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U.S. Supreme Court rebuffs Facebook appeal in user tracking lawsuit

reuters.com

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Re: U.S. Supreme Court rebuffs Facebook appeal in user tracking lawsuit

#51

Post by cgriswald »

nerdponx wrote: post #20
rsstack wrote: post #11

Earlier quoted context omitted.

"California's wiretapping law is a "two-party consent" law. California makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation."

Two-party consent is a funny thing. It's empowering to individuals in their interactions with corporations, but in this case it's clearly disempowering to individuals. Is "asymmetric" one-party consent a thing in any jurisdiction?

One-party consent seems far more empowering to me. It lets me record any conversation I'm a party to whether the other party likes it or not.

In a two-party consent state, the corporation just has a message that the call may be monitored or recorded and me staying on the line qualifies as 'consent'. I'm not provided with an option to talk without being recorded and for many functions companies won't deal with you except through these specific phone numbers.

However, if I tell the company I want to record them, they have very little reason to humor me. In practice, this means I'm almost always being recorded anyway, but I can't generally record them back. It looks to me very much like corporations get one-party consent, and I don't.

I've heard it argued that "This call may be monitored or recorded..." can be interpreted as consent, but I'm not sure how that works out in practice, especially since I'd be recording the individual employees (who may have consented to their employer, but haven't to me).

Re: U.S. Supreme Court rebuffs Facebook appeal in user tracking lawsuit

#52

Post by gwerbret »

coldtea wrote: post #50
nerdponx wrote: post #4

“Facebook was not an uninvited interloper to a communication between two separate parties; it was a direct participant,” the company said in a legal filing. There's gotta be some existing legal doctrine on what constitutes a "direct participant", right? Suppose I visit the website of Company A intending to do business with them (perhaps this is the only way to contact them). Their website contains the Facebook "like"…

> Is Facebook really a "direct participant" if I have no way to know that their widget is even on the site until I visit it, at which point they have already participated and I have no way to avoid it? If you meet someone at some office for an interview or a negotiation or something, and a third party is there whose presense was not announced beforehand, aren't they a "direct participant"? And didn't you also had "no…

In the example you gave, I have the opportunity to interact with this third party, demand to know why they're there, and may choose to leave, with my privacy intact, if I don't like their presence. This is all part of the process of informed consent.

Clearly this analogy, particularly with respect to "informed" and "consent", does not apply to a Facebook widget on a site.

Re: U.S. Supreme Court rebuffs Facebook appeal in user tracking lawsuit

#53

Post by rossdavidh »

taxidump wrote: post #34
TeMPOraL wrote: post #29

Earlier quoted context omitted.

How about this analogue: You come to a restaurant to eat dinner with your friend, who arrived early. Unbeknownst to you, your friend arranged for one of their acquaintances, who you don't know, to sit at the next table and secretly record the whole conversation.

This is perfectly legal in most of the US. Famous people and their paparazzi followers probably know all too well that when you are anywhere an eye can see from a public location you can be recorded.

As I understand it (and IANAL) there is a pretty well-established legal distinction between people whose job or avocation inevitably involves being famous and noticed, and just ordinary citizens. If you become a politician, singer, actor, etc. it is assumed that your expectation of privacy is different than for most people. Again IANAL, but my understanding is that just because photographers are allowed to hound famous actors, doesn't mean they can do it to someone who isn't newsworthy or otherwise in a public profession. IANAL.

Re: U.S. Supreme Court rebuffs Facebook appeal in user tracking lawsuit

#54

Post by rossdavidh »

jascination wrote: post #47
ehnto wrote: post #16

Earlier quoted context omitted.

Hm, it's challenging because of the new medium but maybe we could discuss a real world analogue: You walk in to a home expecting to meet your friend, when you enter there is a man from the TV network there. You didn't expect him, his intention is just to watch you and your friend talk about television shows. Perhaps an example that gets closer to the crux of the problem: You're at a restaurant with a friend, and an u…

A problem with all of the responses here is that they swing and miss at trying to find an allegory that matches this situation, and then conflate their allegory as truth, losing any of the nuances of the Facebook situation. You can skew these examples to make your point stronger, too. (The Radio in the restaurant is listening to me!) The only situation that matches is the exact one at hand: Facebook tracked user info…

Really, we can expect this to go all the way to the Supreme Court, and I would not be at all surprised if one of the reasons that the Supreme Court did not quash it is that they know they will have to provide guidance (in the form of a precedent) for lower courts on expectations of privacy in internet situations, but they want to let every court below them kick the tires on this case first so that they can benefit from all of that investigation and discovery before they have to issue a ruling on it.

Re: U.S. Supreme Court rebuffs Facebook appeal in user tracking lawsuit

#55

Post by rossdavidh »

philip1209 wrote: post #19
fotbr wrote: post #8

Earlier quoted context omitted.

Some states allow "one party consent" to recordings of communications (ie, phone calls). Extending that, as long as Company A is aware of FB's practices, then your wishes are irrelevant as far as the law is concerned. I have no idea what California's laws are regarding the matter, or the laws governing any of the other participants. I'm just speaking in the general case, that some states allow it, and the argument th…

Presumably - if states are defining 1-party vs. 2-party consent laws, then doesn't the 10th amendment imply that this matter shouldn't be handled federally?

...unless the communications cross state lines, which in this case they mostly do.

Re: U.S. Supreme Court rebuffs Facebook appeal in user tracking lawsuit

#56

Post by SilasX »

ehnto wrote: post #16
nerdponx wrote: post #4

“Facebook was not an uninvited interloper to a communication between two separate parties; it was a direct participant,” the company said in a legal filing. There's gotta be some existing legal doctrine on what constitutes a "direct participant", right? Suppose I visit the website of Company A intending to do business with them (perhaps this is the only way to contact them). Their website contains the Facebook "like"…

Hm, it's challenging because of the new medium but maybe we could discuss a real world analogue: You walk in to a home expecting to meet your friend, when you enter there is a man from the TV network there. You didn't expect him, his intention is just to watch you and your friend talk about television shows. Perhaps an example that gets closer to the crux of the problem: You're at a restaurant with a friend, and an u…

I'd say it's more like, VendorA gives VendorB special buttons (like they kind you pin to your shirt) that promote VendorA, analogous to the "like" buttons.

You visit VendorB for private financial counseling (like an https web session). VendorB is wearing the button during the session.

Unbeknownst to you (and probably VendorB), the button is recording some metadata of your encounter: when you went there, for how long, how loud your voices were, and VendorA periodically scans the button for this data and collects it.

Just like on the web, you were never aware of the implications of the VendorB button, and had no chance to opt out before the recording began.

Re: U.S. Supreme Court rebuffs Facebook appeal in user tracking lawsuit

#57

Post by seanalltogether »

nerdponx wrote: post #4

“Facebook was not an uninvited interloper to a communication between two separate parties; it was a direct participant,” the company said in a legal filing. There's gotta be some existing legal doctrine on what constitutes a "direct participant", right? Suppose I visit the website of Company A intending to do business with them (perhaps this is the only way to contact them). Their website contains the Facebook "like"…

Couldn't you apply this same logic to google analytics which has been embedded in most sites for over a decade?

Re: U.S. Supreme Court rebuffs Facebook appeal in user tracking lawsuit

#58

Post by freeopinion »

ehnto wrote: post #16
nerdponx wrote: post #4

“Facebook was not an uninvited interloper to a communication between two separate parties; it was a direct participant,” the company said in a legal filing. There's gotta be some existing legal doctrine on what constitutes a "direct participant", right? Suppose I visit the website of Company A intending to do business with them (perhaps this is the only way to contact them). Their website contains the Facebook "like"…

Hm, it's challenging because of the new medium but maybe we could discuss a real world analogue: You walk in to a home expecting to meet your friend, when you enter there is a man from the TV network there. You didn't expect him, his intention is just to watch you and your friend talk about television shows. Perhaps an example that gets closer to the crux of the problem: You're at a restaurant with a friend, and an u…

What if the "man from the TV network" is really a "man from Amazon" only it isn't a man. It's a Ring doorbell, clearly labeled when you came through the front door. Or it's a little Echo in the corner of the room.

Does that mean Amazon was invited to the conversation? Should you as a visitor to the home expect that every logo you see in the house means that you agree to have that company present in your conversations during the visit?

Does a Facebook icon or a Google icon or an Amazon icon on a webpage give them the right to participate in your conversation? Does a Windows logo in the corner of your screen give Microsoft the same right?

Is it ok if they don't record audio or video, just metadata?

Re: U.S. Supreme Court rebuffs Facebook appeal in user tracking lawsuit

#59

Post by 1vuio0pswjnm7 »

nerdponx wrote: post #4

“Facebook was not an uninvited interloper to a communication between two separate parties; it was a direct participant,” the company said in a legal filing. There's gotta be some existing legal doctrine on what constitutes a "direct participant", right? Suppose I visit the website of Company A intending to do business with them (perhaps this is the only way to contact them). Their website contains the Facebook "like"…

"Suppose I visit the website of Company A intending to do business with them (perhaps this is the only way to contact them). Their website contains the Facebook "like' button somewhere on the page. Is Facebook really a "direct participant" ..."

The term "direct particpant" is not from the statute. Those are the words of Facebook's defense lawyers.

The statute provides an exemption for a "party" to communication, but it does not define the term "party".

The 1st and 7th Circuits, when faced with cases similar to this one involving third party "tech" companies that subsist on internet advertising, have interpreted the term "party" to exclude third parties such as Facebook. The 3rd Circuit however has interpreted it to include them. The 9th Circuit on hearing Facebook's case followed the 1st and 7th Circuits. Facebook wants the 3rd Circuit's interpetation to be the law of the land. The Supreme Court denied Facebook's appeal.

As such, the hypothetical requires some more facts. Where is Company A domiciled? Where do they do business? What state do you live in?

Re: U.S. Supreme Court rebuffs Facebook appeal in user tracking lawsuit

#60

Post by legitster »

nerdponx wrote: post #49
legitster wrote: post #35

Earlier quoted context omitted.

Expectations of privacy are already pretty well defined: https://en.wikipedia.org/wiki/Expectation_of_privacy You have an expectation of privacy in your own home - but you can't take back what you shared to your friend when you discovered he writes down every conversation on his blog. Intent isn't super relevant. For the purpose of the wiretap act, 'participant' is unrelated to intent.

Interesting, I didn't realize "expectation of privacy" was related to (and dependent on) the 4th Amendment. Seems like a gap in our laws; expectation of privacy from people who aren't the government .

I mean, society won't function if you have to give everyone outside of your home consent to look or speak at you. Unless you plan on blinding and deafening the whole world, there's going to have to be a line somewhere about what we are allowed to learn about the people around us.
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