Facebook sent confidential Six4Three documents to US Federal Trade Commission

4 November 2019 5:45pm

1 November 2019. By Amy Miller.

Facebook sent the US Federal Trade Commission confidential documents belonging to a now-defunct startup that has waged a closely watched four-and-a-half-year legal battle against the social network, MLex has learned.

The disclosure of the documents belonging to Six4Three, which itself leaked internal Facebook documents to British politicians last year, was unintentional, according to a person familiar with Facebook’s actions.

The precise nature of the documents is unclear. Facebook inadvertently provided the material to the FTC on a hard drive the company submitted to satisfy a query from the agency, the person said.

The agency is currently in the process of returning them at Facebook’s request, the person said. A spokesperson for the FTC declined to comment.

Facebook also wrote a letter to Six4Three explaining what happened, it is understood. Six4Three attorney Reno Fernandez declined to comment on whether he had received the letter.

Facebook obtained the documents during its ongoing litigation with Six4Three in California state court. Facebook has tried unsuccessfully to terminate the case, arguing that it is “frivolous” litigation.

Six4Three sued Facebook in 2015 over the company’s decision to rescind an eight-year policy that let developers access not only Facebook users’ data, but also their friends’ data.

That policy change, at the heart of Facebook’s Cambridge Analytica privacy debacle, essentially put Six4Three and its “Pikinis” app, which trolled the social network for photos of bikini-clad women, as well as hundreds of other developers out of business, founder Ted Kramer said in seeking nearly $100 million in damages.

The case attracted international attention last year after Kramer provided sealed court documents to politicians in the UK that raised questions about whether Facebook secretly sold its users’ data to developers or required developers to buy ads in exchange for data.

Damian Collins, chairman of the UK Parliament's Digital, Culture, Media and Sport Committee investigating Facebook, obtained copies when Kramer traveled to London in November 2018 with digital copies of the materials on his laptop computer, and published key e-mails and presentations.

Now the US Congress wants to see the documents too, amid growing regulatory scrutiny of the tech industry, with the FTC and state attorneys general recently announcing their own antitrust investigations into Big Tech companies. The House Judiciary Committee sent a letter to Six4Three this fall also requesting the internal Facebook documents.

But California Superior Court Judge Raymond Swope, who is overseeing Six4Three’s lawsuit in San Mateo County, has sharply criticized Kramer’s disclosure of the sealed court documents, calling his actions “unconscionable” and ordering an investigation into how they were leaked. Swope has not issued a decision on whether Six4Three should be sanctioned and ordered to pay legal costs in the case.

Kramer’s attorneys argued to Swope that he faced a demand for the documents from Collins and “panicked.” They suggested in a court filing that a reporter involved in breaking news about Facebook’s Cambridge Analytica scandal may have told British officials where Kramer was staying.

In July, Six4Three told the House Judiciary Committee in written testimony that Kramer only turned over the documents after being served with multiple subpoenas and being threatened with contempt and potential imprisonment.

Parliament had invoked “authority we were later told has not been used in hundreds of years, in order to hold Facebook accountable for its crimes and frauds,” Six4Three told the committee. “The United Kingdom did this because Zuckerberg has refused to answer its questions or comply with its lawful orders for well over a year.”

Facebook, however, presented a much different story to Swope, arguing that Kramer and his lawyers conspired to invite a foreign committee to issue a non-voluntary order in conflict with the California court’s protective order, without notifying the court or Facebook.

Kramer’s attorneys should have known that he was not in imminent danger of being fined or imprisoned if he didn’t comply, Facebook said. The House of Commons hasn’t fined anyone for contempt since 1666, Facebook said.

Swope has not yet weighed in on Facebook’s disclosure of Six4Three’s documents to the FTC, and Six4Three has not submitted any filings about the issue to the court yet.

Facebook believes its disclosure to the FTC does not violate the court’s protective order because it was inadvertent and unintended, and the company followed the proper procedure under the order for notifying Six4Three, MLex has learned.

*With assistance from Leah Nylen in Washington DC