Privacy advocates won a major victory on Monday when a lawsuit against Facebook for the Cambridge Analytica scandal was allowed to move forward. The San Mateo Superior Court judge, in what the plaintiffs believe to be a significant step for privacy, held that the plaintiffs have adequately pled an injury and have standing for the case to continue.
As has been previously discussed on this blog, the plaintiffs alleged causes of action in violation of California’s Unfair Competition Law (UCL) and False Advertising Law (FAL) due to the unauthorized acquisition of Facebook profile data by political consulting firm Cambridge Analytica. Facebook demurred, arguing that the plaintiffs had not been injured solely as a result of unauthorized access to data and as a result lacked standing under California’s Proposition 64. On Monday, the judge overruled Facebook’s demurrer and allowed the case to proceed.
We are lucky to have S. Clinton Woods, senior associate at Audet & Partners and the lead counsel for the plaintiffs in this action (and a fellow Hastings alum), here to discuss the lawsuit and the path forward.
Q: How did you end up on this case? Do you consider yourself a privacy true believer?
S. Clinton WoodsA: I took over as lead attorney on this case from Wendy Giblin, who left our firm in April of this year. Like Bill Audet, who has been litigating privacy cases for decades, I am a strong believer in and defender of our constitutional privacy rights, including the right to protect our private information from predatory companies. As Californians, this right is explicitly protected by Article 1 Section 1 of our Constitution, and thus this case is especially important as a vehicle to enforce our cherished notion of personal privacy.
Q: Why did you choose not to bring this as a class action? Could this turn into a class action down the road?
A: There are many pending class actions in various venues that touch on these issues. However, we believe that California courts should have a say in deciding the boundaries of our constitutional and statutory rights. For this reason, we thought it was important to bring this case on behalf of individual clients seeking to vindicate a California Constitutional privacy right in a California court. The remedies that our plaintiffs seek concern Facebook’s broader privacy policies and also seek injunctive relief that would affect more than just our clients.
Q: Let’s talk about the ruling. You’ve described this issue as a matter of first impression in California. Can you explain what’s so groundbreaking about this ruling in the context of standing for privacy cases?
A: To my knowledge there has not before been a California state case that considered the issue before the court in Ballejos, which is whether or not the improper sharing of a wide swath of private and monetizeable data by social media companies satisfies the standing requirement of the California UCL. Furthermore, this case raises fascinating questions regarding the original intent of the UCL and Prop 64, as well as how those statutes interact with the California Constitutional privacy right. It’s a unique case in that regard.
Q: How do you think this ruling affects future privacy cases? Do you anticipate a flood of UCL/FAL cases now?
A: I think it’s important to note that the ruling is limited to Facebook’s pending demurrer. The Court correctly found that our clients had met the requisite pleading standards under California law. We are confident that we will ultimately be able to prevail on the merits, but I think it may be too early to say how this will affect privacy cases going forward. The Prop 64 standing requirements haven’t changed, the Court simply found that our clients had satisfied them. At any rate, I don’t think there will be a flood of UCL/FAL suits, but we are hopeful that this sends a message to social media companies that Courts will not shield them from meaningful privacy challenges from aggrieved users.
Q: Aside from the main question of standing, the judge also found that the plaintiffs had standing even though they were not certain their data had been stolen. Do you think this will have much of an impact on future data breach lawsuits?
A: The Court found that our plaintiffs established standing by, among other things, receiving notice from Facebook that their private data may have been improperly shared with Cambridge Analytica. The Court also correctly noted that the proof of whether our plaintiffs’ data was actually shared was largely in the custody and control of Facebook. Requiring Plaintiffs to prove more at the pleading stage is inequitable and not in accordance with California pleading requirements. I think that Judge Buchwald’s ruling was entirely correct in this regard. Users must have the right to discover exactly which parts of their private data is being shared with exactly which social media affiliates.
Q: We still don’t have a final signed order. Can you tell me the factors that go into you and Facebook negotiating on the proposed order language? Do you expect to agree or will you file separate proposed orders?
A: The Court ordered Plaintiffs to submit a proposed memorandum and order consistent with his ruling on the record. We will be doing that in the coming weeks, and the Court may revise our submission as it sees fit. Facebook will have the opportunity to submit comments and or objections to Plaintiffs’ proposed order.
Q: I’m sure you’re already planning for the appeal. What are you optimistic or worried about on appeal and when do you think we’ll find out?
A: Facebook has indicated that they will seek appellate review of the denial of the demurrer. We are confident that the First District will uphold the Court’s ruling, as they did when Facebook previously sought review of Judge Buchwald’s denial of a motion to stay. In the meantime, Plaintiffs intend to proceed expediently with the discovery phase of the case.
Q: The judge has not stayed discovery pending this appeal. What do you hope to find in Facebook’s files as you conduct discovery? What would a smoking gun look like?
A: We will pursue all discovery that is appropriate and necessary to establish Plaintiffs’ claims.
Q: When you got the ruling, did you have a Josh Lyman moment of running around the office shouting “Victory is mine, victory is mine,” drinking from the keg of glory, and demanding the finest muffins and bagels in all the land?
A: I did not, but I understand that reference!
Q: Go Giants! Should the Giants trade Madison Bumgarner?
A: For Mike Trout? Sure. Under pretty much any other circumstance no thanks. Pennant races don’t come around all that often and now that we’re in one you have to see it through! Maybe trade a bullpen arm or two for prospects but at least give us the next two months of Bumgarner-to-Posey in meaningful games.
Disclaimer: This information is given for legal education only. This post is not legal advice and does not create an attorney-client relationship. Please contact an attorney for legal advice.
Daniel Zarchy is a civil litigator and privacy attorney in San Francisco, California. Daniel is also a Certified Information Privacy Professional (CIPP/US). The views and opinions expressed herein are solely those of the author and do not necessarily reflect the views or opinions of any other party or law firm.
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