[Federal Register Volume 76, Number 233 (Monday, December 5, 2011)]
[Notices]
[Pages 75883-75885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31158]
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FEDERAL TRADE COMMISSION
[File No. 092 3184]
Facebook, Inc.; Analysis of Proposed Consent Order To Aid Public
Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed consent agreement.
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SUMMARY: The consent agreement in this matter settles alleged
violations of federal law prohibiting unfair or deceptive acts or
practices or unfair methods of competition. The attached Analysis to
Aid Public Comment describes both the allegations in the draft
complaint and the terms of the consent order--embodied in the consent
agreement--that would settle these allegations.
DATES: Comments must be received on or before December 30, 2011.
ADDRESSES: Interested parties may file a comment online or on paper, by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Write ``Facebook, File No. 092
3184'' on your comment, and file your comment online at https://ftcpublic.commentworks.com/ftc/facebookconsent, by following the
instructions on the Web-based form. If you prefer to file your comment
on paper, mail or deliver your comment to the following address:
Federal Trade Commission, Office of the Secretary, Room H-113 (Annex
D), 600 Pennsylvania Avenue NW., Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT: Laura Berger (202) 326-8364), FTC,
Bureau of Consumer Protection, 600 Pennsylvania Avenue NW., Washington,
DC 20580.
SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Sec. 2.34 the
Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that
the above-captioned consent agreement containing a consent order to
cease and desist, having been filed with and accepted, subject to final
approval, by the Commission, has been placed on the public record for a
period of thirty (30) days. The following Analysis to Aid Public
Comment describes the terms of the consent agreement, and the
allegations in the complaint. An electronic copy of the full text of
the consent agreement package can be obtained from the FTC Home Page
(for November 29, 2011), on the World Wide Web, at http://www.ftc.gov/os/actions.shtm. A paper copy can be obtained from the FTC Public
Reference Room, Room 130-H, 600 Pennsylvania Avenue NW., Washington, DC
20580, either in person or by calling (202) 326-2222.
You can file a comment online or on paper. For the Commission to
consider your comment, we must receive it on or before December 30,
2011. Write ``Facebook, File No. 092 3184'' on your comment. Your
comment--including your name and your state--will be placed on the
public record of this proceeding, including, to the extent practicable,
on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission tries to
remove individuals' home contact information from comments before
placing them on the Commission Web site.
Because your comment will be made public, you are solely
responsible for making sure that your comment does not include any
sensitive personal information, like anyone's Social Security number,
date of birth, driver's license number or other state identification
number or foreign country equivalent, passport number, financial
account number, or credit or debit card number. You are also solely
responsible for making sure that your comment does not include any
sensitive health information, like medical records or other
individually identifiable health information. In addition, do not
include any ``[t]rade secret or any commercial or financial information
which is obtained from any person and which is privileged or
confidential,'' as provided in Section 6(f) of the FTC Act, 15 U.S.C.
46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do
not include competitively sensitive information such as costs, sales
statistics, inventories, formulas, patterns, devices, manufacturing
processes, or customer names.
If you want the Commission to give your comment confidential
treatment, you must file it in paper form, with a request for
confidential treatment, and you have to follow the procedure explained
in FTC Rule 4.9(c), 16 CFR 4.9(c).\1\ Your comment will be kept
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confidential only if the FTC General Counsel, in his or her sole
discretion, grants your request in accordance with the law and the
public interest.
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\1\ In particular, the written request for confidential
treatment that accompanies the comment must include the factual and
legal basis for the request, and must identify the specific portions
of the comment to be withheld from the public record. See FTC Rule
4.9(c), 16 CFR 4.9(c).
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Postal mail addressed to the Commission is subject to delay due to
heightened security screening. As a result, we encourage you to submit
your comments online. To make sure that the Commission considers your
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/facebookconsent by following the instructions on the Web-based
form. If this Notice appears at http://www.regulations.gov/#!home, you
also may file a comment through that Web site.
If you file your comment on paper, write ``Facebook, File No. 092
3184'' on your comment and on the envelope, and mail or deliver it to
the following address: Federal Trade Commission, Office of the
Secretary, Room H-113 (Annex D), 600 Pennsylvania Avenue NW.,
Washington, DC 20580. If possible, submit your paper comment to the
Commission by courier or overnight service.
Visit the Commission Web site at http://www.ftc.gov to read this
Notice and the news release describing it. The FTC Act and other laws
that the Commission administers permit the collection of public
comments to consider and use in this proceeding as appropriate. The
Commission will consider all timely and responsive public comments that
it receives on or before December 22, 2011. You can find more
information, including routine uses permitted by the Privacy Act, in
the Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.
Analysis of Agreement Containing Consent Order To Aid Public Comment
The Federal Trade Commission has accepted, subject to final
approval, a consent agreement from Facebook, Inc. (``Facebook'').
The proposed consent order has been placed on the public record for
thirty (30) days for receipt of comments by interested persons.
Comments received during this period will become part of the public
record. After thirty (30) days, the Commission will again review the
agreement and the comments received, and will decide whether it should
withdraw from the agreement and take appropriate action or make final
the agreement's proposed order.
Since at least 2004, Facebook has operated http://www.facebook.com,
a social networking Web site that enables a consumer who uses the site
(``user'') to create an online profile and communicate with other
users. Among other things, a user's online profile can include
information such as the user's name, a ``profile picture,'' interest
groups they join, a ``Friend List'' of other users who are the user's
``Friends'' on the site, photo albums and videos they upload, and
messages and comments posted by them or by other users. Users can also
use third-party applications through the site (``Apps'') to, for
example, play games, take quizzes, track their physical fitness
routines for comparison to their friends' routines, or receive discount
offers or calendar reminders. As of August 2011, Facebook had more than
750 million users.
The Commission's complaint alleges eight violations of Section 5(a)
of the FTC Act, which prohibits deceptive and unfair acts or practices
in or affecting commerce, by Facebook:
Facebook's Deceptive Privacy Settings: Facebook
communicated to users that they could restrict certain information they
provided on the site to a limited audience, such as ``Friends Only.''
In fact, selecting these categories did not prevent users' information
from being shared with Apps that their Friends used.
Facebook's Deceptive and Unfair December 2009 Privacy
Changes: In December 2009, Facebook changed its site so that certain
information that users may have designated as private--such as a user's
Friend List --was made public, without adequate disclosure to users.
This conduct was also unfair to users.
Facebook's Deception Regarding App Access: Facebook
represented to users that whenever they authorized an App, the App
would only access the information of the user that it needed to
operate. In fact, the App could access nearly all of the user's
information, even if unrelated to the App's operations. For example, an
App that provided horoscopes for users could access the user's photos
or employment information, even though there is no need for a horoscope
App to access such information.
Facebook's Deception Regarding Sharing with Advertisers:
Facebook promised users that it would not share their personal
information with advertisers; in fact, Facebook did share this
information with advertisers when a user clicked on a Facebook ad.
Facebook's Deception Regarding Its Verified Apps Program:
Facebook had a ``Verified Apps'' program through which it represented
that it had certified the security of certain Apps when, in fact, it
had not.
Facebook's Deception Regarding Photo and Video Deletion:
Facebook stated to users that, when they deactivate or delete their
accounts, their photos and videos would be inaccessible. In fact,
Facebook continued to allow access to this content even after a user
deactivated or deleted his or her account.
Safe Harbor: Facebook deceptively stated that it complied
with the U.S.-EU Safe Harbor Framework, a mechanism by which U.S.
companies may transfer data from the European Union to the United
States consistent with European law.
The proposed order contains provisions designed to prevent Facebook
from engaging in practices in the future that are the same or similar
to those alleged in the complaint.
Part I of the proposed order prohibits Facebook from
misrepresenting the privacy or security of ``covered information,'' as
well as the company's compliance with any privacy, security, or other
compliance program, including but not limited to the U.S.-EU Safe
Harbor Framework. ``Covered information'' is defined broadly as
``information from or about an individual consumer, including but not
limited to: (a) A first or last name; (b) a home or other physical
address, including street name and name of city or town; (c) an email
address or other online contact information, such as an instant
messaging user identifier or a screen name; (d) a mobile or other
telephone number; (e) photos and videos; (f) Internet Protocol (``IP'')
address, User ID, or other persistent identifier; (g) physical
location; or (h) any information combined with any of (a) through (g)
above.''
Part II of the proposed order requires Facebook to give its users a
clear and prominent notice and obtain their affirmative express consent
before sharing their previously-collected information with third
parties in any way that materially exceeds the restrictions imposed by
their privacy settings. A ``material . . . practice is one which is
likely to affect a consumer's choice of or conduct regarding a
product.'' FTC Policy Statement on Deception, Appended to Cliffdale
Associates, Inc., 103 F.T.C. 110, 174 (1984).
Part III of the proposed order requires Facebook to implement
procedures reasonably designed to ensure that a user's covered
information cannot be accessed from Facebook's servers after a
reasonable period of time, not to exceed
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thirty (30) days, following a user's deletion of his or her account.
Part IV of the proposed order requires Facebook to establish and
maintain a comprehensive privacy program that is reasonably designed
to: (1) Address privacy risks related to the development and management
of new and existing products and services, and (2) protect the privacy
and confidentiality of covered information. The privacy program must be
documented in writing and must contain controls and procedures
appropriate to Facebook's size and complexity, the nature and scope of
its activities, and the sensitivity of covered information.
Specifically, the order requires Facebook to:
Designate an employee or employees to coordinate and be
responsible for the privacy program;
Identify reasonably-foreseeable, material risks, both
internal and external, that could result in the unauthorized
collection, use, or disclosure of covered information and assess the
sufficiency of any safeguards in place to control these risks;
Design and implement reasonable controls and procedures to
address the risks identified through the privacy risk assessment and
regularly test or monitor the effectiveness of these controls and
procedures;
Develop and use reasonable steps to select and retain
service providers capable of appropriately protecting the privacy of
covered information they receive from respondent, and require service
providers by contract to implement and maintain appropriate privacy
protections; and
Evaluate and adjust its privacy program in light of the
results of the testing and monitoring, any material changes to its
operations or business arrangements, or any other circumstances that it
knows or has reason to know may have a material impact on the
effectiveness of its privacy program.
Part V of the proposed order requires that Facebook obtain within
180 days, and every other year thereafter for twenty (20) years, an
assessment and report from a qualified, objective, independent third-
party professional, certifying, among other things, that it has in
place a privacy program that provides protections that meet or exceed
the protections required by Part IV of the proposed order; and its
privacy controls are operating with sufficient effectiveness to provide
reasonable assurance that the privacy of covered information is
protected.
Parts VI through X of the proposed order are reporting and
compliance provisions. Part VI requires that Facebook retain all
``widely disseminated statements'' that describe the extent to which
respondent maintains and protects the privacy, security, and
confidentiality of any covered information, along with all materials
relied upon in making such statements, for a period of three (3) years.
Part VI further requires Facebook to retain, for a period of six (6)
months from the date received, all consumer complaints directed at
Facebook, or forwarded to Facebook by a third party, that relate to the
conduct prohibited by the proposed order, and any responses to such
complaints. Part VI also requires Facebook to retain for a period of
five (5) years from the date received, documents, prepared by or on
behalf of Facebook, that contradict, qualify, or call into question its
compliance with the proposed order. Part VI additionally requires
Facebook to retain for a period of three (3) years, each materially
different document relating to its attempt to obtain the affirmative
express consent of users referred to in Part II, along with documents
and information sufficient to show each user's consent and documents
sufficient to demonstrate, on an aggregate basis, the number of users
for whom each such privacy setting was in effect at any time Facebook
has attempted to obtain such consent. Finally, Part VI requires that
Facebook retain all materials relied upon to prepare the third-party
assessments for a period of three (3) years after the date that each
assessment is prepared.
Part VII requires dissemination of the order now and in the future
to principals, officers, directors, and managers, and to all current
and future employees, agents, and representatives having supervisory
responsibilities relating to the subject matter of the order. Part VIII
ensures notification to the FTC of changes in corporate status. Part IX
mandates that Facebook submit an initial compliance report to the FTC
and make available to the FTC subsequent reports. Part X is a provision
``sunsetting'' the order after twenty (20) years, with certain
exceptions.
The purpose of the analysis is to aid public comment on the
proposed order. It is not intended to constitute an official
interpretation of the complaint or proposed order, or to modify the
proposed order's terms in any way.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2011-31158 Filed 12-2-11; 8:45 am]
BILLING CODE 6750-01-P