Facebook Says Social Media Users Can't Expect Privacy

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By:Law360 (May 29, 2019, 10:17 PM EDT) -- Facebook couldn't have violated users' privacy rights because users have no expectation of privacy when using social media, the company argued Wednesday in multidistrict litigation stemming from the Cambridge Analytica scandal, saying the only way to ensure information stays private is not to post it on Facebook.Facebook urged U.S. District Judge Vince Chhabria to toss a 2018 putative class action by its users who claim the social media behemoth invaded their privacy by allowing third parties to harvest millions of users' personal information. The company argued that while now-defunct Cambridge Analytica had accessed Facebook users’ data, those users had consented to sharing their information with third parties.But Judge Chhabria appears set on letting at least some part of the lawsuit survive, saying in an order on the eve of the hearing that he plans to allow the Facebook users' claim that their private information was made public without their express consent..Facebook didn’t deny that users’ data was exposed to third parties. Instead, it focused on trying to convince Judge Chhabria that there is “no expectation of privacy” on Facebook or any other social media platform.“You have to closely guard something to have a reasonable expectation of privacy,” argued Facebook counsel Orin Snyder of Gibson Dunn & Crutcher LLP, who added that Facebook and social media in general are premised on rendering one’s views non-private.“It’s the opposite of private,” Snyder said.Judge Chhabria, who said he was not on Facebook, pressed Facebook on that assertion. The judge said it appears to contradict Facebook's and its executives’ own claims that they are working to protect users’ privacy and data.But Snyder said users consented to the sharing of their information. “There is no invasion of privacy at all, because there is no privacy,” he argued.Snyder said Facebook provided ample notice to users, telling them it can’t control what third parties do with their data when they share the information with friends. Not only is that common sense and common law, he argued, but sharing something with 100 people forfeits one’s right to privacy.Snyder said that users were notified that they can control whether their friends can share their data with third parties via the app settings control, but that some didn’t change their app settings to keep their information private. Facebook said it told users upfront that the company can’t control what apps do with their information.Facebook insists that it “scrupulously honors” users’ privacy settings, but that users have to set them up.The consolidated complaint by a putative class of users in multidistrict litigation accuses the social media platform of allowing third parties to harvest millions of unwitting users' personal information. The plaintiffs' allegations stem from the March 2018 revelation that a third-party app developer had taken personal data from about 87 million unsuspecting Facebook users and sold it to Cambridge Analytica, a U.K.-based political consulting firm hired by the 2016 Trump campaign.According to the complaint, Facebook's failure to prevent third parties from accessing and misusing their private data raises a host of concerns, including purported violations of the Stored Communications Act and Video Privacy Protection Act, and claims for negligence, invasion of privacy and breach of contract.Facebook, which previously described the complaint as "a kitchen sink-like lobbing of 50 claims — all in the hopes that something, anything, sticks," told the judge Wednesday that the complaint stems from a more general dislike of ubiquitous sharing on social media platforms by people who lost control of their data and as a result, became anxious and aggrieved by the digital realm.Facebook said those people are not without a remedy, as they can stop using Facebook at any time.Judge Chhabria expressed skepticism that users could would gather from Facebook’s terms of service that they needed to change their app settings if they didn’t want their information shared with third parties via their friends.The judge said reasonable Facebook users who joined the platform over a decade ago may not have read the terms of service again every time they were updated. He suggested that Facebook could be required to get express consent from users when it updates terms of services, instead of just notifying them of the changes.The Facebook users opposed the notion that there are no privacy rights on Facebook, arguing that if they were to depose Facebook’s executives, the executives would disagree with that notion.The Facebook users, who claim Facebook violated numerous laws, including the Stored Communications Act, said the company has worked hard to make people comfortable sharing their information on the platform.“They need people to share data. That’s how they make money. That’s how they made $55 billion last year,” counsel for the Facebook users said.They say that Facebook’s attorneys are interpreting the terms of service in a much different way than a reasonable Facebook user is interpreting them and that the company has violated users’ reasonable expectations of privacy.The Facebook users say Facebook’s lax data policy and lack of enforcement likely led app developers, including Aleksandr Kogan, who infamously shared user data with Cambridge Analytica, to obtain Facebook users’ data.The Facebook users allege that company allowed third parties to access users’ intellectual property without their consent, which caused the Facebook users economic harm.The Facebook users are represented by Derek W. Loeser, Lynn Lincoln Sarko, Gretchen Freeman Cappio, Cari Campen Laufenberg and Christopher Springer of Keller Rohrback LLP and Lesley E. Weaver, Matthew S. Weiler, Anne Davis, Emily C. Aldridge and Joshua D. Samra of Bleichmar Fonti & Auld LLP.Facebook is represented by Orin Snyder, Joshua S. Lipshutz, Kristin A. Linsley and Brian M. Lutz of Gibson Dunn & Crutcher LLP.The case is In re: Facebook Inc. Consumer Privacy User Profile Litigation, case number 3:18-md-02843, in the U.S. District Court for the Northern District of California.--Editing by Peter Rozovsky.