California, Cyberlaw, Eavesdropping / Wiretapping, Facebook, Privacy, Social Networking Websites, Technology

Did Facebook Illegally Wiretap 150 Million People? Maybe! Probably Not

Earlier this week, the federal government got some heat for allegedly violating the common man’s electronic privacy by snooping around in email and the like. Today we have a lawsuit from Kentucky accusing a tech company, specifically Facebook, of doing nearly the same thing.

What is going on? It’s almost like there’s no privacy anywhere anymore! (I’m kidding, of course: Privacy completely disappeared years ago.)

The suit, filed by an average Facebook user like you or me (well, most of you are lawyers, so not quite like you), claims a class of 150 million people, and damages of hundreds or thousands of dollars per class member. Exactly what heinous offense has Facebook supposedly committed?

I’m so glad you asked….

From the Associated Press, via

A Facebook user in western Kentucky has filed a federal lawsuit against the social networking company that accuses it of violating wiretap laws by recording his web browsing history when he wasn’t logged into the site.

Here’s more:

The Kentucky lawsuit, filed Friday in U.S. District Court [stems] from the revelation that Facebook placed programs known as tracking cookies on the browsers of its users that traced their internet activity. Each of those lawsuits also seeks to represent Facebook users in the United States.

Hold on, I’m confused as to how this is a “revelation.” Doesn’t every website do this?

The case is almost identical to a slew of others coming out of Kansas, California, and Louisiana in the last few weeks. The Associated Press offered good analysis of the Kansas lawsuit (the lead plaintiff in that case is a lawyer) on October 6:

Experts say the Kansas litigation faces an uphill battle since courts in the past have tossed out similar cases against Facebook and others filed under wiretap law, finding such computer cookies are not wiretaps. In those cases that do end up being litigated the plaintiffs typically lose because they cannot prove any harm.

To be fair, the suit claims Facebook collected data after people logged out of their accounts. In a statement, a Facebook spokesperson said:

“Three of these cookies on some users’ computers inadvertently included unique identifiers when the user had logged out of Facebook,” according to the statement. “However, we did not store these identifiers for logged out users. Therefore, we could not have used this information for tracking or any other purpose.”

Who cares?! It’s not like anyone ever logs out of Facebook. That’s why every time you visit sites like The Atlantic it creepily knows what your friends read.

On the one hand, I’m thinking this is ridiculous. Of course there is no harm to claim. Unless you count pop-up ads that are becoming even more prevalent on Facebook every day, and the fact that every time anyone plays a Beyoncé song on Spotify, it pops up in my news feed. Kashmir Hill wrote an article at Forbes yesterday, Really? Half of Young People Not That Upset By Hacking Of Their Facebook and E-mail Accounts. She cited a recent MTV poll that concluded, well, you get the point. And that’s kind of depressing.

Maybe I should care more, and maybe “Disgruntled Senior Associate,” who commented on my post from Tuesday, is right:

Somewhere along the line the majority of people in this country decided privacy no longer exists and “if you’re not doing anything wrong why do you care” if the government [and, in this case, Facebook] snoops through your papers without a warrant.

All hail our digital overlords.

Whether or not the justice system follows that reasoning, and whether or not any of this actually violates the federal wiretap law, it’s pretty easy to protect yourself from creepy cookies (although supercookies might be a different story). All you need to do is periodically clear your browsing history. It’s also helpful for preventing viruses and malware. If you get an email virus that starts sending all your friends and coworkers embarrassing spam email about penis enlargement, the first thing you should do is log out and clear all your browsing history. (If you don’t know how to do this, here’s a tutorial).

Dang. This is all making me kind of depressed. Maybe it’s the ghost of Tom Joad Steve Jobs. Instead of using our professional abilities to try to proactively fix the situation, let’s just stare at pictures of baby bunnies.

Ky. Man Sues Facebook Over Tracking Web Habits []
Kan. Man Sues Facebook Over Privacy Issues [Associated Press]

Christopher Danzig is a writer in Oakland, California. He previously covered legal technology for InsideCounsel magazine. Follow Chris on Twitter @chrisdanzig or email him at You can read more of his work at

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