Facebook’s lawyer argued:
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.
As The Intercept commented of the blunt remarks, “So not only is it Facebook’s legal position that you’re not entitled to any expectation of privacy, but it’s your fault that the expectation went poof the moment you started using the site (or at least once you connected with 100 Facebook “friends”).“
Judge Chhabria took issue with the “binary” nature of Facebook’s conception of privacy in stating, “like either you have a full expectation of privacy, or you have no expectation of privacy at all,” and put the following scenario to Facebook’s legal team:
If I share [information] with ten people, that doesn’t eliminate my expectation of privacy. It might diminish it, but it doesn’t eliminate it. And if I share something with ten people on the understanding that the entity that is helping me share it will not further disseminate it to a thousand companies, I don’t understand why I don’t have — why that’s not a violation of my expectation of privacy.
Snyder’s response was illuminating regarding Facebook’s approach to users’ privacy:
Let me give you a hypothetical of my own. I go into a classroom and invite a hundred friends. This courtroom. I invite a hundred friends, I rent out the courtroom, and I have a party. And I disclose — And I disclose something private about myself to a hundred people, friends and colleagues. Those friends then rent out a 100,000-person arena, and they rebroadcast those to 100,000 people. I have no cause of action because by going to a hundred people and saying my private truths, I have negated any reasonable expectation of privacy, because the case law is clear.