After the FTC Fails to Fix Facebook, Commissioner Chopra’s Powerful Dissent Points to a Path Forward

On Wednesday, the Federal Trade Commission announced the details of its $5 billion fine and settlement with Facebook over charges that it violated a 2011 consent decree with the enforcement agency. In addition to the fine, the FTC and Facebook agreed that Facebook would establish a privacy committee within its board of directors to review all privacy issues and choices along with an “independent assessor.” Other conditions of the settlement include transparency and security measures around gathering, storing, and sharing user information, as well as requiring Facebook Chairman and CEO Mark Zuckerberg to certify Facebook’s ongoing compliance with the FTC’s order. Facebook also announced in its second-quarter earnings call that the FTC had opened an antitrust investigation into the social media giant.

Enforcers and policymakers should pay particular attention to FTC Commissioner Rohit Chopra’s powerful dissenting statement. Chopra condemned the settlement, writing, “This framework does not protect the public — it protects Facebook” and “ratifies Facebook’s governance structure instead of changing it.” But Chopra’s statement also lays out where policymakers and law enforcers should go in the future — which is to directly address the dependence of Facebook’s business model on “surveillance and manipulation.”

“The case against Facebook is about more than just privacy – it is also about the power to control and manipulate,” Chopra wrote. “Global regulators and policymakers need to confront the dangers associated with mass surveillance and the resulting ability to control and influence us. The behavioral advertising business incentives of technology platforms spur practices that are dividing our society. The harm from this conduct is immeasurable, and regulators and policymakers must confront it.”

Facebook being, after all, a private for-profit corporation, Chopra added, “We should reasonably assume it seeks to advance its own financial gains. Here, Facebook’s behavioral advertising business model is both the company's profit engine and arguably the root cause of its widespread and systemic problems. Behavioral advertising generates profits by turning users into products, their activity into assets, their communities into targets, and social media platforms into weapons of mass manipulation. We need to recognize the dangerous threat that this business model can pose to our democracy and economy.”

Read Chopra’s full dissent here and Open Markets’ statements on the settlement here and here.

Also see the letter from Sens. Edward J. Markey, D-Mass., Josh Hawley, R-Mo., and Richard Blumenthal, D-Conn.,  calling the settlement “woefully inadequate.” And read reactions to the initial reports of the FTC’s $5 billion fine from Sens. Amy Klobuchar, D-Minn., Mark Warner, D-Va., and Elizabeth Warren, D-Mass., and Reps. David Cicilline, D-R.I., and Jan Schakowsky, D-Ill.

See coverage of the FTC’s settlement quoting the Open Markets Institute from PBS, HuffPost, The Hill, and CNN Business.