Meta tells court it won’t sue over Facebook feed-killing tool—yet

This week, Meta asked a US district court in California to toss a lawsuit filed by a professor, Ethan Zuckerman, who fears that Meta will sue him if he releases a tool that would give Facebook users an automated way to easily remove all content from their feeds. Zuckerman has alleged that the imminent threat of a lawsuit from Meta has prevented him from releasing Unfollow Everything 2.0, suggesting that a cease-and-desist letter sent to the creator of the original Unfollow Everything substantiates his fears. He's hoping the court will find that either releasing his tool would not breach Facebook's terms of use—which prevent "accessing or collecting data from Facebook 'using automated means'"—or that those terms conflict with public policy. Among laws that Facebook's terms allegedly conflict with are the First Amendment, section 230 of the Communications Decency Act, the Computer Fraud and Abuse Act (CFAA), as well as California’s Computer Data Access and Fraud Act (CDAFA) and state privacy laws. But Meta claimed in its motion to dismiss that Zuckerman's suit is too premature, mostly because the tool has not yet been built and Meta has not had a chance to review the "non-existent tool" to determine how Unfollow Everything 2.0 might impact its platform or its users. "Besides bald assertions about how Plaintiff intends Unfollow Everything 2.0 to work and what he plans to do with it, there are no concrete facts that would enable this Court to adjudicate potential legal claims regarding this tool—which, at present, does not even operate in the real world," Meta argued. Meta wants all of Zuckerman's claims to be dismissed, arguing that "adjudicating Plaintiff’s claims would require needless rulings on hypothetical applications of California law, would likely result in duplicative litigation, and would encourage forum shopping." At the heart of Meta's defense is a claim that there's no telling yet if Zuckerman will ever be able to release the tool, although Zuckerman said he was prepared to finish the build within six weeks of a court win. Last May, Zuckerman told Ars that because Facebook's functionality could change while the lawsuit is settled, it's better to wait to finish building the tool because Facebook's design is always changing. Meta claimed that Zuckerman can't confirm if Unfollow Everything 2.0 would work as described in his suit precisely because his findings are based on Facebook's current interface, and the "process for unfollowing has changed over time and will likely continue to change." Further, Meta argued that the original Unfollow Everything performed in a different way—by logging in on behalf of users and automatically unfollowing everything, rather than performing the automated unfollowing when the users themselves log in. Because of that, Meta argued that the new tool may not prompt the same response from Meta. A senior staff attorney at the Knight Institute who helped draft Zuckerman's complaint, Ramya Krishnan, told Ars that the two tools operate nearly identically, however. "Professor Zuckerman’s tool and the original Unfollow Everything work in essentially the same way," Krishnan told Ars. "They automatically unfollow all of a user’s friends, groups, and pages after the user installs the tool and logs in to Facebook using their web browser." Ultimately, Meta claimed that there's no telling if Meta would even sue over the tool's automated access to user data, dismissing Zuckerman's fears as unsubstantiated. Only when the tool is out in the wild and Facebook is able to determine "actual, concrete facts about how it works in practice" that "may prove problematic" will Meta know if a legal response is needed, Meta claimed. Without reviewing the technical specs, Meta argued, Meta has no way to assess the damages or know if it would sue over a breach of contract, as alleged, or perhaps over other claims not alleged, such as trademark infringement. The social media giant also argued that the cease-and-desist letter sent to the creator of the original Unfollow Everything—rather than provide evidence that a legal threat was imminent—"showed a clear intent to try to resolve the matter without litigation." Simultaneously, however, Meta's motion to dismiss did suggest that Meta already anticipated that it has grounds to sue Zuckerman, arguing that "operation of the tool would constitute a clear breach of current Terms of Service." "Even a cursory comparison of the Terms and Plaintiff’s allegations about Unfollow Everything 2.0 demonstrates that it would violate the 'clear and explicit' language of Facebook’s Terms, including: not to 'engage' in certain prohibited activities on Facebook 'or to facilitate or support others in doing so,' as well as "not to 'access or collect'" Facebook data "using automated means," Meta argued. Krishnan told Ars that "Meta is trying to have it both ways, but its assertion that Unfollow Everything 2.0 would violate its terms effectively concedes that Zuckerman faces what the company says he does not—a real threat of legal action." A Meta spokesperson provided Ars with a statement on the motion to dismiss, calling the suit "baseless" because it was "filed by the plaintiff over a hypothetical browser extension that he has not even built." "As we make clear in our motion, the suit should be dismissed," Meta's spokesperson said. Krishnan told Ars that Zuckerman and his legal team disagree with the motion to dismiss and look forward to defending their claims in court. "Would-be defendants don’t have to 'bet the farm' before getting a declaration of their legal rights," Krishnan told Ars. "Professor Zuckerman has taken significant and concrete steps to complete the tool, including developing a detailed design for the tool, and assembling a team of engineers that can code the tool within weeks of a court decision that the tool is lawful. This is more than sufficient to establish the court’s power to hear the case."

Unfollow Everything 2.0 sparks privacy debate

Unfollow Everything 2.0 is intended to be released as a browser extension that would allow Facebook users to automatically unfollow everything in their newsfeeds upon logging in. Users can also use the tool to automatically repopulate their newsfeeds whenever they want. For users wanting to take a break from endless scrolling, it could potentially meaningfully impact mental health—eliminating temptation to scroll content they did not choose to see, while allowing them to remain connected to their networks and still able to visit individual pages to access content they want to see. In Zuckerman's view, releasing the tool would potentially provide a useful way to analyze the health impacts of Facebook's newsfeed. Facebook users who use the browser extension can opt in to his study, agreeing to allow the tool to randomly put them in groups where their newsfeeds will either be turned off or on, changing how they interact with the platform and measuring how using the tool impacts their behavior. He hopes to test four hypotheses, investigating whether Unfollow Everything 2.0 users spend less time on Facebook, feel more control, remain satisfied with Facebook, and are ultimately exposed to less content from friends. Meta claimed in its motion to dismiss that the social media company already provides avenues for researchers to study health impacts of Facebook's newsfeeds. They argued that Zuckerman did not give any indication that he "has considered whether his research goals could be accomplished through tools that Meta already offers to qualified researchers." These tools include access to "privacy-protected data sets and APIs to serve the academic community." According to Meta, its terms of use prohibit automated access to users' personal information not just by third parties but by individual users, as a means of protecting user privacy. Meta urged the court to reject Zuckerman's claim that Meta's terms violate California privacy laws by making it hard for users to control their data. Instead, Meta said the court should agree with a prior court that "rejected the argument that California law 'espous[es] a principle of user control of data sufficient to invalidate' Facebook’s prohibition on automated access." "The contractual prohibition on automated access in Meta’s Terms has nothing to do with user control over their 'personal information,'" Meta argued. "As other courts have recognized, Meta’s prohibition on automated access protects the strong public interest in safeguarding user data from scraping and other automated means of harvesting data." Meta has accused Zuckerman of filing his suit in an attempt to "shape" public policy, asking the court to decline to rule on how complex laws apply to Meta's terms until the tool is released and Meta has a chance to assess all appropriate legal questions. According to Meta, some questions raised in Zuckerman's suit would be better addressed by lawmakers, not the court. "Because Unfollow Everything 2.0 does not exist and Meta has not taken any action, the questions that Plaintiff 'asks the court to decide may ultimately prove irrelevant to resolving the underlying dispute,'" Meta argued.

Meta calls some claims “half-baked”

Zuckerman has argued that Meta's terms conflict with the First Amendment and section 230. In a press release, Krishnan claimed that "the same statute that immunizes Meta from liability for the speech of its users gives users the right to decide what they see on the platform.” But Meta argued that neither law voids its terms. The First Amendment allegedly does not apply because Zuckerman did not show that "any strong public interest" would outweigh enforcement of Meta's terms, Meta said. Additionally, Meta argued that "this dispute involves private parties, not the government," and any "purported interest in 'user control'" would not "displace Meta’s First Amendment rights to decide 'which third-party content [the Feed] will display, or how the display will be ordered and organized'— all of which are 'expressive choices' that 'receive First Amendment Protection.'" "Given Meta’s First Amendment rights to editorial discretion and control that are protected by its Terms’ restrictions on disruptive user conduct, there is no conceivable legal basis for saying those privately agreed-to Terms could somehow be invalidated on the basis of someone else’s First Amendment rights," Meta argued. In response to a novel argument that section 230 grants Zuckerman immunity from civil liability for operating Unfollow Everything 2.0, Meta also argued there was "no basis." According to Meta, the browser extension would not be considered an “interactive computer service” that filters content, because it's the Facebook users accessing the extension that would be filtering the content, not the tool. Nor does Zuckerman explain "how the tool’s receipt of an update" from other servers—such as Google’s servers, Mozilla’s servers, or the Unfollow Everything 2.0 server—would constitute providing access "by multiple users to a server," as required for immunity, Meta argued. Or how Unfollow Everything 2.0 would “enable or make available... the technical means to restrict access” to Facebook content, Meta argued. "At most, the tool might restrict the availability of the 'unfollowed' content (which would not appear in the user’s Feed), but 'availability' and 'access' are different concepts under the Communications Decency Act," Meta argued. "Plaintiff is proceeding under the theory that Unfollow Everything 2.0 would enable access to Meta’s servers," but "it appears to be the user’s browser—and not the user themselves—that would be accessing those servers," Meta argued. "Until Plaintiff actually develops and launches the tool, it will remain difficult to assess whether what the tool does as a technical matter" qualifies "for protection under the Communications Decency Act." Finally, Meta pushed back on claims that the social media company might sue Zuckerman for violations of the CFAA and CDAFA, arguing that the cease-and-desist letter sent to the original Unfollow Everything creator did not "invoke" these laws. Meta additionally considered those claims "half-baked" because of alleged "pleading deficiencies" that supposedly give the court "almost nothing to adjudicate." The court is scheduled to hear arguments in this case in October, unless Meta's motion to dismiss resolves the matter sooner.