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Case 3:20-cv-07182-JCS Document 158 Filed 06/09/21 Page 1 of 30
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`FACEBOOK, INC.,
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`Plaintiff,
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`v.
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`BRANDTOTAL LTD., et al.,
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`Defendants.
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`I.
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`INTRODUCTION
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`Case No. 20-cv-07182-JCS
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`ORDER REGARDING MOTION TO
`DISMISS AMENDED
`COUNTERCLAIMS
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`Provisionally Filed Under Seal
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`Re: Dkt. No. 132
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`
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`Plaintiff Facebook, Inc. brought this action asserting that Defendants BrandTotal Ltd. and
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`Unimania, Inc. (collectively, “BrandTotal”) improperly collected data from Facebook’s social
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`networks. BrandTotal, which is in the business of analyzing advertising data collected from social
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`media websites, asserts counterclaims based on Facebook’s efforts to block its collection of data.
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`The Court previously denied BrandTotal’s motion for a temporary restraining order (“TRO”) and
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`granted Facebook’s motion to dismiss BrandTotal’s counterclaims, with leave to amend.
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`BrandTotal has now amended its counterclaims and moved for a preliminary injunction, and
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`Facebook moves once again to dismiss. The Court held a hearing on May 28, 2021, at which the
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`parties reached an agreement that rendered BrandTotal’s motion for a preliminary injunction
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`moot. For the reasons discussed below, Facebook’s motion to dismiss is GRANTED in part and
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`DENIED in part.1
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`II.
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`BACKGROUND
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`The following summary of the facts, allegations, and procedural history of this case is
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`intended for the convenience of the reader to provide context for the analysis below, and should
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`1 The parties have consented to the jurisdiction of a magistrate judge for all purposes pursuant to
`28 U.S.C. § 636(c).
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`Case 3:20-cv-07182-JCS Document 158 Filed 06/09/21 Page 2 of 30
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`not be construed as resolving any disputed issue of fact. Specific allegations of the amended
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`counterclaims at issue are addressed in the Court’s analysis. Because this order addresses a
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`motion to dismiss under Rule 12(b)(6), which turns on the sufficiency of BrandTotal’s allegations,
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`its analysis does not address the evidentiary record submitted in support of the motion for a
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`preliminary injunction or the earlier motion for a TRO, although some of that evidence is included
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`in this background section for context.
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`BrandTotal is an advertising consulting company that helps its corporate customers
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`analyze their own advertising and their competitors’ advertising on social media and other
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`websites, by enlisting individual consumers—in BrandTotal’s terminology, “panelists”—to agree
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`to share the advertisements they view on those websites. In order to prepare valuable analysis for
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`its corporate customers, BrandTotal relies heavily on data collected from Facebook, as opposed to
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`other social media websites, due to Facebook’s size. BrandTotal’s most popular consumer
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`product is UpVoice, an application or browser extension that offers panelists cash rewards to share
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`their demographic information and the advertisements they see and interact with on social media.
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`The particular form of UpVoice central to this case is an extension for the Google Chrome
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`browser, offered for download from Google’s web store. BrandTotal has also offered other
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`applications and browser extensions that operate similarly in their collection of data, but provide
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`different (non-cash) benefits to users, like a streamlined interface for browsing social media
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`networks. BrandTotal began offering some of those programs multiple years ago. BrandTotal
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`offers its consumer-facing products under the name of its subsidiary Unimania, in what was
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`intended as an effort to obscure the source of its analytical data from potential competitors.
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`The UpVoice product available before this case commenced—which the parties refer to
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`here as UpVoice Legacy for clarity—automatically collected multiple categories of information
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`when users who had installed it browsed Facebook, including demographic data about the user,
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`information about advertisements the user encountered on Facebook, and information that
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`Facebook had generated about that user’s preferences. Some such data was collected by the
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`product automatically querying Facebook for information that would not otherwise have been
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`transmitted to the user in the course of their browsing (although the user could have accessed that
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`information if they chose to). According to BrandTotal, it disclosed all of this data collection to
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`its users and obtained their consent, and did not collect personal data pertaining to any other
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`Facebook users. All personal data was deidentified from a user’s name and aggregated for the
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`purpose of analyzing the demographic groups to whom particular advertisements were presented.
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`One flaw in BrandTotal’s consent system was that UpVoice Legacy could collect potentially
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`collect personal data from unsuspecting users who logged into Facebook on a shared computer
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`where someone else had installed UpVoice Legacy, although there is no evidence that either party
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`considered that issue before this litigation commenced.
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`BrandTotal uses UpVoice and similar products to obtain data about advertising on
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`Facebook that is not available from other sources. Facebook maintains a public “Ad Library” of
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`all advertisements currently running on its platform, but with the exception of ads related to
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`politics and social issues—a category of ads that tends not to be of particular interest to
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`BrandTotal’s corporate clients—that library does not provide information about ads that are no
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`longer running, the demographic groups to whom the ads were presented, the number of people
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`who saw an ad, or how users have engaged with an ad. Facebook also offers certain approved
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`application programming interfaces (“APIs”) to access data from its network, but none that
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`provide the sort of information that BrandTotal collects through UpVoice and its other products.
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`By automatically collecting data from users about the ads they see on Facebook and other
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`social networks, BrandTotal is able to provide analytical services to its corporate clients about
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`their own and their competitors’ advertising efforts. Facebook provides a more limited set of
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`similar information to at least some advertisers on its platform in at least some circumstances,
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`including metrics for “share of voice”—the portion of advertising within a particular category that
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`a particular advertiser accounts for.
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`In 2018, a third party (Adguard) published a report indicating that BrandTotal used
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`unsecure means to transmit personal data. BrandTotal thereafter changed its encryption method to
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`a more secure standard. Facebook began investigating some BrandTotal products in the spring of
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`2019 but closed its investigation after determining that Google had removed those products from
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`its store. BrandTotal disputes that those products were removed.
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`Case 3:20-cv-07182-JCS Document 158 Filed 06/09/21 Page 4 of 30
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`Among other potentially relevant provisions, Facebook’s terms of service prohibit
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`“collect[ing] data from our Products using automated means (without [Facebook’s] prior
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`permission).” In March of 2019, BrandTotal received legal advice from its Israeli counsel
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`concluding that to the extent its products passively collected data served to users during their
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`browsing, that did not implicate Facebook’s terms of service, based in part on a dubiously narrow
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`interpretation of the word “Products” in those terms to exclude advertisements—an interpretation
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`that, at least thus far, BrandTotal has not pursued here. BrandTotal’s attorneys determined that
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`with respect to “active” collection through “calls” initiated by BrandTotal’s products, BrandTotal
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`was in a “grey area” because on one had the data collected might not implicate the terms of service
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`if it was not part of Facebook’s “Products,” but on the other hand that method of collection could
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`be considered as misuse of Facebook’s APIs to access data for which BrandTotal lacked
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`permission. BrandTotal did not change its practices in response to that opinion.
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`In the spring of 2020, Facebook began investigating UpVoice Legacy. On September 21,
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`2020, Facebook employee Jeremy Brewer sent an email to Google employee Benjamin Ackerman
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`identifying “some Chrome extensions we believe are improperly scraping user PII[2] (e.g. gender,
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`relationship status, ad interests, etc.) without proper disclosure”—including UpVoice Legacy—
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`and requesting that Ackerman coordinate with Facebook security researcher Sanchit Karve, who
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`had conducted the investigation, to “see if there is a way to collaborate and better protect user
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`privacy.” 1st. Am. Counterclaims (“FACC,” dkt. 120) Ex. I. Karve replied to note that Google
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`had removed certain other extensions that behaved similarly, produced by another developer. Id.
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`Ackerman did not immediately respond.
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`In the days immediately following that exchange, a handful of internal Facebook emails
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`involving other Facebook employees reflect that Facebook had received inquiries from advertisers
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`who were either using BrandTotal’s product or curious about its capabilities. One Facebook
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`employee suggested that Facebook might consider partnering with BrandTotal. FACC Ex. G. An
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`employee who had received a request from Facebook’s marketing team regarding BrandTotal’s
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`2 “PII” refers to “personally identifiable information.”
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`capabilities contacted Karve on September 24, 2020, who informed her that Facebook was
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`“enforcing on them this week.” FACC Ex. H. The next day, Karve followed up with Ackerman
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`at Google, who responded three days after that on September 29, 2020 to say that Google would
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`investigate the browser extensions Facebook identified (including UpVoice Legacy), and that
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`based on a preliminary review of BrandTotal’s privacy policy, “it does look like they are
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`collecting a bunch of information for advertising purposes which is a no no.” FACC Ex. I.
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`On September 30, 2020, Facebook disabled BrandTotal’s accounts on its social networks.
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`On October 1, 2020, it filed a civil action against BrandTotal in state court. Later that day, Google
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`removed UpVoice Legacy from its store, which disabled most installed copies of the browser
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`extension, although around ten to fifteen percent of installations continued to collect data (with
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`that number slowly declining over time) until relatively recently, when changes that Facebook
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`made caused them to cease sending data. BrandTotal listed another version of UpVoice on
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`Google store on October 12, 2020, which it contends was a mistake arising from efforts to prepare
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`a new version to go live only if it prevailed in obtaining a TRO.
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`On October 14, 2020, Facebook dismissed its state court action and filed the present action
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`in this Court, adding a federal claim under the Computer Fraud and Abuse Act (“CFAA”).
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`BrandTotal filed counterclaims and moved for a TRO, which the Court denied because, although
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`BrandTotal had shown serious issues going to the merits of its counterclaims, the public interest
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`did not favor requiring Facebook, through expedited judicial proceedings, to allow a third party to
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`scrape data from its network without BrandTotal having made any effort before deploying
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`UpVoice Legacy to coordinate with Facebook and confirm that its program would respect user
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`privacy. Order re Mot. for TRO (dkt. 63).3 The Court later granted Facebook’s motion to dismiss
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`BrandTotal’s counterclaims because, among other reasons, an order by the Federal Trade
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`Commission (“FTC”) requiring Facebook to block access to any “Covered Third Party” that did
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`not certify compliance with Facebook’s terms of use appeared to apply to BrandTotal, but granted
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`3 Facebook, Inc. v. BrandTotal Ltd., 499 F. Supp. 3d 720 (N.D. Cal. 2020). Citations herein to the
`Court’s previous orders in this case refer to page numbers of the versions filed in the Court’s ECF
`docket.
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`leave to amend as to most of the counterclaims. Order re Mot. to Dismiss Counterclaims (“1st
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`MTD Order,” dkt. 108).4
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`BrandTotal initially filed a motion for a preliminary injunction one day before the hearing
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`on the first motion to dismiss, but withdrew that motion after that hearing and later filed its
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`renewed motion for a preliminary injunction after amending its counterclaims. The Court denied
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`that motion as moot based on the parties’ agreement at the May 28, 2021 hearing. See dkt. 150.
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`Facebook has moved once again to dismiss BrandTotal’s counterclaims.
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`Just before filing its preliminary injunction motion, BrandTotal released a new version of
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`UpVoice, which the parties refer to here as UpVoice 2021. BrandTotal shared the source code for
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`that program with Facebook two weeks before releasing it. UpVoice 2021 does not collect users’
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`demographic data from Facebook, instead relying on users to enter that information in a form
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`when they sign up for the program. The browser extension collects only identifying information
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`for advertisements presented to the user while they are browsing, and does so passively by
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`scanning the HTML code that Facebook serves to the user, without the UpVoice 2021 browser
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`extension actively requesting any further information from Facebook. UpVoice 2021 also
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`prompts users to confirm whether they wish to continue sharing that data when a new user logs
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`into a social media account. Once the identifying information for an advertisement—a unique ID
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`number, as well as the name of the page that sponsored the ad—is transmitted to BrandTotal,
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`BrandTotal’s servers (not the browser extension installed by a panelist) use that information to
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`access the ad on a webpage visible to the general public that does not require logging in with a
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`Facebook username and password, and gather further data about the ad from there.
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`BrandTotal now asserts the following counterclaims: (1) declaratory judgment that
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`BrandTotal has not violated and will not violate the CFAA, FACC ¶¶ 93–101; (2) declaratory
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`judgment that BrandTotal has not violated and will not violate section 502 of the California Penal
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`Code, id. ¶¶ 102–10; (3) declaratory judgment that BrandTotal has not interfered and will not
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`interfere with Facebook’s contractual relations, id. ¶¶ 111–18; (4) intentional interference with
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`4 Facebook, Inc. v. BrandTotal Ltd., No. 20-cv-07182-JCS, 2021 WL 662168 (N.D. Cal. Feb. 19,
`2021).
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`Case 3:20-cv-07182-JCS Document 158 Filed 06/09/21 Page 7 of 30
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`contract, id. ¶¶ 119–60; (5) intentional interference with prospective economic advantage, id.
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`¶¶ 161–69; (6) violation of California’s Unfair Competition Law (the “UCL”), id. ¶¶ 170–97.
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`III. ANALYSIS
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`A. Legal Standard
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`A complaint may be dismissed for failure to state a claim on which relief can be granted
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`under Rule 12(b)(6) of the Federal Rules of Civil Procedure. “The purpose of a motion to dismiss
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`under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp.
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`Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a claimant’s burden at the pleading stage
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`is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that a “pleading which
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`sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing
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`that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).
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`In ruling on a motion to dismiss under Rule 12(b)(6), the court takes “all allegations of
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`material fact as true and construe[s] them in the light most favorable to the non-moving party.”
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`Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal may be based on a
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`lack of a cognizable legal theory or on the absence of facts that would support a valid theory.
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`Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A pleading must “contain
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`either direct or inferential allegations respecting all the material elements necessary to sustain
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`recovery under some viable legal theory.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007)
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`(citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). “A pleading
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`that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action
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`will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
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`“[C]ourts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’”
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`Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Nor does a
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`complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal,
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`556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Rather, the claim must be “‘plausible on its
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`face,’” meaning that the claimant must plead sufficient factual allegations to “allow the court to
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`draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting
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`Twombly, 550 U.S. at 570).
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`With the exception of narrow doctrines of judicial notice, a court may not consider
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`extrinsic evidence in resolving a motion under Rule 12(b)(6) without converting it to a motion for
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`summary judgment, which the Court has not done here. Lee v. City of Los Angeles, 250 F.3d 668,
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`688 (9th Cir. 2001). Accordingly, even though an evidentiary record has been submitted in this
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`case for the purposes of BrandTotal’s previous motion for a TRO and motion for a preliminary
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`injunction, the Court disregards that evidence for the purpose of Facebook’s motion to dismiss,
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`and focuses instead on the allegations of BrandTotal’s amended counterclaims.
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`B. Declaratory Judgment Counterclaims
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`The Court previously dismissed BrandTotal’s counterclaim seeking declaratory judgment
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`that it did not breach Facebook’s terms of service, and denied leave to amend to assert a
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`declaratory judgment counterclaim seeking to establish that those terms of service were
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`unenforceable, holding that such a counterclaim would be redundant to Facebook’s affirmative
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`claims. 1st MTD Order at 11–12. BrandTotal now seeks declaratory judgment that its UpVoice
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`2021 product does not violate the CFAA or section 502 of the California Penal Code, and does not
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`interfere with Facebook’s contractual relations. FACC ¶¶ 93–118.
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`District courts have broad discretion whether to hear a counterclaim for declaratory
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`judgment, and “[n]umerous courts have used that discretion to dismiss [such] counterclaims . . .
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`where they are either the ‘mirror image’ of claims in the complaint or redundant of affirmative
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`defenses.” Stickrath v. Globalstar, Inc., No. C07-1941 TEH, 2008 WL 2050990, at *3 (N.D. Cal.
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`May 13, 2008). BrandTotal argued that these new claims were not redundant because Facebook’s
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`original complaint did not address the new and distinct UpVoice 2021 product, “[a]ny litigation
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`over UpVoice needs to extend to UpVoice 2021[,] and BrandTotal properly included
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`counterclaims to ensure that it does.” Defs.’ Opp’n (dkt. 138 at 2; see also id. at 22–23.
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`After briefing on the present motion to dismiss BrandTotal’s counterclaims closed, the
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`parties stipulated to Facebook filing an amended complaint, which includes BrandTotal’s release
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`of UpVoice 2021. 1st Am. Compl. (dkt. 148) ¶ 78. The amended complaint asserts claims
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`including interference with contractual relations and violation of the CFAA and section 502, and
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`seeks injunctive relief to bar those purportedly ongoing alleged violations. The case therefore now
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`includes the issues BrandTotal wishes to adjudicate, without need for its mirror-image declaratory
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`judgment counterclaims. As a matter of discretion, the Court GRANTS Facebook’s motion to
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`dismiss BrandTotal’s declaratory judgment counterclaims, without leave to amend at this time, but
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`without prejudice to BrandTotal later moving for leave based on changed circumstances—for
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`example, if Facebook withdraws any of its affirmative claims or limits them to prior versions of
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`UpVoice while BrandTotal believes it still has an interest in proving that UpVoice 2021 does not
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`violate the laws at issue.5
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`C.
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`Interference with Contract
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`“‘The elements which a plaintiff must plead to state the cause of action for intentional
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`interference with contractual relations are (1) a valid contract between plaintiff and a third party;
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`(2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a
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`breach or disruption of the contractual relationship; (4) actual breach or disruption of the
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`contractual relationship; and (5) resulting damage.’” hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d
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`985, 995–96 (9th Cir. 2019) (quoting Pac. Gas & Elec. Co. v. Bear Stearns & Co. (“PG&E”), 50
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`Cal. 3d 1118, 1126 (1990)). While the typical case involves actual breach, the element of
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`“disruption” of a contract can also be satisfied “where the plaintiff’s performance has been
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`prevented or rendered more expensive or burdensome.” Id. at 996 n.8 (citation and internal
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`quotation marks omitted); see also PG&E, 50 Cal. 3d at 1129 (“[W]hile the tort of inducing
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`breach of contract requires proof of a breach, the cause of action for interference with contractual
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`relations is distinct and requires only proof of interference.”).
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`“Under California law, a legitimate business purpose can indeed justify interference with
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`5 In briefing its motion for a preliminary injunction, BrandTotal argues that a likelihood of success
`on its declaratory judgment counterclaims could support injunctive relief, which would suggest
`that these counterclaims have practical value separate from Facebook’s affirmative claims. The
`Court disagrees. A determination that UpVoice 2021 does not violate the particular laws at issue
`in these counterclaims would not in itself require Facebook to allow the use of UpVoice 2021 on
`its social networks. BrandTotal cites hiQ’s reference to the plaintiff in that case having asserted
`declaratory judgment claims (including claims to declare that it did not violate the CFAA and
`section 502), see 938 F.3d at 992, but the Ninth Circuit’s analysis focused on the plaintiff’s
`interference with contract claim, id. at 995–99, and addressed the CFAA only in the context of the
`defendant’s argument that it preempted the interference claim, id. at 999–1004, not to consider the
`merits of the plaintiff’s claim for declaratory judgment.
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`Case 3:20-cv-07182-JCS Document 158 Filed 06/09/21 Page 10 of 30
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`contract, but not just any such purpose suffices.” hiQ, 938 F.3d at 997. “‘Whether an intentional
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`interference by a third party is justifiable depends upon a balancing of the importance, social and
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`private, of the objective advanced by the interference against the importance of the interest
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`interfered with, considering all circumstances including the nature of the actor’s conduct and the
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`relationship between the parties.’” Id. (quoting Herron v. State Farm Mut. Ins. Co., 56 Cal. 2d
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`202, 206 (1961)). Courts must determine whether the defendant’s interest outweighs societal
`
`interests in stability of contracts (the defendant’s mere pursuit of economic advantage generally
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`does not), “whether the means of interference involve no more than recognized trade practices,”
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`“whether the conduct is within the realm of fair competition,” and—most importantly—“whether
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`the business interest is pretextual or asserted in good faith.” Id. (citations and internal quotation
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`marks omitted).
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`The Court previously dismissed this claim based on the defense of a legitimate business
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`purpose, which was satisfied as to the allegations of the original counterclaims both by Facebook’s
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`interest in enforcing its own terms of use, and by Facebook’s obligation to comply with the FTC’s
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`order. 1st MTD Order at 14–15. The Court also noted that BrandTotal may not have satisfied the
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`affirmative elements of its claim:
`
`Whether BrandTotal has included sufficient allegations of each of
`those elements is a close call, and Facebook might be correct that
`BrandTotal’s counterclaim requires further specificity as to, for
`example, the nature of its contracts with customers, the extent to
`which it could perform those contracts relying only on non-Facebook
`data sources, and what BrandTotal believes Facebook knew or
`intended when it deactivated BrandTotal’s accounts and asked
`Google to remove BrandTotal’s products from Google’s store.
`
`Id. at 12.
`
`1.
`
`Legitimate Business Purpose Defense
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`The FTC order is an appropriate starting point for the Court’s analysis here, because
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`Facebook’s obligations under that order provided the clearest basis for dismissal of BrandTotal’s
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`tortious interference counterclaims as originally pleaded. That order requires Facebook to deny
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`access to any “Covered Third Party” that failed to certify its compliance with Facebook’s terms of
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`use, and BrandTotal did not dispute for the purpose of the previous motion to dismiss that it was a
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`Case 3:20-cv-07182-JCS Document 158 Filed 06/09/21 Page 11 of 30
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`“Covered Third Party.” See 1st MTD Order at 15 (summarizing the FTC order).6 Since
`
`BrandTotal did not obtain Facebook’s permission to use automated means to collect data, as
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`required by Facebook’s terms of use, BrandTotal could not and did not certify compliance with
`
`those terms. The Court therefore held that, based on BrandTotal’s original allegations, Facebook
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`was required to deny BrandTotal access.
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`BrandTotal advances a number of arguments that are not particularly persuasive, including
`
`that the order was intended only to target third parties’ collecting users’ personal data without
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`those users’ consent, that the FTC only required Facebook to enforce violations in a manner
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`proportionate to their severity (as opposed to necessarily blocking all access), and that construing
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`the FTC order to apply in these circumstances would place it in conflict with the Ninth Circuit’s
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`decision in hiQ. See Defs.’ Opp’n at 2, 4–5, 13–15.
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`Requiring third parties to obtain permission from Facebook before engaging in automated
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`data collection is consistent with the FTC’s intent to protect users from unauthorized data
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`collection, because without at least some form of vetting, a third party that purports to obtain
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`consent might maliciously collect more data than users authorize, or even if a third party acts in
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`good faith to obtain consent, its product might have unforeseen uses or vulnerabilities that would
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`cause it to exceed that consent—as with the previous version of UpVoice potentially capturing
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`data from users of shared computers who had not themselves consented to its use.
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`While BrandTotal is correct that one provision of the FTC order requires Facebook to
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`enforce violations of its terms “based solely on the severity, nature, and impact of the violation;
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`the Covered Third Party’s malicious conduct or history of violations; and applicable law,” FTC
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`Order § VII(E)(1)(d),7 a separate and more specific provision requires, “if the Covered Third Party
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`6 In a footnote of its brief opposing a preliminary injunction, Facebook implies that BrandTotal
`conceded that it is a “Covered Third Party,” relying on a statement by BrandTotal’s counsel at the
`hearing on its motion for a TRO. See Pl.’s Opp’n (dkt. 134) at 21 n.12. The full statement, in
`response to the Court’s question of whether BrandTotal was a “Covered Third Party,” was as
`follows: “I would think that we would be, Your Honor, yes. But I would want to study that
`specific question more, because it wasn’t raised.” Oct. 20, 2020 Hr’g Tr. (dkt. 57) at 8:24–9:1. In
`light of counsel’s specifically-stated intent to further investigate the issue, his statement was not a
`concession.
`7 The FTC order is included in the record in a number of places, including as Exhibit C to
`BrandTotal’s amended counterclaims.
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`

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`Case 3:20-cv-07182-JCS Document 158 Filed 06/09/21 Page 12 of 30
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`fails to complete the annual self-certification, denying or terminating access to all Covered
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`Information unless the Covered Third Party cures such failure within a reasonable time, not to
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`exceed thirty (30) days,” id. § VII(E)(1)(b). There is no dispute that BrandTotal has not self-
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`certified compliance with Facebook’s terms of use—which require Facebook’s permission for any
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`automated data collection—as would be required for a Covered Third Party.
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`As for hiQ, that case concerned blocking a competitor’s access to “otherwise public data.”
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`hiQ, 938 F.3d at 998. The opinion in hiQ repeatedly distinguished a scenario where information
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`was not available to the general public, noting, for example, that the defendant could “satisfy its
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`‘free rider’ concern by eliminating the public access option” and restricting the data at issue to
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`certain users of its platform. Id. at 995. Here, there is no dispute that while some of the
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`information BrandTotal gathered was “otherwise public,” not all of it was—particularly with
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`respect to the original version of UpVoice, which captured user demographic data. Principles of
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`hiQ might nonetheless inform the outcome here, but there is no clear conflict that would render the
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`FTC’s order unenforceable, at least with respect to password-protected portions of Facebook’s
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`network.
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`BrandTotal’s strongest argument—at least for opposing the present motion to dismiss—
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`that the FTC order does not justify Facebook’s conduct is that, as alleged for the first time in
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`BrandTotal’s amended counterclaim, BrandTotal is not a “Covered Third Party” as that term is
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`used in the FTC order, because BrandTotal collects data “only as part of a User-initiated transfer
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`of information as part of a data portability protocol

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