Late yesterday, Judge Timothy J. Kelly of the United States District Court, D.C., issued a memorandum opinion in United States v. Facebook, granting the consent motion before him, and thereby giving legal effect to a settlement order proposed by the parties.
Those of you who have followed me or CLP know that we filed an amicus brief last October, objecting to the proposed settlement on the grounds that the order appears, in a few places, to grant the FTC and DOJ warrantless access to Facebook user data, and that this is unjustified both under the existing legal precedent (Carpenter v. United States), and according to proper legal principles governing data shared for a limited purpose in a business context.
In December, Judge Kelly ordered the parties to respond to all the arguments presented by amici, which included CLP’s brief, and, in January, we saw that the understanding of the two parties, as to what Fourth Amendment protection Facebook user data would (and should) enjoy under the proposed settlement, differed considerably.
Fast-forward to today, in the midst of the coronavirus crisis, and we see Kelly entering his memorandum opinion, upholding the proposed settlement order and, in doing so, ignoring entirely the Fourth Amendment concerns raised in the settlement order.
You can read the entire opinion for yourself, but in essence, Kelly says he is dissatisfied with the proposed settlement–but not because of the Fourth Amendment implications, not because the order appears to grant the government warrantless access to Facebook user data. Instead he expresses sympathy for EPIC’s and other amici’s position that, given the current state of the law, big bad Facebook gets off too easy. The answer, he implies? Government regulation:
“In the Court’s view, the unscrupulous way in which the United States alleges Facebook violated both the law and the administrative order is stunning. And these allegations, and the briefs of some amici, call into question the adequacy of laws governing how technology companies that collect and monetize Americans’ personal information must treat that information. But those concerns are largely for Congress; they are not relevant here. Mindful of its proper role, and especially considering the deference to which the Executive’s enforcement discretion is entitled, the Court will grant the consent motion and enter the order as proposed.”Memorandum Opinion, pp. 1-2
CLP has never taken a position with respect to Facebook’s alleged misconduct. Our concern in this case is to ensure that, as a supposed remedy for Facebook misconduct, we are not given Big Brother! And yet that is exactly what the now-effective settlement order has gone a long way toward creating–not only because of possible government access to vast troves of personal data, but also because the order requires Facebook relinquish substantial supervisory authority and control over its company to government-approved board members and auditors. In other words, the order goes a long way toward uniting Facebook and Government, which pretty much tops the list of Orwellian worst nightmares.
In the opinion, Kelly recounts the allegations against Facebook, both before the previous 2012 settlement order–which I warned about on my podcast at the time, BTW–and since. He describes the terms of the stipulated order: what Facebook is required to do, what it receives in return, how long the order will be in effect (at least 20 years). He then quotes the highly deferential standard contained in the relevant legal precedent, finding “that the Stipulated Order passes muster….that the parties consented to the order, and that it is fair, reasonable, and in the public interest.” (p. 8)
In finding the order to be “reasonable” given the allegations against Facebook and what the order requires of Facebook as a remedy, Kelly makes a single glancing mention of the information to be shared with the government pursuant to the order. And it appears to be a wholly favorable one. On page 12 of his opinion he notes, “the order will empower both the Department of Justice and the FTC to demand extensive information from Facebook to evaluate its compliance for themselves.” Might that “extensive information” include Facebook user data? After all, it is the handling of that very data that the DOJ and the FTC will be “evaluating” for the next 20 years, at least, yes? Judge Kelly doesn’t say. And in analyzing whether the order is in the “public interest,” Kelly makes no mention of any concerns about government access to Facebook user data, only concerns as to whether Facebook is being unfairly absolved of liability.
In his conclusion, Kelly notes that the Court “retains jurisdiction over this matter, including to enforce its terms.” (p. 16) One might reasonably hope that Kelly will keep his eye on government conduct under the terms of the order, as well? But recall that the order specifies that the FTC and DOJ can request extensive data “without further leave of court.” And when Kelly, in his opinion, contemplates the parties returning to court, it is “because the United States alleges–once again–that Facebook has reneged on its promises and continued to violate the law or the terms of the amended administrative order.” (p. 16) He does not seem to anticipate supervising the FTC and DOJ in their “demand[ing] extensive information from Facebook” in order to ensure that such demands are consistent with Facebook users’ Fourth Amendment rights.
What are CLP’s next steps, and what can you do to help? First, you can help us spread the word that this order–in which the FTC and DOJ will potentially have warrantless access to Facebook user data for the next 20 years (at least!)–is now in effect. Please share this post! Facebook users may want to delete much or all of their data, or adjust their use of Facebook, according to their personal preferences and hierarchy of values. Moreover, Facebook should be held accountable for consenting to this order, instead of fighting it on behalf of its users’ privacy.
As to the next legal steps that might be taken, make sure to subscribe to this blog so you can be notified of CLP’s activities. Soon I will consult with allies in the limited-government, public interest litigation space. (CLP is, to my knowledge, the ONLY limited-government, public-interest litigation organization focused on privacy.) And, if you can afford to support our efforts financially, please contribute whatever you can to our efforts.