Project’s Brief Says Consumer Protection Law Applies to Facebook

Facebook login screen

The Tech Accountability & Competition (TAC) Project filed an amicus brief in the lawsuit Muslim Advocates v. Facebook urging the D.C. Superior Court to reject an argument raised by Facebook.

Filed on Dec. 6, 2021, the amicus brief is the first filing by the TAC Project, housed within the Media Freedom & Information Access Clinic (MFIA) at Yale Law School. TAC members Abby Lemert ’23, Eleanor Runde, and Shunhe Wang ’23 worked on the brief, along with supervisor Visiting Clinical Lecturer in Law David Dinielli.

In April 2021, Muslim Advocates, a nonprofit advocacy group, brought suit against Facebook alleging violations of the District of Columbia’s consumer protection law. Muslim Advocates alleged that Facebook falsely advertised its content moderation policies by claiming in testimony to Congress that the company removes any harmful content as soon as Facebook becomes aware of it. 

In a motion to dismiss the lawsuit, Facebook argued that D.C.’s consumer protection law can never apply to the company’s relationship with its users, because users do not pay a cash price to access Facebook’s services. The TAC Project rebutted this argument in its brief, arguing that D.C.’s consumer protection law clearly applies to the relationship between Facebook and its users, who provide their time, attention, and personal data in exchange for access to Facebook’s products and services.

TAC filed its brief on behalf of Consumer Reports, Public Knowledge, and Upturn, nonprofit organizations whose missions encompass consumer protection and advocacy, open internet policy, and civil rights. TAC filed their brief in coordination with the D.C. Attorney General’s office, who also have a suit pending against Facebook under the same D.C. consumer protection law. Muslim Advocates is represented by Peter Romer-Friedman of Gupta Wessler, a plaintiff-side firm in Washington, D.C.

“We thought this argument by Facebook was especially insidious,” said Wang. “Because many of the largest and most powerful digital platforms rely on free, ad-based business models, a ruling in Facebook’s favor on this point would exempt a broad swath of the modern economy from the reach of consumer protection law.”

“It was hard to choose which of Facebook’s arguments to respond to,” said Lemert. “Facebook also made an argument that Section 230 immunizes it from liability for false statements that Zuckerberg and others made to Congress during official sworn testimony.” But D.C. Attorney Karl Racine’s office vigorously contested Facebook’s Section 230 argument in its own amicus brief, also filed on Dec. 6 after coordination with the TAC Project.

“This is one of our first clinic projects, and we’re thrilled to represent such incredible amici on what we believe is an important argument for the future of tech accountability and consumer protection in the digital sphere. We’re grateful that the D.C. Attorney General’s office agreed, and we were able to file complimentary briefs,” said Visiting Clinical Lecturer in Law David Dinielli, who supervises the project.

As part of the Media Freedom & Information Access Clinic at Yale Law School, the TAC Project aims to promote and enforce comprehensive legal regimes that require technology companies, digital platforms, and other public and private actors exerting power in the digital space to reduce harms arising from their business models and practices and respect the rights of all people affected by their products and services.

The TAC Project was established by eight Yale Law School students in fall 2020 and is supervised by David Dinielli, a former partner at Munger Tolles, deputy legal director at the Southern Poverty Law Center, and veteran of the DOJ’s Antitrust Division. In spring 2022, TAC will welcome new members and expand its docket to include additional litigation projects, administrative agency filings, and legislative advocacy work.