A Washington Post report cites sources inside the agency (currently on hiatus due to the shutdown) saying that regulators have “met to discuss imposing a record-setting fine.” We may as well say here that this must be taken with a grain of salt at the outset; that Facebook is non-compliant with terms set previously by the FTC is an established fact, so how much they should be made to pay is the natural next topic of discussion.

But how much would it be? The scale of the violation is hugely negotiable. Our summary of the FTC’s settlement requirements for Facebook indicate that it was:

• barred from making misrepresentations about the privacy or security of consumers’ personal information;
• required to obtain consumers’ affirmative express consent before enacting changes that override their privacy preferences;
• required to prevent anyone from accessing a user’s material more than 30 days after the user has deleted his or her account;
• required to establish and maintain a comprehensive privacy program designed to address privacy risks associated with the development and management of new and existing products and services, and to protect the privacy and confidentiality of consumers’ information; and
• required, within 180 days, and every two years after that for the next 20 years, to obtain independent, third-party audits certifying that it has a privacy program in place that meets or exceeds the requirements of the FTC order, and to ensure that the privacy of consumers’ information is protected.

How many of those did it break, and how many times? Is it per user? Per account? Per post? Per offense? What is “accessing” under such and such a circumstance? The FTC is no doubt deliberating these things.

Yet it is hard to imagine them coming up with a number that really scares Facebook. A hundred million dollars is a lot of money, for instance. But Facebook took in more than $13 billion in revenue last quarter. Double that fine, triple it, and Facebook bounces back.

If even a fine 10 times the size of the largest it ever threw can’t faze the target, what can the FTC do to scare Facebook into playing by the book? Make it do what it’s already supposed to be doing, but publicly.

How many ad campaigns is a user’s data being used for? How many internal and external research projects? How many copies are there? What data specifically and exactly is it collecting on any given user, how is that data stored, who has access to it, to whom is it sold or for whom is it aggregated or summarized? What is the exact nature of the privacy program it has in place, who works for it, who do they report to and what are their monthly findings?

These and dozens of other questions come immediately to mind as things Facebook should be disclosing publicly in some way or another, either directly to users in the case of how one’s data is being used, or in a more general report, such as what concrete measures are being taken to prevent exfiltration of profile data by bad actors, or how user behavior and psychology is being estimated and tracked.

Not easy or convenient questions to answer at all, let alone publicly and regularly. But if the FTC wants the company to behave, it has to impose this level of responsibility and disclosure. Because, as Facebook has already shown, it cannot be trusted to disclose it otherwise. Light touch regulation is all well and good… until it isn’t.

This may in fact be such a major threat to Facebook’s business — imagine having to publicly state metrics that are clearly at odds with what you tell advertisers and users — that it might attempt to negotiate a larger initial fine in order to avoid punitive measures such as those outlined here. Volkswagen spent billions not on fines, but in sort of punitive community service to mitigate the effects of its emissions cheating. Facebook too could be made to shell out in this indirect way.

What the FTC is capable of requiring from Facebook is an open question, since the scale and nature of these violations are unprecedented. But whatever they come up with, the part with a dollar sign in front of it — however many places it goes to — will be the least of Facebook’s worries.

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