• by Wendy Davis  @wendyndavis, February 27, 2012

In a last-ditch effort to halt Google's upcoming changes to its privacy policy, the Electronic Privacy Information Center has filed an appeal arguing that its lawsuit against the Federal Trade Commission should be reinstated.

"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.

EPIC initially sought a court order requiring the FTC to sue Google to prevent it from following through on plans to revise its privacy policy. The new policy, slated to take effect on Thursday, allows Google to combine data about signed-in users across a variety of products and services, including Gmail, Android, and YouTube. Google plans to use this data for targeted advertising and personalized services.

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.

EPIC says the new policy violates Google's settlement with the FTC over the launch of the defunct social networking service, Google Buzz. That consent decree prohibits Google from sharing users' information more broadly than its privacy policy allowed at the time of collection. EPIC says that the new policy will allow advertisers to deduce more information about users than in the past.

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.

Leibowitz made the comments on Sunday, in an appearance on C-Span's Newsmakers, where he was asked whether he had any concerns about Google's new privacy policy.

"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.