Facebook will pay an unprecedented $5 billion penalty over privacy breaches

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The Federal Trade Commission announced a $5 billion settlement with Facebook on Wednesday, resolving a sweeping investigation by regulators into how Facebook lost control over massive troves of personal data and mishandled its communications with users. It is the largest fine in FTC history — and only about a month's worth of revenue for Facebook.

The deal comes amid growing calls in Washington for greater transparency and accountability for technology companies, whose power over social movements as well as personal information has increasingly come to be seen as dangerous by politicians, users, and even one of Facebook’s co-founders.

Facebook agreed to the deal following years of damaging admissions about the company’s privacy practices, such as the inadvertent exposure of up to 87 million users’ information to the political analysis firm Cambridge Analytica.

The settlement resolves a formal complaint by the FTC alleging that Facebook “used deceptive disclosures and settings” that eroded user privacy, violating a prior agreement Facebook signed with the commission in 2012. Facebook also broke the law, the FTC alleged, by misusing phone numbers obtained for account security purposes to also target advertisements to its users. And the company allegedly deceived “tens of millions of users” by implying that a facial recognition feature on the service had not been enabled by default, when in fact it had.

“The magnitude of the $5 billion penalty and sweeping conduct relief are unprecedented in the history of the FTC,” said Chairman Joseph Simons in a statement. “The relief is designed not only to punish future violations but, more importantly, to change Facebook’s entire privacy culture to decrease the likelihood of continued violations.”

Separately Wednesday, the Securities and Exchange Commission announced that Facebook had agreed to pay $100 million to settle “charges… for making misleading disclosures regarding the risk of misuse of Facebook user data.”

Facebook did not immediately respond to a request for comment.

The FTC settlement — which also covers Facebook subsidiaries Instagram and WhatsApp — could set the tone for a wave of further action by policymakers worldwide as they seek to rein in the most powerful players in Silicon Valley.

The $5 billion fine is nearly 30 times the FTC’s largest-ever civil penalty to date — $168 million, which was levied on Dish Network (DISH) in 2017 — reflecting the tremendous scale of Facebook’s operations, as well as the enormity of its self-admitted mistakes.

In addition to the record civil penalty, Facebook also agreed to accept greater oversight of its privacy practices. Under the FTC deal, Facebook’s board will form a privacy oversight committee made up of independent members who cannot be fired by CEO Mark Zuckerberg alone. That committee will be charged with appointing still other officials who must periodically and truthfully certify that Facebook is complying with the FTC agreement, or risk being held personally liable. Zuckerberg will also be required to make those same certifications, the FTC said.

“False certifications would subject Mr. Zuckerberg and the [designated compliance officers] to personal liability, including civil and criminal penalties,” Simons said in a statement written jointly with the Commission’s two other Republican members, Christine Wilson and Noah Phillips.

The FTC also required that regular third-party assessments of Facebook’s privacy practices not rely on company materials but instead on the auditor’s own fact-finding.

The FTC voted 3-2 to approve the settlement, with the agency’s two Democrats dissenting because they believed the measure did not go far enough. In dissents, Commissioners Rohit Chopra and Rebecca Slaughter said they believed the fines were far too small, and that the FTC wrongfully gave Zuckerberg and Facebook COO Sheryl Sandberg a pass.

“Failing to hold them accountable only encourages other officers to be similarly neglectful in discharging their legal obligations,” wrote Chopra. “In my view, it is appropriate to charge officers and directors personally when there is reason to believe that they have meaningfully participated in unlawful conduct, or negligently turned a blind eye toward their subordinates doing the same.”

Critics have repeatedly pointed to Facebook’s role in spreading misinformation, hate speech and conspiracy theories on its platforms. The company came under fire in March when reports showed that Facebook’s search tool was recommending anti-vaccination groups and pages to users of the platform. Facebook published a blog post saying it was developing new policies to handle the issue, but the misinformation persisted even after the new initiative began.

Over more than a year, the FTC investigation gained increasing significance as a test of Washington’s commitment and ability to regulate Silicon Valley. It marked a sharp divergence from the Obama era, when Silicon Valley engineers and entrepreneurs were frequent White House visitors and, in many cases, filled key administration posts. Now, at a time when technology companies are under heightened scrutiny from Congress and on the receiving end of President Trump’s social media jabs, analysts say the FTC was under pressure to seek a tough deal from Facebook.

But the settlement, which must still be approved by a judge, proved much weaker than some commissioners had hoped. Chopra and Slaughter both said the far-reaching consequences of Facebook’s missteps called for more aggressive action.

The federal government should have taken Facebook to court to deter it from violating the law in the future, Slaughter wrote in her dissent.

“Litigation would have provided public transparency and accountability for the company, its leaders, and the Commission,” she wrote. “It would send a message to the market and the public that the Commission is willing to go to the mat to ensure compliance with its orders.”

The settlement does not require Facebook to spin off Instagram and WhatsApp; antitrust experts have said that a breakup proceeding would likely require a separate lawsuit alleging that Facebook violated the nation’s competition laws, as opposed to a prior settlement order.