Facebook, OPC square off in court over Cambridge Analytica report

The motto of Facebook Inc. is, famously, "move fast and break things." But according to lawyers representing the federal privacy watchdog, the social media giant's approach is closer to "move slow and block things" when responding to Canada's attempted regulatory oversight. On the opening day of the first stage of a larger proceeding, a Federal Court judge Tuesday heard arguments in the consideration of an application for judicial review from Facebook, in which lawyers for the Office of the Privacy Commissioner asked judge Jocelyne Gagné to reject Facebook's application. Facebook is seeking an order quashing the OPC’s report from April 2019, arguing in the application that the “the OPC should never have investigated the Complaint or should have discontinued it once the investigation failed to turn up the required Canadian nexus.” Following the report, the OPC in February filed what is known as a de novo proceeding, seeking an order declaring that Facebook violated Canadian privacy law and further compelling the company into compliance. The move represented the first time the OPC had taken a private company to court in order to force compliance. On behalf of the OPC, Brendan van Niejenhuis argued that the proceeding initiated by the OPC -- which is not yet scheduled for arguments -- is adequate for Facebook to make its case. "In that application, your Honour, Facebook has a full right of response," van Niejenhuis said, "in terms of the evidence that it may put before the court, the facts that it may seek to establish in contrast to those of the privacy commissioner, and a full right of response in terms of legal argument -- both as to the inferences that are being drawn about its practices, and as to the appropriate and available remedies the court may and ought to grant." The OPC's April 2019 report originally stemmed from a 2018 complaint about Cambridge Analytica, and contends that Facebook violated the Personal Information Protection and Electronic Documents Act (PIPEDA), Canada's federal private sector law. The larger case could ultimately, in the words of a Facebook lawyer Tuesday, "have the potential to affect Facebook's business and the operation of its platform worldwide" if the court issues an order agreeing with the OPC's assessment and forcing Facebook to comply. In Facebook's April application for judicial review, Facebook argued that it was denied a level of “procedural fairness” in the proceeding, and that the OPC "improperly" embarked on "a broad audit of Facebook’s privacy practices in the guise of an investigation into a specified contravention of PIPEDA." There is, van Niejenhuis told the court Tuesday, "a certain irony … of Facebook complaining that the privacy commissioner said it was collecting information for one purpose, and then instead adopting a broader purpose in the report of findings." Should the court entertain Facebook's application judicial review, van Niejenhuis said, it "prejudices the orderly progress and the timely progress of this court's important work in assessing and enforcing the rights and principles that are established under PIPEDA." "That creates prejudice, in my respectful submission, to the public interest, and prejudice to Canadians." Replying on behalf of Facebook, Michael Feder argued that the OPC's de novo application "does not afford Facebook an adequate alternative remedy to judicial review," which argues that the basis of the OPC's entire original investigation was wrong. Facebook said in its judicial review application that there is no evidence that Cambridge Analytica improperly processed the data of any Canadians, the “Canadian nexus.” The OPC's investigation, Feder argued Tuesday, "ought to have been discontinued when the investigation failed to turn up any evidence of a nexus to Canada." "If the investigation was about Cambridge Analytica, which is what the OPC originally told Facebook, the OPC never turned up any evidence that any Canadian’s personal information had been misused," Feder said, and said that the OPC had gone on and asked Facebook to "prove a negative." In its communications with Facebook, Feder argues, the OPC said "you need to prove that Canadian's personal information has not been misused. There's no evidence that it's been misused, but you need to prove that it wasn't." "Facebook contends that that was unreasonable and exceeded the commissioner's jurisdiction." Facebook has also filed a motion seeking to strike from the record portions of the affidavit of the Office of the Privacy Commissioner’s director of compliance for PIPEDA, Michael Maguire. The Maguire affidavit, Facebook argues, contains hearsay, arguments, legal conclusions, opinions, and foreign materials which the social media giant said are inadmissible. Arguments are scheduled to continue Thursday. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Facebook, OPC square off in court over Cambridge Analytica report

News | 01/20/2021 5:05 pm EST

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