Facebook Must Face Data Harvesting Litigation

A multidistrict litigation over Facebook’s alleged data harvesting scandal has been mostly preserved by a California federal judge who said Facebook’s argument that users shouldn’t expect privacy is “so wrong.”

Facebook users claimed that an app developer sold the personal information of around 87 million users to Cambridge Analytica.

Multiple class action lawsuits on this issue were consolidated into a multidistrict litigation.

According to U.S. District Court Judge Vince Chhabria, Facebook users could reasonably expect that their data would remain private, contrary to Facebook’s protests to the contrary.

In Facebook’s attempt to have the data MDL dismissed, the social media giant claimed that customers have no claim to privacy when it comes to information that they share with friends and family, and therefore cannot challenge Facebook’s choice to share data with third parties.

However, Judge Chhabria said that this was not the case, because in using Facebook, customers agreed to share information with a limited audience of their choosing, not with everyone, indiscriminately. According to the judge, customers “retain privacy rights and can sue someone for violating them.”

Judge Chhabria went on to agree with customers’ claims that the information that they share with friends and families via Facebook still qualifies as “private.” The judge said that Facebook’s premise and advertisements of its products makes the distinction between sharing information with a selected audience and sharing with the wider public. 

According to Judge Chhabria, “the social norm Facebook created with its product is purposefully sharing with one’s friends, not having one’s information shared by Facebook with unknown companies and individuals.”

Judge Chhabria also shot down Facebook’s attempt to say that customers had not suffered actual damages because of Facebook’s data sharing, and could therefore not sue in federal court. According to the judge, this was invalid because the law allegedly recognizes privacy invasion as a kind of injury in itself, one that can indeed be addressed in federal court.

According to the judge, Facebook customers can pursue privacy claims “even if the invasion does not lead to some secondary economic injury like identity theft.”

Judge Chhabria did preserve most of the customers’ claims, including those alleging that customers had never consented to data collection. However, he did say that as Facebook did begin giving disclosures about data sharing in 2009, the scope of how many people could be affected by the alleged breach of privacy would be limited. Judge Chhabria did note that customers could pursue claims about lack of disclosure as it related to Facebook’s associates.

The Facebook plaintiffs 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.

The Facebook Data Mining Class Action Lawsuit is In re: Facebook Inc. Consumer Privacy User Profile Litigation, Case No. 3:18-md-02843, in the U.S. District Court for the Northern District of California.

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