Markey and Barton Urge FTC to Investigate Facebook Tracking Logged Out Users

Published On September 30, 2011 | By Elizabeth Banker | General, Legislation, Privacy

This week Representatives Edward Markey and Joe Barton sent a letter to the Federal Trade Commission regarding the latest online tracking controversy – Facebook tracking users who have logged out of the service.

This new concern was spurred by Australian internet blogger Nik Cubrilovic on his blog this past Sunday. Cubrilovic claims he discovered persistent cookies that track Facebook users after logging out a year ago, and has twice written Facebook about his concerns.  The source of this latest controversy comes from the connection that more than 900,000 websites have created to link to Facebook, through different means, but mostly by including the Facebook ‘Like’ button on their page.  Facebook says that this connection is set up such that websites using Facebook’s social plug-ins can read the persistent cookies set by Facebook and communicate information back to Facebook, including the unique identifier associated with cookie, every time a user views their page –regardless of whether the user is logged into Facebook or not.

Persistent cookies are not uncommon and are often used by sites to help users avoid the need to login every time they visit a site or for fraud and security purposes.  Arturo Bejar, a Facebook Director of Engineering and former Chief Paranoid at Yahoo! Inc., recently told the Wall Street Journal that this is why Facebook uses the cookies and changing the set up to not receive information from third party sites after users have logged out of Facebook “will take a while” (“Facebook Defends Getting Data From Logged-Out Users”, September 26, 2011). Representatives’ Markey and Barton , as co-Chairs of the Congressional Bi-partisan Privacy Caucus, raised concerns not only about Facebook’s ability to track users without their consent or knowledge, but also how long it will take Facebook to ‘correct this problem’ in their letter.  As a result, they requested the FTC open an investigation of Facebook because they believe that “tracking its users even after they log out falls within the FTC’s mandate as stipulated in Section 5 of the Federal Trade Commission Act with respect to protecting Americans from ‘unfair and deceptive acts or practices.’”   While this situation seems somewhat unique given the ubiquity of the Facebook ‘like ‘button, other companies who may use persistent cookies to help users easily access their accounts or to protect them from abuse may be concerned as to whether there will be any adverse implications for their practices as a result of Congressional and/or FTC interest.

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About The Author

Elizabeth Banker

Elizabeth joined ZwillGen after spending almost eleven years as in-house counsel for Yahoo! Inc. At the time she left Yahoo!, Elizabeth was Vice President, Associate General Counsel for Global Law Enforcement Compliance and Information Security based in Washington, DC. In this role, she oversaw Yahoo!'s global policies and procedures for responding to law enforcement requests in both criminal and national security investigations, responding to requests for user data in civil litigation and other contexts, complying with law enforcement requirements related to data retention and data access, as well as advising the business on child safety, information security and other safety and online abuse issues.

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