FTC Not Compelled to Enforce Consent Order Concerning Google Social Networking Service

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

The federal district court in Washington, D.C. has denied a request from the public interest group Electronic Privacy Information Center (EPIC) for an order compelling the Federal Trade Commission to enforce an October 2011 consent order that the agency signed with Google, Inc. EPIC’s complaint seeking injunctive relief under the Administrative Procedure Act was denied.

Following dismissal of the action, EPIC announced that it had filed an emergency appeal with the Court Appeals for the DC Circuit. EPIC said that it had asked the appellate court to overturn the lower court decision before March 1, when Google intended to “change its terms of service and consolidate user data without consent.”

The FTC’s enforcement decisions were committed to agency discretion and were not subject to judicial review, the court held. EPIC, which was not a party to the consent order, contended that Google’s proposed implementation of new privacy policies would violate portions of the consent order.

EPIC alleged that “[r]ather than keeping personal information about a user of a given Google service separate from information gathered from other Google services,” the new policies “will consolidate user data from across its services and create a single merged profile for each user.”

While EPIC’s concerns might well have been legitimate, the FTC was in the best position to evaluate whether Google’s new policies would in fact violate the Consent Order and, if so, to determine what course of action the agency should pursue. The court rejected EPIC’s argument that the FTC had a “mandatory, nondiscretionary duty” to enforce the consent order.

The court noted that it had been advised by the FTC that the matter was under review. Thus, the agency might ultimately decide to institute an enforcement action.

In denying the requested relief, the court noted that its “decision should not be interpreted as expressing any opinion about the merits of EPIC’s challenge to Google’s new policies.” The court did not reach “the question of whether the new policies would violate the Consent Order or if they would be contrary to any other legal requirements.”

The February 24, 2012, decision in Electronic Privacy Information Center v. FTC, Civil Action No. 12-0206 (ABJ), will appear at 2012-1 Trade Cases ¶77,807.