A popular online dating site has come under scrutiny by the U.S. Federal Trade Commission (FTC), which has been investigating the company’s privacy-related practices. Most recently, the FTC filed a petition against Match Group, Inc., seeking judicial intervention to require Match to comply with the FTC’s March 2020 civil investigative demand (“CID”). The CID was part of an investigation into whether Match, along with its subsidiaries, engaged in unfair and deceptive conduct in violation of Section 5 of the FTC Act. The alleged conduct stems from whether Match subsidiary OkCupid was involved in a 2014 data-sharing incident related to facial recognition technology created by the company Clarifai. According to the FTC, Match is withholding “nearly every responsive internal communication based on improper and overbroad assertions of attorney-client privilege and the work product doctrine.” (Petition, p. 1). The petition argues the FTC must be allowed to review the information to determine if the law has been violated.
The FTC’s investigation started after the NYTimes published an article reporting that Clarifai was using OkCupid users’ photos and data to train its facial recognition technology. Once the article came out, a user in Illinois sued Clarifai for violating Illinois’ privacy law. While that class action suit was dismissed in 2021, it nevertheless added fuel to the fire, since users expect privacy when sharing information on dating platforms such as Match. While Match denied any commercial arrangement in the NYTimes story, the FTC demanded documentation relating to the alleged relationship in 2020. According to the FTC’s filings that are publicly available, Match has asserted broad claims of attorney client and work product privilege.
Interestingly, Match has attempted to keep these proceedings as quiet as possible, and, according to the FTC’s opposition to Match’s motion to seal, has sought to seal the entire record until the Court resolves the FTC’s petition to enforce the CID. This FTC proceeding highlights ongoing concerns about online user data privacy and has important implications for the right of public access to proceedings involving a governmental agency. It remains to be seen how this will play out, but it could signal some trouble in paradise for Match.
If you are interested in this topic, or any other aspects of publicity, copyright, or trademark matters, please contact me at firstname.lastname@example.org. Danielle thanks Meredith Lipson, a summer associate with Norris McLaughlin, for her contributions to this post.