A class-action settlement covers adult users of Facebook, but also 11 million teenagers whose need for privacy is underlined by their immaturity and the angst when they discover their posts or photos have been seen by the wider world. The results can range from memorable embarrassment to occasional suicide.
The teens had no real legal representation in Fraley v. Facebook, which, if upheld, will give the social media giant with more than 1 billion subscribers worldwide a blank check to capture, revise and republish any posting. There will be no advance permission required, and not even advance notice.
The approved contract terms will include a condition that if you are under 18 “you represent that at least one of your parents or legal guardians has also agreed to the terms of this section (and use of your name, profile picture, content and information) on your behalf.”
This result is an indictment of our class-action system that assumes all sides are represented and the ignorance of some courts about social media, the internet and children.
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First, this is not a legitimate settlement. The attorney representing the teen plaintiffs also represents the adults, who do get some remedy. The teens get crushed, and in a way that makes it actually a net win for Facebook. The company gave the attorney millions in fees and threatened to make the teen representatives pay Facebook’s attorneys’ fees if they lost that part of the case. This is called “forced collusion.”
Second, the settlement violates the law. Facebook conceded that California law applies to its operations, but contends that all state laws are pre-empted by the federal Children’s Online Privacy Protection Act. But that act only applies to children under age age 13, as pointed out in briefs by the California attorney general Attorney General and the Federal Trade Commission.
There is a series of California statutes that this settlement violates, and there is also the state Constitution’s “inalienable right of privacy.” They were not raised by lawyers or considered by the trial court or any other judge.
Not everyone is blind to what is happening. A dozen major public interest and privacy rights groups, including Public Citizen, joined the Children’s Advocacy Institute and the American Academy of Pediatrics in objecting to the settlement.
All of this was ignored by the trial court and then by a three-judge panel of the 9th U.S. Circuit Court of Appeals. The panel treated the case as a matter of housekeeping and depublished its decision under the false impression that this eliminated its legal effect. But when one of the parties to the settlement includes 11 million teens, the result is indeed a precedent, and a profound one. A petition for review has been filed with the U.S. Supreme Court, but they are very rarely granted, especially where decisions are not published.
The Supreme Court needs to look at this case, both because of the flaws in class-action settlements it reflects and for its profoundly dangerous precedent. There is no more extensive surrender of teen privacy and parental supervision rights than this one.
Robert C. Fellmeth is professor of public-interest law and director of the Children’s Advocacy Institute at the University of San Diego School of Law. He can be contacted at firstname.lastname@example.org.