WASHINGTON – Facebook's announcement in late April that it had set aside $ 3 billion to $ 5 billion to settle claims that mistreated users' personal data suggested a strong consensus from federal regulators that the social media giant had to be held accountable .  But the reality behind the scenes at the Federal Trade Commission is far more complicated, reflecting the policy and giving and taking the negotiations.
The FTC's five commissioners agreed a few months ago that they wanted to pursue a historic punishment that would show the agency's teeth. But now the participants are divided on the scope and extent of the technology company's punishment, according to three people with knowledge of the conversations who spoke on condition of anonymity.
The division complicates the last few days of the talks.  Along with disagreement on proper financial punishment, one of the most controversial undercurrents through the negotiations has been the degree that Mark Zuckerberg, Facebook's CEO, should be held personally responsible for any breach of contract, according to two of those people.
Facebook has set a fierce fight and says that Zuckerberg should not be held responsible for the actions of all 35,000 of his employees.
The conversations may fall apart, but negotiations continue ahead and are expected to conclude within days. This account of the FTC's Facebook survey is based on half-dozen interviews.
Joseph J. Simons, the Commission's Republican leader, appeared to have votes from the two other Republican commissioners, and gave him the three needed to approve an agreement. But a 3-to-2 decision on party lines, which Mr. Simons has said he wants to avoid, can lead to strong attacks on Capitol Hill.
The bets are huge for the agency and Mr. Simons. The case is being closely monitored globally as a litmus test on how the US government will police the country's tech giants.
The Commission has a reputation for pulling a few strokes, especially as opposed to regulators in Europe, which have been heavily involved in both privacy and antitrust issues. The largest F.T.C. nice to a tech company was $ 22.5 million against Google in 2012, for misleading users about how some of the tools track them.
Any settlement will also be seen as a measure of the Trump administration's willingness to punish one of the country's most valuable and influential companies. The administration has turned away regulations in many industries, but President Trump has repeatedly said that technology giants like Facebook and Amazon have too much power.
Many Democrats have led the efforts to clear Silicon Valley.
"This is hugely important decision because it is being watched by all these big companies to see if it is actually going to be a new day of enforcement," said Senator Ron Wyden, an Oregon Democrat who has pushed Mr. Zuckerberg shall be held personally liable in any agreement.
Rohit Chopra, one of the two Democrats of the Commission, has publicly called for stronger punishment by repeated offenders of the FTC rules.
But Mr. Simon has Shockedly unwilling to force the issue and bring the case to court, which can be a risky move, he has recently intensified his efforts to get at least one of the two Democrats, one of the people with knowledge of the talks. the internal discrepancies have maintained a final agreement.
The company has also agreed to assign an executive as a compliance compliance officer, who makes privacy monitoring a job in the top ranks, the people said. Mr. Zuckerberg could get the job, according to a person with knowledge of the conversations, even if another person expressed doubts.
But the settlement is unlikely to contain Facebook's ability to track users and share data with its partners, mandates that privacy guardians have just as importantly regulated in the United States, and that Facebook has fought. Mr. Simons has argued that the settlement proposal sets a new framework for enforcing breaches of privacy and wants to avoid litigation that risks losing that opportunity.
"Five billion dollars is a lot of money," said David Vladeck, a lawyer at Georgetown University and a former consumer protection for the FTC. that they will get relief beyond what is already on the table. "
F.T.C. and Facebook refused to comment on this article.
The roots of the investigation stem from a case that Facebook struck up with the agency in 2011. The company was accused of deceiving consumers about how it handled its data. As part of the settlement, it said it would overtake privacy practices.
In March 2018, The New York Times and the London observer reported that Cambridge Analytica, a British political consulting firm who had worked for Mr. Trump's presidential campaign, had used a large amount of Facebook data to compile voter profiles. The agency then opened a survey of whether the company had violated the 2011 agreement.
Facebook has complained about reacting slowly to the revelations about Cambridge Analytica. But the company has said that an academic researcher with access to the data broke the rules by sharing the data with the consulting firm.
At the same time, the sentiment in Washington turned to Big Tech. It was clear that Russia used Internet services to disrupt the presidential election in 2016. YouTube, Twitter and Facebook were blamed for the spread of malicious content and fake news. Politicians such as Senator Bernie Sanders of Vermont, now running for the democratic presidential election, accused Amazon of unfair work practices.
Weeks after the survey started, Simons, a long republican antitrust lawyer, was sworn in to lead the agency. Two other Republicans, Noah Phillips and Christine Wilson, and two Democrats, Rebecca Slaughter and Mr. Chopra, were confirmed by the Senate as the other commissioners at the same time.
All five met first to discuss the Facebook case in December. The Commission staff said they had found several breaches of the 2011 agreement and a corporate culture that did not make privacy a priority, according to two people with knowledge of the talks.
There was broad agreement between the Commissioners that the charges against Facebook proved strong and that they should react strongly, according to the two people.
In the days and weeks after the meeting, employees began discussing potential fines and other penalties with the Commissioners. A fine over $ 7 billion seemed to have a strong deal, according to one of the people.
Employees and commissioners also started talking about making Mr. Zuckerberg personally responsible, which means he could be named as a defendant in a future case.
In an early version of the complaint and the settlement settlement, Zuckerberg was appointed as a responsible party, the two said. The focus of Mr. Zuckerberg was first reported by The Washington Post.
Facebook pushed back on the inclusion of Mr. Zuckerberg and said it would not agree with that in a settlement.
Democrats in Washington have recently pushed for more responsibility for top executives of companies under control.
Shortly after joining the FTC, Mr. Chopra, a Democrat, wrote a note to all employees who said the agency should address "deficiencies in management through structural remedies, including dismissal of senior management." 19659002] Herr. Simons has also announced requirements for stronger enforcement of technical companies. But at a private conference in Washington on Thursday, he described the "major discrepancies" in naming chief executives in complaints.
"When you come to a position when you threaten to name individuals and make them personally responsible, businesses are less likely to settle, and you have to end up much more than you would otherwise," Simons said. "You have to think you get enough relief for the consumers without having to mention these people as sufficiently deterrent."
Republican lawmakers would probably criticize an order that included Mr. Zuckerberg in the complaint.
"It's one thing if Facebook was a unit that in itself could not be held accountable," said Senator Mike Lee, a Republican republic in an interview. "Keeping a CEO accountable is extraordinary and not necessary here. "
A few weeks ago, the commissioners were shown an updated proposed deal, which had a fine of about $ 5 billion and no mention of responsibility for Mr. Zuckerberg.
The proposal set up a frenzy of discussion among the commissioners and employees. Soon, details of the discussion began to leak into the news media.
Facebook's senior executives believed that people within the FTC were disclosed details to influence negotiations, according to two people.
Facebook responded by announcing the expected $ 3 billion to $ 5 billion penalties, partly to put expectations on what the company thought it finally had to pay, the two said.
Conversations between Facebook and agency officials have continued over the past few days, Mr. Simons attempted to persuade Miss Slaughter, a democrat who came aside with Mr. Chopra, to see his perspective. The commissioners are expected to vote for the settlement in the coming days.
"Having a good two-sided consensus Sus makes a big difference to the agency's effectiveness, "said Mr. Simons in an interview in February. "So I think it's very important and we try very hard to do it."