In Court, Facebook Blames Users for Destroying Their Own Right to Privacy

I think this article misrepresents the actual issue here, but also the FB lawyer's argument, as described in the article, is also missing the point.

Focusing on the number of people being told is a red herring; what matters is the expectation of privacy per se, which is another way of saying, how likely do I think it is that the N people I'm sharing this with will share it with someone outside this group? Or, more properly, how likely do I think it is that someone OTHER than the N people immediately present will get this information?

If the CEO of a big company sends an email marked "confidential" to 10,000 employees, each of whom has a contract requiring them to not share insider information with people outside the company, I think that's a pretty solid expectation of privacy even if the number of people involved is large. One way to think of it is: would the police need a warrant to intercept that email? I'd be shocked if even the FB lawyer said that they would not.

On the other hand, if I'm meeting with just one person, but that meeting is in a public place like a cafe, then I can't reasonably say that I'd expect that meeting to be private. The police could put an undercover officer at the table next to me, transcribing everything I said.

So the true question is not whether you need to have 1, or 10, or 100 friends that you share information with in order to no longer have an expectation of privacy; the question is, to the people USING Facebook (and not the company), did they think they were sending a communication like an email, where they were specifying recipients and only those recipients would see it? Or did they think they were participating in a public forum, where who knows who could be listening?

"We believe that everyone around the world deserves good privacy controls." - Mark Zuckerberg

"There is no privacy interest, because by sharing with a hundred friends on a social media platform, which is an affirmative social act to publish, to disclose, to share ostensibly private information with a hundred people, you have just, under centuries of common law, under the judgment of Congress, under the SCA, negated any reasonable expectation of privacy." - Orin Snyder (Lawyer representing Facebook)