In re: WhatsApp

Top News

  • EPIC v. FTC: EPIC Obtains Emails about Facebook Audits: In response to EPIC's Freedom of Information Act lawsuit, the FTC has released communications about Facebook's biennial audits. The audits are required by the FTC's 2011 Consent Order with Facebook, which followed a detailed complaint by EPIC and other consumer privacy organizations. The emails show that the FTC had concerns about the scope of Facebook's 2015 assessment, stating "PwC's report does not demonstrate whether and how Facebook addressed the impact of acquisitions on its Privacy Program." In other email, the FTC expressed similar concerns about the 2017 assessment and whether the audit evaluated the company's acquisitions impact on Facebook's privacy program. EPIC had previously opposed Facebook's acquisition of WhatsApp and submitted detailed comments for the FTC's review of the merger remedy process. In March 2018, following the Cambridge Analytica breach, the FTC announced it was reopening the Facebook investigation, but still there is no announcement, no report, and no fine. (Oct. 15, 2018)
  • FTC to Explore Competition and Consumer Protection Issues at Hearings this Week: The FTC is holding a hearing this week to examine the regulation of consumer data, the consumer welfare standard in antitrust law, and vertical mergers. This is the first in a series of hearings on "Competition and Consumer Protection in the 21st Century" that will examine how changes in the economy affect the FTC's enforcement priorities. EPIC and a coalition of consumer groups submitted extensive comments for the hearings. EPIC and the groups said that privacy protection is critical for competition and innovation. EPIC and the groups told the FTC that it should: 1) unwind the Facebook-WhatsApp deal; 2) require Facebook and Google to spin off their advertising units; 3) block future acquisitions by Facebook and Google that would extend monopoly control over consumer data; 4) impose privacy safeguards for all mergers that implicate data privacy; and 5) perform audits of algorithmic tools to promote accountability and to limit anticompetitive conduct. The FTC reopened the investigation of Facebook in March after EPIC and consumer groups filed a formal complaint, but has still taken no action. The UK Information Commissioner completed its initial investigation, published a report, and issued a substantial fine in July. (Sep. 12, 2018)
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  • EPIC FOIA: EPIC Obtains Facebook Privacy Documents + (Sep. 12, 2018)
    In response to an EPIC Freedom of Information Act lawsuit, the Federal Trade Commission has released supplemental materials from the biennial Facebook audits (production 1, production 2, production 3, production 4). The audits were required by the FTC's 2011 Consent Order with Facebook. The documents include letters from the FTC to Facebook inquiring about Facebook's relationship with Instagram and telling the company that "whenever a corporate change such as an acquisition may affect the design and/or implementation of the Company's privacy program, the Company must notify the Commission." EPIC opposed Facebook's acquisition of WhatsApp and submitted comments for the FTC's review of the merger remedy process. FTC reopened its investigation into Facebook in March after EPIC, consumer groups urged action. The UK Information Commissioner completed its initial investigation, published report, and issued a fine in July. The FTC begins hearings this week on competition and consumer protection in the 21st century.
  • FTC Chair Seeks New Privacy and Data Security Authority + (Jul. 18, 2018)
    In testimony this morning before the House Energy and Commerce Committee, new Federal Trade Commission Chairman Joseph Simons said the FTC needs greater authority to protect consumers. Simons asserted that privacy and data security are now the top priority for the FTC, and signaled his support for data protection legislation that would accomplish three things: (1) provide civil penalties for companies that violated the law, (2) give the FTC jurisdiction over nonprofits and common carriers, and (3) provide the FTC with rulemaking authority for privacy and data security. EPIC submitted a statement prior to today's hearing emphasizing that the FTC must conclude its investigation of Facebook and issue a fine for its violations of the 2011 Consent Order and unwind the Facebook-WhatsApp deal.
  • U.K. Blocks WhatsApp From Transferring Data to Facebook + (Mar. 14, 2018)
    U.K. privacy officials have blocked WhatApp from transferring personal data to Facebook until the company complies with the GDPR, the new European privacy law. The Information Commissioner's Office found that WhatsApp's proposed data transfer would have violated the U.K. Data Protection Act. "People have a right to have their personal data kept safe," explained Commissioner Elizabeth Denham in a blog post. EPIC has twice urged the FTC to block WhatsApp's transfer of personal data to Facebook, but the FTC has failed to act. The FTC approved Facebook's acquisition of WhatsApp in 2014 after both companies assured the Commission and the public that they would protect users' privacy, but in 2016 WhatsApp announced that it would begin transferring the names and phone numbers of its users to Facebook. France blocked the data transfer and the EU fined Facebook $122 million for misleading European authorities about the data transfer.
  • Axios Poll: Public Wants Big Tech Regulated + (Feb. 28, 2018)
    A new Axios-SurveyMonkey poll found that 55% of Americans believe the government should do more to regulate tech companies such as Google and Facebook. The poll showed bipartisan support for increased regulation, with 45% of Republicans, 64% of Democrats, and 57% of Independents saying they are "more concerned" that the government will not go far enough to regulate tech. EPIC maintains an extensive page on Privacy and Public Opinion which shows consistent support among Americans for stronger laws to protect their privacy. EPIC has also opposed mergers that threaten consumer privacy, including Facebook's acquisition of WhatsApp, Google's acquisition of DoubleClick, and Google's acquisition of Nest Labs.
  • EPIC Joins Consumer and Health Groups, Urges Facebook to Scrap 'Messenger Kids' + (Jan. 30, 2018)
    EPIC, the Center for Commercial Free Childhood, and others have urged Mark Zuckerberg to shutter Facebook's "Messenger Kids" app. The groups cited rising concern about social media among adolescents and wrote it is irresponsible to encourage preschoolers to use Facebook products. Senators Edward Markey (D-MA) and Richard Blumenthal (D-CT) have questioned Facebook about the Messenger Kids app. EPIC recently backed a campaign that led Mattel to cancel a device that spies on young children. EPIC also led efforts to require Facebook to respect the privacy rights of WhatsApp users.
  • French Privacy Agency to Block WhatsApp Facebook Data Transfers + (Dec. 20, 2017)
    France's data protection authority CNIL has given WhatsApp one month to stop sending user data to Facebook. EPIC and the Center for Digital Democracy urged the FTC in 2014 to mandate privacy safeguards for Facebook's acquisition of WhatsApp, and warned the FTC in 2016 that WhatsApp was sending user data to Facebook, violating privacy commitments. In May, Facebook was fined $122 million for misleading the European Commission during an investigation into the Facebook-WhatsApp merger, and in October, European privacy experts warned that WhatsApp was still not complying with EU data protection law.
  • EPIC Urges Congress to Focus on Consumer Privacy and Data Security in Antitrust Hearing + (Dec. 12, 2017)
    In a statement to the Senate Judiciary committee, EPIC urged lawmakers to consider consumer privacy at a hearing on "The Consumer Welfare Standard in Antitrust." EPIC emphasized the privacy risks of mergers, stating that "when companies merge, they combine not only their products, services, and finances, but also their vast troves of personal data." EPIC reminded Congress that the United States is experiencing an epidemic of data breaches, and large databases of personal data are more vulnerable to attack. EPIC testified before the Senate Judiciary Committee in 2007 about the growing risks to competition and privacy of mergers in the online advertising industry. EPIC also warned the FTC about the consumer privacy risks of high profile mergers. In 2000, EPIC opposed Doubleclick's acquisition of Abacus. In 2007, EPIC told the FTC that Google's proposed acquisition of DoubleClick would lead to consumers being tracked and profiled by advertisers across the web. And in 2014 EPIC urged the FTC to mandate privacy safeguards for Facebook's acquisition of WhatsApp.
  • European Privacy Experts Press WhatsApp on Data Practices + (Oct. 27, 2017)
    The Article 29 Working Party, a group of European privacy experts, warned WhatsApp that it is still not complying with data protection law. Following Facebook's acquisition of WhatsApp, WhatsApp transferred users' personal data to Facebook, violating past privacy promises. In a letter to WhatsApp, Article 29 said "the information presented to users was seriously deficient as a means to inform their consent," and a WhatsApp must promptly establish "clear, comprehensive resolution." Backed by over a dozen US consumer groups, in 2016 EPIC filed a complaint with the FTC urging the agency to block Facebook's acquisition of WhatsApp if privacy safeguards were not put in place. The FTC wrote to both companies, explaining that their failure to honor privacy obligations could violate U.S. law.
  • EPIC Urges FTC To Strengthen Privacy Settlement With Uber + (Sep. 15, 2017)
    In detailed comments to the Federal Trade Commission, EPIC urged the FTC to strengthen a proposed settlement with Uber. The FTC's investigation and subsequent settlement was prompted by EPIC's 2015 complaint, which detailed Uber's secretive tracking of customers and surreptitious collection of user data. EPIC recommended that the FTC require Uber to end collection of customer data beyond what is necessary to provide the service and to mandate that Uber implement stronger privacy safeguards. As EPIC highlighted in the original complaint, Uber has a history of abusing consumer privacy. EPIC has previously pursued FTC complaints concerning Google, Facebook, WhatsApp, and Snapchat. The FTC is obligated to consider public comments before finalizing a proposed settlement.
  • EPIC Urges Public Comments on FTC Settlement with Uber + (Sep. 6, 2017)
    EPIC is urging the public to comment on the proposed FTC settlement with Uber regarding consumer privacy. (Federal Register Notice). The FTC settlement follows EPIC's 2015 complaint, which detailed Uber's secretive tracking of customers and surreptitious collection of user data. The proposed settlement requires regular privacy audits of Uber by third parties but fails to make substantial changes in the companies business practices or require the company to delete the personal data that was wrongfully obtained. The deadline to file a comment with the FTC is September 15, 2017. The FTC is required to consider public comments before finalizing a proposed settlement. EPIC has previously pursued FTC complaints concerning Google, Facebook, WhatsApp, and Snapchat. EPIC also recently filed an FTC complaint to stop Google from tracking in-store purchases.
  • Following EPIC Complaint, Uber Agrees To Stop Tracking Riders + (Aug. 29, 2017)
    Uber has ended the practice of tracking customers before and after they are picked up. In 2015, Uber announced the company would track the location of riders from the time they ordered a ride until after they had reached their destination. EPIC promptly filed a complaint with the FTC and stated that "This collection of user's information far exceeds what customers expect from the transportation service." The end to Uber's tracking of riders comes two weeks after Uber entered into a consent agreement with the FTC following a complaint filed EPIC that highlighted Uber's history of misusing customer data. But EPIC said the FTC settlement does not go far enough. "The FTC should have imposed stronger sanctions on Uber, required the company to disgorge the personal data it had unlawfully obtained, and required the company to restore the original privacy settings," said EPIC President Marc Rotenberg. EPIC has previously pursued FTC complaints concerning Google, Facebook, WhatsApp, and Snapchat. EPIC recently filed an FTC complaint to stop Google from tracking in-store purchases.
  • Supreme Court of India Rules Privacy is a Fundamental Right + (Aug. 24, 2017)
    India's Supreme Court has ruled that privacy is a fundamental right under the Indian Constitution. In a unanimous ruling, the Court explained the "right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution." The Court also recognized that "Informational privacy is a facet of the right to privacy" and modern privacy risks are caused by both the public and private sector. The ruling may impact significant cases pending in India, including a challenge to Aadhaar, India's massive biometric identification system, and WhatsApp's privacy policy change. In 2009 NGOs and privacy experts set out the Madrid Privacy Declaration, which affirmed privacy as a fundamental human right. In 2010, EPIC urged the US Supreme Court to recognize the right of "informational privacy." EPIC explained that the Whalen decision and a famous German census case, "influenced international privacy jurisprudence, resulting in the widespread recognition of the right to informational privacy." EPIC's report Privacy and Human Rights provides an overview of privacy frameworks around the world.
  • After EPIC Privacy Complaint, Uber Settles with FTC + (Aug. 15, 2017)
    After an EPIC complaint about Uber's privacy practices, Uber has entered into a consent agreement with the FTC. The agreement prohibits Uber from misrepresenting how it monitors or secures consumer information. As with most FTC privacy settlements, the agreement also requires Uber to implement a comprehensive privacy program and obtain periodic independent third-party audits. In 2015, EPIC filed a complaint with the Federal Trade Commission charging that Uber's plan to track users and gather contact details was an unlawful and deceptive trade practice. EPIC cited Uber's history of misusing customer data as one of many reasons the Commission should act. EPIC has previously pursued successful FTC complaints concerning Google, Facebook, WhatsApp, and Snapchat. EPIC recently filed an FTC complaint to stop Google from tracking in-store purchases.
  • News Report: FTC to Act on EPIC's Uber Complaint + (Jun. 15, 2017)
    According to news reports, the FTC is pursuing EPIC's privacy complaint regarding Uber. In 2015, EPIC filed a complaint with the Federal Trade Commission charging that Uber's plan to track users and gather contact details was an unlawful and deceptive trade practice. EPIC cited Uber's history of misusing customer data as one of many reasons the Commission should act. EPIC has previously pursued successful FTC complaints concerning Google, Facebook, WhatsApp, and Snapchat. The FTC complaints typically lead to settlements following a change in business practices. EPIC has also recommended comprehensive privacy legislation for Uber.
  • Facebook Fined $122 Million for Misleading Europe on Privacy Risks of WhatsApp Merger + (May. 18, 2017)
    The EU has fined Facebook $122 million for misleading the European Commission during the investigation of the Facebook-WhatsApp Merger. Following Facebook's acquisition of WhatsApp, WhatsApp transferred users' personal data to Facebook and violated the company's privacy promises. Facebook had downplayed the risks of the merger, saying that WhatsApp users' personal data could not be linked with their Facebook accounts. "U.S. antitrust law has failed to keep up with the digital economy and the emergence of monopoly services," EPIC president Marc Rotenberg told the New York Times. "There is far too much 'lock in' with a dominant provider, and far too much consolidation of personal data." The head of BEUC, the European consumer association, said "It is very disappointing that the Commission decided not to revise its original decision on the Facebook merger with WhatsApp." EPIC recently urged the Senate Judiciary Committee to consider the role of consumer privacy and data protection in merger reviews and highlighted the FTC's failure to block the Facebook-WhatsApp merger.
  • In Merger Reviews, EPIC Advocates for Privacy, Algorithmic Transparency + (May. 9, 2017)
    EPIC has sent a statement to the Senate Judiciary Committee ahead of a hearing on the new Antitrust Chief. EPIC urged the Committee to consider the role of consumer privacy and data protection in merger reviews. EPIC warned that "monopoly platforms" are reducing competition, stifling innovation, and undermining privacy. EPIC pointed to the FTC's failure to block the Google/DoubleClick merger which accelerated Google's dominance of Internet advertising and the WhatsApp/Facebook merger which paved the way for Facebook to access confidential WhatsApp user data. EPIC also suggested that "algorithmic transparency" would become increasingly important for merger analysis. EPIC is a leading consumer privacy advocate and regularly submits complaints urging investigations and changes to unfair business practices.
  • German Court Blocks Facebook's Efforts to Obtain WhatsApp User Data + (Apr. 27, 2017)
    A German court has upheld an order requiring Facebook to suspend the import of users' personal data from WhatsApp. Following Facebook's acquisition of WhatsApp, WhatsApp announced that it would transfer users' personal data to Facebook, violating the company's privacy promises. A Data Protection Commissioner in Germany ordered Facebook to halt the data transfer. This week a German court refused Facebook's attempt to block the order, ruling that Facebook had no legal basis for the transfer and no effective consent from WhatsApp users. The transfer is also under investigation by the Article 29 Working party, a group of European privacy officials. EPIC filed a complaint with the FTC in 2014, backed by over a dozen US consumer groups, urging the US agency to block the acquisition of WhatsApp if privacy safeguards were not established. As EPIC explained, "WhatsApp built a user base based on its commitment not to collect user data for advertising revenue. Acting in reliance on WhatsApp representations, Internet users provided detailed personal information to the company including private text to close friends."
  • UK Information Commissioner Suspends WhatsApp Data Transfer to Facebook + (Nov. 8, 2016)
    Facebook has agreed to suspend targeted advertising for UKWhatsApp users. The decision follows an investigation by UK Information Commissioner Elizabeth Denham. "I don't think WhatsApp has got valid consent from users to share the information," Denham stated. WhatsApp announced in August that it would transfer its users verified phone numbers to Facebook in violation of previous privacy promises. EPIC then filed a complaint with the FTC and more than a dozen US consumer groups backed the efforts. Then European Union privacy officials and officials in Spain, Germany, India, and Italy opened investigations. Back in the US, the Commission said it will "carefully review" EPIC's complaint. The FTC has previously stated, "When companies tell consumers they will safeguard their personal information, the FTC can and does take law enforcement action to make sure that companies live up these promises."
  • European Privacy Officials Pursue Investigation of WhatsApp & Yahoo + (Oct. 28, 2016)
    The Article 29 Working Party, an expert group of European privacy officials, is pursuing investigations of WhatsApp and Yahoo. In a letter to Facebook, the Working Party stated that the decision to transfer confidential user data from WhatsApp to Facebook has raised "serious concerns," and urged WhatApp to halt data transfers pending completion of the investigation. Separately, the group urged Yahoo to provide information about the 2014 data breach which compromised 500 million accounts. The Article 29 also pressed the company to explain why it scanned customer emails for US intelligence agencies. EPIC recently filed a complaint with the FTC regarding WhatApp, arguing that it violated a 2014 and agreement and urging the Commission to block the transfer. EPIC has also testified before Congress about the need to adopt data breach legislation and launched the Data Protection 2016 campaign.
  • Google "Quietly" Changes Privacy Policy, Matches Tracking Data and User ID + (Oct. 25, 2016)
    Ars Technica reported this week that Google "quietly" changed its privacy policy this summer to combine tracking data and user ID - data it had previously promised to keep separated. The revised policy now says that "your activity on other sites and apps may be associated with your personal information" for ad delivery. In 2007, EPIC urged the FTC to block Google's proposed acquisition of Doubleclick, warning that Google would eventually link the Google user profile with the Doubleclick data despite the company's representations. When the FTC approved the merger without conditions, EPIC responded that the FTC "had reason to act and authority to act, and failed to do so." Currently before the FTC is a complaint from EPIC concerning WhatsApp plan to transfer user data to Facebook, breaking a privacy promise made by the company at the time of the 2014 acquisition to act "independently and autonomously."
  • WhatsApp Privacy Update: Spain Investigating Broken Privacy Promises + (Oct. 14, 2016)
    Spain is the latest country to investigate WhatsApp's transfer of user data, including the verified user phone number, to Facebook. The Spanish Data Protection Agency joins privacy regulators in Germany, India, Italy, and the U.K. that have taken action against WhatsApp's changes to privacy practices that contradict previous promises. EPIC filed a complaint with the Federal Trade Commission over the policy change in August, and more than a dozen consumer groups have backed these efforts. The Commission said it will "carefully review" EPIC's complaint. The FTC has previously stated, "When companies tell consumers they will safeguard their personal information, the FTC can and does take law enforcement action to make sure that companies live up these promises."
  • India Joins International Opposition to WhatsApp Privacy Changes + (Sep. 30, 2016)
    India’s Deli High Court has ordered WhatsApp not to transfer to Facebook any user data that was collected prior to September 25, 2016, and to delete data of users who opted out of WhatsApp’s new data transfer policy prior to that date. Last month, WhatsApp announced it would begin transferring user data, including verified phone numbers, to Facebook in violation of previous privacy promises. Germany has also ordered Facebook to immediately stop collecting and storing user data from WhatsApp, and to delete all WhatsApp user data already transferred. EPIC filed a complaint with the FTC over the policy change, and more than a dozen consumer groups have backed these efforts. The FTC’s latest response to the consumer coalition emphasized “FTC staff’s position that companies must obtain affirmative express (opt-in) consent before making material, retroactive changes to privacy promises.” The FTC has previously stated, “When companies tell consumers they will safeguard their personal information, the FTC can and does take law enforcement action to make sure that companies live up these promises.”
  • Germany Prohibits WhatsApp Data Transfer to Facebook + (Sep. 27, 2016)
    Germany’s privacy regulator has ordered Facebook to immediately stop collecting and storing user data from WhatsApp, and to delete all WhatsApp user data that has already been transferred. In a statement, German officials said that WhatsApp’s new data transfer policy constitutes “an infringement of national data protection law.” EU Competition Commissioner Margrethe Vestager has also opened an investigation into WhatsApp’s privacy changes, which contradict previous commitments to users and regulators. EPIC filed a complaint with the FTC over the policy change, and more than a dozen consumer groups have backed these efforts. The FTC responded it would “carefully review” EPIC’s complaint. The FTC has previously stated, “When companies tell consumers they will safeguard their personal information, the FTC can and does take law enforcement action to make sure that companies live up these promises.”
  • Consumer Groups Back Call for FTC to Investigate WhatsApp + (Sep. 22, 2016)
    More than a dozen US consumer organizations have asked the Federal Trade Commission to pursue the complaint EPIC and the Center for Digital Democracy filed about WhatsApp’s plan to transfer user data to Facebook. The EPIC-CDD complaint said that the changes to WhatsApp contradict promises  to users that personal information would not be used for marketing purposes.  The FTC has said "When companies tell consumers they will safeguard their personal information, the FTC can and does take law enforcement action to make sure that companies live up these promises." The FTC responded that it would “carefully review” EPIC’s complaint. The consumer coalition letter urges the Commission to “fulfill its duty to protect consumer privacy, and to investigate and enjoin WhatsApp and Facebook’s proposed change in business practices.” 
  • European Commission Begins Investigation of WhatsApp Privacy About-Face + (Sep. 13, 2016)
    Following the announcement that WhatsApp intends to transfer user data to Facebook in violation of earlier commitments, EU Competition Commissioner Margrethe Vestager has opened an investigation. Vestager stated, “That they didn’t merge data wasn’t the decisive factor when the merger was approved, but it was still a part of the decision” to approve the $19b Facebook acquisition in 2014. Last month, EPIC and the Center for Digital Democracy filed a complaint with the FTC, urging the Commission to Act. The FTC responded that it would “carefully review” EPIC’s complaint.
  • FTC Responds to EPIC's Complaint about WhatsApp + (Sep. 7, 2016)
    The Federal Trade Commission has responded to the EPIC and Center for Digital Democracy complaint about WhatsApp's plan to transfer user data, including verified phone numbers, to Facebook. The FTC stated that it prohibits companies from engaging in unfair and deceptive practices and will enforce its 2012 Consent Order with Facebook. The FTC letter also acknowledged that the EPIC-CDD complaint “contains allegations regarding statements WhatsApp has made about how it limits the use of mobile phone numbers or other personally identifiable information." The FTC said it will "carefully review" EPIC’s complaint. EPIC and CDD wrote that WhatsApp's plan to transfer user data to Facebook for user profiling and targeted advertising - without first obtaining users' opt-in consent - contradicts numerous FTC statements and violates Section 5 of the FTC Act. EPIC and CDD previously warned the Commission that it must protect the privacy interests of WhatsApp users following the acquisition by Facebook.
  • EPIC, CDD Charge WhatsApp Policy Change Unlawful, Urge FTC to Act + (Aug. 29, 2016)
    EPIC and the Center for Digital Democracy have filed a complaint with the FTC concerning WhatsApp’s plan to transfer user data, including personal phone numbers, to Facebook. This reversal contradicts WhatsApp’s previous promises to users that their personal information would not be disclosed and would not be used for marketing purposes. EPIC said that WhatsApp change in business practices is unlawful and that the FTC is obligated to act. EPIC previously filed a complaint with the FTC over Facebook’s acquisition of WhatsApp in 2014. In response, the FTC warned the two companies they must honor their privacy promises to users. The FTC has said "When companies tell consumers they will safeguard their personal information, the FTC can and does take law enforcement action to make sure that companies live up these promises."
  • Facebook to Collect WhatsApp User Data, Violating FTC Order and Privacy Promises + (Aug. 25, 2016)
    WhatsApp has announced plans to disclose user information to Facebook, including phone numbers and other user data, that will be connected with Facebook profiles. Facebook purchased WhatsApp in 2014, and the companies promised users of the privacy-protective messaging service that “nothing” will change for WhatsApp users' privacy. EPIC filed a complaint with the FTC over the deal, and the FTC responded by warning the two companies that they must honor their privacy promises to WhatsApp users. The letter explained that failure to obtain users' opt-in consent before changing data practices would be an unfair and deceptive trade practice and violate Facebook’s FTC Consent Order. WhatsApp’s recent announcement indicates users will have 30 days to opt-out of data transfers to Facebook, in violation of the law and the FTC’s Order.  In 2012, EPIC and a coalition of consumer privacy organizations also led a successful effort at the FTC after Facebook changed the privacy settings of its users. As a result, Facebook is subject to an FTC consent order.
  • Senate Examines FTC's Antitrust Enforcement + (Apr. 13, 2016)
    The Senate Judiciary Committee recently examined the scope and application of the FTC's Section 5 antitrust enforcement authority at the hearing "Section 5 and 'Unfair Methods of Competition': Protecting Competition or Increasing Uncertainty?" EPIC Advisory Board member Tim Wu testified in support of the agency's approach, which he called "an important protection for competition." EPIC has urged the FTC to use Section 5 authority to protect consumers, arguing against Google's acquisition of DoubleClick and Facebook's acquisition of WhatsApp. EPIC has also recommended a transparent process for evaluation of substantial changes in business practices by companies subject to FTC consent orders.
  • EPIC Files Comments with FTC on Merger Review and Consumer Privacy + (Mar. 18, 2015)
    EPIC, along with 26 technical experts and legal scholars, has submitted extensive comments for the FTC's review of the merger remedy process. EPIC urged the Commission to consider the privacy risks to consumers that result from the merger of big data firms. The comments detailed EPIC's efforts, over 15 years, to warn the FTC about such mergers as Abacus and DoubleClick, then DoubleClick and Google, AOL and Time Warner, and most recently Facebook and WhatsApp. EPIC urged the FTC to asses both competitive and privacy impacts of merger, and to enforce privacy commitments prior to granting merger approval.
  • WhatsApp Implements End-to-End Encryption + (Nov. 25, 2014)
    The messaging service WhatsApp has announced plans to implement end-to-end encryption for Android phones. WhatsApp gained popularity as a pro-privacy alternative to text messaging. However, privacy concerns were raised after Facebook's proposed acquisition of the company. EPIC filed two complaints with the Federal Trade Commission, urging the FTC to block the sale unless adequate privacy safeguards for WhatsApp users were established. The Commission then notified Facebook and WhatsApp that they must honor their privacy commitments to WhatsApp users. Now, WhatsApp has adopted the Open Whisper Systems protocols to ensure that users' messages are encrypted from sender to receiver and not simply between the user and the service provider. For more information, see EPIC: In re: WhatsApp.
  • Senator Rockefeller Questions Whisper About Privacy Practices + (Oct. 24, 2014)
    Senator Rockefeller has asked Whisper to answer several questions about the company's practices and policies. Whisper said that it does not track users and that it respects users' decisions to opt out of geolocational tracking. But the Guardian revealed that Whisper tracks "the precise time and approximate location of all messages" and specifically tracks certain users the company deems "newsworthy." Senator Rockefeller, chair of the Senate Committee on Commerce has asked Whisper to explain its tracking, data retention, and disclosure practices. EPIC has several similar matters pending before the Federal Trade Commission. For more information, see EPIC: WhatsApp, EPIC: Snapchat, and EPIC: FTC.
  • EU Launches Investigation Into Facebook Acquisition of WhatsApp + (Sep. 2, 2014)
    Antitrust officials in the European Union have begun an investigation into Facebook's acquisition of the messaging service WhatsApp. WhatsApp gained popularity based on its pro-privacy approach to user data. Following the announcement of Facebook's plan to acquire the company, EPIC filed two complaints with the Federal Trade Commission, urging the FTC to block the sale unless adequate privacy safeguards for WhatsApp users were established. The Commission then notified Facebook and WhatsApp that they must honor their privacy commitments to users but questions remain about future business practices. Now European antitrust regulators have served Facebook with a questionnaire of more than 70 pages to determine whether the merger violates European antitrust laws. For more information, see EPIC: In re WhatsApp, and EPIC: FTC.
  • Google Plans Advertising on Appliances, Including Nest Thermostat + (May. 22, 2014)
    In a letter to the Securities and Exchange Commission, Google announced plans to place targeted ads on Google-controlled appliances. Google wrote that "a few years from now, we and other companies could be serving ads and other content on refrigerators, car dashboards, thermostats, glasses, and watches, to name just a few possibilities." The proposal raises significant privacy concerns for the "Internet of Things." Earlier this year, EPIC warned the FTC about Google's acquisition of Nest Labs, makes of a smart thermostat, that "Google regularly collapses the privacy policies of the companies it acquires." Nonetheless, the Commission approved Google's acquisition without further review. For more information, see EPIC: In re: WhatsApp, EPIC: Google/Doubleclick and EPIC: FTC.
  • FTC Responds to EPIC Complaint on WhatsApp and Privacy + (Apr. 10, 2014)
    The Federal Trade Commission has notified Facebook and WhatsApp that they must honor their privacy commitments to users. According to the letter from the Director of the FTC Bureau of Consumer Protection, "if the acquisition is completed and WhatsApp fails to honor these promises, both companies could be in violation of Section 5 of the FTC Act and potentially the FTC's order against Facebook." The FTC letter followed a detailed complaint from EPIC and CDD concerning the privacy implications of the $19B sale to Facebook. WhatsApp had assured users of strong privacy safeguards prior to the sale. The FTC letter concludes "hundreds of millions of users have entrusted their personal information to WhatsApp. The FTC staff continue to monitor the companies' practices to ensure that Facebook and WhatsApp honor the promises they have made to those users." For more information, see EPIC: In re: WhatsApp, EPIC: In re: Facebook and EPIC: Federal Trade Commission.
  • EPIC Updates Facebook Complaint, Urges Careful Review of WhatsApp Acquisition + (Mar. 21, 2014)
    EPIC has filed a supplemental complaint regarding Facebook's $19 b purchase of WhatsApp. WhatsApp users had relied on the messing app's pro-privacy practices to protect their personal information, while Facebook regularly incorporates user data from the companies it acquires. In the initial complaint, EPIC urged the Federal Trade Commission to block the sale unless adequate privacy safeguard for WhatsApp user data were established. In the supplemental complaint, EPIC provided more evidence that WhatsApp users object to the acquisition. EPIC also highlighted the importance of the FTC's pre-merger review process. Recently, the Commission approved Google's purchase of Nest Labs without considering the privacy implications for consumers. For more information, see EPIC: In re WhatsApp and EPIC: Federal Trade Commission.
  • EPIC Urges FTC Investigation of WhatsApp Sale to Facebook + (Mar. 6, 2014)
    EPIC has filed a complaint to the Federal Trade Commission concerning Facebook's proposed purchase of WhatsApp. WhatsApp is a messaging service that gained popularity based on its strong pro-privacy approach to user data. WhatsApp currently has 450 million active users, many of whom have objected to the proposed acquisition. Facebook regularly incorporates data from companies it has acquired.The Federal Trade Commission has previously responded favorably to EPIC complaints concerning Google Buzz, Microsoft Passport, Changes in Facebook Privacy Settings, and Choicepoint security practices. However, the FTC approved Google's acquisition of Doubleclick over EPIC's objection. Facebook is currently under a 20 year consent decree from the FTC that requires Facebook to protect user privacy and to comply with the US-EU Safe Harbor guidelines. For more information, see EPIC: In re Google Buzz, EPIC: Microsoft Passport, EPIC: In re Facebook, and Privacy? Proposed Google/DoubleClick Merger.

Overview

WhatsApp is a text messaging application for smartphones that uses the internet, rather than an SMS plan, to send messages. The WhatsApp website describes the service: "WhatsApp Messenger is a cross-platform mobile messaging app which allows you to exchange messages without having to pay for SMS. WhatsApp Messenger is available for iPhone, BlackBerry, Windows Phone, Android and Nokia."

WhatsApp was launched in 2009 by former Yahoo! engineers Jan Koum and Brian Acton. As of February 1, 2016, the service has one billion users worldwide. WhatsApp's popularity has been due in large part to the company's commitment to privacy and rejection of in-app advertising. Since in-app advertisements normally rely on data collected from the user's mobile device, WhatsApp adopted a policy of not collecting or storing users' data. In 2009, founder Jan Koum posted to the WhatsApp official blog, "So first of all, let's set the record straight. We have not, we do not and we will not ever sell your personal information to anyone. Period. End of story." In a 2012 blog post titled "Why we don't sell ads," Koum explained the company's anti-advertising stance and warned users that "when advertising is involved you the user are the product." In April 2016, WhatsApp introduced end-to-end encryption for the messaging service.

Until August 25, 2016, WhatsApp’s privacy policy promised users that the company “does not collect names, emails, addresses or other contact information from its users’ mobile address book or contact lists” other than mobile phone numbers. The company also promised users, "We do not use your mobile phone number or other Personally Identifiable Information to send commercial or marketing messages without your consent." Relying on these promises, over one billion individuals provided their phone number and other personal information to WhatsApp as of February 2016.

On February 19, 2014, Facebook announced that it was purchasing WhatsApp for $19 billion. In response to significant backlash over the privacy concerns raised by the deal, both WhatsApp and Facebook promised users that nothing would change for WhatsApp users' privacy. On March 6, 2014, EPIC and the Center for Digital Democracy filed a complaint with the Federal Trade Commission over the deal, urging the Commission to block the sale unless adequate privacy safeguard for WhatsApp user data were established. In response to EPIC's complaint, the FTC sent a letter to Facebook and WhatsApp notifying the companies of their obligation to honor their privacy promises to WhatsApp users. The letter explained that failure to obtain users' opt-in consent before changing WhatsApp privacy practices would be an unfair and deceptive trade practice and may also violate the FTC's 2012 Consent Order with Facebook.

On August 25, 2016, WhatsApp announced plans to use and transfer user information to Facebook, including phone numbers and other user data, that will be connected with Facebook profiles for targeted advertising and other purposes. According to the announcement, WhatsApp will not obtain users' opt-in consent before altering its privacy practices. Instead, users will be required to opt out within 30 days. This reversal contradicts WhatsApp's previous promises to users that their personal information would not be used or disclosed for marketing purposes without their consent. On August 29, 2016, EPIC and CDD filed a complaint with the FTC over the proposed data transfer, charging that WhatsApp's policy change violates Section 5 of the FTC Act and urging the FTC to investigate and enjoin the proposed practices. The FTC responded to EPIC's complaint on August 31, 2016, stating in a letter that Commission staff will "carefully review" the filing.

Facebook's Acquisition of WhatsApp

On February 19, 2014, Facebook announced that it was purchasing WhatsApp for $19 billion. As of August 2016, Facebook and WhatsApp are currently the two largest social networks worldwide, with an estimated two-and-a-half billion active users combined. WhatsApp's popularity stems in large part from the company's strong commitment to user privacy, which stands in stark contrast to Facebook's ubiquitous tracking and profiling practices.

Following the announcement of the 2014 acquisition, WhatsApp users, industry experts, and foreign governments objected to the privacy risks posed by the deal.

For example, Aliya Abbas, a Delhi-based mediaperson and WhatsApp user, said, “I started using WhatsApp five months ago. If it gets integrated with Facebook, I will uninstall [WhatsApp]. And I think others will do the same if this happens. WhatsApp is popular because of its privacy, and I don't think users will like the idea of advertisements popping up in the middle of a conversation.”

Tim Grossman, a senior branding consultant at Brand Union, wrote in The Guardian:

“One of the reasons why so many millions have flocked to WhatsApp is the added level of privacy the brand provides. In a world where your every word echoes endlessly across the internet it was a communication channel where sharing could take place on a more contained level. However, much like Google's acquisition of Nest and Facebook's of Instagram, with this purchase consumers are suddenly associated with, and have their information accessible by a brand that they didn't buy into. It's this intrusion that can make it feel uncomfortable, as both you and your data are seized without your say-so.”

EPIC's 2014 FTC Complaint on Facebook's Acquisition of WhatsApp

On Marc 6, 2014, EPIC and CDD filed a complaint with the FTC concerning Facebook's proposed purchase of WhatsApp. EPIC urged the FTC to block the sale unless adequate privacy safeguards were established for WhatsApp user data. EPIC's complaint stated:

“WhatsApp built a user base based on its commitment not to collect user data for advertising revenue. Acting in reliance on WhatsApp representations, Internet users provided detailed personal information to the company including private text to close friends. Facebook routinely makes use of user information for advertising purposes and has made clear that it intends to incorporate the data of Whats App users into the user profiling business model. The proposed acquisition will therefore violate WhatsApp users’ understanding of their exposure to online advertising and constitutes an unfair and deceptive trade practice, subject to investigation by the Federal Trade Commission."”

On March 21, 2014, EPIC and CDD filed a supplemental complaint to provide more evidence of WhatsApp users' objections to the acquisition and to highlight the importance of the FTC's pre-merger review process.

Responses from WhatsApp and Facebook

On February 19, 2014, immediately following the announcement of the Facebook deal, founder Jan Koum posted to the WhatsApp Blog:

Here’s what will change for you, our users: nothing. WhatsApp will remain autonomous and operate independently. You can continue to enjoy the service for a nominal fee. You can continue to use WhatsApp no matter where in the world you are, or what smartphone you’re using. And you can still count on absolutely no ads interrupting your communication. There would have been no partnership between our two companies if we had to compromise on the core principles that will always define our company, our vision and our product.

On February 24, 2014, Facebook chief executive Mark Zuckerberg was quoted as saying “We are absolutely not going to change plans around WhatsApp and the way it uses user data. WhatsApp is going to operate completely autonomously.”

Following the filing of EPIC and CDD's complaint with the FTC over the acquisition, Facebook told the Washington Post, "As we have said repeatedly, WhatsApp will operate as a separate company and will honor its commitments to privacy and security."

Less than two weeks after the FTC complaint was filed, WhatsApp's Koum addressed the privacy issues associated with Facebook's proposed acquisition in a blog post titled, "Setting the Record Straight":

Since announcing our upcoming partnership with Facebook, we’ve been truly humbled by how much attention our story has received. As a company, we’re excited to continue focusing on offering as many people as possible the chance to stay connected with friends and loved ones, no matter who they are or where they live.

Unfortunately, there has also been a lot of inaccurate and careless information circulating about what our future partnership would mean for WhatsApp users’ data and privacy.

I’d like to set the record straight.

Above all else, I want to make sure you understand how deeply I value the principle of private communication. For me, this is very personal. I was born in Ukraine, and grew up in the USSR during the 1980s. One of my strongest memories from that time is a phrase I’d frequently hear when my mother was talking on the phone: “This is not a phone conversation; I’ll tell you in person.” The fact that we couldn’t speak freely without the fear that our communications would be monitored by KGB is in part why we moved to the United States when I was a teenager.

Respect for your privacy is coded into our DNA, and we built WhatsApp around the goal of knowing as little about you as possible: You don’t have to give us your name and we don’t ask for your email address. We don’t know your birthday. We don’t know your home address. We don’t know where you work. We don’t know your likes, what you search for on the internet or collect your GPS location. None of that data has ever been collected and stored by WhatsApp, and we really have no plans to change that.

If partnering with Facebook meant that we had to change our values, we wouldn’t have done it. Instead, we are forming a partnership that would allow us to continue operating independently and autonomously. Our fundamental values and beliefs will not change. Our principles will not change. Everything that has made WhatsApp the leader in personal messaging will still be in place. Speculation to the contrary isn’t just baseless and unfounded, it’s irresponsible. It has the effect of scaring people into thinking we’re suddenly collecting all kinds of new data. That’s just not true, and it’s important to us that you know that.

Make no mistake: our future partnership with Facebook will not compromise the vision that brought us to this point. Our focus remains on delivering the promise of WhatsApp far and wide, so that people around the world have the freedom to speak their mind without fear.

The FTC on WhatsApp, Mergers, and Privacy Promises

The FTC's Response to Facebook's Acquisition of WhatsApp

On April 10, 2014, the Commission responded to EPIC's complaint. The FTC notified Facebook and WhatsApp that they must honor their privacy commitments to users. According to the letter from the Director of the FTC Bureau of Consumer Protection, “WhatsApp’s privacy policy clearly states, among other things, that users’ information will not be used for advertising purposes or sold to a third party for commercial or marketing use without the users’ consent.” The letter also noted, “Facebook has recently promised consumers that it would not change the way WhatsApp uses customer information.”

The Commission's letter explained, “the FTC has made clear that, absent affirmative express consent by a consumer, a company cannot use data in a manner that is materially inconsistent with promises made at the time the data was collected, and that such use of data could be an unfair practice under Section 5.” Accordingly, the FTC directed the companies that "if you choose to use data collected by WhatsApp in a manner that is materially inconsistent with the promises WhatsApp made at the time of collection, you must obtain consumers' affirmative consent before doing so."

In a press release on the April 10, 2014 letter, the FTC clarified that "before making any material changes to how they use data already collected from WhatsApp subscribers, the companies must get affirmative consent.”

On March 25, 2015, the FTC posted a blog entry on “Mergers and Privacy Promises” that discussed the implications of the April 10, 2014 letter to WhatsApp and Facebook and provided the following guidance:

What if you want to materially change your practices for information you collected before the merger - for example, by sharing with third parties information you originally promised would not be shared? To change the privacy promises already made to consumers, you’ll need to inform consumers and get their express affirmative consent to opt in to your new practices.

The FTC's 2012 Consent Order with Facebook

The Commission has previously issued an Order and Settlement Agreement with Facebook, following an investigation into whether “Facebook deceived consumers by telling them they could keep their information on Facebook private, and then repeatedly allowing it to be shared and made public.” The Order requires Facebook to give users “clear and prominent notice” and obtain “their express consent before sharing their information beyond their privacy settings,” and to maintain “a comprehensive privacy program to protect consumers’ information.”

WhatsApp's Proposed User Data Transfer

On August 25, 2016, WhatsApp posted an entry to the company's official blog announcing the first update to its Terms of Service and Privacy Policy in more than four years “as part of our plans to test ways for people to communicate with businesses in the months ahead.” WhatsApp further explains it will share user account information "with Facebook and the Facebook family of companies, like the phone number you verified when you registered with WhatsApp, as well as the last time you used our service." The companies intend to use WhatsApp account information to show users "more relevant ads on Facebook" and to send users marketing messages via WhatsApp.

Existing WhatsApp users have 30 days to prevent their personal information from being used and transferred to Facebook for advertising purposes. According to WhatsApp's instructions on this process, users' privacy settings will be modified to allow the transfer by default unless the user take additional steps to opt out of the changed data practices.

According to a Wired report on the changes to WhatApp's privacy practices, "Another aspect of the privacy rollback likely to rankle users is that not only will the phone number and analytics sharing be activated by default, WhatsApp users will only have a month in which to opt out.” A reporter for Gizmodo said of the change, "This very obviously betrays WhatsApp’s commitment to privacy that it has long held.”

EPIC's 2016 Complaint

On August 29, 2016, EPIC and CDD filed a complaint with the FTC over the proposed data transfer, charging that WhatsApp's policy change violates Section 5 of the FTC Act and urging the FTC to investigate and enjoin the proposed practices.

According to the complaint, "WhatsApp plans to transfer user data that was previously collected under the promise this data would not be used or disclosed for marketing purposes" without first obtaining users' opt-in consent. EPIC explained that, "As of February 1, 2016, over one billion individuals provided their phone numbers and other personal information to WhatsApp with the understanding that their information would not be used or disclosed for marketing purposes." The FTC's numerous statements concerning Facebook's acquisition of WhatsApp indicate that failure to obtain opt-in consent before changing the privacy practices for previously collected data constituted an unfair and deceptive trade practice in violation of Section 5 of the FTC Act.

The FTC's Response

On August 31, 2016,the FTC sent a letter to EPIC and CDD in response to the EPIC complaint. The letter, sent from the FTC's Division on Privacy and Identity Protection, acknowledges the Commission’s duty to prohibit unfair and deceptive practices and to enforce its 2012 Consent Order with Facebook. The letter also acknowledged that EPIC's complaint “contains allegations regarding statements WhatsApp has made about how it limits the use of mobile phone numbers or other personally identifiable information." FTC staff will “carefully review” EPIC’s complaint, the letter states.

Resources

News Reports

News Reports on EPIC Complaint to FTC on WhatsApp Data Transfer to Facebook

News Reports on EPIC Complaint to FTC on Facebook Acquisition of WhatsApp

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