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Correspondence Between the FTC and ProPublica

Date: June 29, 2012, 4:46 p.m.
From: Cecelia Prewett
To: Paul Steiger
CC: Peter Maass

Mr. Steiger:

In my opinion your June 28, 2012, story, “How a Lone Grad Student Scooped the Government and What It Means for Your Online Privacy,” doesn’t meet the journalistic and ethical standards your organization espouses and almost invariably provides. The “about us” section of your website says ProPublica will be “fair” and that, “We give people and institutions that our reporting casts in an unfavorable light an opportunity to respond and make sincere and serious efforts to provide that opportunity before we publish.” So we were surprised and disappointed by the way things turned out when we made Federal Trade Commission officials available to your reporter, Peter Maass for a story about consumer privacy. No effort, sincere or otherwise, was made to provide us that opportunity before the article was published. Instead, Mr. Maass proceeded to write a slanted, biased story—which was published in Wired magazine and is featured prominently on your website—without ever giving us a chance to respond to the central premise of this piece, namely, his contention that the FTC is ineffective and was scooped by a graduate student on an important matter.

Had Mr. Maass asked us to respond to this contention, we would have highlighted for him the FTC’s extensive record of enforcement. The agency has brought 40 cases on data security breaches, 16 cases alleging violations of the Children’s Online Privacy Protection Act, more than 100 cases involving spam and spyware, dozens of cases alleging violations of the Do Not Call Registry, and dozens more involving unfair or deceptive privacy practices, including recent cases against Google, Facebook, and Twitter. These enforcement actions have created strong incentives for companies to secure their data, to abide by their own privacy promises, to respect consumers’ choices, and to protect children’s privacy. We have also helped start an international dialogue on how to better protect consumer privacy on the web, and have pushed aggressively for the creation of a Do Not Track option that would enable consumers to have control over the collection and use of their data. Instead, the FTC’s long record of enforcement was given short shrift in the article.

This article also made some major unwarranted assumptions, including the very headline of the article, which suggests that computer scientist Jonathan Mayer discovered there were undisclosed cookies on the Safari Internet browsers of some consumers before the FTC did. Since FTC investigations are non-public from the beginning, there is no way ProPublica could know when the FTC learned of this issue. And in fact, very often we learn about alleged violations well before others, and that never gets reported. The headline’s statement (masquerading as fact) that FTC was “scooped” by Mr. Mayer is pure supposition. I encourage you to talk to Mr. Mayer about his conversation with Mr. Maass.

The article also contains some notable inaccuracies. For example: the article states FTC “has less influence over data mining firms like LexisNexis, Choicepoint and Rapleaf.” That’s just plain wrong. Both Lexis Nexis and Choicepoint are under 20 year orders with the FTC; and the agency obtained $15 million in relief from Choicepoint.

The article states the FTC is focusing enforcement efforts on deception. That’s inaccurate, too. The Commission also has authority over unfair practices, and has used this authority in cases like Facebook and a peer-to-peer file-sharing application developer called Frostwire. The Commission has also relied on unfairness in many of our 40 data security cases we’ve brought, including the Wyndham case filed earlier this week. The FTC also has brought many cases alleging violations of the Fair Credit Reporting Act. All of these cases are available on our website as well. Other inaccuracies include statements that the internet and mobile phone labs are in the basement (they are not) and the misspelling of the FTC Chairman’s name (Leibowitz not Liebowitz).

One final issue I’d like to bring to your attention is how Mr. Maass used his interview with our staffer, Patti Poss, as a vehicle to take a gratuitous shot at Patti and our public affairs officer, Claudia Bourne Farrell. During the interview, Claudia and Patti were discussing how to respond to Mr. Maass’s questions because some of them were obviously leading and loaded, and others sought non-public information about the FTC. It seems Mr. Maass felt that quoting these side comments by Claudia and Patti would be helpful to his overall story narrative by making them appear defensive. From my perspective, this is a cheap and unprofessional tactic. It’s certainly hard to see how it furthers the public interest.

In closing, the FTC is a small, nimble, independent, bipartisan federal agency, and we take pride in our accomplishments and work on behalf of the nation’s consumers. We think the FTC has made smart, efficient use of our resources and taxpayer dollars. I am sorry that this article, and this reporting, in my opinion, falls short of your self-set standard of “Journalism in the Public Interest” and live up to your Pulitzer-prize winning history.

Sincerely,

Cecelia J. Prewett

Director of Public Affairs

Federal Trade Commission

From ProPublica website:

We strive to be fair. We give people and institutions that our reporting casts in an unfavorable light an opportunity to respond and make sincere and serious efforts to provide that opportunity before we publish. We listen to the response and adjust our reporting when appropriate. We aggressively edit every story we plan to publish, to assure its accuracy and fairness. If errors of fact or interpretation occur, we correct them quickly and clearly. We aim for a working culture that embraces all of these principles, and insist that they infuse all that we do.

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Date: July 02, 2012 12:56 p.m.
From: Peter Maass
To: Cecelia Prewett

Dear Ms. Prewett,

We are working to respond to your letter as quickly as possible. We have already corrected the spelling of Chairman Leibowitz's name and we have made a public note of that correction. We apologize for that error; it should not have occurred.

As we undertake our review of your letter, we need clarification on one of your points. You state our story contains "unwarranted assumptions" and "pure supposition" about Mr. Mayer determining and proving, before the FTC, that Google was getting around Safari settings to plant cookies on a large number of iPhones. Are you stating that the FTC knew what had happened and how it had happened before Mr. Mayer?

We move quickly and fully when we are told there is an error in a story, but as I am sure you can understand, the review process pivots on us being notified of an error. You have notified us about several other points that you describe as inaccurate, and we are currently looking into them and aim to send you a full response later today. We would be grateful if you could let us know about the Mayer issue as soon as possible today.

Thank you for your cooperation.

Sincerely,

Peter Maass

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Date: July 2, 2012, 1:57 p.m.
From: Cecelia Prewett
To: Peter Maas, Paul Steiger

Note—am adding Mr. Steiger back to the email thread since the letter was directed at him, about Mr. Maass. Thank you in advance for understanding why.

My response to the email received today:

The lead claim in the article is that a Stanford graduate student, Jonathan Mayer, scooped the FTC. The burden on defending that statement, it seems to us, rests on its proponent, Mr. Maass, and not the FTC. We are puzzled as to how Mr. Maass was able to make that assertion --- especially since it is stated as fact and not speculation.

As I said in my initial letter, FTC investigations are non-public, and hence Mr. Maass had no way of knowing when the FTC learned of the issue. Nor, surprisingly, is there any quote from Mr. Mayer or anyone else making that claim. From the article, it appears that this is Mr. Maass’s unadorned speculation and nothing more, even though it is stated as a fact.

But the claim puts the FTC is a difficult position --- we cannot defend ourselves without revealing details about a possible investigation that we cannot either confirm or deny --- a fact Mr. Maass was plainly aware of. Perhaps you should follow up with Mr. Mayer to see if he made such a claim, even though he is not quoted saying so.

Thank you,

Cecelia Prewett

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Date: Monday, July 02, 2012, 5:15 p.m.
From: Peter Maass
To: Cecelia Prewett
Cc: Paul Steiger; Tom Detzel; Stephen Engelberg

Dear Ms. Prewett,

Thank you for your reply.

We are working on our response to your email and will not be able to finish it today. Due to the July 4 holiday, it might take a few days for us to do the necessary work. We regret the delay but we hope you understand.

On the Mayer issue, I would like to make clear, if it wasn't clear in my previous email, that we are not asking whether the FTC is investigating Google on this issue. We are asking whether the FTC discovered the Google violation (what was happening, how it was happening) before Mr. Mayer. We would like to give you another opportunity to say, clearly, whether you believe our story was incorrect on this matter.

Thank you for your assistance.

Sincerely,

Peter Maass

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Date: July 3, 2012, 9:30 a.m.
From: Cecelia Prewett
To: Peter Maass, Steiger
Cc: Tom Detzel , Stephen Engelberg

Dear Mr. Steiger:

Mr. Maass asks two questions of the FTC. One of them is whether we believe that the story is “incorrect.” Although we’ve answer that question repeatedly, we’ll answer it again: Yes, the story is incorrect. It rests on a factual assertion --- that Mr. Maass [sic] scooped the FTC --- that Mr. Maass did not substantiate in the article (no one is quoted saying that) and we believe cannot be substantiated.

Why do we say that? The FTC did not tell Mr. Maass that it had been beaten to the punch by Mr. Mayer and given the absence of a quote from Mr. Mayer we assume that Mr. Mayer also did not tell him that. For that reason, our central (but hardly exclusive) criticism of the article that it rests on a factual assertion that is not a “fact” at all. At most, the claim is the product of the author’s speculation, but the author reveals nothing that provides the bases for that speculation. Again, if there is a QUOTE to make that assertion, it was left out of the article. And let’s not mince words, a story that had simply said “ProPublica reporter speculates that a graduate student scooped the FTC” would have been poles apart from the story that was published.

Mr. Maass next asks that we separate the “what we knew and when did we know it” question from the question about whether the FTC is pursuing an investigation. This is pure gamesmanship, as Mr. Maass plainly knows. Mr. Maass glosses over the fact that his question cannot be answered without also answering two logically anterior questions: (1) Has the FTC consulted with Mr. Mayer? And (2) if so, did the FTC and Mr. Mayer compare timelines to determine who started first? We can’t answer Mr. Maass’s question without answer those two questions as well. But as we’ve made clear all along, we are not permitted to engage in any discussion that could reveal the existence or non-existence of an investigation, let alone identify individuals we may or may not have consulted with. And we cannot reveal whether we have spoken to individuals outside the agency on a matter that could lead to an investigation. Mr. Mayer, of course, is not subject to these constraints, but as we’ve said, he is not quoted in the article.

Now it is our turn to ask a question: If Mr. Maass had factual support for his “scoop” assertion prior to the publication of the story, where is it? Mr. Maass is now asking questions that should have been asked before the story’s publication.

Cecelia J. Prewett

This article is part of an ongoing investigation:
Surveillance

Surveillance

ProPublica investigates the threats to privacy in an era of cellphones, data mining and cyberwar.

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