Facebook is watching you

“Track­ing user behav­ior with­out their con­sent or knowl­edge raises seri­ous pri­vacy con­cerns. When users log out of Face­book, they are under the expec­ta­tion that Face­book is no longer mon­i­tor­ing their activities.”

— Reps. Edward Markey and Joe Barton

Let­ter to FTC Chairman

“We believe this com­plaint is with­out merit and we will fight it vigorously.”

— Andrew Noyes,

Face­book spokesman

Since 1949, George Orwell’s “Big Brother” has been watch­ing you. Today, the thing watch­ing you may be right in your liv­ing room, office or brief­case. Already tak­ing heat over their most recent site redesign, Face­book has now been sued, not over their site oper­a­tion, but with a claim that the site vio­lates fed­eral wire­tap­ping laws.

The law in ques­tion is the Wire and Elec­tronic Com­mu­ni­ca­tions Inter­cep­tion and Inter­cep­tion of Oral Com­mu­ni­ca­tions Act. It tra­di­tion­ally applied to the inter­cep­tion of tele­phone com­mu­ni­ca­tions but in recent years has been expanded to cover some data trans­mis­sions as well. Gen­er­ally, in order to inter­cept these com­mu­ni­ca­tions one must show that a crime is being or is about to be com­mit­ted and obtain a valid court order to under­take the wiretap.

Two class action law­suits have been filed in recent weeks — one in Cal­i­for­nia and one in Mis­souri — claim­ing that Face­book is watch­ing what its users do, not just when they’re on the site, but even after the users log off. The suits claim that this vio­lates the wire­tap­ping laws and that Face­book should be ordered to cease the activ­ity and should be required to pay damages.

At issue are “cook­ies” — infor­ma­tion about your brows­ing activ­ity that is stored on your com­puter. Some­times those cook­ies are help­ful in that they remem­ber login infor­ma­tion or allow fre­quently vis­ited web sites to load more quickly. Face­book has always used cook­ies, just as other web­sites do.

Accord­ing to the mag­a­zine PC World, some of Facebook’s help­ful cook­ies allow the site to deter­mine if your account has sus­pi­cious login activ­ity and to pro­tect your login infor­ma­tion if you’re using a pub­lic com­puter. On the flip side blog­ger and hacker Nik Cubrilovic revealed about a week ago that some of Facebook’s cook­ies could con­tinue to track your activ­ity on the web even after you had logged off of the site.

Partly because the site derives its income from adver­tise­ments and partly because Face­book has been very adept at gath­er­ing infor­ma­tion to tar­get adver­tis­ing to indi­vid­ual users, the plain­tiffs in the law­suit con­cluded that the track­ing was inten­tional. They weren’t the only ones. In a com­ment to Com­put­er­world, ana­lyst Dan Gabriel com­mented that he believed the cook­ies were likely, “a “fea­ture” in their code that per­haps they weren’t using yet, but could use to gen­er­ate rev­enue in the future.”

For its part, Face­book not only denies that the cook­ies were a wire­tap­ping vio­la­tion, they also acted on Cubrilovic’s post and issued a “fix” to remove the cook­ies. That wasn’t good enough for the plain­tiffs who want a court order to pre­vent the cook­ies from return­ing and mon­e­tary dam­ages for Facebook’s users.

This is not the first instance of the use of these kinds of cook­ies. Last year a Texas res­i­dent sued Google over a sim­i­lar col­lec­tion of data. Other com­pa­nies, includ­ing Speci­fic­Me­dia, Quant­cast, Clear­spring and Say Media have paid mon­e­tary set­tle­ments over sim­i­lar claims.

The cur­rent suits have just been filed and the FTC has not decided whether to open an inves­ti­ga­tion or not but the story bears watch­ing. While you’re watch­ing it, who’ll be watch­ing you?

David Hej­manowski is a mag­is­trate and court admin­is­trate of the Delaware County Juve­nile Court and a for­mer assis­tant pros­e­cut­ing attorney.

Posted by Dave Hejmanowski on Oct 6 2011. You can follow any responses to this entry through the RSS Feed. Comments can be made below.