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WASHINGTON – Facebook's announcement in late April that $ 3 billion to $ 5 billion would be set aside to deal with accusations that it manipulated users' personal data suggested a clear consensus among federal regulators that hold the social media giant accountable.
But the reality behind the scenes of the Federal Trade Commission is much more complicated, reflecting the politics and concessions of the negotiations.
The five commissioners of the Newfoundland Federation agreed several months ago that they wanted to enforce a historic sanction that would show the teeth of the agency. But now, members are divided on the size and scope of the punishment imposed by the technology company, according to three people familiar with the discussions that spoke on condition of anonymity.
The division complicates the last days of the talks.
In addition to the disagreement over the appropriate financial sanction, one of the most controversial grounds during the negotiations was the extent to which Mark Zuckerberg, CEO of Facebook, should be held personally responsible for any violation of the agreement, according to two people.
Facebook fought hard, saying Zuckerberg should not be held legally responsible for the actions of his 35,000 employees.
The talks could break down, but negotiations are progressing and should be completed in a few days. This report of the FCT Facebook inquiry is based on interviews with half a dozen people.
Joseph J. Simons, the republican president of the commission, seemed to have gathered the votes of the other two Republican commissioners, which gave him the three necessary to approve an agreement. However, a three-to-two, party-level decision that Mr. Simons said he would like to avoid could be heavily reprimanded on Capitol Hill.
The stakes are enormous for the agency and for Mr. Simons. The case is being watched closely around the world as a litmus test of how the US government will control the country's tech giants.
The commission has a reputation for taking action, particularly as opposed to European regulators, who have taken strong action in the areas of privacy and antitrust laws. The largest F.T.C. well against a technology company was $ 22.5 million against Google in 2012, to mislead users about how some of its tools were following them.
Any settlement will also be seen as a measure of the Trump administration's willingness to sanction one of the country's largest and most influential corporations. The administration has eased regulations in many areas, but President Trump has repeatedly stated that technology giants such as Facebook and Amazon have too much power.
Many Democrats have directed their efforts to limit the power of Silicon Valley.
"This is an extremely important decision because all major corporations will monitor it to see if there is going to be a new day on the law enforcement front," said Senator Ron Wyden, a Democrat Oregon who defended Mr. Zuckerberg. be held personally liable in any settlement.
Rohit Chopra, one of the two Democrats of the commission has publicly called for tougher penalties for repeat offenders of transnational organized crime. rules.
But Mr. Simons seems unwilling to force the case and drag the case to court, which could be risky. He has recently stepped up his efforts to get at least one of the two Democrats on his side, according to one of the people aware of the discussions. But internal disagreements have blocked a final agreement.
In addition to the fine, Facebook has agreed, under a proposed regulation, to create new positions focused on privacy and compliance policies, said two of the interviewees. The agency, in coordination with the company, would create an independent committee to oversee Facebook's efforts to protect privacy. This committee and the F.T.C. appoint an external evaluator to oversee the data processing by the company.
The company has also agreed to assign a senior officer to the position of privacy compliance officer, making privacy oversight work among the highest ranks, have said the officials. Mr. Zuckerberg could be appointed to this post, according to a person familiar with the interviews, although another person expressed doubts.
However, the settlement will likely not limit Facebook's ability to track users and share data with its partners, mandates that privacy advocates have raised as important to US regulation and Facebook's is beaten. Mr Simons argued that the proposal for a regulation created a new brake on the application of privacy breaches and wanted to avoid litigation that might lose that chance.
"Five billion dollars is a lot of money," said David Vladeck, a law professor at Georgetown University and former chief consumer protection officer for the F.T.C. "And in the end, it is not in the interest of the board to attend a trial, as there is no guarantee that it will get any repairs beyond what is already on the table."
F.T.C. and Facebook declined to comment on this article.
The roots of the survey come from a deal that Facebook settled with the agency in 2011. The company was accused of misleading consumers about how it handled their data. As part of the settlement, he stated that he was going to review his privacy practices.
In March 2018, The New York Times and The Observer of London reported that Cambridge Analytica, a British political advisory firm that worked for Trump's presidential campaign, had used a wealth of Facebook data to compile voter profiles. . The agency then opened an investigation to determine if the company had violated the 2011 agreement.
Facebook is sorry to have reacted slowly to the revelations regarding Cambridge Analytica. But the company said that a university researcher with access to the data broke his rules by sharing his data with the consulting firm.
At the same time, the feeling in Washington was turning against Big Tech. It became clear that Russia was using online services to interfere in the 2016 presidential election. YouTube, Twitter and Facebook were blamed for spreading harmful content and false news. Politicians like Vermont Senator Bernie Sanders, who is now running for the Democratic nomination for president, blamed Amazon for unfair labor practices.
A few weeks after the start of the investigation, Mr. Simons, a longtime Republican antitrust attorney, was sworn in as head of the agency. Two other Republicans, Noah Phillips and Christine Wilson, and two Democrats, Rebecca Slaughter and Mr. Chopra, were confirmed by the Senate at the same time as the other commissioners.
All five met for the first time to discuss the Facebook case in December. Commission staff said it has found several violations of the 2011 agreement and a corporate culture that does not make privacy a priority, according to two people familiar with the talks.
Commissioners were largely in agreement that the charges against Facebook appeared to be strong and that they needed to react vigorously, according to both.
In the days and weeks following this meeting, staff members began to discuss possible fines and other penalties with the commissioners. A fine well above $ 7 billion seemed to have a strong agreement, according to one of the people.
Staff members and commissioners also began talking about Mr. Zuckerberg's personal liability, which means that he could be named as a defendant in a future case.
In a first version of the complaint and the proposed regulation, Zuckerberg was named responsible party, said the two people. The focus on Mr. Zuckerberg was reported for the first time by the Washington Post.
Facebook has rebuffed the inclusion of Mr. Zuckerberg, saying that she would not accept this in a bylaw.
Democrats in Washington have recently called for more accountability for senior executives of companies under surveillance.
Shortly after joining the CTF, Mr. Chopra, a Democrat, wrote a memo to all staff stating that the agency should address "managerial deficiencies through structural corrective measures, including dismissal of senior management".
Simons has also publicly called for tougher enforcement of technology companies. But at a conference on privacy protection in Washington on Thursday, he described the "big compromises" by appointing general managers in complaints.
"When you put yourself in the position of threatening to name individuals and make them personally accountable, companies are less likely to settle in and you end up having to argue a lot more than you would otherwise," said Simons. "You have to think that you get enough relief for consumers without having to name them as a sufficient deterrent."
Republican lawmakers would probably criticize an order including Mr Zuckerberg in the complaint.
"It's one thing if Facebook is an entity that can not itself be held accountable," said Utah Republican Senator Mike Lee in an interview. "Holding a responsible C.E.O. is extraordinary and is not necessary here."
A few weeks ago, the commissioners were informed of the updated draft agreement. There was a fine of about $ 5 billion and no mention of liability for Mr. Zuckerberg.
The proposal triggered a frenzy of discussions between commissioners and staff members. Soon, details of the discussion began to filter in the media.
Facebook executives believed that the members of the F.T.C. were disclosing details to influence the negotiations, according to two people.
Facebook reacted by announcing the expected penalty of $ 3 to $ 5 billion, partly in order to set expectations for what the company thought it would finally pay, said the two people.
Discussions between Facebook and agency officials have continued in recent days. Mr. Simons was trying to persuade Mrs. Slaughter, a democrat who seemed to have sided with Mr. Chopra, to know his point of view. Commissioners should decide on the settlement in the coming days.
"Having a good bipartisan consensus makes a huge difference to the effectiveness of the agency," Simons said in an interview in February. "So I think it's very important and we're trying very hard to do it."
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