"The court must act now to prevent irreparable injury to EPIC and the public at large," the group argues in papers filed with the Court of Appeals for the District of Columbia.
Signed-in users can't prevent Google from aggregating data about them. People can prevent Google from combining data about them by signing out of the service, or using different browsers for different purposes.
Late last week, U.S. District Court Judge Amy Berman Jackson dismissed EPIC's lawsuit, ruling that the FTC alone can decide whether to take action regarding potential settlement violations.
EPIC now argues to the appellate court that Jackson's decision was incorrect. "It is clear from the statute that the Commission is required to enforce its orders," EPIC argues. "Agency action is not discretionary; a violating party 'shall forfeit' a penalty and be subject to an enforcement action."
The group is asking the Circuit Court to send the case back to Berman with instructions to reconsider EPIC's argument. Regardless of whether EPIC wins its appeal, the FTC can still decide on its own to bring an enforcement action against Google.
Regulators have not yet tipped their hand, but FTC Chairman Jon Leibowitz described Google's new policy as giving consumers a "binary and somewhat brutal" choice.
"Other than saying that they have been clear, and that it's a fairly binary and somewhat brutal choice that they are giving consumers, I think I can't say much more," Leibowitz replied.