Yogi Berra did indeed once famously say, “It’s not over till it’s over.” (Actually, he said, “It ain’t,” but that would not have survived the proofreader’s scrutiny). Facebook must be thinking that too when it comes to its settlement with the FTC. Just to recap briefly:
On July 24, 2019, the Department of Justice (DOJ), on behalf of the FTC, filed a proposed settlement of the Commission’s long-running investigation into whether Facebook violated the terms of a previous consent order. The proposed settlement imposed several new restrictions on Facebook’s operations with respect to consumer privacy, including creating an independent board-level privacy committee and independent privacy compliance officers. In addition, the settlement proposed an eye-popping $5 billion civil penalty. However, the Commission vote to approve the filing of the proposed settlement was 3-2, with Commissioners Chopra and Slaughter both dissenting because they felt the proposed settlement was not tough enough.
The two democratic commissioners argued that while $5 billion is certainly a lot of money to me and you, it is a mere pittance to the likes of Facebook. In addition, they believed that the new compliance requirements were not sweeping enough and that the Commission should have given serious consideration to holding Facebook’s officers personally liable for the company’s alleged violation of its prior consent order.
Ordinarily, things would have ended there, but they didn’t. At a meeting of state attorneys general (AGs) last week, Commissioner Chopra, one of the two dissenting commissioners, told the gathering of AGs that they should separately investigate the same question that motivated the FTC’s investigation – whether the company disregarded the previous privacy commitments. Commissioner Chopra remarked to the AGs, “Now the ball really is in your court.”
Again, things might have then ended there, but they didn’t. The ink was barely dry on Commissioner Chopra’s pronouncement that the ball was in the state AGs’ court when the federal district court charged with approving the Facebook settlement requested that the parties file a response to comments the court has received in opposition to the proposed settlement. The responses are due in late January 2020.
Is this where the story finally ends? Stay tuned. But in an era of increasing partisanship and widening differences of opinion with respect to a host of important policy issues and approaches, it is perhaps not surprising – though it is somewhat frightening – to see that reaching a proposed settlement with the FTC is not the end of the story but only the beginning.