Monday, October 10, 2011

Super Cookies and FaceBook? It's Hammer Time.

A message to the FTC:  break out your (regulatory) hammers and start swinging. 

Late last month, a bi-partisan group of Congressmen (aptly named, the "Congressional Bi-Partisan Privacy Caucus") sent a letter to the FTC requesting that the FTC investigate certain allegations raised by an Australian technology blogger.  The issue?  The use by FaceBook of so-called "super cookies", which track users' activities after they log out of FaceBook.

Yes, you heard that correctly.  These uber cookies track what you do after you log out of FaceBook.

Normally at this point in a commentary, the speaker says something like, "If this were true, then..." or "If it turns out that FaceBook was using this technology, then..."  But we can dispense with the "if / then" scenarios.  We know that FaceBook was using this technology, since (i) it was proven by our Aussie friends, and (ii) FaceBook claims that it has stopped using super cookies.  (By definition, if they have stopped using them, then clearly then were using them in the past.)

So what to do?  What do you do with a company that has been accused repeatedly of playing fast and loose with its users' information, and then utilizes super cookies to track users' activities in clear violation of both its own privacy policy and the FTC Act (which expressly prohibits unfair and deceptive acts or practices by companies engaged in interstate commerce)?

You hammer them.  You hammer them in the way that only the government can.  You make them undergo an extensive analysis of what they did wrong, and why they did it.  You make the analysis a part of the public record.  And then you levy a fine (something that makes them go, "Ouch"), and enjoin them from doing it again.

Anything less would be ridiculous. 

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