Facebook and Google put ad tracker out of business overnight, but injunction could bring it back
A lawsuit by Facebook has put a small Israeli analytics startup—which tracks the ads marketers place in social media, who they’re targeting and how consumers respond—out of business, at least temporarily. But now the firm, BrandTotal, is fighting back by seeking a restraining order that could determine who is allowed to gather Facebook ad data and whether users can sell it.
Facebook alleges in a federal lawsuit in California that BrandTotal has been violating its terms of service, as well as federal and California anti-hacking statues, by repeatedly scraping user data from its social platforms using what it calls a “malicious” Google Chrome extension.
Results of an injunction hearing, set for on Monday, Oct. 26, could determine whether Facebook and other social media can limit ad data collection to their own employees or third parties they authorize.
BrandTotal claims California law, specifically the California Consumer Privacy Act, gives consumers ownership of the ad data and the right to sell it, superseding Facebook’s rules. The injunction motion says Facebook is using the lawsuit to stifle competition, noting that Facebook’s terms give it exclusive rights to offer advertising analytics services to advertisers.
The Ninth Circuit Court of Appeals upheld an injunction last year against LinkedIn to halt a similar legal action to shut down analytics firm HiQ, which was collecting publicly available data from the site to advise business clients about employee issues.
BrandTotal CEO Alon Leibovich says he found out Facebook was suing his company Oct. 1, when he got a text from a friend asking about a TechCrunch story describing the lawsuit. Facebook hadn’t previously approached the company, he says.
The next day, Google—at Facebook’s request—disabled a Chrome extension by which BrandTotal collects data from its opt-in users about what ads they see on Facebook, Instagram, YouTube, Amazon, LinkedIn and Twitter. BrandTotal has about 20 clients globally, including L’Oreal’s U.K. operations and direct-to-consumer mattress seller Nectar, who use it to track who sees ads from their brands and those of competitors. The actions by the two biggest digital media players in the world essentially put it out of business overnight.
Facebook says BrandTotal agreed, by virtue of having brand pages and ad agreements, not to collect user data from its social platforms, including Instagram. People who “self-compromised” their browsers by installing the UpVoice Chrome extension had their user information—including ID, date of birth, relationship status, location, ad viewing, image and text of ads, ad preferences and interaction with ads—collected by BrandTotal, Facebook says.
'Never brought this issue to our attention'
BrandTotal also deceived visitors to its website into believing Facebook and other social were “participating sites,” though none were in fact cooperating with the data collection, according to Facebook’s complaint.
“Facebook never brought this issue to our attention,” Leibovich says in a declaration filed with the court. Had Facebook approached the company, it would have removed the “participating sites” phrase, and since has, he says. BrandTotal has been buying ads on Facebook platforms since 2018 to facilitate data collection by recruiting people for its panel and UpVoice Chrome extension, according to BrandTotal’s filings.
Panelists can make $75 and up annually, BrandTotal says. And to support the argument that they are fully informed and willing participants, the company filed with the court a long list of anonymized e-mails and Reddit posts from panelists complaining about Facebook and Google taking down the service, preventing them from earning more money or collecting payments they’ve already earned.
Facebook didn’t respond to requests for comment. A Google spokesman said simply: “If we find extensions on [Chrome Web Store] that violate our policies, we take action.”
BrandTotal says Facebook’s claims also are barred by its own “unclean hands” over privacy violations and what it allowed other third parties to do with user data—resulting in a $5 billion Federal Trade Commission fine last year.
“Although Facebook paints BrandTotal as a bad actor, Facebook uses the same user data to offer its own competitive services and is using this lawsuit as means to stamp out legitimate competition; not, as it feigns, to nobly protect users,” BrandTotal says.
BrandTotal’s business ultimately leads marketers to spend more on Facebook platforms, the company says. An executive with one of its customers, who asked not to be identified, says using BrandTotal data for competitive analysis and evaluating effectiveness of its own ads likely has increased his spending on Facebook.