(TNS) — A state district judge in Houston told Facebook on Jan. 29 that it must take down a privacy tool announced with much ballyhoo that same day and promoted with a blog post by founder and CEO Mark Zuckerberg.
But if you go to the Off-Facebook Activity tool on either the social giant’s website or in its mobile app settings, the feature is still there, despite the temporary restraining order issued by Judge Tanya Garrison in Harris County’s 334th State District Court.
Even sprawling, multinational corporations like Facebook must follow the law. So why is this particular order being ignored?
“Facebook continues to be in contempt of Judge Garrison’s order,” said Annie McAdams, the attorney who won the TRO. She has filed for a contempt-of-court ruling, and Facebook has requested an emergency appeal with the Houston-based 14th State Court of Appeals.
Both legal maneuvers are on hold because the two sides are talking, and met Thursday in San Francisco for the deposition of a Facebook executive.
Facebook works with third-party sites and mobile apps to collect data about its users’ behavior on those sites. That data is then used to make Facebook ads — and those distributed through affiliated third-party ad networks — more personalized to user interests. This is so effective that it has caused some people to believe Facebook is using their smartphone’s microphone to spy on what they are saying.
The Off-Facebook Activity tool does two things: It lets you see a list of third-party apps and sites that funnel your activity back to Facebook. You can then instruct Facebook not to associate data from those apps and sites with your account in the future. You can also toggle a setting that disassociates your identity from all previous data that has been collected.
McAdams is concerned that the tool could delete or damage data needed for her case, filed on behalf of a client identified only as Jane Doe. As a 16-year-old girl, the client met a man on Facebook McAdams alleges “groomed” her with promises of money from modeling, then lured her into sex trafficking. After a meeting with the man, the girl allegedly was gang-raped by seven men.
The lawsuit, Jane Doe vs. Facebook, alleges the social giant does little to prevent such activity its platform. McAdams — who has other, similar suits against Facebook — requested as part of the discovery process data that the alleged perpetrator generated both on and off the platform. She said Facebook has so far not produced that data, though Facebook’s attorney has said in court that the evidence has been preserved.
According to court documents, Facebook contends it is protected under Section 230 of the Communications Decency Act, a part of that law that shields the operators of online services from liability due to content posted by its users.
But that does not explain why Facebook would ignoring a judge’s order to take down the privacy tool. The answer, said attorney Katie Sunstrom of Lorance Thompson not involved in the matter, may have to do with economics.
“It might make more economic sense to not comply with the order,” said Sunstrom, who specializes in internet, intellectual property and technology law. “Whatever amount of damage Facebook might incur from not complying with the ruling would pale in comparison to the damage from taking it down.”
In other words: Court fines for disobeying a TRO in Harris County would be pocket change for Facebook, which reported $7.3 billion in profit on $21.1 billion in revenue for the final quarter of 2019 alone.
Facebook’s attorney handling the case did not respond to multiple requests for comment.
Sunstrom said Facebook also is “between a rock and a hard place”, because an increasing number of states are passing laws that require online companies to provide a way for users to delete their data. That’s particularly true in California, which last year passed the California Consumer Privacy Act, or CCPA. Facebook may face more legal threats if it does not make tools such as Off-Facebook Activity available, she said.
McAdams said her ultimate goal is to acquire the evidence she needs from Facebook. If that occurs, she said she will “pull down our motion for contempt.”
“We are not looking to stop Facebook from advancing its privacy applications,” she said. “We just want to understand and preserve evidence, and protect children’s interactions on Facebook.”
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