Facebook Defeats Lawsuit Over Tracking Logged-Out Users–In re Facebook Internet Tracking
Facebook allegedly improperly tracked the activity of logged-out Facebook users on third party websites. Plaintiffs asserted claims based on common law rights and based on federal and state statutes, but the court previously rejected those. In the latest ruling, the court dismisses Plaintiffs’ claims based on breach of contract and breach of the duty of good faith.
Plaintiffs argued that Facebook promised not to track logged out users, but these promises were contained in documents other than Facebook’s terms of service (its “Statement of Rights and Responsibilities”).
[n]o evidence suggests that a Facebook user who reads one Help Center page has also read, or is even aware of, any of the others.
Plaintiffs also relied on a breach of the duty of good faith but the court says that this duty has to be anchored to a specific contractual provision and plaintiffs cannot point to one here.
Ouch. As the court notes, this lawsuit has been through several rounds of motion practice. It was whittled down until it was extinguished by the most recent order. Plaintiffs have yet to file a notice of appeal, although their appeal deadline has not yet run.
That websites have not given consumers meaningful choice on being tracked while logged out is one of the great failures of modern U.S. privacy laws. This seems like a basic privacy practice that a website should make obvious to a user and allow the user to opt-out from. Yet, as this case illustrates, no rule exists to force websites to do this.
Facebook’s terms of service and related documents are voluminous, and the court appears to employ a fairly technical reading in determining whether certain help page documents form a part of the contract. You should not need to be a lawyer to figure this stuff out.
Facebook is under a 20 year consent decree with the FTC. Perhaps this activity does not come under the scope of the consent decree, because it doesn’t involve any affirmative misrepresentations or over-riding of expressed consumer preferences? Either way, this seems like the type of thing a regulator may be well suited (or perhaps better suited than the plaintiffs’ bar) to address, and which may be falling through the cracks.
Case citation: In re Facebook Internet Tracking Litig., 2017 U.S. Dist. LEXIS 190819 (N.D. Cal. Nov. 17, 2017) [pdf]