{"id":136423,"date":"2019-07-01T12:00:13","date_gmt":"2019-07-01T11:00:13","guid":{"rendered":"https:\/\/www.transcend.org\/tms\/?p=136423"},"modified":"2019-07-08T12:06:07","modified_gmt":"2019-07-08T11:06:07","slug":"in-court-facebook-blames-users-for-destroying-their-own-right-to-privacy","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2019\/07\/in-court-facebook-blames-users-for-destroying-their-own-right-to-privacy\/","title":{"rendered":"In Court, Facebook Blames Users for Destroying Their Own Right to Privacy"},"content":{"rendered":"
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Illustration: Soohee Cho\/The Intercept<\/p><\/div>\n

14 Jun 2019 – <\/em>In April 2018, Facebook CEO Mark Zuckerberg sat before members of both houses of Congress and told them his company respected the privacy of the roughly two billion people who use it. \u201cPrivacy\u201d remained largely undefined throughout Zuckerberg\u2019s televised flagellations, but he mentioned the concept more than two dozen times, including when he told<\/a> the Senate\u2019s Judiciary and Commerce committees, \u201cWe have a broader responsibility to protect people\u2019s privacy even beyond\u201d a consent decree from federal privacy regulators, and when he told<\/a> the House Energy and Commerce Committee, \u201cWe believe that everyone around the world deserves good privacy controls.\u201d A year later, Zuckerberg claimed in interviews<\/a> and essays to have discovered the religion of personal privacy and vowed to rebuild the company in its image.<\/p>\n

But only months after Zuckerberg first outlined his \u201cprivacy-focused vision for social networking\u201d in a 3,000-word post<\/a> on the social network he founded, his lawyers were explaining to a California judge that privacy on Facebook is nonexistent.<\/p>\n

The courtroom debate, first reported by Law360<\/a>, took place as Facebook tried to scuttle litigation from users upset that their personal data was shared without their knowledge with the consultancy Cambridge Analytica and later with advisers to Donald Trump\u2019s campaign. The full transcript of the proceedings<\/a> \u2014 which has been quoted from only briefly \u2014 reveal one of the most stunning examples of corporate doublespeak certainly in Facebook\u2019s history.<\/p>\n

Representing Facebook before U.S. District Judge Vince Chhabria was Orin Snyder of Gibson Dunn & Crutcher, who claimed that the plaintiffs\u2019 charges of privacy invasion were invalid because Facebook users have no expectation of privacy on Facebook. The simple act of using Facebook, Snyder claimed, negated any user\u2019s expectation of privacy:<\/p>\n

There is no privacy interest, because by sharing with a hundred friends on a social media platform, which is an affirmative social act to publish, to disclose, to share ostensibly private information with a hundred people, you have just, under centuries of common law, under the judgment of Congress, under the SCA, negated any reasonable expectation of privacy.<\/em><\/p><\/blockquote>\n

An outside party can\u2019t violate what you yourself destroyed, Snyder seemed to suggest. Snyder was emphatic in his description of Facebook as a sort of privacy anti-matter, going so far as to claim that \u201cthe social act of broadcasting your private information to 100 people negates, as a matter of law, any reasonable expectation of privacy.\u201d You\u2019d be hard-pressed to come up with a more elegant, concise description of Facebook than \u201cthe social act of broadcasting your private information\u201d to people. So not only is it Facebook\u2019s legal position that you\u2019re not entitled to any expectation of privacy, but it\u2019s your fault that the expectation went poof the moment you started using the site (or at least once you connected with 100 Facebook \u201cfriends\u201d).<\/p>\n

Judge Chhabria was skeptical of Snyder\u2019s privacy nonexistence argument at times, which he rejected as treating personal privacy as a binary, \u201clike either you have a full expectation of privacy, or you have no expectation of privacy at all,\u201d the judge put it at one point. Chhabria continued with a relatable hypothetical:<\/p>\n

If I share [information] with ten people, that doesn\u2019t eliminate my expectation of privacy. It might diminish it, but it doesn\u2019t eliminate it. And if I share something with ten people on the understanding that the entity that is helping me share it will not further disseminate it to a thousand companies, I don\u2019t understand why I don\u2019t have \u2014 why that\u2019s not a violation of my expectation of privacy.<\/em><\/p><\/blockquote>\n

Snyder responded with an incredible metaphor for how Facebook sees your use of its services \u2014 legally, at least:<\/p>\n

Let me give you a hypothetical of my own. I go into a classroom and invite a hundred friends. This courtroom. I invite a hundred friends, I rent out the courtroom, and I have a party. And I disclose \u2014 And I disclose something private about myself to a hundred people, friends and colleagues. Those friends then rent out a 100,000-person arena, and they rebroadcast those to 100,000 people. I have no cause of action because by going to a hundred people and saying my private truths, I have negated any reasonable expectation of privacy, because the case law is clear.<\/em><\/p><\/blockquote>\n

And there it is, in broad daylight: Using Facebook is a depressing party taking place in a courtroom, for some reason, that\u2019s being simultaneously broadcasted to a 100,000-person arena on a sort of time delay. If you show up at the party, don\u2019t be mad when your photo winds up on the Jumbotron. That is literally the company\u2019s legal position.<\/p>\n

Again and again, Snyder blames the targets of surveillance capitalism for their own surveillance:<\/p>\n

This is why every parent says to their child, \u201cDo not post it on Facebook if you don\u2019t want to read about it tomorrow morning in the school newspaper,\u201d or, as I tell my young associates if I were going to be giving them an orientation, \u201cDo not put anything on social media that you don\u2019t want to read in the Law Journal in the morning.\u201d There is no expectation of privacy when you go on a social media platform, the purpose of which, when you are set to friends, is to share and communicate things with a large group of people, a hundred people.<\/em><\/p><\/blockquote>\n

At one point Chhabria asked, seemingly unable to believe Snyder\u2019s argument himself,<\/p>\n

\u201cIf Facebook promises not to disseminate anything that you send to your hundred friends, and Facebook breaks that promise and disseminates your photographs to a thousand corporations, that would not be a serious privacy invasion?\u201d<\/em><\/p><\/blockquote>\n

Snyder didn\u2019t blink:<\/p>\n

\u201cFacebook does not consider that to be actionable, as a matter of law under California law.\u201d<\/em><\/p><\/blockquote>\n

Facebook\u2019s counsel did seem to concede one possibility for the existence of privacy on Facebook: someone who uses Facebook completely contrary to the way it\u2019s designed and to the way it has always been marketed. \u201cIf you really want to be private,\u201d Snyder proposed to the court, \u201cthere are people who have archival Facebook pages that are like their own private mausoleum. It\u2019s only set to [be visible by] me, and it\u2019s for the purpose of repository, you know, of your private information, and no one will ever see that.\u201d So these are your possible valid legal statuses as a Facebook user: You\u2019re either plugged into the 100,0000-person perpetual surveillance Coachella or living in a digital \u201cmausoleum.\u201d But if you ever decide to fling open the doors of your private data crypt and, say, share a little content on Facebook with friends, as the company has been pushing us for the past 13 years, Snyder says you\u2019re out of luck:<\/p>\n

Once you go to friends, the gig is over because you\u2019ve just gone \u2014 taken a hundred people and pronounced your personal likes and dislikes. In fact, the very act of liking something and showing your friends that you like something is a non-private act. It\u2019s the whole premise of Facebook and social media, is to render not private your likes, your dislikes, your expressions. When I tag someone in a photo, it\u2019s to tell people, not keep private, that I\u2019m sitting on a park bench with John Smith. So it\u2019s the opposite of private when you do that.<\/em><\/p><\/blockquote>\n

Facebook\u2019s stance that if one truly wants to keep something private, they should keep it far from Facebook is odd \u2014 odder, still, given the fact that the company publishes an extremely detailed privacy policy, perhaps only meant for those huddling in private mausoleums where such a principle still exists.<\/p>\n

\u201cFacebook was built to bring people closer together,\u201d reads the start of the company\u2019s \u201cPrivacy Principles.\u201d \u201cWe help you connect with friends and family, discover local events and find groups to join.\u201d Not mentioned is that if you do any of that, it\u2019s Facebook\u2019s official opinion that you\u2019ve \u201cnegated\u201d your claim to any privacy whatsoever. The list of principles reads like a bad joke after studying Snyder\u2019s courtroom theorizing: \u201cWe design privacy into our products from the outset\u201d seems hard to reconcile with \u201cOnce you go to friends, the gig is over.\u201d It\u2019s similarly hard to take \u201cWe give you control of your privacy\u201d seriously after hearing, through Snyder,\u00a0that because Facebook users \u201cshared the information \u2026 you\u2019ve lost control over the information and its subsequent disclosure.\u201d<\/p>\n

So which is true, then? Are we to believe Orin Snyder when he says Facebook privacy is an oxymoron and that showing something to even a small group of friends completely forfeits your right to privacy, or Mark Zuckerberg when, this past March, he wrote, \u201cWe\u2019ve worked hard to build privacy into all our products, including those for public sharing.\u201d These statements can\u2019t both be true, and yet they appear to originate from the same company, albeit from two separate sides of its mouth. Perhaps Snyder is right when he tells the judge that the litigation isn\u2019t really <\/em>about just Facebook, but rather, the \u201cComplaint is really a Complaint about ubiquitous sharing on social media platforms. \u2026 They don\u2019t like it because when you go on a social media platform and share your information with a hundred people, you\u2019ve lost control. And that creates anxiety, and that creates concern.\u201d It will be interesting to watch Facebook confront this public dread in multiple ways at once, as if originating in completely different dimensions, apologizing for their misdeeds in media tours while denying any wrongdoing in the relative privacy of court.<\/p>\n

Neither Facebook nor Orin Snyder responded to a request for comment. Plaintiff\u2019s counsel declined to comment.<\/p>\n

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