Federal Judge Sides With FTC in Match.com Document Dispute

Online dating company Match Group must produce documents it withheld from the FTC’s investigation into claims the company improperly shared user photos with a facial recognition startup, the U.S. District Court for the District of Columbia ruled Monday in docket 2022-0054.

The FTC issued Match Group a civil investigative demand (CID) in March 2020, following a 2019 New York Times story on an alleged relationship between Match-owned OkCupid and Clarifai, an artificial intelligence startup that allegedly used OkCupid images to build products, according to the filing. Match “wrangled” with the FTC over the CID until May 2022, when the agency filed a petition to enforce its administrative subpoena, the court said. The subpoena sought 136 documents that Match withheld, citing attorney-client privilege and work product protection.

The court denied Match’s motion to keep the bulk of the record sealed and Match’s motion for “leave to take discovery to unearth evidence that the FTC filed this enforcement action for an improper purpose.” Showing that document sharing would harm a company’s “reputation is not sufficient to overcome the strong common law presumption in favor of public access to court proceedings and records,” the court said in an opinion written by Magistrate Judge Michael Harvey, citing Brown & Williamson Tobacco v. FTC, a 6th U.S. Circuit Court of Appeals decision from 1983. “This litigation has proved as contentious as the administrative proceedings, with Match not only resisting production of those documents, but also decrying as bad faith conduct the FTC’s litigation tactics, including its refusal to agree to seal this case,” wrote Harvey. Match is allowed to offer proposals for redacting the documents.

Harvey cited reporting alleging Clarifai built a facial recognition database using images from OkCupid because some of the dating website’s founders invested in the startup. The FTC launched a nonpublic investigation probing whether Match violated FTC Act Section 5 by sharing consumer data without consent. The agency sought documents about any agreement between the two companies and documents concerning representations to Match customers on data collection and sharing. Match had shared about 600 pages of documents by May 2020. FTC staff later informed the company of document deficiencies and sought supplemental information about the company’s data-sharing with third parties and additional documents after the New York Times story.

The court will consider redaction proposals for information about “bona fide trade secrets and confidential business practices or strategies” if Match “can identify and support those proposed redactions consistent with the teaching of this opinion,” the court said. Harvey set a May 15 deadline for the parties to file a sealed joint status report proposing redactions, with arguments from both sides, if necessary. The currently sealed documents will remain temporarily sealed “out of an abundance of caution” to allow Match an opportunity to propose “narrowly tailored, specifically supported redactions,” said Harvey. He noted the decision doesn’t address whether withheld documents are protected from disclosure, only the motions to keep the bulk of the record under seal. The court denied Match’s request for oral argument on its motions to seal, saying “the merits of the motions are sufficiently clear from the briefing.” The FTC declined comment. Match didn’t comment.