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The Facebook-FTC Settlement and the Future of Privacy Regulation

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Published On: July 26, 2019

      In the wake of a landmark Federal Trade Commission (FTC) settlement imposed on the social media giant Facebook, it is fair to speculate whether other companies will be forced to pay hefty fines and prioritize compliance with privacy standards in order to escape punishing federal regulation. The settlement, which was announced on Wednesday, July 24th, compels Facebook to pay a five billion dollar fine, the largest ever penalty leveled on a social media company in connection with privacy violations.1 Though the fine is relatively trivial in the context of Zuckerberg and co.’s multi-billion dollar annual earnings, the settlement also forces Facebook to “submit to quarterly certifications from the FTC to acknowledge that the company is in compliance with the [settlement’s] privacy program,” a major defeat for a company whose business model revolves around the collection and analysis of user data.2 The settlement also forces Facebook to reform its corporate structure and submit to oversight from an internal “privacy committee” tasked with ensuring the integrity of user data, among other impositions.2

      All in all, the settlement is important not so much for its impact on Facebook as its implications for legal scrutiny of other technology companies. Although the federal government lacks the congressional mandate required to more expansively scrutinize the privacy standards of technology companies, such a mandate may well be in the offing, especially considering that political interest in privacy violations is cresting among members of both parties. Moreover, even if Congress elects not to craft a comprehensive online privacy law, future settlements imposed by the FTC could cripple rival companies lacking the social media giant’s seemingly inexhaustible resources.

      Although the FTC settlement represented a major shift in the regulatory landscape, social media companies innocent of the sort of grave violations committed by Facebook can rest easy for the moment, given that the agency must target offending companies one-by-one in the absence of a sweeping congressional privacy mandate. In fact, the sort of stringent legal protections for user data commonplace in the European Union have not yet been approved by American lawmakers, who have so far refrained from devising a tough privacy law in the mold of the E.U.’s General Data Protection Regulation. Specifically, the European regulation requires social media companies to “inform users about their data practices and receive explicit permission before collecting any personal information,” a level of government oversight unheard-of stateside.3 Without the sweeping powers afforded to their European counterparts, American regulators have chosen to target serious individual offenses – like the unauthorized collection of user data by third party programs that sparked the inquiry into Facebook.2

      But it would be a mistake to assume that the legal and political landscape will become more favorable to technology companies in the foreseeable future. Conservatives and liberals alike have entered into an uneasy alliance to promote a stringent new privacy law,4 and both Marco Rubio and Ron Wyden – lawmakers on distinct poles of the ideological spectrum – have proposed new regulations on social media giants.5 As a consequence of broad-based political support for privacy restrictions, future settlements reached with technology companies are bound to be at least as costly as the one recently reached with Facebook – a prospect that should trouble smaller companies that lack the ability to maintain profitability in the wake of a federal crackdown. Although federal regulation may prove burdensome and costly, compliance seems to be the vastly more preferable alternative.

 


 

  1. https://www.ftc.gov/news-events/press-releases/2019/07/ftc-imposes-5-billion-penalty-sweeping-new-privacy-restrictions
  2. https://www.cnbc.com/2019/07/24/facebook-to-pay-5-billion-for-privacy-lapses-ftc-announces.html
  3. https://www.nytimes.com/2019/06/08/opinion/sunday/privacy-congress-facebook-google.html
  4. https://www.nytimes.com/2019/07/14/technology/big-tech-strange-bedfellows.html
  5. https://blog.malwarebytes.com/security-world/privacy-security-world/2019/03/what-congress-means-when-it-talks-about-data-privacy-legislation/