Federal Court Dismisses Lawsuit But Says Advocacy Group’s Concerns Against Google May Still Be “Legitimate”

Yesterday – Friday, February 24th, 2012 – a federal court denied the Electronic Privacy Information Center’s (EPIC) motion for temporary restraining order and preliminary injunction, while it granted the US Federal Trade Commission’s (FTC) motion to dismiss EPIC’s lawsuit.

Judge Amy Berman Jackson said that her hands were tied and that she really couldn’t do anything because the consent order between the FTC and Google is not subject to judicial review. The judge said that the FTC has the sole authority to take actions as it sees fit for violations of consent orders.

The consent order Google agreed to last October contained nine parts – EPIC raised three relevant parts in particular that it says Google violated:

“Part I prohibits Google from misrepresenting (a) the extent to which it ‘maintains and protects the privacy and confidentiality’ of personal information, and (b) the extent to which it complies with the U.S.-E.U. Safe Harbor Framework.”

“Part II requires Google to obtain ‘express affirmative consent’ before ‘any new or additional sharing by [Google] of the Google user’s identified information with any third party . . . .”

“Part III requires Google to implement a ‘comprehensive privacy program’ that is designed to address privacy risks and protect the privacy and confidentiality of personal information.”

Google’s new privacy policy will combine all your personal data from every service Google offers (YouTube, Gmail, Google search, etc.) into one detailed profile of exactly who you are. Google wants to get to know you better, to figure out exactly who you are. A Google spokesperson once said that their mission is to eliminate “the faceless web”.

What Google is basically trying to do is that they want to sell your personal data to advertisers. Advertisers love getting more detailed information of us because it makes it easier to target personalized advertisements at us. Keep in mind that Google makes over 90% of its revenues from advertising.

You are not Google’s customer, you are Google’s product. Therefore, think of it this way:  when Google introduces its new more intrusive privacy policy at the start of next month – think of it as them reorganizing and relabeling their inventory to make it more appealing and easier to sell.

EPIC contends that Google is in clear violation of the consent order and that the FTC has mandatory nondiscretionary legal duty to punish Google. EPIC argued that the court can compel the FTC to punish Google because it unlawfully withheld or unreasonably delayed action that it should have already done by now.

However, the judge felt that there was still nothing the court could do because Congress has not given it the jurisdiction to fully oversee federal agencies and force them to take actions. She cited pass decisions to back her ruling and said that ultimately it is up to the FTC to evaluate whether or not Google violated the consent order.

With that said, though – the judge made sure to emphasis that her ruling should not be interpreted as an opinion about the merits of EPIC’s challenge to Google’s new privacy policy. Judge Jackson said the court has not made any decisions on whether or not Google’s new privacy policy violates the consent order; the court simply cannot force the FTC to take any action:

“EPIC – along with many other individuals and organizations – has advanced serious concerns that may well be legitimate, and the FTC, which has advised the Court that the matter is under review, may ultimately decide to institute an enforcement action. So neither EPIC, nor Google, nor any party with an interest in internet privacy should draw any conclusions about the Court’s views on those matters from this opinion.”

After the ruling, EPIC said that it would appeal the decision on judicial review and ask a federal appeals court to rule that courts can require federal agencies to enforce final orders.

You can read Judge Amy Berman Jackson’s full ruling – click here (PDF file)

For furthur background and to read related posts I wrote on this issue – click here

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