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.
……………………………
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
……………………………
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
……………………………
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
……………………………
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
