Antitrust Law Daily Wrap Up, PRIVACY NEWS: Facebook data use policy changes violate FTC settlement: consumer groups, (Sep 6, 2013)

By Lynn Stanton,TRDaily

Changes that Facebook, Inc. recently proposed for its data use policy and its statement of rights and responsibilities “to make it clear” that users grant Facebook permission to user their names, profiles, pictures, and content “in connection with ads or commercial content” violate the company’s 2011 settlement with the Federal Trade Commission, six consumer privacy advocacy groups told the FTC in a September 4 letter.

Facebook announced the changes last week. “We are proposing this update as part of a settlement in a court case relating to advertising and we hope this clarification helps you understand how we use your information in this way, so we included an example of how these ads work,” Facebook Chief Privacy Officer-policy Erin Egan said in a blog post.

The Electronic Privacy Information Center (EPIC) and five other groups told the FTC that Facebook’s “pending changes arise from a class action settlement in which the attorneys who purported to represent the interests of Facebook users granted the company a right that was contrary to the company’s policy at the time the litigation was initiated. As a consequence, Facebook users who reasonably believed that their images and content would not be used for commercial purposes without their consent will now find their pictures showing up on the pages of their friends endorsing the products of Facebook’s advertisers.”

The 2011 FCC settlement order “requires that, ‘prior to any sharing of a user’s nonpublic user information by [Facebook] with any third party, which materially exceeds the restrictions imposed by a user’s privacy setting(s),’ Facebook must make a ‘clear[] and prominent[]’ disclosure and obtain the ‘affirmative express consent’ of the user,” the consumer groups said.

Advertisements based on a user’s “’name, and profile picture, content, and information’ … represent ‘nonpublic user information’ because they consist of information that had previously been restricted by the user’s privacy settings, specifically the user’s choice whether or not to disclose information for a particular purpose. Furthermore, these advertisements are disclosed to “third parties”: the user’s Facebook contacts. Thus, Facebook’s proposed policy violates the Order’s prohibition on sharing information without user consent,” the letter added.

“Furthermore, … the amended language involving teens—far from getting affirmative express consent from a responsible adult—attempts to ‘deem’ that teenagers ‘represent’ that a parent, who has been given no notice, have consented to give up teens’ private information. This is contrary to the Order and FTC’s recognition that teens are a sensitive group, owed extra privacy protections,” it said.

The groups concluded by urging the FTC to act. “The right of a person to control the use of their image for commercial purposes is the cornerstone of modern privacy law. Consumer privacy groups have worked diligently to preserve this right and to protect the interests of Facebook users. Now it is up to the FTC based on the Order that is already in place.”

Joining EPIC in the letter were Consumer Watchdog, the Center for Digital Democracy, Patient Privacy Rights, U.S. PIRG, and Privacy Rights Clearing House.

News: Privacy FederalTradeCommissionNews