Antitrust Law Daily Wrap Up, PRIVACY NEWS: Senator questions Google privacy changes in letter to FTC, (Oct 14, 2013)

By Tobias J. Gillett, J.D., LL.M.

Senator Edward Markey (D-Massachusetts) has asked the FTC for its views on whether proposed changes to Google’s privacy policies would violate a settlement agreement Google reached with the FTC in 2011 over its Google Buzz service.

On October 11, Google announced proposed changes to the Terms of Service for users with Google Profiles. Under the revised Terms, a user’s profile name and picture could appear in reviews, advertising, and other commercial contexts in Google’s products, through Google’s Shared Endorsements program. According to Google, a user’s “friends, family, and others” could see the user’s name, picture, and content such as reviews shared or ads “+1’d.” Google provided examples including “your friends might see that you rated an album 4 stars on the band’s Google Play page” and “the +1 you gave your favorite local bakery could be included in an ad that the bakery runs through Google.”

The sharing would only occur when the user took an action such as “+1’ing, commenting, or following,” and Google emphasized that users could turn off the “Shared Endorsements” through Google’s settings. However, the setting only applies to ads, and would not “change whether your Profile name or photo may be used in other places such as Google Play.” The actions of minors under age 18 are exempted from appearing “in shared endorsements in ads and certain other contexts.” The proposed changes are scheduled to go into effect on November 11.

In an October 12 letter to FTC Chairwoman Edith Ramirez, Markey questioned whether Google’s changes would comply with a previous consent agreement it reached with the FTC in 2011 over its now-defunct Google Buzz service, a predecessor to its present Google Plus service. In that agreement, Google committed, among other things, to not misrepresent “(1) the purposes for which it collects and uses covered information, and (2) the extent to which consumers may exercise control over the collection, use, or disclosure of covered information.”

In addition, Google must, prior to any new or additional sharing of a user’s information to a third party and separate from any “final ‘end user license agreement,’ ‘privacy policy,’ ‘terms of use’ page, or similar document,” “clearly and prominently disclose: (1) that the Google user’s information will be disclosed to one or more third parties, (2) the identity or specific categories of such third parties, and (3) the purpose(s) for [Google’s] sharing.” Google must also “obtain express affirmative consent from the Google user to such sharing.” Further, Google had to establish a comprehensive privacy policy and submit to initial and biennial privacy audits by a qualified and independent third-party professional for twenty years.

The senator’s letter notes that Google’s changes would constitute “an opt-out mechanism,” and requests the Commission to provide its views on whether Google’s proposed policy changes would violate the settlement agreement. Markey also asks the Commission to provide information on any actions it has taken or plans it may have to investigate whether the policy changes would violate the agreement.

“The company’s proposed new policy will soon make it possible to display users’ names, photos, and endorsements of marketers’ products across the Web,” Markey observed. “This shift in Google’s policy raises a number of important questions about whether Google is altering its privacy policy in a manner inconsistent with its consent agreement with the Commission and, if the changes go into effect, the degree to which users’ identities, words, and opinions could be shared across the Web.”

Companies: Google, Inc.

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