FTC rules don’t explain excessive redactions in FTC v. Amazon

F.T.C. v. Amazon.com, Inc., NO. C14-1038-JCC (W.D. Wash.
Apr. 26, 2016)

 

Amazon made it really easy for kids to make in-app purchases
in “free” apps; the court agreed with the FTC that this was bad, denying the
FTC’s request for an injunction and holding the question of damages for further
briefing.

 

In some ways the biggest story here is how Amazon convinced
a judge to redact embarrassing, but highly relevant and non-trade-secret,
information about Amazon’s business practices here, despite the grant of
summary judgment on liability for §5 violations.  The willingness to let parties choose what
the court makes public is even more
disturbing than the willingness to seal documents apparently willy-nilly.  Here’s
a story focusing on that.

 

15 U.S.C. §
57b–2
covers “any document, tangible thing, or transcript of oral testimony
received by the Commission pursuant to compulsory process in an investigation”
and requires confidentiality of documents produced pursuant to a civil
investigative demand.  However, this
provision doesn’t prevent disclosure of
relevant information in judicial proceedings to which the Commission is a party
.  16 C.F.R. § 4.10(g), et seq., provides FTC
Rules of Practice for Adjudicative Proceedings. 
This regulation allows disclosure of information obtained from a CID,
subject to the submitter’s ability to seek a protective or in camera
order.  Nothing in the (accidentally
unredacted) opinion of the court discloses a trade secret, as far as I can
tell, and at least some of what was redacted—specifically, the FTC’s request
for a 20-year monitoring requirement as part of its request for injunctive relief—didn’t
come from Amazon in the first place, so the statute can’t really explain what
happened here.  What did?

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