US regulators could hold Zuckerberg to account for Facebook’s failings

In January, it was reported that regulators had been considering imposing a “record-setting fine” on Facebook over its violation of an earlier agreement with the FTC. The social media giant admitted that it had “deceived” its users by telling them that their Facebook data could be kept private while the company allowed it to be publicly shared. Facebook reached an agreement with the FTC to avoid a fine, under which it promised to inform users and get their consent before sharing their information beyond their privacy settings, while also promising to prevent third parties from accessing user data inappropriately, and establishing a privacy programme.

During these initial discussions between the FTC and Facebook, the trade regulator had considered directly targeting Zuckerberg. The Washington Post revealed through a Freedom of Information request that Zuckerberg could have faced greater federal oversight and the risk of personal fines and other penalties in the event of future “privacy missteps”, while the company could have faced a considerable fine.

In March 2018, the FTC announced that it was investigating Facebook, following revelations that 87 million Facebook users unknowingly had their personal data harvested by data analytics firm Cambridge Analytica and used to develop psychologically-targeted political advertising tools used by the Trump campaign in 2016. The investigation will determine whether Facebook had broken its previous agreement with the FTC.

Although it would be unusual for federal regulators to target company executives when enforcing punishments, two sources close to the matter told the Washington Post that whether Zuckerberg should be held personally accountable had been discussed by regulators. It is possible that, under the FTC’s ruling, Zuckerberg could be forced to personally clarify the company’s privacy policies to the FTC.

Reports also suggest that former FTC members are encouraging the investigation to “take direct aim” at Zuckerberg.

Democratic Senator for Connecticut Richard Blumenthal, who has been a vocal critic of the power and irresponsible behaviour of tech giants, commented that: “Holding Mark Zuckerberg and other top Facebook executives personally at fault and liable for further wrongdoing would send a powerful message to business leaders across the country: you will pay a hefty price for skirting the law and deceiving consumers.”

It is not known when a final settlement between the FTC and Facebook will be reached, although previous reports suggest that Facebook is facing the largest ever FTC fine in history: potentially reaching billions of dollars.

Earlier this month, the Australian government introduced legislation which could jail social media executives for up to three years for allowing the most extreme and violent content to proliferate on their platforms. In the UK and the US, some policymakers have considered making executives of online platforms liable for the harmful content on those platforms.

Facebook has announced that its new general counsel will be Jennifer Newstead. Newstead was appointed by President Donald Trump to serve as a legal advisor to the state department, and was previously responsible for helping to draft the controversial Patriot Act of 2001, which has since been ruled as unconstitutional multiple times by federal courts.