Next Big Practice Area: Privacy Class Action Lawsuits?
The truest words spoken in the aftermath of the massive Snapchat hack of 4.6 million users' data were, "I think Snapchat, if they haven't already done so, are going to need to hire some really good lawyers." Those words, spoken by Christoper Soghoian, a former privacy advisor to the Federal Trade Commission, are spot-on. The company's CEO, Evan Spiegal, addressed the ruckus with a s*** happens-type of response, reports Valleywag, which should do little to quell the rage of angry users.
And then my friends, there is Facebook, which, after their last twelve (rough estimate) lawsuits, probably have pretty good, and experienced, counsel. They were sued for scanning users' "private" messages for links, crawling through those links, and activating the "like" button on the resulting pages, reports Slate. For example, were I to send a copy of my latest post to my dear mother via a message, Facebook would send a robot to the post and "click" the like button on my behalf.
The issue is data mining, and security flaws, and security exploits, and privacy violations. It's also almost certainly going to be a hot practice area for tech-savvy class-action attorneys.
The Run Down: Recent Class Actions Against Tech Companies
We're definitely going to miss a few here, but this is just a sample of recent case activity:
- Google, Apple, Adobe, and Intel were recently sued for their secret anti-poaching agreement;
- Two angry iPhone owners filed a class-action suit against Apple for not unlocking their phones;
- Google was sued, under wiretapping laws, for scanning the content of emails for the purpose of delivering related advertisements;
- Google was also sued, under wiretapping laws, for (allegedly accidentally) intercepting and copying users' data off of unsecured wireless networks using antennas attached to their Street View cars;
- LinkedIn was sued for allegedly "hacking" into users' email accounts to spam their contacts with LinkedIn spam;
- 23andMe, a genetic testing-by-mail site, was sued for misleading customers (the company's products are not FDA-approved.);
- Lawyers got massive paydays in two Facebook settlments, over the privacy-murdering Beacon and Sponsored Stories cases, though both settlements are being appealed.
My fingers hurt. So does my privacy-invaded soul, as I've used nearly every one of those companies' services. Who wants to represent me?
Seriously though, with tech companies reaching never before seen levels of market saturation (even AOL, at its peak, was not nearly as big as Facebook and Google), every single stumble means a class action lawsuit is waiting. Obviously, not all of these lawsuits are created equal. Some, at first glance, appear to be fodder for demurral or quick trips to a 12(b)(6).
But, because most modern tech companies provide free services and depend nearly entirely on advertising revenue, their interests in data mining for targeted advertising will always run counter to users' privacy rights.
Let's Get Started!
Alright. But there are a few issues we've seen pop up in nearly every lawsuit.
Your plaintiffs are going to need to meet the Wal-Mart v. Dukes commonality standards. For a class of social media users, whose data was mined in the exact same way (Facebook's present quagmire, for example), there is no problem. For the anti-poaching class action, the variety of job classifications affected (engineers, blog writers, baristas) meant injuries varied by group.
Also, cy pres settlements are facing increased scrutiny. In the Facebook Beacon lawsuit, the Ninth Circuit narrowly upheld the settlement that gave a ton to (a) the lawyers and (b) a non-profit headed by a Facebook employee dedicated to privacy awareness. Shady? Six judges thought so.
Other than that, it seems like standard fare, with a lot of affected plaintiffs. Most of these cases seem to settle early for a few hundred million to the lawyers, a nominal per-class member award, and in some cases, a cy pres payment to a charity.
Related Resources:
- LinkedIn Litigation: Shrinkwrap Licensing Stretched to its Limits? (FindLaw's Ninth Circuit Blog)
- Netflix Settlement Brings Privacy Changes, Lawyers Profit from $9M Payout (FindLaw's Technologist Blog)
- Judge Pressures Apple to Settle E-book Price-Fixing Lawsuit? (FindLaw's Technologist Blog)