• by Wendy Davis  @wendyndavis, March 14, 2022

Analytics company BrandTotal and Facebook continued their 18-month battle over data on Saturday, with both companies arguing to a federal judge that they should prevail on the key claims in the dispute.

Facebook parent Meta said it is entitled to a ruling that BrandTotal violated Meta's terms of service by scraping consumer data.

“BrandTotal breached, and continues to breach, Meta’s prohibition on automated collection of data from Meta products without permission,” the social media platform writes in papers filed Saturday with U.S. District Court Magistrate Joseph Spero in Oakland.

But BrandTotal -- which gathers ad-related data from opted-in Facebook users -- says Facebook's scraping ban is unenforceable, on the theory that it violates public policy.

The ban “denies users the ability to control and monetize their own data, stifles competition in the social media analytics market, and creates an information monopoly regarding Facebook advertising -- all of which is contrary to well-established public policy principles,” BrandTotal argues.

The two companies have been sparring in court since October of 2020, when Facebook sued BrandTotal for allegedly breaching the user agreement by scraping data via a downloadable browser extension. Facebook also raised other claims, including that BrandTotal allegedly violates the Computer Fraud and Abuse Act -- an anti-hacking law that prohibits anyone from accessing servers without authorization.

Around the same time it filed suit, Facebook took steps to ban BrandTotal's browser extension, UpVoice, from the platform, and allegedly demanded that Google remove UpVoice from the Chrome Web Store.

Two weeks after Facebook sued, BrandTotal countersued the social media company for allegedly interfering with BrandTotal's contracts with advertisers and its panelists.

BrandTotal is now arguing to Spero that Facebook shouldn't be allowed to enforce the ban on automated data collection.

“This motion is about much more than Facebook’s attempt to eliminate BrandTotal from the marketplace through costly litigation,” BrandTotal writes. “It is about whether Facebook’s billions of users control their own online data and are free to use it as they see fit, or whether Facebook exercises a veto power -- and thus de facto control -- over user choices.”

BrandTotal also says Facebook's scraping ban prevents outside companies from collecting information about ads seen by the platform's users.

“Without the competitive, independent analysis provided by outside companies like BrandTotal ... Facebook advertisers will have no ability to spot check and evaluate the accuracy of Facebook’s representations regarding advertisement reach and effectiveness,” BrandTotal writes.

But Facebook tells Spero the prohibition on scraping is common among companies with a web presence, and benefits consumers as well website operators.

“Websites ranging from YouTube and Amazon to the United States Congress and the New York Times prohibit automated collection of data from their websites,” Facebook writes. “Even BrandTotal's own terms include such a restriction.”

Facebook adds that its terms allow the company “to protect its users and its platform against the security risks raised by data scraping.”

Since the companies took each other to court, BrandTotal released UpVoice 2021-- an updated version of its data-collection tool that, according to BrandTotal, gathers information about ad viewership but not demographic data.

BrandTotal said it collects users' demographic data when they sign up with the company, and doesn't need to gather the same information from Facebook. BrandTotal also says it compensates users who participate in its panel.

BrandTotal began deploying UpVoice 2021 in March of last year. Facebook agreed at the time to hold off on attempting to remove the extension, but has argued in court papers that UpVoice 2021 wrongly collects data.

Spero has scheduled a hearing in the matter for April 29, but the two companies could still resolve their differences in mediation before that date. The companies told Spero they will update him by March 25 on the status of mediation efforts.