Re Facebook’s tracking of non-users ruled illegal again in case brought by Belgium Privacy Commission

["Dave Farber" <farber () gmail com>]

Begin forwarded message:

> From: "Paul Wilson" <pwilson () apnic net>
> Date: March 5, 2018 at 5:59:31 PM EST
> To: dave () farber net
> Subject: Re: [IP] Facebook’s tracking of non-users ruled illegal again in case brought by Belgium Privacy Commission
>
> In the past I’ve seen a completely new Facebook user being offered a bunch of fully accurate friend suggestions; 
> which implies a form of tracking of people before they have joined.
>
> Probably as simple as remembering the searches done by those friends, ready for when the target (the new user) turns 
> up on FB at a later time.
>
> Paul.
>
>
> On 6 Mar 2018, at 4:48, Dave Farber wrote:
>
>
>
>
> Begin forwarded message:
>
> > From: Kimi Wei <kimi () thewei com>
> > Date: March 4, 2018 at 12:49:15 PM EST
> > To: David Farber <dave () farber net>
> > Subject: Facebook’s tracking of non-users ruled illegal again in case brought by Belgium Privacy Commission
> >
> > https://techcrunch.com/2018/02/19/facebooks-tracking-of-non-users-ruled-illegal-again/
> >
> > Another blow for Facebook in Europe: Judges in Belgium have once again ruled the company broke privacy laws by 
> > deploying technology such as cookies and social plug-ins to track internet users across the web.
> >
> > Facebook uses data it collects in this way to sell targeted advertising.
> >
> > The social media giant failed to make it sufficiently clear how people’s digital activity was being used, the court 
> > ruled.
> >
> > Facebook faces fines of up to €100 million (~$124 million), at a rate of €250,000 per day, if it fails to comply 
> > with the court ruling to stop tracking Belgians’ web browsing habits. It must also destroy any illegally obtained 
> > data, the court said.
> >
> > Facebook expressed disappointment at the judgement and said it will appeal.
> >
> > “The cookies and pixels we use are industry standard technologies and enable hundreds of thousands of businesses to 
> > grow their businesses and reach customers across the EU,” said Facebook’s VP of public policy for EMEA, Richard 
> > Allan, in a statement. “We require any business that uses our technologies to provide clear notice to end-users, and 
> > we give people the right to opt-out of having data collected on sites and apps off Facebook being used for ads.”
> >
> > The privacy lawsuit dates back to 2015 when the Belgium privacy watchdog brought a civil suit against Facebook for 
> > its near invisible tracking of non-users via social plug-ins and the like. This followed an investigation by the 
> > agency that culminated in a highly critical report touching on many areas of Facebook’s data handling practices.
> >
> > The same year, after failing to obtain adequate responses to its concerns, the Belgian Privacy Commission decided to 
> > take Facebook to court over one of them: How it deploys tracking cookies and social plug-ins on third-party websites 
> > to track the internet activity of users and non-users.
> >
> > Following its usual playbook for European privacy challenges, Facebook first tried to argue the Belgian DPA had no 
> > jurisdiction over its European business, which is headquartered in Ireland. But local judges disagreed.
> >
> > Subsequently, Belgian courts have twice ruled that Facebook’s use of cookies violates European privacy laws. If 
> > Facebook keeps appealing, the case could end up going all the way to Europe’s supreme court, the CJEU.
> >
> > The crux of the issue here is the pervasive background surveillance of internet activity for digital ad targeting 
> > purposes which is enabled by a vast network of embedded and at times entirely invisible tracking technologies — and, 
> > specifically in this lawsuit, whether Facebook and the network of partner companies feeding data into its ad 
> > targeting systems have obtained adequate consent from their users to be so surveilled when they’re not actually 
> > using Facebook.
> >
> > “Facebook collects information about us all when we surf the Internet,” explains the Belgian privacy watchdog, 
> > referring to findings from its earlier investigation of Facebook’s use of tracking technologies. “To this end, 
> > Facebook uses various technologies, such as the famous ‘cookies’ or the ‘social plug-ins’ (for example, the ‘Like’ 
> > or ‘Share’ buttons) or the ‘pixels’ that are invisible to the naked eye. It uses them on its website but also and 
> > especially on the websites of third parties. Thus, the survey reveals that even if you have never entered the 
> > Facebook domain, Facebook is still able to follow your browsing behavior without you knowing it, let alone, without 
> > you wanting it, thanks to these invisible pixels that Facebook has placed on more than 10,000 other sites.”
> >
> > Facebook claims its use of cookie tracking is transparent and argues the technology benefits Facebook users by 
> > letting it show them more relevant content. (Presumably, it would argue non-Facebook users “benefit” from being 
> > shown ads targeted at their interests.) “Over recent years we have worked hard to help people understand how we use 
> > cookies to keep Facebook secure and show them relevant content. We’ve built teams of people who focus on the 
> > protection of privacy — from engineers to designers — and tools that give people choice and control,” said Allan in 
> > his response statement to the court ruling.
> >
> > But given that some of these trackers are literally invisible, coupled with the at times dubious quality of 
> > “consents” being gathered — say, for example, if there’s only a pre-ticked opt-in at the bottom of a lengthy and 
> > opaque set of T&Cs that actively discourage the user from reading and understanding what data of theirs is being 
> > gathered and why — there are some serious questions over the sustainability of this type of “pervasive background 
> > surveillance” adtech in the face of successful legal challenges and growing consumer dislike of ads that stalk them 
> > around the internet (which has in turn fueled growth of ad-blocking technologies).
> >
> > Facebook will face a similar complaint in a lawsuit in Austria, filed by privacy campaigner and lawyer Max Schrems, 
> > for example. In January Schrems prevailed against Facebook’s attempts to stall the lawsuit after Europe’s top court 
> > threw out the company’s claim that his campaigning activities cancelled out his individual consumer rights. (Though 
> > the CJEU’s decision did not allow Schrems to pursue a class action style lawsuit against Facebook as he had 
> > originally hoped.)
> >
> > Europe also has a major update to its data protection laws coming in May, called the GDPR, which beefs up the 
> > enforcement of privacy rights by introducing a new system of penalties for data protection violations that can scale 
> > as high as 4 percent of a company’s global turnover.
> >
> > Essentially, GDPR means that ignoring the European Union’s fundamental right to privacy — by relying on the fact 
> > that few consumers have historically bothered to take companies to court over legal violations they may not even 
> > realize are happening — is going to get a lot more risky in just a few months’ time. (On that front, Schrems has 
> > crowdfunded a not-for-profit to pursue strategic privacy litigation once GDPR is in place — so start stockpiling the 
> > popcorn.)
> >
> > It’s also worth noting that GDPR strengthens the EU’s consent requirements for processing personal data — so it’s 
> > certainly not going to be easier for Facebook to obtain consents for this type of background tracking under the new 
> > framework. (The still being formulated ePrivacy Regulation is also relevant to cookie consent, and aims to 
> > streamline the rules across the EU.)
> >
> > And indeed, such tracking will necessarily become far more visible to web users, who may then be a lot less inclined 
> > to agree to being ad-stalked almost everywhere they go online primarily for Facebook’s financial benefit.
> >
> > The rise of tools offering tracker blocking offers another route for irate consumers to thwart online mass 
> > surveillance by ad targeting giants.
> >
> > “We are preparing for the new General Data Protection Regulation with our lead regulator the Irish Data Protection 
> > Commissioner. We’ll comply with this new law, just as we’ve complied with existing data protection law in Europe,” 
> > added Facebook’s Allan.
> >
> > It’s still not fully clear how Facebook will comply with GDPR — though it’s announced a new global privacy settings 
> > hub is coming. It’s also running a series of data protection workshops in Europe this year, aimed at small and 
> > medium businesses — presumably to try to ensure its advertisers don’t find themselves shut out of GDPR Compliance 
> > City and on the hook for major privacy legal liabilities themselves, come May 25.
> >
> > Of course Facebook’s ad business not only relies on people’s web browsing habits to fuel its targeting systems, it 
> > relies on advertisers liberally pumping dollars in. Which is another reason consumer trust is so vital. Yet Facebook 
> > is facing myriad challenges on that front these days.
> >
> > In a statement on its website, the Belgium Privacy Commission said it was pleased with the ruling. 
> >
> > “We are of course very satisfied that the court has fully followed our position. For the moment, Facebook is 
> > conducting a major advertising campaign where it shares its attachment to privacy. We hope he will put this 
> > commitment into practice,” it said. 
> >
> >
> > Kimi Wei
> > kimi () thewei com  @kimiwei
> > facebook.com/thekimiwei
> > 862-203-8814
>
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> ________________________________________________________________________
> Paul Wilson, Director-General, APNIC dg () apnic net
> http://www.apnic.net @apnicdg



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