The news that Cambridge Analytica and its British parent shut down because of the Facebook scandal shows the controversy over online privacy won’t go away anytime soon. It will take much more than Mark ZuckerbergMark ZuckerbergHillicon Valley — Amazon draws COVID scrutiny Meta exec who co-founded Diem digital currency leaving the company Two lawyers who filed suit challenging election results ordered to pay nearly 7K MORE’s current “apology” tour to regain the trust of users, investors and the broader public. To truly address privacy issues, Facebook must revise its “terms and conditions” that not only invade our privacy, but put our children at risk — namely the 10.5 million U.S. subscribers between the ages of 13 and 18.
The reality is that Facebook’s “Terms of Service ” is a carte blanche seizure of information. When subscribers agree to these terms, they’re granting Facebook permission to capture and share not only their communications, but also their personal information. Thus, a posting intended for 11 friends might be shared with millions of strangers. The social network’s size and the facility of access means that reckless confiscation of personal data does not occur on the village green or in a newspaper with limited circulation, but rather on personal devices inches from the eyes and ears of millions.
The social network recently settled a privacy class action case, Fraley, et. al. v. Facebook, that addressed a “subclass B” of these millions of children. While Facebook paid millions to counsel and to the adults, the subclass of children — incredulously — received a revised “terms and conditions”: “You give us permission to use your name, profile picture, content, and information in connection with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. … If you are under the age of 18 … you represent that at least one of your parents or legal guardians has also agreed to the terms of this section on your behalf.”
While the Ninth Circuit initially approved this settlement, fierce objections from the Children's Advocacy Institute, Public Citizen, the American Academy of Pediatrics, the Federal Trade Commission and others gave the court pause. It took the unusual step of unpublishing its approval, so it cannot be a precedent going forward. Indeed, comments from the bench during oral arguments expressed hope that state attorneys general or others would initiate legal challenges to this ruling.
Facebook needs to address this issue from its own perspective. However, if it does not act, legislation in California could compel it to do so. California Assembly Bill 2511, recently endorsed by the state legislature’s Committee on Privacy and Consumer Protection, would make this form of bogus parental consent illegal.
Regarding its overwhelming financial liability, Facebook conceded in the Fraley litigation that its headquarters presence in California subjects it to state laws, including an “inalienable right to privacy,” which includes children and applies to private parties.
Beyond creating the “creme de la creme of social media,” Zuckerberg’s legacy should be a system of communications that enhances users’ First Amendment rights, with a proper respect for privacy. Facebook should consider — or Congress and/or the California legislature should impose — three reforms:
First, all communications on Facebook should be transmitted only to the persons to whom they are directed. An exception could be made when Facebook transmits to any subscriber a simple copy-and-paste of what is to be transmitted and a brief description of who will receive it (numbers and description of recipient population), with a consent button. If the subscriber clicks on the button, off it goes. The cost is minimal.
Second, all personal information on a Facebook account should be accessible only to the subscriber and approved friends. Facebook cannot transmit to any third party without specific consent.
Third, mass communication through Facebook must identify the sender by accurate personal, corporate, or other name.
With these three changes, Facebook would assure its operations are lawful and the social media platform could continue to prosper and grow, enhancing its many positive features. If imposed through the force of law, these changes would trailblaze free speech and privacy-enhancing rules for all competitors in this market.
Robert C. Fellmeth is Price Professor of Public Interest Law at the University of San Diego School of Law and executive director of the Center for Public Interest Law. His areas of expertise include child advocacy/children’s rights, consumer law, family law and professional responsibility. He was an attorney with the Center for the Study of Responsive Law in Washington from 1968 to 1973, and was one of the original “Nader's Raiders” investigating the Federal Trade Commission in 1968. He served as a deputy district attorney for San Diego County and an assistant U.S. attorney for the Department of Justice in San Diego.