{"id":26992,"date":"2017-09-06T10:24:01","date_gmt":"2017-09-06T15:24:01","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=26992"},"modified":"2017-09-06T10:24:01","modified_gmt":"2017-09-06T15:24:01","slug":"click-you-just-agreed-to-sell-your-privacy","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2017\/09\/click-you-just-agreed-to-sell-your-privacy\/","title":{"rendered":"\u2018Click\u2019 . . . You Just Agreed To Sell Your Privacy"},"content":{"rendered":"

We have all gone to a website and, in accessing the website\u2019s services, have agreed to \u201cterms and conditions\u201d that include a litany of policies, including privacy policies governing how the company maintaining the website will use our personal information obtained while accessing the website. And let\u2019s be honest, even as attorneys or soon-to-be-attorneys, many of us usually do not actually take the time to read the laundry list of items we are agreeing to just so we can obtain a 20% coupon.\u00a0 I know I\u2019m guilty of regularly clicking \u201cI agree\u201d without reading every term and condition.<\/p>\n

\"cartoon<\/a>While we may think our assent to a website\u2019s terms and conditions has little effect on our everyday life, our agreement does in fact matter, and not just for us but also for the company maintaining the website.\u00a0 For example, one such specific website that most, if not all, of us have used is Facebook. While, again, we likely have not paid very close attention to Facebook\u2019s privacy policies such as its data and cookie policies, those policies explain that Facebook uses cookies or browser fingerprinting to identify users and track what third-party websites users browse. \u00a0This use of cookies or browser fingerprinting is why you see ads for products or services that are, or at least should be, most relevant to you.\u00a0 Indeed, these processes are why I now regularly see ads for Nintendo products when on Facebook after having searched for and purchase Nintendo\u2019s handheld 3DS video game system for my ten year old son.<\/p>\n

Facebook\u2019s privacy policies governing its use of cookies or browser fingerprinting serve an important function in helping protect Facebook against potential liability for use of a consumer\u2019s information. Indeed, Facebook\u2019s privacy policy recently carried the day in getting a case dismissed against it in which the Plaintiffs alleged a litany of causes of action against Facebook, including violation of the Computer Fraud and Abuse Act, California Invasion of Privacy Act, Health Insurance Portability and Accountability Act, and other common law claims.<\/p>\n

In Smith v. Facebook, Inc., Case no. 16-cv-1282, the Northern District of California dismissed the claims against Facebook, with prejudice, based upon Facebook\u2019s user agreement, which one must accept to use Facebook. There, the Plaintiffs argued that Facebook violated numerous federal and state statutes, as well as common law, by tracking and collecting its users\u2019 web browsing activity, including sensitive information from various healthcare websites. In dismissing the case, the Court found that Plaintiffs had consented to Facebook\u2019s tracking and marketing activity when they agreed to Facebook\u2019s \u201cdata policy\u201d and \u201ccookie policy\u201d when opening a Facebook account. The Court further found that while the applicable policy provisions were broad, they were not vague and provided adequate notice of the tracking activity in which Facebook engaged. For example, a portion of Facebook\u2019s \u201ccookie policy\u201d explained that \u201c[t]hings like Cookies and similar technologies (such as information about your device or a pixel on a website) are used to understand and deliver ads, make them more relevant to you, and analyze products and services and the use of those products and services . . . we use cookies so we, or our affiliates and partners, can serve you ads that may be interesting to you on Facebook Services or other websites and mobile applications.\u201d Simply put, Facebook\u2019s privacy policy, which Plaintiffs had agreed to when they signed up for Facebook, was adequately clear to permit Facebook to track and collect Plaintiffs\u2019 web browsing activity, including browsing of healthcare related information. In so finding, the Court rejected Plaintiff\u2019s arguments that the policies were buried and overbroad.<\/p>\n

Facebook\u2019s victory raises two practical concerns in mind.\u00a0 First being, what all have I agreed to with respect to my personal information?\u00a0 For example, I own an iPhone 7 with which I can say, \u201cHey Siri?\u201d and it will respond.\u00a0 In other words, the microphone in my iPhone is always listening to what I say.\u00a0 This makes me wonder, by purchasing and using my iPhone, have I agreed that Apple can record my conversations and use \u201cbuzz\u201d words it picks up to market directly to me?\u00a0 Or worse, are there apps I\u2019ve downloaded to my iPhone in which I agreed that those companies can record and sell my conversations to third-parties?\u00a0 I\u2019ve likely given up much privacy without even realizing it.<\/p>\n

Second is what, if anything, can I do about these privacy policies?\u00a0 The general answer is, not much other than decide not to use certain websites or products as I doubt Facebook will accept my redlines of its privacy policy.\u00a0 Instead, if I use the website, I\u2019m stuck agreeing to the company\u2019s terms and conditions.\u00a0 Again, to engage with these websites and other modern conveniences, think Amazon, I likely need to give up portions of my privacy.<\/p>\n

In the end, Facebook\u2019s victory is a good reminder that as consumers we should not take so lightly the privacy policies to which we regularly agree.\u00a0 Additionally, as students of the law we should critically think about what privacy policies\u2019 similar to Facebook\u2019s mean for our individual privacy in our modern world.\u00a0 Maybe we already decided, as a society, that convenience and improved technology are worth exchanging for less privacy.\u00a0 Nonetheless, it is something of which I know I need to be more cognizant and I think it would not hurt if we all think about a little more.<\/p>\n","protected":false},"excerpt":{"rendered":"

We have all gone to a website and, in accessing the website\u2019s services, have agreed to \u201cterms and conditions\u201d that include a litany of policies, including privacy policies governing how the company maintaining the website will use our personal information obtained while accessing the website. And let\u2019s be honest, even as attorneys or soon-to-be-attorneys, many […]<\/p>\n","protected":false},"author":226,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[32,49,122],"tags":[],"class_list":["post-26992","post","type-post","status-publish","format-standard","hentry","category-computer-law","category-privacy-rights","category-public","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/26992","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/226"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=26992"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/26992\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=26992"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=26992"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=26992"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}