I NEED TO ALERT YOU THAT I HAVE MADE CHANGES TO THIS POST ON SEPT 9. I CHOSE TO MAKE THE CHANGES IN THE TEXT RATHER THAN ISSUE A CORRECTION BECAUSE THIS POST IS WELL INDEXED AND I DUNNO IF THE CORRECTION WOULD BE. I MADE THE CHANGES TO CORRECT A COUPLE OF ISSUES IN MY UNDERSTANDING OF THE CASE. THE CHANGES WERE MADE AS A RESULT OF THE COMMENT LEFT AT THE BOTTOM OF THE POST -- A COMMENT YOU SHOULD READ. I REGRET THE ERRORS.
A really interesting lawsuit was filed on Tuesday in CA Northern District Court. Against FaceBook and the various companies involved in its much maligned "Beacon" advertising program that debuted last fall and had to be changed from "opt out" to "opt in" several weeks later.
You see, the Beacon system transmits transaction info from the merchants to FB for EVERY purchase (or rental,) and then FaceBook parsed it to match it to members.
The lawsuit focuses on a number of counts. This is not a complete list, these are simply the ones I think are relevant to the typical readers of this site:
Electronic Communications Privacy Act
Suit alleges that the act of collecting the data was a violation of the above act. The act prohibits the interception of communications without consumer consent.
Video Privacy Protection Act
One interesting aspect of this is the role of Blockbuster, Fandango, GameFly, and Overstock, all of which sell or rent prerecorded media. Because video transactions are governed under the Video Privacy Protection Act (VPPA.) The law was passed in 1988 as a result of the Supreme Court nomination of Robert Bork, and the fact that his video rental records were obtained and published in a variety of media outlets. As I recall, Judge Bork's rentals were about as tame as they come, but the disclosure was considered such an invasion that the law was passed. So how could Blockbuster and the others legally participate in this program on an opt out basis? Or is the member the discloser to FB? Naturally, other sites that sold video would be in violation as well. That sound you're hearing is my head spinning.
I looked online for info about the VPPA -- what is unclear to me is whether ONLY video tapes are covered or if the law would cover DVDs and CDs as well. Based upon the info I found, it appears that the law was written in a manner that suggests broad interpretation is warranted, but I couldn't find any case law where the courts have verified that. Obviously, the breadth or narrowness of the interpretation would affect whether other companies named in the suit violated the law as well.
Alleges that certain California laws offering fraud and privacy protection to consumers were violated.
What also makes this sue-overable is that if EVERY purchase and rental was sent to FB, then the purchases of people who WEREN'T members were transmitted. This is actually the most interesting bit to me.
You can get a copy of the suit, and a tight analysis, over here at Tech Crunch.
A number of companies are named in the suit in addition to FaceBook and the ones mentioned above -- the merchants that passed the data. Specifically:
A FaceBook press release states that there were 44 companies participating at the time of launch -- ergo, the suit also names "john doe" companies who were participating but whose names are unknown.
Assuming that PII was exchanged here (and how could it not have been?,) this will be an important case to watch. It's the part about nonmember data that I am most interested in -- surely THEY have a decent case.
I tell ya, privacy and privacy law is a big rat's nest, ain't it?
And don't forget. I am the layest of laypersons. Not a lawyer. Just a marketing blogger trying to keep abreast of privacy issues.
Finally, as to the comments below about Dallas attorneys, I don't know what is relevant there, but would be grateful for insight.
Thanks for reading, and don't forget to write?