CHICAGO — A Cook County judge has granted Facebook’s motion to dismiss Cook County’s lawsuit alleging the social media giant allowed the now-defunct Cambridge Analytica to mine user data in an effort to boost Donald Trump’s 2016 presidential campaign.
On behalf of Illinois residents, and in conjunction with lawyers from the firm of Edelson PC, of Chicago, Cook County State’s Attorney Kim Foxx sued Facebook and Cambridge Analytica in March 2018, alleging the companies breached the Illinois Consumer Fraud Act.
Facebook repeatedly sought dismissal, a request granted by Judge Allen Walker in an opinion issued this month.
Cook County Judge Allen Walker
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Walker agreed with the county’s position that Facebook waived its right to challenge the court’s jurisdiction over the complaint by seeking a new judge without also challenging jurisdiction. He said he didn’t need to consider the county’s similar argument that Facebook, after removing the case to federal court, sought a stay without asserting the jurisdictional defense.
In challenging the county’s ICFA claims, Facebook said the complaint lacked allegations it made a deceptive act or promise because its data use policy informed users it would share data with third parties. Although even Facebook agrees Cambridge Analytica broke its rules, Allen said Facebook insisted its user agreements “accurately inform users about the contractual obligations that third-party app developers assume, and highlights that Facebook made no guarantee that such third-party app developers would somehow violate those polities.”
Whereas the county alleged Facebook misled users about how it would monitor third-party applications, Facebook maintained it never promised to control, audit or limit third parties. It also said the county didn’t plead Facebook lacked the ability to require third parties to delete data, or that Facebook limited data access or audited applications, and further that it couldn’t have so pleaded because Facebook did take those steps.
Walker also noted Facebook’s position that an alleged failure to tell users about Cambridge Analytica’s use of data couldn’t support an ICFA claim.
“Facebook emphasizes that the events regarding Cambridge Analytica’s actions were made public in 2015 via an article by The Guardian and that no one was actually deceived as a result of the omission,” Walker wrote. “Facebook additionally argues that the Personal Information Protection Act would be the relevant statute under which to bring a claim, as it is more specific than the ICFA and controls when data breaches need to be disclosed.”
Walker said the county was correct to not file a PIPA claim because its complaint focused on whether Facebook misrepresented anything to its users, not whether there was a data breach. Although the complaint’s only link to the state is that Illinoisans were affected, and although it doesn’t show they were affected uniquely compared to residents of other states, the allegation of harm is properly brought under the ICFA.
The county argued it only needed to give a “net impression” that Facebook misled users, but Walker agreed with Facebook that such logic only applies to how a company advertises. Further, the judge said user policies don’t constitute promotions.
Ultimately, the grounds for dismissal rested on whether the user policies construed a guarantee data would be protected, as the county asserted, or whether the policies outlined steps Facebook could take with respect to app developers.
The complaint, Walker wrote, “does not provide a plausible basis to conclude that a reasonable person reading these policies might believe that their data was guaranteed to be safe from third-party app developers, especially third-party developers who might violate Facebook’s Data Use Policy.”
Facebook repeatedly told users it isn’t responsible for third parties, Walker continued, which undercuts the county’s allegations the policies were intended to deceive. Rather, Facebook had a policy in place that Cambridge Analytica violated, “which begs the question of how Facebook could have intended to deceive its users when it itself was deceived.”
Walker granted the motion to dismiss without prejudice, meaning Cook County would be allowed to attempt to fix the deficiencies identified by the judge in its complaint.
Facebook is represented by the firms of Perkins Coie LLP, of Chicago, and the New York and San Francisco offices of Gibson Dunn & Crutcher, which is headquartered in Los Angeles.