On October 5th, Facebook moved to dismiss allegations that it tracked users’ online activity after they logged out of the social network, because the users failed to show how they were harmed. This allegation of secretive-tracking-post-logout is the central claim of the $15 billion class action suit filed against Facebook on the eve of the company’s much-maligned IPO. Facebook’s litigation strategy in this case – In re Facebook Internet Tracking Litigation – appears to be based on the line of argument oft utilized with much success at the summary judgment stage in tracking cases (and privacy cases generally), that the plaintiff is not able to show how interception and collection of personal information/browsing history results in a cognizable or economic harm.
But while gathering information about how a person uses the Internet, typically for purposes of enabling behavioral advertising, may not result in a substantial economic injury (as currently conceived), there is an intuition that harm is nonetheless present in this type of practice. A recent study out of Berkeley illustrates the obvious: Most Americans are uncomfortable with the collection of data about their online activity. Yet, those weirded-out or, possibly, legitimately harmed by the collection of personal information/browsing histories are currently not finding help when they turn to the courts for protection of their privacy concerns. The FTC seems to be making a concerted effort to reign in the use of tracking – note its $22.5 million settlement with Google; but also note that the Google settlement turns on the fact that Google misrepresented its policies and practices regarding its tracking cookies. Blatant misrepresentations aside, tracking of individuals by private companies remains the status quo.
Maybe this is all just fine. It may be perfectly acceptable for a person’s activity to be monitored in order to improve her Internet experience through customization – maybe behavioral advertising should cause online shoppers to rejoice for streamlining the consuming process. Or it might be that online tracking is simply unavoidable, in the sense that it’s merely a cost of entry – privacy-as-causalty of the Internet age, as Senator Franken would say. Perhaps it’s needed to keep the Internet free – or perhaps it’s not. Regardless of whether the act of monitoring and collecting information about online behavior is mostly beneficial or mostly problematic, those who find that the practice makes them uneasy – and judging by prevailing public opinion as well as the frequency and volume of lawsuits filed because of tracking, many are uneasy – will not be afforded relief by the legal system until new ways to conceive of and formulate the harm done by this type of monitoring are proposed and accepted. The questions remain how exactly to go about doing this, and whether the only way to possibly do so in an effective and comprehensive way is via new legislation. Until those questions are answered, we can enjoy prescient online ads while living with the knowledge that Facebook knows more about us than the majority of our Facebook friends.