FTC Commissioner Edith Ramirez

The Kremlinology of the FTC just gets weirder and weirder.

Last week, FTC Commissioner J. Thoma Roche said that neither he nor any of the commissioners at the FTC ever intended for Google to retain the data they stole from up to 190 million Safari users as part of their settlement, despite the fact that FTC lawyers went into court and told the judge that they did.

Which prompted the Director of the FTC’s Bureau of Consumer Protection, David Vladeck, to send me this unsolicited comment:

With great respect to Commissioner Rosch, his statement that ‘neither I nor anyone else at the Commission was aware of the cookie issue’ is inaccurate.  The issue was in fact considered during the course of negotiations between the FTC and Google, and the FTC ultimately decided, for the reasons given by the agency’s lawyer in open court and cited by Judge Illston in her opinion, not to insist on deletion of data that, at the time of settlement, was stale, valueless to Google, and had been de-identified to protect individual privacy.  It also bears mention that, as Judge Illston noted, Consumer Watchdog did not make this argument in its lengthy primary submission to the court, but did so only in a reply submission to which the Commission had no opportunity to respond.  The agency stands squarely behind the order entered in the Google Safari matter.  The penalty approved by Judge Illston is the largest civil penalty ever awarded to the FTC for an order violation; the largest penalty ever awarded in a privacy case, and far exceeds any revenue Google made as a result of its order violation.  That should send a clear message to companies that the FTC takes compliance with its orders seriously.

I responded that there seemed to be a conflict between what the FTC staff say the commissioners did, and what the commissioners say they did.  Could any of the other commissioners verify Vladecks’s statement?  They said they’d get back to me.   And their response was simply to edit out the first line of Vladeck’s comment, where he contradicts Rosch.

So I decided to email FTC Commissioner Edith Ramirez directly.  She is heralded as a “privacy expert” who would like to take over FTC Commissioner Jon Liebowitz’s position as Chairman when he retires.  I sent her Roche’s and Vladeck’s comments, and asked her the following:

These statements of Commissioner Roach and Dr. Vladeck appear to contradict each other. I am writing to you in hope you could settle the discrepancy.

1. Can you confirm or deny Commissioner Rosch’s statement that “neither I nor anyone else at the Commission was aware of the cookie issue until the plaintiffs brought it up before Judge Illston?”
2. If Dr. Vladick’s statement does not contradict Commissioner Rosch, it means that the FTC staff conducted “negotiations with Google” and made the decision not to delete the data and they did not tell the press, the judge, the public or the commissioners about it. Do you believe that it was appropriate for the FTC staff to make this decision, independent of the commissioners?
3. The FTC has always required that the data be expunged up to this point. Did the FTC ever ask Google to eliminate the data? What was Google’s response?
4. In the declaration the FTC filed in this case, they swore that they “only included or excluded relief based on what it determined to be in the best interests of consumers.” (Bartley declaration at para. 8) How is excluding this relief and letting Google keep the data in the best interests of consumers? Even if the data gets old, wouldn’t deleting it still gives consumers more protection than not deleting it?
5. Most importantly, Dr. Vladeck’s statement says “the agency stands squarely behind the order.” Commissioner Rosch apparently does not. As a privacy expert, do you still stand behind it?

Thank you so much for your help in this matter.

I expected at the very least that if Ramirez didn’t want to wade into the controversy, that she would still endorse the settlement, having voted for it.  Instead, the Office of Public Affairs contacted me this morning to say that “Commissioner Ramirez asked that I decline to answer you on her behalf.”

So unlike Vladeck she refuses to contradict Rocsch, refuses to endorse the settlement, and won’t go on the record saying that she knew that Google would be allowed to keep the  stolen data.

It appears that there is something of a communication problem between the FTC staff and the commissioners.  I asked Rosch if he was even aware of representations made by FTC and Google lawyers in court that the issue had been deliberated by the commissioners.  To which he replied “No. I was not aware of the representations the staff made.”

It looks like the FTC staff basically made the decision to give Google the use of the stolen data as part of the settlement — something the commissioners never intended — and  now none of the commissioners are willing to step forward and take responsibility for it.

I sure hope somebody grills Joshua Wright about it during his upcoming December 4 confirmation hearing.

*The FTC Office of Public Affairs subsequently contacted me to say that Ramirez “supports the settlement.”  But despite my repeated attempts to get a straight answer as to whether she intended for Google to retain the stolen data at the time she voted for the settlement, she refuses to do so.  Likewise, she refuses to explicitly endorse giving the data to Google as part of the settlement now. So the controversy remains.  I’ve edited the word “settlement” from the headline to more accurately reflect Commissioner Ramirez’s comments.