boxes, which should prohibit applications from accessing any user data, Facebook notes that “applications will always be able to access your publicly available information (Name, Profile Picture, Gender, Current City, Networks, Friend List, and Pages) and information that is visible to Everyone.” Therefore, the “Everyone” setting overrides the settings a user chooses for third-party applications and websites.
Under Facebook’s previous privacy settings, Facebook allowed for more control over personal information. Facebook users were able to choose not to share “any information about me” to third-party application developers. This opt-out button is no longer available under Facebook’s new privacy settings.
The FTC's primary enforcement authority with regards to privacy is derived from 15 U.S.C. § 45, commonly known as section 5 of the Federal Trade Commission Act (FTCA). Section 5 of the FTCA allows the FTC to investigate "unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce." This law provides a legal basis for the FTC to regulate business activities that threaten consumer privacy.
- EPIC's Supplemental Complaint in In re Facebook (filed January 14, 2010).
- EPIC's FTC Complaint in In re Facebook (filed December 17, 2009).
- Federal Trade Commission, ChoicePoint Settles Data Security Breach Charges; to Pay $10 Million in Civil Penalties, $5 Million for Consumer Redress (December 6, 2006).
- United States v. ChoicePoint, No. 06-CV-0198 (N.D. Ga. Feb. 10, 2006).
- Federal Trade Commission, Microsoft Settles FTC Charges alleging False Security and Privacy Provisions (August 8, 2002).
- In re Microsoft Corp. (Fed. Trade Comm'n Dec. 20, 2002).
- Federal Trade Commission: Section 5 Enforcement Actions
- Jason Kincaid, Facebook Suggests You Lie, Break Its Own Terms Of Service To Keep Your Privacy, Washington Post (December 16, 2009).
- Julia Angwin, How Facebook Is Making Friending Obsolete, Wall Street Journal (December 15, 2009).
- Taylor Buley, Facebook's Privacy Success, Forbes (December 15, 2009).
- Ed Felten, Another Privacy Misstep from Facebook, Freedom to Tinker Blog (December 14, 2009).
- Brian Prince, 7 Facebook Privacy Facts to Remember, eWeek (December 13, 2009).
- Shelly Palmer, Facebook Privacy: An Oxymoron, Shelly Palmer Blog (December 13, 2009).
- Ian Paul, Facebook's Privacy Settings: 5 Things You Should Know, ABC News (December 12, 2009).
- Brian Womack, Facebook's New Information-Sharing Options Attract Criticism, Bloomberg (December 12, 2009).
- Joseph Bonneau, Facebook Tosses Graph Privacy into the Bin (December 11, 2009).
- E.B. Boyd, The Week in Privacy: Google and Facebook Fall on their Faces, Bay Newser (December 11, 2009).
- Larry Downes, Note to Silicon Valley: How Not to Manage Privacy, CNet (December 11, 2009).
- Scott Fulton, Google, Facebook, and our Privacy: We're All in Denial, BetaNews (December 11, 2009).
- David Gelles, Facebook Draws Criticism for Privacy Changes, Financial Times (December 11, 2009).
- Riva Richmond, The New Facebook Privacy Settings: A How-To, N.Y. Times Blog (December 11, 2009).
- Danny Sullivan, Now Is It Facebook’s Microsoft Moment? (December 11, 2009).
- Graham Cluley, Facebook privacy settings: What you need to know (December 10, 2009).
- Facebook Faces Criticism on Privacy Change, BBC News (December 10, 2009).
- Facebook Unveils Privacy Changes, CNN (December 10, 2009).
- Gemma Fox, Facebook Faces Widespread Criticism Over Privacy Changes, Digital Journal (December 10, 2009).
- Kashmir Hill, Either Mark Zuckerberg got a whole lot less private or Facebook’s CEO doesn’t understand the company’s new privacy settings, True Slant (December 10, 2009).
- Stefanie Hoffman, Facebook Info Exposed on Web with 'Everyone' Setting, Channel Web (December 10, 2009).
- Renay San Miguel, Facebook App Devs Can See Your Privacy Parts, Tech News World (December 10, 2009).
- Patrick Miller, Protect Your Privacy Settings with the New Facebook Settings, PC World (December 10, 2009).
- Rafe Needleman, How to Fix Facebook's New Privacy Settings, CNet (December 10, 2009).
- Ryan Singel, Facebook Will Never Get Privacy Right, ZD Net (December 10, 2009).
- Robert McMillan, Facebook Privacy Changes Draw Mixed Reviews, Computer World (December 9, 2009).
- Jennifer Leggio, New Privacy, Schmivacy - Facebook Photo Tagging Still a Big Fail, ZD Net (December 2, 2009).
- Brett Levy and Claudia Morales, TechBytes: Facebook Privacy Changes, ABC News (December 2, 2009).
- Katherine Noyes, Facebook Hones Privacy Settings, Scraps Regional Networks, Tech News Crunch (December 2, 2009).
- Jason Kincaid, Facebook to Roll out New Privacy Controls to its 350 Million Users, Kills Regional Networks, Washington Post (December 1, 2009).
- Caroline McCarthy, Facebook Ratchets Up Privacy Controls (Again), CNet (August 27, 2009).
For more information, visit EPIC's FAQ page on Facebook's new privacy settings.