Two U.S. congressmen have accused Facebook of evading questions about whether it tracks users in order to deliver targeted ads. Joe Barton, a Texas Republican, and Edward Markey, a Massachusetts Democrat, said the social networking giant failed to adequately answer questions raised by a patent application that suggests Facebook could be tracking users on other websites. The duo previously asked the Federal Trade Commission (FTC) to investigate accusations that Facebook tracks its users even after they log out of the social network, an issue the company says it has since fixed.

"Facebook's seems to be saying one thing and doing another," said Barton. "In the company's response, it talks a lot about how they don't currently 'track' users online, but they just asked for a patent that would allow them to do just that. Why ask for something you don't ever plan on using? I don't believe that Facebook adequately addresses that question. If they get a patent that among other things explicitly mentions tracking the information about the activities of users of a social networking system while on another domain — how will it be used?"

"When provided the opportunity to share its privacy practices with members of Congress at our recent caucus forum, Facebook refused," said Markey. "Now Facebook seems to be refusing to answer the question of what the purpose of this patent application is. I remain concerned about unanswered questions about how Facebook uses consumers' personal information. I plan to follow up with Facebook on this matter and work with my colleagues in Congress to investigate this patent's intent and potential use more fully."

Facebook filed for the patent on February 8, 2011, and it was granted on September 22, 2011. Three months ago, Facebook denied the patent is used for tracking logged-out users, even though it describes a method "for tracking information about the activities of users of a social networking system while on another domain." After news of the patent broke, Facebook gave me the following explanation:

"Some people have suggested that this application is intended to patent tracking of logged out users," a Facebook spokesperson said in a statement. "Nothing could be further from the truth. Instead, a careful reading of the portion of the application that purportedly describes tracking of logged out users (Paragraph [0099] shows that this excerpt is actually describing a fundamental part of Facebook Platform—social plugins that create social experiences across the web without logging into Facebook repeatedly or third party sites at all." "Our social plugins allow Facebook users to go to any website with a social plugin and see what content their friends have liked without logging into that website. The user must, however, be logged into Facebook to see this social content on third party websites. What is being described in section [0099] of the application is the fact that you don't have to log into Facebook again at each third party site in order to see social plugin content. You just have to be currently logged in to Facebook when you visit the site. If you continue reading the application (i.e. paragraphs [0100] and [0101]), you'll also find it is consistent with our longstanding principles of notice, choice and control, and offers mechanisms and processes by which a person would be notified and could opt in or out." "There are other things mentioned in the patent application and, for many of those, it's important to understand how companies use patents. That is, technology companies patent lots of ideas. Some of these ideas become products or features and some don't. As a result, current functionality and future business plans shouldn't be inferred from our patent applications."

Last month, Ireland's Data Protection Commissioner (DPC) completed his three-month privacy audit of Facebook's activities. When it came to the tracking cookies, the confirmed: "…while certain data which could be used to build what we have seen termed as a 'shadow profile' of a non-user was received by Facebook, no actual use of this nature was made of such data" and "neither is there any profile formed of non-users which could be attributed to a person on becoming a user." It even said Facebook makes "innovative use of cookies to identify unusual or suspicious activity" on an account.

That's just my selected coverage of the story though. Barton and Markey received their own explanation from Facebook, in the form of a six-page letter from Erin M. Egan, Facebook's Chief Privacy Officer of Policy (PDF). The DPC's findings and Facebook's explanations have failed to satisfy the two Congressmen. The co-Chairmen of the Bi-partisan Congressional Privacy Caucus insist Menlo Park isn't being transparent enough about its practices.

Also last month, Facebook declined the lawmaker's invitation to participate in a December 14 Caucus briefing. The social networking giant indicated their preference to hold discussions in private.

The lawmakers wanted Facebook to share details with the public and the Caucus members about the company's recent settlement with the FTC as well as how the company plans to protect the online privacy of children and teenagers. Following Facebook's refusal to participate, Barton and Markey held a bi-partisan forum with other Members of Congress, FTC Chairman Jon Leibowitz, FTC Commissioner Julie Brill, and privacy experts.

I have contacted Facebook to see why the company did not attend the meeting, why the congressmen feel it is being opaque with them, and will update you if I hear back.

Update: Facebook declined to comment on this article.

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