Hearing to Toss Facebook Privacy Case Gets Heated

SAN JOSE (CN) - A federal judge gave no indication which way he was leaning in the Facebook privacy case after a hotly contested hearing on Thursday.

U.S. District Judge Edward Davila called the hearing on a motion to dismiss filed by Facebook. The Menlo Park social media company argued the four plaintiffs that brought the case forward failed to specify the specific harms caused by the company's conduct while saying the claims were too vague.

The case dates back to 2012, when the plaintiffs, which include a professor and a doctor, sought $15 billion in damages for violation of the Federal Wiretap Act alone, but also claimed violation of the Stored Communications Act, the Computer Fraud and Abuse Act, California's unfair competition law, the California Computer Crime Law, the California Invasion of Privacy Act, and the state's Consumer Legal Remedies Act.

The case was dismissed three years later, after Davila said the plaintiffs lacked standing, but the four filed an amended complaint at the beginning of this year.

During Thursday's hearing, Facebook again alleged the plaintiffs lack standing.

"Not that much at the core of this case has really changed," said Matthew D. Brown, attorney for Facebook. "The complaint fails to identify the concrete and particularized injury to the four main plaintiffs. This deficiency reverberates through the several causes of action."

The plaintiffs argued the complaint downplays the economic injury aspect and instead focuses more on the harm caused by what the attorneys characterized as a major breach of the plaintiffs' privacy.

Two attorneys for the plaintiffs, David Straite and Jay Barnes, attempted to persuade Davila that Facebook violated federal statute by collecting the URLs from the plaintiffs' browser and their browsing history despite the fact the users were logged out of the social networking service, thereby severely compromising their privacy.

"This decision has policy implications and the implications for user privacy are very bad should the plaintiffs not prevail," Barnes said. "Privacy in this economy starts with corporate privacy, because in many instances the government gets its information through corporations."

Barnes continued, "Information obtained without the consent has never been and should never be part of an ordinary business practice."

Facebook conceded the case has broad policy implications, but made the case those implications cut the other way and if the judge found in favor of the plaintiffs, it would fundamentally alter how the Internet works.

Facebook hosts a plug-in on most websites, so when a user clicks on a first-party website, not only is the request transmitted from the website back to the user, but an additional get-request is sent to Facebook, via a third-party cookie.

Far from some nefarious plot to subvert consumer privacy, Brown argued that this is just simply how the internet works.

"Fundamentally, they are saying anytime a third party provides content on a website that company is liable under the Wire Tap Act," said Brown. "That's not the way (the law) was drafted, nor is that the way to interpret the statute."

Other companies such as Twitter host similar third-party plug-ins that makes use of cookies.

Barnes refuted the defendant's assertion by saying Facebook operated differently and more underhandedly during the period in question, essentially collecting browsing information of its users even when they were logged out of the site, in explicit violation of user agreements.

"Our clients were logged off when the tracking occurred," said Barnes. "(Facebook) still tracked them, they knew it wasn't right, but they did it anyway."

Other companies who host similar third party plug-ins on websites get their information through explicit or implied consent, Barnes said.

Davila prodded both sides to explain their respective positions more fully and accurately, spending a great deal of time on whether a URL address constitutes storage and could thus be listed as protected information under the Stored Communications Act.

"It seems more like a placeholder to me," Davila told the plaintiffs.

Unlike other cases argued in San Jose Federal Court, Davila did not offer a tentative ruling in favor of one side and then ask the lawyers to persuade him otherwise. Instead, he gave no indication as to which way he was inclined to rule and adjourned after hearing robust and lengthy arguments from both sides.

Attorneys from both sides declined to comment on the hearing after its conclusion.

Matthew Brown is with Cooley LLP in San Francisco. David Straite is with Kaplan Fox & Kilsheimer in New York.

Facebook is the brainchild of founder and CEO Mark Zuckerberg, who came up with the idea in his Harvard University dorm room and launched the company in 2004. Facebook has 1.65 billion monthly active users as of March 31.

Follow @@MatthewCRenda

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