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FTC responds to EPIC lawsuit on Google's proposed privacy rules changes

FTC responds to EPIC lawsuit on Google's proposed privacy rules changes

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Published by: IDG News Service on Feb 20, 2012
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03/17/2013

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA
ELECTRONIC PRIVACY )INFORMATION CENTER,))Plaintiff,))v.)No. 12-206-ABJ)FEDERAL TRADE COMMISSION, ))Defendant. )
MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARYRESTRAINING ORDER AND PRELIMINARY INJUNCTION, AND IN SUPPORT OFMOTION TO DISMISSINTRODUCTION
Plaintiff, the Electronic Privacy Information Center (“EPIC”), seeks to have this Courtcompel the Federal Trade Commission (“FTC” or “Commission”) to file a civil action in aUnited States District Court to enforce a consent order to which EPIC is not a party. The consentorder settled an administrative complaint in which the Commission alleged that Google, Inc., inlaunching its Google Buzz social network, violated Section 5 of the Federal Trade CommissionAct, 15 U.S.C. § 45.EPIC alleges that in January 2012, Google announced new privacy practices that will takeeffect on March 1, 2012, and that these anticipated changes will result in a violation of theconsent order. EPIC would like this Court to order the FTC to file a civil action “within fivedays” in order “to recover the maximum allowable civil penalty pursuant to 15 U.S.C. § 45.”Complaint (“Compl.”) at 9. EPIC asserts that the FTC “has a mandatory, nondiscretionary dutyto enforce the consent order.” Compl. ¶ 63.
Case 1:12-cv-00206-ABJ Document 8 Filed 02/17/12 Page 1 of 12
 
EPIC’s complaint, which seeks to deprive the Commission of the discretion to exerciseits enforcement authority, flouts controlling precedent that universally rejects such efforts.
See,e.g.,
 
 Heckler v. Chaney
, 470 U.S. 821 (1985). This lawsuit is completely baseless, and thecomplaint should be dismissed and EPIC’s motion for emergency relief denied.
BACKGROUNDI.The FTC Consent Order
On March 30, 2011, the FTC issued an administrative complaint against Google relatingto its launch of Google Buzz, and asked for public comment on a proposed consent order thatwould settle all allegations of the complaint.
See In re Google, Inc.
, No. C-4336. After a period
1
of public comment, the Commission, on October 13, 2011, entered a consent order that settledthe administrative complaint.
See
Pl. Exh. 9. Among other things, the consent order bars
2
Google from making misrepresentations regarding its privacy policies, and requires it toimplement a comprehensive privacy program, including retaining an independent third-party professional to assess its privacy controls every two years.
II.This Litigation
EPIC filed its complaint on February 8, 2012, alleging that in January 2012, Googleannounced that it would change privacy policies, effective March 1, 2012. According to EPIC,Google’s announced changes will result in a violation of the consent order between Google andthe FTC. Compl. ¶¶ 9, 49-57. Invoking the Administrative Procedure Act (“APA”), 5 U.S.C.§ 706(1) (Compl. ¶¶ 1, 13), EPIC asserts that the FTC has “failed to take any action regardingThe Commission’s administrative complaint against Google is Pl. Exh. 7. It is also
1
2
Case 1:12-cv-00206-ABJ Document 8 Filed 02/17/12 Page 2 of 12
 
this matter” (
id.
¶ 12;
 see also id.
¶¶ 58-59); that the FTC’s alleged “failure to Act constitutesfinal agency action” (
id.
¶ 62); and that “[t]he FTC has a mandatory, nondiscretionary duty toenforce the consent order.”
 Id.
¶ 63. EPIC also alleges that it “is entitled to injunctive relief compelling the FTC to enforce the consent order” (
id.
¶ 65) – specifically, an order directing theFTC “within five days,” to “commenc[e] a civil action against Google, Inc. in a US district courtto recover the maximum allowable civil penalty pursuant to 15 U.S.C. § 45.”
 Id.
at 8-9.
ARGUMENTI.Standard of ReviewA.Motion to Dismiss
EPIC’s complaint can be dismissed under Federal Rule of Civil Procedure 12(b)(1) because its claim is “so attenuated and unsubstantial as to be absolutely devoid of merit.”
 Hagans v. Lavine
, 415 U.S. 528, 536-37 (1974). “Dismissal for lack of subject matter  jurisdiction because of the inadequacy of the federal claim is proper . . . when the claim is ‘soinsubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completelydevoid of merit as not to involve a federal controversy.’”
Steel Co. v. Citizens for a Better Env’t 
,523 U.S. 83, 89 (1998) (quoting in part
Oneida Indian Nation of N.Y. v. County of Oneida
, 414U.S. 661, 666 (1974));
 see also Neitzke v. Williams
, 490 U.S. 319, 327 n.6 (1989) (“A patentlyinsubstantial complaint may be dismissed . . . for want of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).”).The Court may also dismiss the complaint under Fed. R. Civ. P. 12(b)(6). The APA precludes judicial review of agency action “committed to agency discretion by law.” 5 U.S.C.§ 701(a)(2). This Circuit formerly viewed this provision as a jurisdictional bar,
 Baltimore Gas
-3-
Case 1:12-cv-00206-ABJ Document 8 Filed 02/17/12 Page 3 of 12

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