Facebook, Feds Oppose EPIC's Attempt To Intervene In $5B Privacy Settlement

Facebook and the Justice Department are fighting an attempt by Electronic Privacy Information Center (EPIC) to intervene in a proposed privacy settlement.

The proposal, announced late last month, would require Facebook to pay $5 billion and accept new oversight on privacy. The FTC voted 3-2 in favor of the deal.

Last week, EPIC, a privacy advocacy group, sought to intervene in the settlement, arguing that it isn't strong enough to ensure the privacy of Facebook users.

EPIC also contends that it should be able to intervene because the settlement potentially "extinguishes" prior complaints it made to the FTC about Facebook.

On Monday, the DOJ and Facebook filed papers opposing EPIC's request, arguing that its disagreement with the terms of the deal doesn't justify intervention.

“EPIC now seeks... to place itself in the government’s shoes because it wishes the stipulated order were different,” DOJ wrote in the filing with U.S. District Court Judge Timothy Kelly in the District of Columbia. “Government settlements of enforcement actions are accorded deference and may not be disrupted merely because a third party dislikes the settlement terms.”

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Facebook joined in the DOJ's argument, and also filed separately in opposition to EPIC's motion. “Although EPIC may be interested in the subject matter or outcome of this case as a consumer advocacy organization focused on privacy issues, EPIC does not have a legally protected interest in the resolution of this action,” Facebook wrote.

If approved, the settlement will resolve an FTC investigation into whether the social networking platform violated the terms of a 2012 consent decree. That earlier order prohibits Facebook from misrepresenting its privacy practices and the extent to which it makes users' information available to third parties.

The deal would immunize Facebook from FTC prosecutions for a wide range of prior conduct, including privacy violations and consumer-protection violations currently known by the agency, and those that occurred before June 12, 2019.

The full scope of that immunity isn't yet clear. But it could potentially cover numerous complaints made by advocates -- including ones the FTC did not specifically mention in any of the settlement papers unveiled last month.

Since 2012, EPIC has filed five separate FTC complaints about Facebook. In one, EPIC and other advocates alleged that Facebook uses facial recognition technology without people's consent. In another, EPIC and the Center for Digital Democracy protested Facebook's decision to transfer data to itself about users of the WhatsApp messaging service.

If EPIC's request to intervene in the settlement is granted, it would be a party to the government's prosecution of Facebook -- and so have the right to appeal to a higher court if Kelly approves the deal.

The DOJ and Facebook took no position on an alternative request by EPIC to file a friend-of-the-court brief. As a friend of the court, EPIC could weigh in on the settlement, but would not be able to appeal if the deal is granted approval.

EPIC isn't the only advocacy group to criticize the FTC's proposed settlement. 

The Campaign for a Commercial-Free Childhood, which recently argued to the FTC that Facebook's Messenger Kids service doesn't comply with the Children's Online Privacy Protection Act, also voiced objections. CCFC Executive Director Josh Golin recently told MediaPost that the deal's immunity provisions are so "opaque" that the organization didn't even know whether its complaint had been dismissed.

FTC Commissioner Rohit Chopra, who dissented from the decision to approve the deal, also criticized it for a lack of transparency.

The Center for Digital Democracy, which recently filed complaints to the FTC about Facebook, said it may also attempt to get involved in the court proceedings. The group's executive director, Jeff Chester, blasted the government's objection to EPIC's motion to intervene. “The FTC should support EPIC's request, given that they, along with CDD and a few others, brought the original case that led to the first consent decree,” he said.

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