• by Wendy Davis  @wendyndavis, April 13, 2021

In 2019, Facebook agreed to pay a record $5 billion in order to settle a Federal Trade Commission investigation sparked by Cambridge Analytica's data harvesting. But before arriving at a final settlement, Facebook and the FTC exchanged several annotated drafts of the deal.

Facebook is now asking a federal appellate court to allow those drafts to remain confidential.

“These draft settlement documents, replete with proposed revisions, reflect Facebook’s confidential commercial information,” the company writes in papers filed late last week with the 1st Circuit Court of Appeals. “The subject matter of the revisions reflects Facebook’s commercial priorities and business practices and strategies -- information that Facebook does not ordinarily release to the public and considers confidential.”

Facebook is urging the court to reverse a ruling issued by U.S. District Court Judge Patti Saris in Massachusetts, who said the draft settlement agreements were discoverable through the Freedom of Information Act.

Saris's order stemmed from a complaint brought by the law firm Block & Leviton, which is representing the Employees’ Retirement System of Rhode Island in a lawsuit against Facebook over the terms of its settlement with the FTC.

Facebook is now urging the 1st Circuit to reverse Saris's ruling, arguing that the drafts contain privileged commercial information, and are therefore not subject to disclosure under the Freedom of Information Act.

“When Facebook exchanged iterative settlement drafts with the FTC to resolve a pending investigation into Facebook’s privacy practices, Facebook was exchanging commercial information,” the company argues. “The settlement drafts reveal Facebook’s negotiating positions --what terms the company offered and counteroffered -- directly related to how the company’s day-to-day, privacy-related business operations would change as a result of the proposed settlement.”