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Lee Enterprises seeks dismissal of privacy-violation lawsuit

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Posted at 9:09 AM, Jun 05, 2023

Montana’s largest newspaper publisher is asking a federal judge to dismiss a lawsuit that alleges the company 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 with Facebook in violation of federal law.

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, reports the Daily Montanan.

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 www.facebook.com 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 a recent motion to dismiss the lawsuit, attorneys for Lee argued that in order for a violation of the law to exist, any information the company relayed to others “must be the type that would readily permit an ordinary person to identify a specific individual’s video-watching behavior, without the need to combine it with other information in the recipient’s possession.”

“But that is precisely what Lee discloses here,” the plaintiffs have countered. “Anyone, even someone with extremely limited technical proficiency, can easily identify a person” once they have the Facebook ID code the lawsuit claims.

In their motion to dismiss, attorneys for Lee appear to argue that because the Facebook ID code is, by itself, non-identifying, and must be used in a specific manner that’s beyond the ability of the average person, no violation of law occurred.

“A simple review of the software code screenshots that are cited in the complaint demonstrates that the code is meaningless to an ‘ordinary person’ without reference to multiple articles, policies, technical know-how and access to a specific tool to obtain and translate it,” the company alleges.

The court has not yet ruled on the motion to dismiss.

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.

Lee publishes newspapers and other media content in 77 markets across 26 states. The company’s five Montana papers include The Billings Gazette, the Missoulian, the Montana Standard, the Helena Independent-Record and the Ravalli Republic.

This story was originally produced by the Iowa Capital Dispatch which is part of States Newsroom, a network of news bureaus, including the Daily Montanan, supported by grants and a coalition of donors as a 501c(3) public charity.