Facebook Dubs Cambridge Analytica MDL 'Broadside' Against Business Model, Moves to Dismiss
Plaintiffs lawyers, however, consider the Cambridge Analytica scandal "the tip of the iceberg" in Facebook's "willful pursuit of generating revenue at the expense of its users.”
December 06, 2018 at 02:25 PM
6 minute read
The original version of this story was published on The Recorder
Facebook Inc. has moved to dismiss lawsuits brought over the Cambridge Analytica scandal, insisting that plaintiffs lawyers had turned the case into “little more than a broadside against Facebook's business model.”
Plaintiffs have no injuries to establish standing to sue over “far-fetched legal theories,” according to Facebook's motion, filed last month. Furthermore, the motion notes plaintiffs consented to allowing Facebook the use of their personal data when signing up for the social media site.
“Ever since the March 2018 news reports about Cambridge Analytica's misuse of Facebook users' data, plaintiffs have been trying to find a viable cause of action against Facebook,” wrote Facebook attorney Orin Snyder, a New York partner at Gibson, Dunn & Crutcher, in a Nov. 2 motion to dismiss. “But plaintiffs' 255-page complaint is little more than a broadside against Facebook's business model: a lengthy description of how Facebook works, followed by a kitchen sink-like lobbing of 50 claims—all in the hopes that something, anything, sticks.”
Plaintiffs lawyers countered in an opposition to that motion, filed on Nov. 30, that Facebook's actions go beyond Cambridge Analytica.
“Unfortunately, the Cambridge Analytica scandal represents only the tip of the iceberg with respect to Facebook's willful pursuit of generating revenue at the expense of its users,” they wrote. “Facebook's sale of its users' information to third parties reflects a calculated business decision designed to benefit Facebook at it users' expense.”
A hearing on Facebook's dismissal motion is set for Jan. 23 before U.S. District Judge Vince Chhabria in the Northern District of California. And as more details emerge over Facebook's handling of its users' data, the legal fight appears to be ramping up.
On Wednesday, lawmakers in the United Kingdom released internal emails, previously sealed in a lawsuit in California's San Mateo County Superior Court, revealing that Facebook executives had at one time considered selling users' data to third parties.
In a declaration filed last week, Lesley Weaver, co-lead counsel for the plaintiffs, cited two articles in The New York Times last month about Facebook's failure to monitor device makers with access to its users' personal data.
“Since the time of the filing of plaintiffs' corrected consolidated complaint, numerous in-depth articles have been published that bear on Facebook's practices relating to its collection and dissemination of users' content and information, which relate to how users have been damaged by Facebook's actions,” wrote Weaver, a partner at Bleichmar Fonti & Auld in Oakland, California.
Snyder did not respond to a request for comment, and Weaver declined to comment.
The lawsuits arose following accusations that Cambridge Analytica, a data analytics company, had obtained personal information about Facebook users through an app called “thisisyourdigitallife.” Cambridge Analytica, which worked with the campaign to elect President Donald Trump, later used the data to develop targeted political ads.
On Sept. 21, plaintiffs filed a consolidated complaint alleging Facebook failed in its promises to safeguard the personal data of its users by allowing access to that information to third parties. Weeks later, Chhabria added two separate class actions into the multidistrict litigation brought over Facebook's sharing of data with third parties other than Cambridge Analytica, such as smartphone manufacturers Apple and Samsung.
Facebook CEO Mark Zuckerberg and CFO Sheryl Sandberg, both individual defendants, joined last month's motion. Another defendant, New York hedge fund manager Robert Mercer, an investor in Cambridge Analytica represented by Mark Hansen of Washington, D.C.'s Kellogg, Hansen, Todd, Figel & Frederick, filed a separate motion that raised a jurisdictional defense.
In Facebook's dismissal motion, Snyder argued that the plaintiffs lacked standing. At first, plaintiffs alleged “diverse and bizarre theories of harm, ranging from drained cell phone batteries to the election of President Trump,” but now claim that the sharing of their data is sufficient harm to sue.
“But plaintiffs do not describe any specific content they shared on Facebook, much less allege that third parties obtained such content as a result of any of the allegedly improper practices discussed in the complaint,” Snyder wrote. “Indeed, they do not explain how the alleged conduct described in the complaint caused injury to any Facebook users—only that it supposedly led to some users being served more tailored ads and enabled some users to use Facebook on their mobile devices, neither of which is 'harm' at all.”
Further, this dismissal motion argues that plaintiffs failed to allege specifics other than they “liked” a video or page on Facebook, adding those bringing suit against the company consented to its terms of use and data use policy.
“Plaintiffs have tried hard to cast this case as some kind of data breach, where sensitive private information was made public, placing individuals at risk of financial fraud or identity theft,” Snyder wrote. “But that is not what this case is about.”
Lead plaintiffs lawyers, Weaver and Derek Loeser, of Seattle's Keller Rohrback, agreed the case was not an ordinary data breach lawsuit.
“Unlike data breach cases that involve the theft of a few pieces of personal information, significant amounts of highly personal content were made available by Facebook to these third parties,” they wrote in their opposition. “This is not the kind of targeted advertising that a reasonable user would have expected, like receiving ads for football tickets while on a sporting goods store's website.”
They said Facebook's policies were confusing and “did not tell users that through their friends' behavior Facebook was giving privately shared content to business partners and millions of app developers,” the opposition said.
As to injuries, some plaintiffs already have noticed attempts to gain unauthorized access to their Facebook accounts, improper friend requests and phishing efforts, the opposition says. They listed several types of harm that warranted standing, such as the increased risk of identity theft, invasion of privacy and the “diminished value of their data.”
And courts, they wrote, have recognized that someone's personal data has value.
“Indeed, it should not come as any surprise to Facebook that plaintiffs' content and information has value, as that very content and information has generated billions of dollars in revenue for Facebook by way of advertising and other lucrative partnerships through which Facebook sells access to users' data,” they wrote.
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