District Judge Kelly “Likes” Facebook’s Infection with the FTC-DOJ Virus

Late yesterday, Judge Timothy J. Kelly of the United States District Court, D.C., issued a memorandum opinion in United States v. Facebook, granting the consent motion before him, and thereby giving legal effect to a settlement order proposed by the parties.

Those of you who have followed me or CLP know that we filed an amicus brief last October, objecting to the proposed settlement on the grounds that the order appears, in a few places, to grant the FTC and DOJ warrantless access to Facebook user data, and that this is unjustified both under the existing legal precedent (Carpenter v. United States), and according to proper legal principles governing data shared for a limited purpose in a business context.

In December, Judge Kelly ordered the parties to respond to all the arguments presented by amici, which included CLP’s brief, and, in January, we saw that the understanding of the two parties, as to what Fourth Amendment protection Facebook user data would (and should) enjoy under the proposed settlement, differed considerably.

Fast-forward to today, in the midst of the coronavirus crisis, and we see Kelly entering his memorandum opinion, upholding the proposed settlement order and, in doing so, ignoring entirely the Fourth Amendment concerns raised in the settlement order.