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Electronic Privacy Information Center v. Federal Trade Commission

February 24, 2012

ELECTRONIC PRIVACY INFORMATION CENTER, PLAINTIFF,
v.
FEDERAL TRADE COMMISSION, DEFENDANT.



The opinion of the court was delivered by: Amy Berman JACKSONUnited States District Judge

MEMORANDUM OPINION

Plaintiff Electronic Privacy Information Center ("EPIC") brings this action against defendant Federal Trade Commission ("the FTC") seeking injunctive relief under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq. EPIC asks the Court to compel the FTC to enforce a consent order the agency signed with Google, Inc. in October 2011 ("the Consent Order") concerning the company's social networking service, Google Buzz.

Google announced in January 2012 that it would implement changes to its user privacy policies for all of its services. EPIC contends that this intended policy change, which is scheduled to take effect on March 1, 2012, will violate the Consent Order. Although EPIC is not a party to the Consent Order, it filed a motion for temporary restraining order and preliminary injunction on the grounds that the FTC has a "mandatory, non-discretionary duty" to enforce it. Compl. ¶ 63. The FTC opposed the motion [Dkt. # 7] and moved to dismiss the complaint [Dkt. # 8]. The Court will deny EPIC's motion for temporary restraining order and preliminary injunction and grant the FTC's motion to dismiss because enforcement decisions are committed to agency discretion and are not subject to judicial review.

I. BACKGROUND

A. Factual Background

1. The Consent Order Concerning Google Buzz The complaint alleges that on February 16, 2010, EPIC filed a complaint urging the FTC to investigate whether Google's social networking service, Google Buzz, violated the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 45 (2006). Compl. ¶ 26. The FTC subsequently initiated an investigation, and on March 30, 2011, it announced a proposed Consent Order with Google. Id. ¶ 33. After a period of public comment, the FTC approved a final Consent Order on October 13, 2011. Id. ¶¶ 40--41; Ex. 9 to Mot. for TRO/PI. The Consent Order, which contains nine parts, included the following relevant provisions:

fl "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." Compl. ¶ 44.

fl "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 . . . ." Id. ¶ 45 (brackets and ellipses in original).

fl "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." Id. ¶ 46.

2. Google Announces New Privacy Policies On January 24, 2012, Google announced that, effective March 1, 2012, the company would implement new privacy policies that would alter the "use of personal information" obtained from users. Id. ¶ 49. The complaint alleges 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." Id. ¶ 50. According to EPIC, these anticipated changes would violate Parts I(a), I(b), II, and III of the Consent Order. Id. ¶¶ 7, 14, 54--57.

EPIC contends that the FTC has failed to take any action with respect to Google's announced new privacy policies, and that the agency has a "mandatory non-discretionary obligation" to enforce the Consent Order under the FTC Act. As a consequence of this alleged non-enforcement, EPIC avers that the FTC has "plac[ed] the privacy interests of literally hundreds of millions [sic] Internet users at grave risk." Id. ¶ 12.

B. The Lawsuit Before the Court

EPIC filed this suit on February 8, 2012, alleging one count under section 706(1) of the APA, seeking "to compel agency action unlawfully withheld." Id. ¶ 1. EPIC asserts that the FTC has "failed to take any action regarding this matter," Compl. ¶ 12; that the FTC's "failure to [a]ct constitutes a final agency action," id. ¶ 62; and that "[t]he FTC has mandatory, non-discretionary duty to enforce" the Consent Order, id. ¶ 63.

EPIC filed a motion for temporary restraining order and preliminary injunction, asking the Court to compel the FTC to "enforce the Commission's consent order[.]" Mot. for TRO/PI at 1. Pursuant to the Court's Minute Order on February 10, 2012, the FTC filed a pleading that served as both its opposition to the motion for temporary restraining order and ...


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