Privacy lawsuit against Lee Enterprises will proceed

by Clark Kauffman, Iowa Capital Dispatch
July 31, 2023

A federal judge has refused to dismiss a lawsuit alleging an Iowa newspaper publisher violated customers’ privacy rights through information sharing with Facebook.

The Iowa-based newspaper chain Lee Enterprises is facing a potential class-action lawsuit alleging it has shared readers’ personal information, including the videos they watch on Lee websites, with Facebook in violation of federal law.

Lee had sought to have the case dismissed, arguing that individuals’ Facebook IDs were not transmitted directly from Lee to Facebook without the individuals having already signed onto Facebook.

U.S. District Judge Stephen Locher characterized the positions of the two parties by comparing them to a transaction at “an erstwhile brick-and-mortar video store.” Lee’s position, the judge said, is that the information sharing was like a consumer who invites a friend to join him at the counter of the video store, where the friend can clearly see which videos the consumer has rented. The company is saying the information sharing “was primary a consequence of the consumer’s own actions,” the judge summarized.

The judge, however, rejected Lee’s argument, siding with the plaintiffs in the case who argue that Lee implemented use of Facebook tracking software – part of which is called “the Facebook Pixel” – and then opted not to warn consumers that it had done so.

Locher noted that Congress passed federal privacy laws after a newspaper reporter obtained information about Judge Robert Bork’s video-rental history during hearings for Bork’s unsuccessful nomination to the U.S. Supreme Court in the late 1980s.

“Lee’s use of the Facebook Pixel is therefore arguably analogous to a brick-and-mortar video store’s use of glass windows near the cash register,” Locher ruled in his July 20 decision allowing the case to proceed. “Yes, the glass windows might allow a bystander to see which videos are being rented by someone the bystander already knows; but, no, this is not the harm Congress was trying to redress. There is, however, an alternative analogy that might be more apt.

“Perhaps the situation is more akin to a bystander who sees someone familiar — let’s call him ‘Robert Bork’ — leaving the video store and runs up and says to the clerk, ‘That was Robert Bork. What did he just rent?’ Although the video store may not have previously known the customer’s identity, it likely would violate the (federal law) if it gave rental information in response to the bystander’s question.”

The lawsuit, filed last December in U.S. District Court, alleges that Lee’s news-media websites offer users the option of subscribing to newsletters or to newspapers that provide consumers with access to articles and video content in exchange for their personal information, including names and mailing addresses.

The lawsuit claims Lee doesn’t inform subscribers their personal identifying information is captured by various tracking methods embedded in the Lee websites, which allegedly is then transferred to the social-media company Facebook.

The plaintiffs allege violations of the Video Privacy Protection Act in 1988, which prohibits video providers from sharing, without consumers’ consent, any personally identifiable information that is tied to a customer’s viewing of prerecorded audio-video material.

According to the plaintiffs, Facebook provides tools for web developers to monitor user interactions on their websites, and those interactions can then be shared with Facebook. Anyone with a developer’s console tool, which is built directly into commonly available internet browsers, can then monitor the transmission of data between Facebook and companies like Lee, the lawsuit claims.

Although the person monitoring the exchange of information wouldn’t see the name of the Lee customer, they would see that customer’s Facebook ID number — which, the lawsuit claims, can easily be used to identify the Facebook user. The plaintiffs say that one can simply append an unidentified individual’s Facebook ID number to the end of the URL in any internet browser, and that will open up the Facebook user’s public profile page, revealing whatever personal information they choose to have featured there.

In addition, individuals can allegedly use fairly basic web-browsing tools to see the titles of whatever video content triggered the initial exchange of information between Lee and Facebook, providing an indirect link between named Facebook users and the specific videos they have watched on Lee websites.

In seeking class-action status for the case, the plaintiffs are alleging there are more than 100 potential class members and that the aggregate amount of money in controversy exceeds $5 million. The lawsuit seeks a temporary injunction requiring Lee to immediately remove tracking tools from the company’s websites and to obtain the appropriate consent from subscribers for any information sharing that may take place.

The plaintiffs are represented by J. Barton Goplerud and Brian O. Marty of the West Des Moines law firm Shindler, Anderson, Goplerud & Weese.

Lee publishes newspapers and other media content in 77 markets across 26 states. The company’s 10 Iowa papers include the Quad-City Times in Davenport, the Sioux City Journal, the Mason City Globe-Gazette, the Waterloo-Cedar Falls Courier and the Muscatine Journal.

Editor’s note: News stories from the Iowa Capital Dispatch are sometimes republished in Lee Enterprises’ Iowa newspapers.

Iowa Capital Dispatch is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Iowa Capital Dispatch maintains editorial independence. Contact Editor Kathie Obradovich for questions: Follow Iowa Capital Dispatch on Facebook and Twitter.

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