Many people have long given up the hope of having any privacy when we’re online. From cookies to tracking search results to targeted advertising, it’s pretty widely accepted that the internet is not a private place, although many users continue to insist internet companies stop tracking our every move.
Back in 2010, Facebook was storing digital cookies on consumers’ internet browsers and using those cookies to track the users’ visits to other sites that contained Facebook’s “like” button (which allows viewers to post a like of the article or website to their Facebook account without leaving the page). The tracking continued even after users had logged out of their Facebook accounts.
Facebook had promised consumers it would delete the cookies, but the company continued to access information on the cookies until 2011, when an independent researcher brought the issue to the attention of the public. At that point, a class of plaintiffs sued Facebook for allegedly violating federal and California state privacy laws by using the cookies. The time period for the lawsuit goes from April 2010, when the company said it had stopped using cookies, to September 2011, when the tech giant actually stopped using the cookies after it had been outed.
Although a lot can change in five years, the plaintiffs are still pursuing their claims against Facebook, having revised their allegations after the judge dismissed their original claims in the fall of 2015.
Now, almost two years later, despite the plaintiffs’ continued claims about the gravity of Facebook’s allegedly privacy and wiretapping violations, the U.S. District judge dismissed the case, saying the plaintiffs had not demonstrated that they had any reason to expect their use of the sites listed would be private. In fact, because Facebook maintained its own “like” button on the sites listed in the lawsuit, Judge Edward Davila maintained that Facebook was a party to communications related to who was visiting those sites. As a result, he ruled that Facebook could not have been wiretapping because it did not intercept any communications to which it was not already privy.
Furthermore, Judge Davila found the plaintiffs had failed to sufficiently demonstrate that they had suffered financially as a result of Facebook’s use of its cookies. He therefore dismissed the lawsuit and his ruling included a provision that bars the plaintiffs from amending their allegations of wiretapping and privacy violations.
But because Facebook had promised to stop using the cookies, and then continued to use them anyway, Judge Davila did leave plaintiffs the opportunity to revise and renew their breach of contract claims against the tech giant.
The judge’s reasoning for his ruling might be more reflective of 2017 sentiments about the internet than the ones most people held in 2010. Instead of considering the plaintiffs’ feelings upon realizing Facebook had been tracking their internet usage on sites other than Facebook, Judge Davila does not see any reason for plaintiffs to assume their internet habits are private, especially when Facebook maintains a button on those sites that contain links to the social media company’s own site.
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