According to Reuters, U.S. District Judge Phyllis Hamilton in Oakland,
California recently ruled that a lawsuit alleging Facebook violates its users privacy by illegally scanning the contents of messages sent on its platform for advertising purposes may move forward. This lawsuit appears to sound similar to a recent lawsuit against Google for scanning users emails for advertising purposes.
It appears that Facebook is claiming that the scanning of emails for advertising purposes is "an ordinary business practice". Only in the world of Facebook and Google is scanning personal messages for advertising purposes an acceptable "ordinary business practice." Is it an ordinary business practice for the U.S. Postal Service, Federal Express, United Parcel Service, etc... to scan the contents of their packages to build user profiles about senders/receivers for advertising and other purposes? Of course not. Therefore, why do some digital based companies believe this practice is ordinary and should be legal?
According to ArsTecnica, the court "read Facebook's entire terms of service. And, in this case, their
vague language—typically used to provide broad immunity—became a
liability: "[the document] does not establish that users consented to
the scanning of their messages for advertising purposes, and in fact,
makes no mention of 'messages' whatsoever." Thus, the plaintiffs may
have had reason to expect that their messages would remain private. And,
although the practice may have been discontinued, the plaintiffs allege
that Facebook could start scanning messages again whenever it wanted
to."
On Facebook's home page it states, "Connect with friends and the world around you on Facebook".
Nowhere does it state that your messages will be scanned for
advertising purposes. Should Facebook and other digital properties such as Google that
are actually digital advertising platforms that masquerade as other services be required to have clear warnings every time a user sends and/or opens up a message (or uses other services) from their platform? The FDA recently created new calorie labeling rules to better inform Americans about the foods they eat so should the FTC create rules that require digital platforms to be more transparent about their practices to better protect the privacy and safety of its citizens?
The biggest challenge for plaintiffs moving forward may be to identify how Facebook's actions have financially harmed them. Unfortunately, the court system in general has been slow to recognize privacy harms absent a direct monetary loss from a practice. Will the Sony Hack change this mentality? We may find out in the new year.
Copyright 2014 by Shear Law, LLC. All rights reserved.
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