• by Wendy Davis  @wendyndavis, November 11, 2020

A federal judge said in an opinion unveiled this week that “the public interest” weighs against analytics company BrandTotal's request for an order forcing Facebook to immediately allow access to its site.

“Under the circumstances of this case, where BrandTotal built its business on ignoring Facebook’s prohibition on automated access without permission, created separate architecture to collect users’ Facebook profile data in ways not reflected in those users’ Facebook privacy settings, and now requests an immediate order preventing Facebook from taking any steps to limit its access despite an FTC order requiring Facebook to enforce its terms of use and police such access, the court concludes that the public interest requires denying the extraordinary relief BrandTotal seeks,” U.S. District Court Judge Joseph Spero in the Northern District of California wrote.

Spero denied BrandTotal's request last week, but didn't unseal his written opinion until this week.

The legal battle between BrandTotal and Facebook dates to October 1, when Facebook alleged in a lawsuit that BrandTotal violated the social networking platform's terms of service, and ran afoul of a federal anti-hacking law, by scraping data from Facebook.

Facebook also took steps to ban BrandTotal's UpVoice browser extension -- which enabled the data collection -- from the platform, and demanded that Google remove UpVoice from the Chrome Web Store.

BrandTotal -- which said it “stands on the brink of collapse” as a result of Facebook's actions -- argued that people who downloaded the extension explicitly consented to the data collection, and were paid for doing so.

The company alleged that Facebook was acting anti-competitively and interfering with BrandTotal's contracts. BrandTotal requested a court order that would have required Facebook to lift the block, as well as to rescind the takedown notice sent to Google.

Facebook argued that BrandTotal's UpVoice extension raised privacy concerns -- particularly in households where people shared computers. The social networking platform also said its recent settlement with the FTC requires the company to enforce its privacy policies, and to report BrandTotal's activity as a “scraping incident.”

Spero said in his ruling that BrandTotal “raised serious questions as to the merits of this claim,” and has shown it faces “irreparable harm” -- but hasn't yet shown it is likely to succeed with its legal arguments.

Spero added that BrandTotal had not persuaded him that it would serve the public interest to order Facebook to “provide immediate access to an automated data collection program that Facebook has not vetted.”

“If Facebook could not take steps to block access by third party developers unless it first builds a strong case of actual harm to its users -- without the benefit of the developer working with Facebook to explain its product’s operation and safeguards -- malicious actors would likely enjoy longer periods of access to users’ data before facing any enforcement,” Spero wrote.

The judge added that emergency court hearings “are not an efficient mechanism” to determine whether products that automatically collect data pose privacy risks.

“The record suggests that BrandTotal has operated, at least for the most part, in good faith,” Spero wrote. “But courts generally lack the technical expertise to evaluate such risks on a blank slate.”

BrandTotal declined to comment on the ruling.