Campbell et al v. Facebook Inc.

Filing 199

NOTICE by Facebook Inc. Joint Notice of Refiling of Documents Accompanying Class Certification Briefs and Evidentiary Objections (Attachments: # 1 Ex. 1 - Replacement for Dkt. 178-1, # 2 Ex. 2 - Replacement for Dkt. 183-4, # 3 Ex. 3 - Replacement for Dkt. 179-1, # 4 Ex. 4 - Replacement for Dkt. 184-3, # 5 Ex. 5 - Replacement for Dkt. 179-2, # 6 Ex. 6 - Replacement for Dkt. 179-3, # 7 Ex. 7 - Replacement for Dkt. 179-4, # 8 Ex. 8 - Replacement for Dkt. 179-5, # 9 Ex. 9 - Replacement for Dkt. 179-6, # 10 Ex. 10 - Replacement for Dkt. 179-7, # 11 Ex. 11 - Replacement for Dkt. 179-10, # 12 Ex. 12 - Replacement for Dkt. 179-11, # 13 Ex. 13 - Replacement for Dkt. 179-12, # 14 Ex. 14 - Replacement for Dkt. 179-13, # 15 Ex. 15 - Replacement for Dkt. 179-14, # 16 Ex. 16 - Replacement for Dkt. 179-15, # 17 Ex. 17 - Replacement for Dkt. 179-16, # 18 Ex. 18 - Replacement for Dkt. 179-17, # 19 Ex. 19 - Replacement for Dkt. 179-18, # 20 Ex. 20 - Replacement for Dkt. 179-20, # 21 Ex. 21 - Replacement for Dkt. 180-2, # 22 Ex. 22 - Replacement for Dkt. 180-3, # 23 Ex. 23 - Replacement for Dkt. 184-9, # 24 Ex. 24 - Replacement for Dkt. 180-7, # 25 Ex. 25 - Replacement for Dkt. 180-9, # 26 Ex. 26 - Replacement for Dkt. 180-12, # 27 Ex. 27 - Replacement for Dkt. 180-17, # 28 Ex. 28 - Replacement for Dkt. 180-18, # 29 Ex. 29 - Replacement for Dkt. 180-19, # 30 Ex. 30 - Replacement for Dkt. 180-20, # 31 Ex. 31 - Replacement for Dkt. 180-21, # 32 Ex. 32 - Replacement for Dkt. 180-22, # 33 Ex. 33 - Replacement for Dkt. 180-23, # 34 Ex. 34 - Replacement for Dkt. 178-5)(Chorba, Christopher) (Filed on 6/15/2016)

EXHIBIT 23

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

OAKLAND DIVISION

4

__________________________

5

MATTHEW CAMPBELL,

)Case No.

6

MICHAEL HURLEY, and

)C 13-05996 PJH (MEJ)

7

DAVID SHADPOUR

)

8

Plaintiffs

)

9

vs.

)

10

FACEBOOK, INC.

)

11

Defendants

)

12

___________________________

13
14

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

15
16

Videotaped Deposition of Jennifer Golbeck

17

Washington, D.C.

18

December 16, 2015

19

9:03 a.m.

20
21

Reported by:

Bonnie L. Russo

22

Job No. 2196773

23
24
25

PAGES 1 - 357
Page 1
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

you looking at or opining on?
A.

So I looked at two versions of this

3

guy's -- the fraudulent guy's Web sites -- he

4

had two Web sites -- and basically just said

5

the name of Equity Trust Company didn't appear

6

on those Web sites.

7

Q.

When you refer to the Internet

8

archive, is that the same as the Wayback

9

Machine?

10

A.

It is.

11

Q.

Okay.

12
13
14
15
16
17

Is that something you rely

upon in -- in your work?
A.

Pretty -- I use it pretty

frequently.
Q.

Is it pretty -- do you find it to be

fairly reliable?
A.

It's -- yeah, for what it is, right?

18

It's definitely not a complete archive of

19

everything that's out there, but the copies of

20

things that they do have are accurate.

21

And -- and I -- this is, again,

22

totally outside the area of my expertise

23

legally, but I think -- my understanding is

24

that they actually have said that legally it

25

can be assumed as true that, if something was
Page 20
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

archived on March 1st, that that absolutely was

2

there on March 1st.

3

in that way.

4

Q.

So it seems reliable to me

Other than the expert reports and

5

testimony we've talked about, is there any

6

other -- are there any other expert reports or

7

testimony that you've ever given?

8

A.

No.

There are other cases that I've

9

been invited to participate in, especially

10

patent cases, but ones that I've declined.

11
12

Q.

Have you ever served as a

nontestifying consultant in a -- in a lawsuit?

13

A.

So those --

14

Q.

Other than the E. Stephanie and --

15

you'll have to remind me of the name of the

16

other one.

17

A.

Yeah.

18

Q.

Sherry's Dance Studio.

19

A.

-- I think --

20

Q.

Yeah.

21

A.

-- is what that was.

22
23
24
25

Sherry's Dance Studio, I --

Those I would count in there.

Other

than those, I don't -- I don't think so.
Q.

If you -- in the instances when

you've declined to work in a patent case, why
Page 21
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

Yes.

2

Q.

Have you observed people with

3

differing degrees of knowledge -- and here I'm

4

talking about social network users -- regarding

5

sort of the collection and processing of their

6

data by the social network?

7
8

A.

Yeah.

There's vastly different

understandings.

9

Q.

Why do you think that is?

10

A.

It's really complicated, you know.

11

It -- and I think it's hard even for people who

12

are trained in that space to -- to really

13

understand what's happening because its

14

relatively opaque.

15

I have been surprised at times on --

16

on what data is made available say to third

17

parties.

18

about that, right?

And I spend all my time learning

19

Q.

Uh-huh.

20

A.

That -- kind of how data gets out.

21

So I say in a lot of these talks, like if I

22

didn't know, like literally no one on earth can

23

be expected to know because it's my full-time

24

job, and I'm one of the experts on it.

25

So, you know, it's complicated.

And

Page 93
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

then there's people with varying degrees of how

2

interested they are in tracking this down --

3

Q.

Uh-huh.

4

A.

-- right?

I think it's analogous to

5

like terms of service, right?

6

Most people don't.

7

that gives you a big difference in what you

8

understand.

9

Q.

I read them.

And, you know, that's --

Would you agree with me that some

10

people understand that, when they are

11

interacting with a -- with a Web site, that

12

there are various electronic processes

13

happening in order to render the site and, you

14

know, basically make the site run, some people

15

are sort of aware of that, and others don't

16

have a clue?

17
18

MR. RUDOLPH:
Vague.

19

Objection.

Form.

Compound.
THE WITNESS:

I think that's true,

20

that there's varying levels of understanding

21

that people have on how that works.

22
23

BY MR. JESSEN:
Q.

Have you observed differing degrees

24

of consent from users for collection and use of

25

their data?
Page 94
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

general is -- I find it's much more difficult

2

to use.

3

There are certainly more people with

4

public profiles on Facebook, but it's a lot

5

harder to find them in the way they can be

6

found on Twitter or Pinterest, for example.

7
8

Q.

11

So tell me briefly what the

thesis was of the -- of the TED talk.

9
10

Okay.

A.

Oh.

I've never thought of it that

Q.

Or maybe not -- "thesis" is the

way.

12

wrong word, but the -- the point you were

13

making.

14

A.

I think -- you know, talking about

15

what people know and what they don't, hardly

16

anyone who hasn't seen my TED talk knows that

17

these kind of person- -- private personal

18

attributes can be inferred about them from what

19

they're doing online.

20

And the purpose of the TED talk was

21

really to kind of explain the vary powerful

22

things that we can do with this technology and

23

get people thinking about the implications.

24
25

Q.

And one of the things, I think --

you know, forgive me if I'm getting this
Page 100
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

wrong -- but you discuss with homophily?

2

A.

Yes.

You got it right.

3

Q.

What is -- what -- you may have to

4

give the court reporter the spelling of that

5

one.

6
7

But what is -- what is that exactly?
A.

Yeah.

So homophily,

8

H-O-M-O-P-H-I-L-Y, is a concept from sociology

9

actually that basically birds of a father flock

10

together, that we tend to be friends with

11

people who share our traits more than people

12

randomly pulled from the general population

13

would share our traits.

14

So you're right; you're friends with

15

rich people.

16

friends tend to be poorly educated.

17

to race, sexual orientation, income, education,

18

kind of across the board.

19

If you're poorly educated, your
It applies

Not that all of your friends are

20

like that, but your traits are more common in

21

your friends than they are in the general

22

population.

23

Q.

And does this -- is this sort of --

24

is this the phenomenon that allows a researcher

25

like yourself to look at seemingly random data,
Page 101
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

like what kind of fries you like, and then make

2

some sort of -- and I'm phrasing this really

3

badly -- but draw an inference about it based

4

upon attributes that you wouldn't think would

5

correlate with that?

6

A.

Sometimes.

7

Q.

Not a good question.

8

A.

So in the curly fries example in the

9

talk, which you were just talking about --

10

Q.

Yeah.

11

A.

-- you know, I kind of hypothesize

12

that homophily was one of the things that play

13

there.

14

those algorithms --

Sometimes it's used very directly in

15

Q.

Uh-huh.

16

A.

-- where they're relying on that

17

basically as the entirety.

18

role in a lot of those algorithms, though

19

sometimes it's much less explicit.

20
21
22

Q.

I think it plays a

Is homophily at all relevant to the

organization of social networks?
A.

In -- so are you asking could a

23

social network organize around that principle,

24

or does it emerge in social networks?

25

Q.

I guess more the latter.
Page 102
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

I think it's true.

I mean the

2

principle says these are the kinds of people we

3

tend to choose as friends, right?

4

liberal, I will tend to choose other liberal

5

people as my friends.

6

If I'm a

And so, in that case, it can

7

influence how a social network forms.

8

find out some guy is a ranging racist, I may

9

unfriend him on Facebook, and that affects the

10

If I

network.

11

So that -- that could be a way

12

homophily is considered, its play in

13

influencing the structure of the network.

14

Q.

15

graph.

16
17

Earlier you talked about social

Remind me what you meant by that?
A.

Social graph is just a -- a term to

18

refer to people and their connections to one

19

another.

20
21
22
23

Q.

And generally how is the data in a

social graph organized?
A.

Like from a computing perspective or

from a mathematical perspective?

24

Q.

I think a computing perspective.

25

A.

So there it really depends.

So from
Page 103

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

the mathematical perspective, it tends to be

2

represented in a graph structure, which is a

3

mathematical concept --

4

Q.

Okay.

5

A.

-- and to tease into their

6

connections to one another.

7

Q.

Uh-huh.

8

A.

Com- -- computationally, you could

9

store that in a relational database.

There's

10

also graph-based databases that -- that are

11

network-based instead of relational.

12

really depends on the implementation.

13
14
15
16
17

Q.

Uh-huh.

So it

Do you know if Facebook has

a social graph?
A.

I mean they certainly have people

connected to other people.
Q.

Uh-huh.

And is that something -- do

18

you know if there are other things that go into

19

their social graph?

20

A.

Well, I would just want to be

21

careful about terminology here, because

22

Facebook has a thing that they call "the social

23

graph" --

24

Q.

Right.

25

A.

-- which is different from the kind
Page 104
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

of generic way I'm using the term.

2

Q.

Okay.

3

A.

So Facebook's certainly has more

4

information about people and their connections

5

than simply the fact that Alice and Bob are

6

connected as friends.

7

that.

8
9

Q.

They have more data than

What kind of -- what kind of data do

you -- I mean when you said Facebook has a --

10

has something they call "the social graph,"

11

what is your understanding of what that is in

12

the context of Facebook?

13

A.

So Facebook's social graph, my

14

understanding is it's how they refer to

15

basically the way that they store all of the

16

kind of network-structured data within their

17

systems.

18

So it would include -- I believe it

19

includes the profile information about people,

20

all the data about people, information about

21

their connections to other people.

22

But I think the social graph --

23

Facebook social graph also includes data about

24

connections between other entities within

25

Facebook.

So, for example, pages that I
Page 105
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

like --

2

Q.

Right.

3

A.

-- would be part of Facebook's

4
5
6

social graph.
Q.

Do you think the Facebook social

graph is valuable?

7

MR. RUDOLPH:

Objection.

8

THE WITNESS:

What do you mean by

9

"valuable"?

10
11

BY MR. JESSEN:
Q.

12
13

Vague.

Well, does it have monetary value?
MR. RUDOLPH:

Objection.

Lacks

foundation.

14

THE WITNESS:

I've --

15

MR. RUDOLPH:

Vague.

16

THE WITNESS:

I've got like no

17

expertise in the monetary value of these

18

things.

19

BY MR. JESSEN:

20

Q.

Understood.

21

A.

So I'm not quite sure how to answer.

22

Q.

Okay.

Just more like in the

23

abstract, talking about social graphs, like --

24

well, I guess if you were -- strike that.

25

Do you know where the data in
Page 106
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Facebook's social graph is stored?

2

MR. RUDOLPH:

Objection.

3

THE WITNESS:

What do you mean by

4

"where"?

5
6
7

Vague.

BY MR. JESSEN:
Q.

Like in a database or a particular

computer science structure?

8

A.

I know --

9

Q.

A system.

10

A.

Yeah.

11

Q.

Go ahead.

12

A.

I know they have a system called

13

TAO --

14

Q.

Uh-huh.

15

A.

-- which I believe stands for "The

Sorry.

16

Objects and Associations," which is one

17

abstraction that they use to store that data.

18

There are databases that back that.

19

Q.

20

T-A-O?

21

A.

What's your understanding of TAO,

I think I basically just gave you

22

the bulk of it.

23

blog post that kind of describes TAO, which

24

I've read a number of times.

25

There's a Facebook engineering

So I have that kind of high-level
Page 107
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

understanding of the fact that it stores data

2

with that structure that the abstraction

3

presumably allows them to compute with it in a

4

more efficient manner.

5

Q.

Is it your understanding that

6

everything stored in TAO is the social graph --

7

the Facebook social graph?

8
9

A.

Do you mean that, if it's not in

TAO, it's not part of the social graph?

10

This is a -- it's a hard question to

11

answer because where you draw the line is

12

fuzzy.

13

Q.

Okay.

14

A.

Right?

15

Q.

Okay.

16

A.

Yeah.

17
18

THE VIDEOGRAPHER:

I'm sorry.

We

should probably switch the...

19

MR. JESSEN:

Okay.

20

break, and we'll let him...

21

THE VIDEOGRAPHER:

Let's take a

22

Off the record at

11:13.

23

This is the end of Media Unit No. 1.

24

(A short recess was taken.)

25

THE VIDEOGRAPHER:

On the record at
Page 108

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

11:31.

2
3

This is the beginning of Media Unit
2 in the deposition of Dr. Jennifer Golbeck.

4

BY MR. JESSEN:

5
6

Q.

Dr. Golbeck, are you familiar with

object-oriented programming?

7

A.

I am.

8

Q.

What is that?

9

A.

It's a category of programming

10

languages that have the ability and I would say

11

are centered around the ability to create

12

objects.

13

Q.

14

those?

15

A.

Oh, I don't think I could list them

17

Q.

Well, let me --

18

A.

Java is a big one.

19

Q.

Yeah.

20

A.

Cplusplus.

21

Q.

What about PHP?

22

A.

I would call PHP scripting language,

16

23

What programming languages are

all.

not a object-oriented programming language.

24

Q.

What's the difference?

25

A.

You probably can create objects in
Page 109
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

PHP, but it's not kind of the primacy of what

2

the language is built around.

3
4

Q.

Uh-huh.

What is the significance of

objects in object-oriented programming?

5

A.

They're very significant.

6

Q.

Okay.

7

A.

I'm sorry.

8

I'm not sure exactly

what you're asking.

9

Q.

10

they play?

11

A.

Yeah.

I mean -- well, what role do

It's a way of representing data.

12

It's basically a more complex data structure.

13

Object-oriented programming languages have

14

natural built-in support for working with those

15

that would be hard to develop yourself in a

16

non-object-oriented programming language.

17

Q.

Would it be possible to create a

18

program in an object-oriented language that

19

does not create objects?

20

A.

Depends on the language.

21

Q.

What about cplusplus?

22

A.

Cplusplus you can do it without

23

creating any objects.

24

Q.

Is that common?

25

A.

I don't feel like I'm expert enough
Page 110
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

on all the programming languages out there at

2

this point to be able to say.

3
4
5
6

Q.

Okay.

What about Java; could you do

it with Java?
A.

Java you have to create a class,

which is the representation of an object.

7

Q.

Can you use objects with PHP?

8

A.

I believe that there is a way that

9
10

you can use objects in PHP, yes.
Q.

You've reviewed some of -- and we're

11

going to get into this in more detail, but you

12

reviewed some of the Facebook source code --

13

A.

I did.

14

Q.

-- as part of your expert report.

15

Would you agree with me that the

16

code you reviewed was written in an

17

object-oriented language?

18

A.

So it was written in PHP, and there

19

are objects in it.

20

there are some kind of deep computer "sciencey"

21

things going on here that are -- that I just

22

don't know about from like the theory of

23

programming languages perspective.

24
25

My hesitation is just that

So I agree that it's in PHP.

And I

agree that there are objects in it.
Page 111
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Uh-huh.

But you wouldn't consider

2

the PHP code that you reviewed of Facebook to

3

be object-oriented?

4

A.

I think it would be fair to call it

5

object-oriented.

6

know if a programming languages theorist in

7

computer science would say that PHP is an

8

object-oriented programming language.

9

don't know.

10

Q.

Okay.

My hesitation is that I don't

I just

Would you agree that, in a

11

software that is written in an object-oriented

12

programming language, essentially all data is

13

stored in objects?

14

A.

I don't know that I can agree with

15

that.

16

and how you have it written.

17

I think it depends on the implementation

Q.

Well, would you agree that software

18

written in an object-oriented language

19

typically stores data in objects?

20

A.

Probably.

I think the reasoning

21

that people might select an object-oriented

22

programming language is to store data in

23

objects.

24
25

Q.

And does that doing -- does that --

doing that have certain efficiencies?
Page 112
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2
3

A.

Totally depends on the

implementation.
Q.

Okay.

Would you agree that, in

4

object-oriented programming, creating and

5

storing objects from data received is a

6

fundamental aspect of how that type of

7

programming operates?

8
9
10

A.

Can you just repeat that question,

please.
Q.

11

Yeah.

Sure.

Would you agree that, in

12

object-oriented programming, creating and

13

storing objects from data received is a

14

fundamental aspect of how that type of

15

programming operates?

16

MR. RUDOLPH:

Objection.

17

THE WITNESS:

What do you mean by

18

"data received"?

19
20
21

Form.

BY MR. JESSEN:
Q.

Well, what is -- I think you said

earlier objects represent things.

22

And so could some of those things be

23

data that the -- that the software is

24

receiving?

25

A.

Receiving from just -Page 113
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

From the --

2

A.

-- anything?

3

Q.

Let's say for a user, for example.

4

A.

So we started talking about

5

something implemented online.

6

Q.

Sure.

We can in this --

7

A.

I think it wouldn't be uncommon, if

8

you're using an object-oriented programming

9

language, to store data in objects.

10

Q.

Okay.

Object-oriented programming

11

is a common practice; would you agree with

12

that?

13

A.

I think that's fair.

14

Q.

Okay.

So creating and storing

15

objects is not something unique or unusual in

16

the case of Facebook, is it?

17
18

MR. RUDOLPH:

THE WITNESS:

Like creating

objects -- like an object within the code in --

21
22

Vague.

Form.

19
20

Objection.

BY MR. JESSEN:
Q.

Yeah.

Using -- you know, for -- for

23

Facebook to create objects which represent

24

things on its Web site, that's not an unusual

25

practice for a Web site, is it?
Page 114
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

MR. RUDOLPH:

Objection.

THE WITNESS:

Yeah.

Form.

Vague.

3

So the

4

hesitation that I'm having is that there are

5

ways of storing data in objects, which is not

6

necessarily the same as the objects one would

7

create in a program that's running.

8
9

And Facebook does both of those
things.

So if we're talking about

10

object-oriented programming, I don't think

11

there's anything unusual that I've seen in the

12

code about the -- the code and the objects that

13

are created within it to operate on that data.

14
15
16

BY MR. JESSEN:
Q.

And you're talking about the

Facebook code that you've reviewed?

17

A.

Yes.

18

Q.

Okay.

19

What is

Facebook?

20
21

Very basic question:

MR. RUDOLPH:

Objection.

Vague.

THE WITNESS:

I'd say it's kind of

Overbroad.

22
23

vague.

It's a online social networking

24

platform.

25
Page 115
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

BY MR. JESSEN:

2
3

Q.

the service that Facebook provides?

4
5

And what is your understanding of

A.

I think Facebook provides a lot of

different services.

6

Q.

Such as?

7

A.

The ability to create an online

8

profile.

The ability to build connections to

9

friends and share posts with them.

10

gaming component of the platform.

11

for example.

12

now.

13

There's a
Farmville,

I guess Candy Crush is big there

I don't play games on Facebook.
Obviously they have a messaging

14

functionality.

15

which is a little bit different than the user

16

maintaining a profile.

17

profiles that people can like, and businesses

18

can distribute information that way.

19

They have a business platform,

Businesses can create

They have an advertising

20

functionality, external social plug-ins.

21

don't know how much they're still using it, but

22

there's the Facebook Connect kind of Universal

23

log-in functionality.

24
25

I

And, you know, there's overlap
between some of these, but a lot of them are
Page 116
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

quite distinct functions centered around having

2

a Facebook account.

3
4

Q.

Okay.

And you -- you are -- you are

a Facebook user, correct?

5

A.

I am.

6

Q.

How many Facebook accounts do you

7

have?

8
9

A.

I mean I have one kind of account

for myself.

10

I have a professional author page.

Q.

Sorry.

12

A.

No.

13

Q.

The account for -- when you say you

11

I didn't mean to interrupt

you.
Go ahead.

14

have a -- "I have an account for myself," like

15

a personal account.

16

A.

Right.

17

Q.

Jen Golbeck's?

18

A.

It is.

19

Q.

Okay.

20
21

All right.

And then you also

have a professional account, you said?
A.

Well, so it's -- it's connected to

22

my personal account, but I have a professional

23

page -- I think it's an author page -- that

24

people can like that I don't have to be friends

25

with.
Page 117
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

So my personal account is kept very

2

private.

3

of professional public communications.

4

Q.

That author page is where I do kind
Yeah.

Do you know what e-mail addresses

5

you have associated with your Facebook

6

accounts?

7
8

A.

My main -- the account I use is

[e-mail].

9

How many accounts have I created

10

over time and what e-mails?

I don't know.

I

11

probably have one associated with my UMD

12

account, my UMD e-mail address.

13

if I ever log in there.

14

account for my fictional guy in my

15

investigations book, Malcolm Conroy Smith, who

16

is not an actual person.

17

Facebook doesn't shut his account down or like

18

ask for his passport.

19

over the place, and I maintain that.

I don't know

And then there's

I'd appreciate it if

He's got accounts all

20

Q.

Okay.

21

A.

He also has his own Gmail account.

22

Q.

What was his name, Malcolm Conroy

23

Smith?

24

A.

Yes.

25

Q.

And tell me what his function is
Page 118
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

again.

2

A.

In my book "Social Media

3

Investigation," I wanted to have a kind of

4

account that people reading the book could go

5

kind of cyber stalk basically.

6

So he posts all kind of stuff on all

7

kinds of social media platforms, same profile

8

picture and user name so they can kind of

9

practice some of the techniques without

10
11

stalking any real people.
Q.

12
13

Understood.
You have -- are you an active Gmail

user?

14

A.

An active Gmail user?

15

Q.

Yeah.

16

A.

Yes.

17

Q.

You mentioned Gmail.

18

A.

Yes.

19

Q.

[e-mail].

20

And have you been for a long time?

21

A.

22

users.

23

Q.

What year would that have been?

24

A.

2003 or '4 maybe.

25

I was one of the very first Gmail

I got an invite

from Google when they launched.

And, you know,
Page 119

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

you could invite two other people.

And people

2

were selling the invites on E-Bay for hundreds

3

of dollars.

It was like very technocool --

4

Q.

Okay.

5

A.

-- at the time.

6

Q.

Nice.

7

Do you also have a Yahoo account?

8

A.

Probably, yeah.

9

Q.

Is that something you use as well?

10

A.

I think the only time I use it is

11

connected to my Flickr account, I think.

12

definitely don't use Yahoo e-mail, but I

13

probably get spam there.

14

one or two services I use where I occasionally

15

have to log in with that.

16

only one that I can think of.

17

Q.

I

I feel like there's

But Flickr is the

Are you aware that there have been

18

lawsuits against Google and Yahoo that are

19

comparable to the lawsuit against Facebook?

20
21

MR. RUDOLPH:

Objection.

Vague.

Lacks foundation.

22

THE WITNESS:

23

Gmail one.

24

I do know about the

Yahoo.

25

I didn't know there was one against

BY MR. JESSEN:
Page 120
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

There's also one against Twitter.

2

A.

Interesting.

3

Q.

That's a newer one.

4
5
6

What was your understanding of the
lawsuit against Google?
A.

That -- so my understanding is that

7

there was a class action lawsuit alleging --

8

basically around Google showing targeted ads

9

based on the contents of people's Gmail

10

accounts.

11

that.

12

Q.

That's -- that's how I understood

Is that something that you

13

understood when you were using -- when you used

14

Gmail, that they actually do, Google?

15

MR. RUDOLPH:

I'm going to object to

16

this line of questioning as being beyond the

17

scope of Dr. "Golberg's" expert testimony.

18

You can answer.

19

BY MR. JESSEN:

20

Q.

You can answer.

21

A.

Okay.

Did I understand that Gmail

22

was analyzing the contents of my messages to do

23

advertising?

24

Q.

Yes.

25

A.

I did.
Page 121
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Since 2004 you understood that or...

2

A.

Oh.

No.

I -- I don't know when I

3

first thought about that.

4

lawsuit -- when I read about that lawsuit, I

5

knew that they were doing that.

6
7

Q.

Uh-huh.

But when that

And did you keep using --

you kept using Gmail?

8

A.

I did.

9

Q.

Did this alleged practices against

10
11

Google bother you?
A.

Yeah.

12

MR. RUDOLPH:

13

BY MR. JESSEN:

14
15
16
17

Q.

Vague.

So why did you keep -- why did you

keep using the -- the Gmail account?
A.

The -- again, there's a seven-hour

answer here.

18
19

Objection.

I'll try to keep it short.

Yeah.

I mean I -- I consider part

of my work, you know -- well, not consider.

20

A lot of my work is focused around

21

privacy.

And I have a kind of dystopian view

22

of where we're going in terms of privacy in the

23

online space.

24

The problem that I see is that there

25

are not a ton of great alternatives, and we're
Page 122
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

not given a lot of options, right?

2

switch to another e-mail provider who, even if

3

their terms of service now says they won't do

4

that, they could start doing it later.

5

So I could

If I pay for one, which I would

6

absolutely be willing to do, there's no

7

guarantee they're going to stay in business.

8

And that probably was my biggest motivation for

9

sticking with Gmail.

10

I have two Gmail accounts, a

11

professional and a personal one.

12

whole life since 2004 or '5 is in both of

13

those.

14

and to potentially having to switch again is

15

higher than my level of "upsetness" with the

16

privacy issues.

17
18

Q.

And like my

It would be -- the cost of switching

Understood.
So you're willing to trade some of

19

your privacy in return for the convenience of

20

continuing to use your Gmail account.

21
22
23

MR. RUDOLPH:

Objection.

Mischaracterizes prior thyme testimony.
THE WITNESS:

Yeah.

24

don't think that's quite right.

25

I -- I mean I
Like I would

love to have the option.
Page 123
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

BY MR. JESSEN:

2

Q.

Right.

3

A.

Like I'd pay Gmail for the privacy.

4

If they let me, I would pay lots of services.

5

Like you can go tell Facebook, if they let me

6

pay for my account and didn't show me ads, like

7

I would totally pay them like way more a month

8

than they get on advertising.

9

It's not an option.

So I don't know

10

that I'm willing to trade privacy for

11

convenience.

12

trade-off.

13

willing to continue using Gmail.

14
15
16
17

Q.

I don't see it as that kind of
But I -- it's true that I was

Do you use any kind of like ad

blocking software?
A.

I use like ten kinds of ad blocking

software.

18

Q.

Do -- do they work?

19

A.

Yes.

20

Q.

So do you actually -- like going to

21

Facebook, do you see ads when you visit

22

Facebook or...

23

A.

That's a good question.

I don't see

24

the regular Facebook ads that appear on the

25

side.

I think I do see some sponsored posts.
Page 124
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

I think that's right.

2
3

Q.

I think I see some.

When did you first sign up for a

Facebook account?

4

A.

August of 2005, I believe.

5

Q.

That was pretty early too.

6

A.

Sure was.

7

Q.

Why did you do that?

8

Why did you

sign up?

9

A.

I had accounts on every social

10

network that existed in 2005 except the adults

11

ones.

12

Q.

Okay.

What -- what -- what prompted

13

you to set up a Facebook account in August of

14

2005?

15

A.

So part of my dissertation is --

16

there was a whole chapter on kind of the state

17

of social networks.

18

Q.

Uh-huh.

19

A.

I had a list of all the social

20

networks that existed.

21

particular set of features that I was

22

interested in seeing if those had, which were

23

relevant to my work but not really relevant

24

now.

25

And there's a

So I had accounts on all of those
Page 125
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

networks first to go in and see if those

2

features were there and also just to kind of be

3

aware of the state of things.

4

It was a -- a new enough phenomenon

5

in 2004, 2005 that there weren't a lot of

6

people who were just experts on what existed.

7

So part of my becoming a doctor was becoming

8

one of those experts.

9
10

Q.

And you've continued to use Facebook

to the present day?

11

A.

Yes.

12

Q.

How -- how often do you use

13

Facebook?

14

A.

Every day.

15

Q.

Okay.

16

How long every day, on

average?

17

A.

It's hard to add up because I do a

18

lot of it like at red lights maybe, checking my

19

Facebook account.

20

Q.

A very bad practice.

21

A.

I know.

22
23

day.

Probably a couple hours a

Maybe -- maybe one hour a day total.
Q.

And how much of that is for your

24

like personal Facebook use as opposed to

25

research you might be doing?
Page 126
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

It's hard for me to draw that line.

2

If I didn't have a professional need to kind of

3

know what's going on, I may have closed my

4

Facebook account.

5

You know, I'm in my 30s.

And it's a

6

lot of my friends posting pictures of their

7

babies, which all kind of look the same after a

8

while.

9

So, you know, on one hand it's

10

mostly personal stuff that I'm looking at,

11

things that my friends have posted.

12

post all that much, but occasionally it -- it's

13

for them.

14

I don't

At the same time, I -- I -- the

15

reason I have the account, I -- I would say is

16

80 percent professional just so I kind of know

17

the features that are there, know what's going

18

on, know the memes, that kind of thing.

19
20
21

Q.

You normally access Facebook from a

computer or mobile device?
A.

It's probably half and half.

I

22

prefer to use my computer when i have it, but

23

there's a lot of times I'm walking around, use

24

the phone.

25

Q.

What browser or browsers do you use
Page 127
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

to access Facebook?

2

A.

On my phone I use Safari pretty much

3

exclusively -- or I use -- actually use the

4

Facebook app.

5

Safari, but I usually use the app.

6

computer, primarily through Firefox, though I

7

do use Chrome and Safari on my computer.

8
9

Q.

I do sometimes access it with
On my

Do you have JavaScript enabled on

all those browsers?

10

A.

I do.

11

Q.

Has that always been the case?

12

A.

I occasionally turn it off, but

13

generally its always enabled.

14

Q.

Why do you occasionally turn it off?

15

A.

It really slows things down.

16

Sometimes, you know, there will be sites that

17

have scripts that just kind of crank and will

18

-- especially my Firefox because it's very

19

customized.

20

it.

21

JavaScript will sometimes crash

Some days, if I'm just feeling

22

particularly privacy paranoid, I'll also turn

23

it off.

24
25

Q.

Why would you turn it off if you're

feeling privacy paranoid?
Page 128
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

So a lot of the technology that --

2

for example, key logging technology, as you're

3

typing, what you're typing is being

4

transmitted, is done with a technology called

5

AJAX.

6

if you turn JavaScript off, the actions that

7

you're taking on your computer can't be

8

transmitted until you submit them.

9
10

And the J in AJAX is for JavaScript.

Q.

So

Have you used the Facebook Messages

product?

11

A.

The app or just the --

12

Q.

Either one.

13

first start with the -- the Web site itself.

14
15

Either -- well, let's

Are you aware of the messaging
functionality?

16

A.

I do use that on Facebook.

17

Q.

How long have you used that feature?

18

A.

Probably since it's been there.

19

Q.

Do you also do it on the -- in the

20
21

Facebook app for Messenger app?
A.

Yeah.

Well, you can't send messages

22

in the Facebook app.

23

Messenger app.

24

app for privacy concerns.

25

It has to be in the

I won't download the Messenger

So if I'm on the mobile and I have
Page 129
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

to do messaging, I'll do it by accessing

2

Facebook through the browser on my device.

3

Q.

Okay.

I assume that you have both

4

sent and received messages through the Facebook

5

Messages product.

6

A.

That's right.

7

Q.

Can you give me an estimate of how

8

many messages you've sent through Facebook

9

Messages product?

10

A.

I have no idea.

You could probably

11

have them counted for me.

I mean I can't even

12

give you an order of magnitude.

13

told me it was a thousand, I'd believe you.

14

you told me it was a hundred thousand, I'd

15

believe you too.

Like if you
If

16

Q.

It sounds like it's a lot.

17

A.

There's a few people that I do a lot

18

of -- the equivalent of texting, right, with

19

them through the Messages app.

20
21

Q.

You've also received a lot of

messages through Messages product?

22

A.

I have.

23

Q.

Okay.

Can you provide an estimate

24

as to how many Facebook users you've exchanged

25

messages with through the Facebook Messages
Page 130
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

product?

2

MR. RUDOLPH:

Just going to -- I'm

3

going to object to this line of questioning as

4

being beyond the scope of Dr. "Golberg's"

5

expert report -- Golbeck.

6

Sorry.

7

MR. JESSEN:

8

MS. MAUTE:

9

THE WITNESS:

10

MR. JESSEN:

Goldberg's my expert.
I've been doing that.
Yeah.
It is kind of funny

11

that they're so close.

12

MR. RUDOLPH:

It's going to happen.

13

THE WITNESS:

Not the only time it

14

happens to me.

15

Probably 30-ish.

16

BY MR. JESSEN:

17
18
19

Q.

Okay.

Have you sent Facebook

Messages containing URLs?
A.

I have.

20

MR. RUDOLPH:

21

BY MR. JESSEN:

22

Q.

Same objection.

How many?

23

MR. RUDOLPH:

Same objection.

24

THE WITNESS:

How many messages?

25
Page 131
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2
3
4
5
6

BY MR. JESSEN:
Q.

Well, now I'm focused specifically

on messages containing URLs.
A.

It's very hard for me to gauge.

A

hundred, a few hundred.
Q.

Okay.

From the time you first

7

started using the Messages product to the

8

current day?

9
10

A.

I think so.

I mean it's really hard

for me to estimate that.

11

Q.

I understand.

12

A.

Yeah.

13
14

But yeah, I mean that's just

considering all the time I've used it.
Q.

Were the messages that you've sent

15

on -- using the Facebook Messages product that

16

contained URLs, were they accompanied by the

17

URL preview?

18
19
20

A.

Some of them definitely were.

I

don't know if they all were.
Q.

We're going to get into this when

21

we -- when we get into your report, but you

22

have a general understanding -- well, when you

23

sent those messages containing preview, you had

24

a general understanding of sort of how the

25

preview had been generated; is that fair to
Page 132
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

say?
A.

You know, it depends on what you

3

mean by "how."

But I -- I had a general

4

understanding of how the Facebook Open Graph

5

tags worked and that that was feeding the

6

preview.

7

Q.

What do you mean by Open Graph tags?

8

A.

So Facebook has a ontology, a schema

9

that allows third-party Web site owners to put

10

Meta tags in the head of their HTML

11

documents --

12

Q.

Uh-huh.

13

A.

-- that have information that

14

Facebook can use to build that preview in

15

Messages or otherwise.

16

and an image and a description.

17

some other ones.

18

They include a title
And there's

So that's a technology that -- that

19

I was aware of.

20

launched, but I remember reading about it when

21

it was launched.

22

I have no idea when it was

And so I understood that -- that

23

that data that was in the third-party sites was

24

what was being displayed as the preview box

25

when I pasted in the URL.
Page 133
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Were there ever instances where you

2

pasted in the URL, a preview was generated, and

3

then you X'd out the preview before sending the

4

message?

5

A.

Yes.

6

Q.

But I gather there were instances

7

when you left the preview in tact --

8

A.

Yes.

9

Q.

-- before you hit "send."

10

A.

Yes.

11

Q.

Would it be accurate to say that,

12

during the time you've used the Facebook

13

Messages product, you've also received Facebook

14

Messages containing URLs?

15

A.

I would guess that I have.

I can't

16

think of any specific instances off the top of

17

my head, but it would surprise me if there

18

weren't any.

19
20
21

Q.

Okay.

You understand that, for a

period of time -- well, strike that.
For the URLs that you've sent

22

through the Facebook Messages product, do you

23

have an understanding as to how many of

24

those -- the Web sites associated with the URLs

25

had a Like -- Facebook Like button social
Page 134
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

plug-in on their site?

2

A.

3

Sorry.

4

Q.

5

Oh.

I have absolutely no idea.

That's okay.
And you probably also have no idea,

6

for those Web sites that may have had a Like

7

button social plug-in, whether or not that

8

plug-in had a counter next to it that totaled

9

the number of likes?

10

A.

Yeah, I -- I don't know.

11

Q.

Okay.

I also assume you have no

12

idea that -- whether or not, if you sent a URL

13

in a message -- a Facebook message, that, if

14

the Web site associated that message had a Like

15

button social plug-in, and if the Like button

16

social plug-in had a counter next to it, you

17

can't tell me whether or not your sharing of

18

that URL in a message incremented that counter.

19

Would that be accurate?

20

MR. RUDOLPH:

Objection.

Compound.

21

And again, this is beyond the scope of her

22

testimony -- expert testimony.

23

THE WITNESS:

Knowing what I know

24

from having reviewed all the Facebook code now,

25

I know that it would have gone up.

But I
Page 135

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

didn't observe it going up.

2
3

BY MR. JESSEN:
Q.

Is it your understanding that, any

4

time a Facebook user includes an URL in a

5

message, that if the URL -- strike that.

6

Is it -- is it your understanding

7

that, any time a Facebook user includes a URL

8

in a message, and the URL linked to that --

9

sorry -- the Web site linked to that URL has a

10

Like button social plug-in, that every time

11

that URL was sent in a -- in a private message,

12

the counter next to that URL, if it existed,

13

was incremented?

14

MR. RUDOLPH:

Objection.

Form.

15

THE WITNESS:

For that to happen,

16

the URL -- there would have to be a URL preview

17

attachment on the message.

18

X'd out that attachment, my understanding is

19

that it would not have incremented the Like

20

button; but if the attachment was there and

21

everything operated the way it should, that

22

that Like button would have gone up in the time

23

period that we're talking about here.

24
25

So if -- if I had

BY MR. JESSEN:
Q.

Prior to the end of -- well, at some
Page 136
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

point in 2010, prior to the end of 2012?

2

Does that sound right to you?

3

We'll in your report in more detail,

4

but...

5

A.

So there's a date where Facebook

6

changed the number that was being displayed in

7

that Like counter.

8

Q.

Yep.

9

A.

Prior to that date, from looking at

10

the code, my understanding is, if there was a

11

private message with a URL preview attachment

12

and everything operated right, once that was

13

sent, the counter would be incremented.

14
15

Q.

that when we walk through your report.

16
17

And we'll get into more detail on

Do you ever let anyone else use your
Facebook account?

18

A.

No.

19

Q.

Has anyone else ever sent a Facebook

20
21

message on your behalf?
A.

I hope not.

I mean it theoretically

22

could have happened if I walked away from my

23

computer in a meeting or something.

24

don't think that's ever happened.

25

Q.

But I

When was the last time you sent a
Page 137
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

message on Facebook -- or through the Facebook

2

Messages product that included the URL?

3

MR. RUDOLPH:

Objection again.

I

4

mean these questions going to Dr. "Golberg's"

5

personal use of Facebook are beyond the scope

6

of her expert testimony.

7

Golbeck.

8

Can you just correct that

9

Sorry.

automatically in the transcript, please.

10

THE WITNESS:

11

BY MR. JESSEN:

12
13

Q.

Probably last week.

Do you remember if it had a URL

preview attached --

14

A.

I --

15

Q.

-- to it?

16

A.

Well, it did because now I pay

17

really close attention to that, right?

18

Q.

Okay.

19

A.

This case is kind of in the

20
21

forefront of my mind right now.
Q.

Right.

22

So preview -- last week you -- you

23

included the URL in a message, a preview was

24

generated, you left the preview intact and sent

25

the message.
Page 138
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

I did.

2

Q.

Okay.

And is it -- is it safe to

3

say that you've probably done that quite a bit

4

this year, sent messages with URLs that had

5

previews on them?

6

A.

I think that's fair.

7

Q.

Earlier we talked a little bit about

8

the first time you reached out to plaintiffs'

9

counsel.

10

A.

Yes.

11

Q.

Which I think you said was

12

approximately November 2014.

13

New York Times article that you read.

14
15

You referenced a

Was that the first time you became
aware of this lawsuit?

16

A.

It was.

17

Q.

Okay.

What is your understanding of

18

what the plaintiffs in this case are alleging

19

that Facebook did wrong?

20

A.

On like a high level?

21

Q.

Sure.

22

A.

That Facebook intercepted the

23

private messages and did things with them that

24

violated these laws that we talked about

25

before.
Page 139
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Okay.

Now let's -- I see you

2

already have it in front of you, but I'm going

3

to -- we're going to talk about your report a

4

little bit, which has been marked Exhibit 3.

5
6

And you -- do you recognize the
document marked as Exhibit 3?

7

A.

I do.

8

Q.

What is it?

9

A.

Looks like my report.

10

Q.

Okay.

If you turn to Page 33 of the

11

document, there's a date, and then there's a

12

signature.

13

Is that your signature?

14

A.

It is.

15

Q.

Okay.

16

You executed this on -- the

report on November 13th, 2015?

17

A.

That sounds right.

18

Q.

Is it correct that you did not sign

19
20
21
22

this document under penalty of perjury?
A.

I don't quite understand the

question.
Q.

Well, you referenced earlier in --

23

in some of your cases where you -- I think you

24

weren't an actual expert, but you were a -- you

25

submitted the declaration or an affidavit.

And

Page 140
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

normally that kind of document is submitted

2

under oath --

3

A.

Yes.

4

Q.

-- under penalty of perjury.

"I

5

declare that all the foregoing is true and

6

correct under the -- under the laws of the

7

U.S.," something like that.

8

just noticed that that was not -- that language

9

isn't anywhere in here.

10
11

And I'm just -- I

And I'm just wondering is that
correct; and if so --

12

A.

Oh.

13

Q.

-- why is that?

14

A.

I have no idea.

This is in the

15

space of like legal things that do or don't go

16

into this that I don't understand.

So --

17

Q.

Sure.

18

A.

-- if it should have been there,

19

there was no intentional reason to leave it

20

off.

21
22

Q.

Okay.

Do you believe that this --

your report is accurate --

23

A.

I do.

24

Q.

-- as you sit here today?

25

A.

Yes.
Page 141
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

Q.

Are there any changes you would want

to make to it?

3

A.

I don't think so.

4

Q.

Who prepared the report?

5

A.

I did.

6

Q.

How exact- -- tell me at a high

7

level first sort of how it -- how this document

8

came into existence.

9

A.

I wrote the whole thing.

10

in this nice format by counsel.

11

It got put

of came about in, you know, pieces.

12
13
14
15

Q.

Yeah.

It kind

When you say "pieces," what do you

mean?
A.
a time.

I drafted, you know, sections one at
So --

16

Q.

Uh-huh.

17

A.

-- the first section on my

18

qualifications, which was pretty easy --

19

Q.

Sure.

20

A.

-- for me the write.

21

Q.

Of course?

22

A.

So, you know, I worked separately on

23

each of the different main sections here and

24

then --

25

Q.

Uh-huh.
Page 142
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

-- put it all together.

2

Q.

You drafted every line of this

3
4

report?
A.

I did.

I had help from counsel on

5

my understanding of the legal concepts.

6

know, they did some copy editing.

7

draft the whole thing myself.

8
9
10

Q.

You

But I did

When you say "copy editing," what do

you mean by that?
A.

Looking for typos.

They helped

11

check a bunch of like the section references,

12

the Bates numbers.

13

proofed a lot of the quotes and things.

14
15

Q.

I'm sure they probably

Were there different drafts that

were -- that were prepared?

16

A.

I did have a lot of drafts.

17

Q.

And how many total drafts do you

18

think you had?

19

A.

Maybe 15.

20

Q.

Did each of those drafts -- did you

21

show each of those drafts to counsel?

22

A.

I don't think they saw all of them.

23

Q.

Did they -- how many did they see?

24

A.

You know, it depends where you draw

25

the line between one draft and another.

I tend

Page 143
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

to renumber every single time I get a document

2

back, even if there's not many changes or just

3

comments in it.

4
5

They probably saw the last five or
six, I would guess.

6
7

Q.

And did they -- you would send them

-- you would send -- e-mail them a draft?

8

A.

Yes.

9

Q.

And then would they revise it in any

A.

They would note if there were typos,

10
11

way?

12

that kind of thing.

13

sometimes with questions, asking for

14

clarification on certain points that I had put

15

in there.

16

They would send it back

Other than the, you know,

17

formatting, which they put it into this

18

format --

19

Q.

Uh-huh.

20

A.

-- for me, I don't recall them

21
22

really revising anything.
Q.

So is it your testimony that there

23

are not parts of this report that were drafted

24

by counsel?

25

A.

I think that's right.

Like I said,
Page 144

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

I relied on them for the legal understanding.

2

And so they worked close- -- closely with me on

3

the language there since it has to be so

4

precise.

5
6
7
8

Q.

What sections are you talking about

in particular?
A.

Let me take a look and go through

here.

9

So on Page 29, Section 8, "In the

10

ordinary course of business" -- oh, no.

11

just -- I'm sorry.

12

That's

That's citing this case.

So like at the end of that page --

13

Q.

Page 29?

14

A.

-- Page 29, I'm sure they supplied

15

me with this quote in reference to the Gmail

16

litigation.

17

Q.

Okay.

18

A.

And then on Page 32, in Section 9,

19

there's a discussion of a couple cases there in

20

Paragraph 116.

21

drafted this.

I'm sure they provided me with

22

the citation.

We've talked about that Carrier

23

IQ case before, so I haven't read it myself.

Just reading this, I definitely

24

So that's a section where they --

25

where I would have worked with them to make
Page 145
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

sure that I represented the law correctly.

2

Q.

Okay.

3

A.

Looking through here, that looks

4
5

Anything else?

like it covers it.
Q.

There is a section of this report,

6

as long as we're on this subject, starting at

7

Page 85 -- I'm sorry -- Paragraph 85 --

8

A.

Paragraph...

9

Q.

-- Page 24.

10

And we -- we'll go

through this in more detail.

11

But you have a description of sort

12

of what Facebook did internally after this Wall

13

Street Journal article was published in October

14

of 2012, a reporting on -- you know, that

15

sending a URL in a message might increment Like

16

counter by two.

17
18

Was this also a section that you -you drafted?

19

A.

I did.

20

Q.

Okay.

21
22

Okay.

And again, we'll go

through it in a little bit more detail.
Directing your attention to

23

Paragraph 12, you say:

"In preparing this

24

report, I have employed methods and analyses of

25

the type reasonably relied upon by experts in
Page 146
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

my field in forming opinions or inferences on

2

the subject.

3

upon a reasonable degree of computer science

4

certainty."

5

The opinions expressed are based

You see that?

6

A.

I do.

7

Q.

Is that true of every opinion

8

offered in this report?

9

A.

Which part of it?

10

Q.

Well, each one.

11

We can break it

out.

12

Like -- so let's start with the

13

first sentence in Paragraph 12.

14

employed methods and analyses of a type

15

reasonably relied upon by experts in my field

16

in forming opinions or references on the

17

subject.

18
19

You say you've

Is that sentence true for every
opinion you've offered in this report?

20

A.

I believe that's true.

21

Q.

And what about the second sentence,

22

for every opinion in this report, that your

23

opinion is based upon a reasonable degree of

24

computer science certainty?

25

A.

Certainly all the computer science
Page 147
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

opinions that I offer are based on a reasonable

2

degree of computer science certainty.

3

trying to think if there's anything else in

4

there.

5
6

I'm just

I think overall that's fair to say.
Q.

So you say certainly the computer

7

science opinions you offer are based upon a

8

reasonable degree of computer science

9

certainty.

10

Are there opinions in this report

11

that you would consider to not be computer

12

science opinions?

13

A.

Yeah.

14

Q.

Sure.

15

A.

-- to just think if there's anything

16

in there that wouldn't fall into that space.

17
18
19
20
21

That's why I was pausing --

As far as I consider it, I think
everything in here is computer science based.
Q.

When you say "computer science

based," what do you mean by that?
A.

That it falls within the scope of

22

things that we've discussed in the field of

23

computer science.

24
25

Q.

What does it mean to say that an

opinion is based on a reasonable degree of
Page 148
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

computer science certainty?
A.

So -- so, for example, if we talk

3

about the code, the Facebook code is the most

4

complex code system that I have ever looked at

5

by at least an order of magnitude.

6

it's crazy what's going on in that code.

7

It's --

So there are -- are conclusions that

8

I have to make as one who doesn't have the

9

entire code base in my head, which I don't

10

think anyone on earth has, including the

11

Facebook engineers.

12

So, for example, there are comments

13

in the code that describe what's going on or

14

things are named in a certain way that I rely

15

on to kind of guide my understanding that I

16

think any other computer scientist would do.

17

It could be the case that there's

18

some crazy Facebook engineer who gave

19

everything names that has nothing to do with

20

what it actually does and led me down a path

21

that kind of made sense but does something

22

different.

23

of that happening.

24
25

I think there's basically no chance

But I relied on some of these kinds
of things, which I think any computer scientist
Page 149
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

would do, you know, looking at comments,

2

looking at the names in the code that I think

3

gives a high degree of computer science

4

certainty, yeah.

5

Q.

To have a high degree of computer

6

science certainty, would you -- would you

7

actually have to -- have to look at the code

8

for a specific opinion in order to say, "Yeah,

9

I have a reasonable degree of computer science

10

certainty that this -- what I'm saying is" --

11

"is accurate"?

12

A.

I think it depends on the opinion

13

and, you know, what other evidence there is to

14

support it.

15
16

Q.

Okay.

If you could turn your

attention to Exhibit B to your report.

17

A.

It's at the very back, right?

18

Q.

Yes.

19

See that?

20

A.

I do.

21

Q.

Okay.

Is this the list of materials

22

that you relied on in forming your opinions in

23

your report?

24

A.

It is.

25

Q.

Is it a -- is it a complete list?
Page 150
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

It looks like a complete list.

2

Q.

Did you consider or rely upon any

3

other documents in forming your opinions in

4

this case?

5

A.

I certainly read more documents that

6

Facebook produced than are listed here.

7

these are all the ones that I cite as evidence

8

for my opinions.

9

Q.

But

Well, are there any documents that

10

you read but don't cite in your report that

11

support your opinions in the report?

12
13

A.

So is the question are there other

documents that would support my opinions?

14

Q.

Well --

15

A.

Or have I left --

16

Q.

Not --

17

A.

-- some out --

18

Q.

Not exactly --

19

A.

-- that I've relied on?

20

Q.

Yeah.

21

A.

I don't think so.

22

Q.

Okay.

More the second one.

You tried to be comprehensive

23

when -- when documenting the conclusions you

24

reached in this report?

25

A.

I did.
Page 151
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Okay.

The documents listed in

2

Exhibit B, did you review all of these -- all

3

of these documents before you signed the report

4

on November 13th?

5

A.

I believe I did, yes.

6

Q.

Okay.

Now, towards the top of

7

Exhibit B, you list two depositions, deposition

8

of Ray He, spelled H-E, on September 25th,

9

2015; and the deposition of Michael Adkins,

10

October 28, 2015.

11

You see that?

12

A.

I do.

13

Q.

Did you read the transcripts for

14

both of those depositions or -- sorry.

15

ahead.

16

A.

Go

So I did read the transcripts, but I

17

also virtually -- I believe I virtually

18

attended both of those depositions as well.

19

Q.

You were on a --

20

A.

Like a video thing so I could watch

21

and listen, but I -- I --

22

Q.

Right?

23

A.

-- couldn't speak.

24

Q.

Could you -- when you were doing

25

that, could you see the witnesses?
Page 152
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

I definitely could see Ray He.

2

don't remember if I had the video on for

3

Michael Adkins.

4

doing some of that "mobilely" and was just

5

listening.

6

Q.

I

7

I think I might have been like

Understood.
So you both -- you -- you listened

8

to these or watched these depositions while

9

they were happening, but then you also reviewed

10

the -- the depo transcripts?

11

A.

That's right.

12

Q.

Did you review the deposition

13
14

transcripts in full?
A.

I probably skipped over some of --

15

especially the opening kind of foundational

16

sections.

17

Q.

Okay.

You also list Exhibit --

18

again, in the documents you reviewed, Exhibit F

19

to the declaration of Alex Himel on behalf of

20

Defendant Facebook, Inc.

21

You see that?

22

A.

Yes.

23

Q.

Did you review the entire

24

declaration of Alex Himel and all exhibits or

25

just Exhibit F?
Page 153
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

I reviewed the entire declaration.

2

Q.

But I guess you're -- but you're

3

just relying upon Exhibit F to the declaration

4

in support of your opinions?

5

A.

I think that's right.

I cite --

6

there's specific pieces of code in discussions

7

with Facebook engineers that I'm pretty sure I

8

cite in here.

9

in the actually declaration that I used to

10
11

I don't think there was anything

support my opinions.
Q.

Did you consider the other parts of

12

that declaration in forming any of your other

13

opinions?

14

A.

What do you mean by that?

15

Q.

Like did you -- so it's a lengthy

16

declaration with lots of other exhibits.

17

And I guess I'm just wondering,

18

other than Exhibit F, which clearly you

19

considered and you relied on in reaching your

20

conclusions, did you consider or not whether

21

the other parts of the Himel declaration were

22

relevant to your analysis?

23

A.

I did.

And this is why I always

24

sort of struggle with these materials relied on

25

in forming my opinions, right?
Page 154
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

You know, as we discussed at the

2

beginning, there are cases that I've turned

3

down because, you know, I don't believe in the

4

merits of them.

5

this is not the most fun way for me to spend my

6

time, getting deposed, right?

7

I keep that in mind.

Like

So I -- I really won't do it unless

8

I think a case is legitimate.

9

actively look for things that I think are

10

So I -- I

contrary to what I think is true.

11

So, you know, like Alex Himel had a

12

lot to say in that declaration.

13

read it.

14

I considered it.

You know, I

I looked at it.

Here this is -- you know, the

15

exhibits are what I cited to support the

16

opinions in my report.

17

considered that and a lot of other documents

18

that aren't cited here in kind of generally

19

forming my opinions about the case.

20

Q.

But I certainly

Exhibit B also has a list of

21

documents that are -- have production numbers

22

that start with FB.

23
24
25

Do you have a general recollection
of what those documents are, just in general?
A.

So some of them I believe are
Page 155
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

printed copies of the source code.

2

are documents that came from Face- -- Facebook

3

production.

4

Other ones

So some I know are discussions

5

between engineers about code changes.

I

6

think -- I think that's actually a lot of the

7

ones that aren't source code.

8

there's a few other kind of internal Facebook

9

documentation kind of files in there.

And I think

10

Q.

Are there some e-mails included?

11

A.

Yeah.

So when I say conversations

12

between engineers, I think they actually take

13

place in the Facebook messaging system.

14

They're not allowed to e-mail each other.

15

have to use Facebook Messenger.

16

Q.

They

Did you rely on any of those written

17

communications between and among Facebook

18

engineers to draw conclusions about the

19

functionality of Facebook's source code?

20

A.

It certainly pointed me to and

21

explained what some of the source code would

22

do.

23

that mattered, I looked at the code myself as

24

well.

25

But I think, in any of the cases where

Q.

Did you make any attempt -- well, if
Page 156
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

a particular e-mail was discussing a certain

2

functionality, did you make any attempt to

3

determine the time period during which any such

4

functionality would have been operational?

5

A.

I did.

6

Q.

How did you do that?

7

A.

So those Facebook engineer

8

discussions all had dates on them.

9

pretty easy to see when that was functional.

10

So it was

If they were talking about a feature

11

that was active in say 2009 -- I know some of

12

the e-mails were from then -- I looked at other

13

versions of the source code, because we could

14

look at it across time in what we had

15

available, and looked at that as well.

16

Q.

Okay.

Now, at the bottom of Exhibit

17

B, at least the bottom of the first page, you

18

do list "Source Code Produced By Facebook."

19

A.

Yes.

20

Q.

What are you referring to there

21
22

specifically?
A.

So, as I mentioned in the -- the

23

Bates numbers that are above, some of those are

24

to specific source code files.

25

you've seen in the report, I have actual

And as I'm sure

Page 157
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

excerpts of code pasted in there.

2

So I cite to the particular files

3

that we printed when I cite particular bits of

4

code.

5

ridiculously complex.

6

of what's going on in the code is not just

7

from, you know, the three lines that I pasted

8

in but from a lot of time spent reading and

9

understanding the code and how it fits

10

But as I mentioned, the code is
And so my understanding

together.

11

I couldn't possibly cite all of

12

those lines and connections because it -- it

13

would almost be just giving you the source code

14

back.

15

So I definitely used information

16

from my review of the source code to understand

17

the individual lines that I've cited there.

18
19

Q.

have a section called "Other Materials."

20
21

And then finally on Exhibit B you

What are those, generally?
A.

External Web sites.

So some of

22

them -- there's a couple Internet archive

23

pages.

24

published on the Web.

25

Journal article that you're familiar with.

Some are Facebook documents that were
There's a Wall Street

Page 158
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Uh-huh.

2

A.

And I believe those last two

3

links -- the last one is definitely Michael

4

Hurley's Facebook profile.

5

above that may be his, too, just indexed by his

6

user ID instead of his screen name.

7

Q.

I believe the one

I see one of the items you missed.

8

Appears to be some developer guidance from

9

Facebook.

10

A.

Maybe the fourth line down.
Yeah.

I -- I'm sorry.

I would

11

count that as an internal Facebook document

12

published on the Web.

13

Q.

What do you mean by "internal"?

14

A.

Something that Facebook created.

15

So -- so I don't mean it internal as just for

16

Facebook employees, but not just something that

17

some guy posted on Facebook.

18

actually posted by Facebook itself.

19

Q.

20
21

Like it was

Right.
And it's -- it is or was available

on the World Wide Web to --

22

A.

To anyone, yes.

23

Q.

Okay.

Did you consult the developer

24

pages for all of the functionality you discuss

25

in your report?
Page 159
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

I mean a lot of the functionality in

2

the report wasn't necessarily described on the

3

developer pages.

4

looked for as much of it as I could, right,

5

because those are great things to use to

6

understand what's going on in the code.

7

A lot of it I just didn't see

8

So I think I looked for -- I

described in the developer documentation.

9

Q.

Did you review the developer

10

guidance that was in effect in 2011 and 2012

11

regarding what specific things went into the

12

counter next to a Like button social plug-in?

13

A.

Yeah.

I think we -- this is testing

14

my memory a little bit.

15

up on the Internet archive just to see it.

16

I think we also received it -- Facebook

17

produced a document that had some of that in

18

it.

19
20
21

I'm sure I looked it
But

I believe that's the case.
Q.

But you didn't rely on that?

Because I don't see it listed here.
A.

Yeah.

I -- again, we can probably

22

go through this, and I'll see it.

But I think

23

-- I think, in an initial draft of this, I had

24

-- I may even have included some of that

25

developer documentation, and then it just kind
Page 160
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

of didn't fit in -- it -- it felt like it was

2

kind of going off on a tangent, so I dropped it

3

and would have dropped the citation then.

4

Q.

Okay.

Let's touch base -- what I

5

thought we would do, although we could take a

6

break now if you want, but maybe go till 1:00

7

and then do lunch, and then I think we'll be

8

like halfway through at that point.

9

MR. RUDOLPH:

Okay.

10

MR. JESSEN:

11

THE WITNESS:

12

MR. JESSEN:

13

BY MR. JESSEN:

14
15

Q.

Okay.

Roughly.
Fine.
Does that work for you?

What -- you -- so you

reviewed source code in this case.

16

A.

I did.

17

Q.

Facebook source code.

18
19
20
21

What time period does the source
code that you reviewed cover?
A.

I just want to look in here because

I think the actual dates are in here, and I --

22

Q.

Sure.

Go ahead.

23

A.

-- just always forget that.

24

Q.

Of course.

25

A.

So looking at Paragraph 14 on Page
Page 161
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

3, I've noted here that that source code goes

2

from 2009 to December of 2012.

3
4
5

Q.

Do you know why the source code does

not go past 2012?
A.

So I -- I don't know exactly.

I've

6

been told that that's the period that Facebook

7

said was relevant.

8
9
10

Q.

agreed to the code that was actually produced,
including the time period?

11
12

MR. RUDOLPH:

THE WITNESS:

17

Lacks

I don't think I know

anything about that.

15
16

Objection.

foundation.

13
14

You understand that Plaintiffs'

BY MR. JESSEN:
Q.

You don't have any reason to think

they didn't agree to that, do you?

18

MR. RUDOLPH:

Same objection.

19

THE WITNESS:

I mean this is like

20

legal world stuff.

21

operate.

22
23
24
25

I have no idea how you guys

BY MR. JESSEN:
Q.

Understood.
You haven't seen any Facebook code

after December 2012, correct?
Page 162
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

Not in this case, no.

2

Q.

Okay.

3
4

Did you see some in the

Rembrandt case?
A.

Actually, I don't remember the --

5

the date when that stuff ended.

6

look at JavaScript code from Facebook, which is

7

sent to the browser, since then.

8

back-end code, which is what they provide, you

9

know, on the computer in the locked room, I

10

You know, I've

But the

don't recall seeing anything since 2012.

11

And, yeah, I think -- just thinking

12

through it, I think the Rembrandt case was --

13

was like 2009.

14

older code that they were looking at, so I

15

don't think I saw anything newer.

16

Q.

Okay.

Like there was -- it was much

And I -- you're not rely --

17

your opinions in this case, you're not relying

18

upon any of the code you saw in the Rembrandt

19

case for your opinions here, correct?

20
21
22

A.

That's right.

I mean there's no

overlap between anything in that case and this.
Q.

So how many times -- you understand

23

there's a -- there's a source code review room

24

at a law office in Palo Alto --

25

A.

Yes.
Page 163
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

Q.

-- where the -- where the code --

the relevant code is hosted.

3
4

How many times have you been there
to review the code?

5

A.

Twice.

6

Q.

Okay.

7

And was the first time on

August 4 of this year?

8

A.

That sounds right.

9

Q.

Who -- did anyone go with you to

10

review the code?

11

A.

12

that time.

13

Q.

14

Like the lawyers weren't with you

or...

15
16

I think I was there just by myself

A.

Oh, no.

I'm sorry.

I've done a lot

of source code review over the summer too.

17

Q.

Understood?

18

A.

Yeah.

19

Q.

Because of your other case too?

20

A.

Because of the other case.

21

Q.

Okay.

22

A.

I'm just trying to separate them

23

out.

Yeah, there were lawyers there.

24

remember who they were.

25

were a couple of lawyers there.

I'm sorry.

I don't
But there

Page 164
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

THE WITNESS:

I don't know --

2

MR. RUDOLPH:

That's okay.

3

THE WITNESS:

-- if you were there

4

or not.

5
6

They were -- most of the time they
weren't in the room with me.

7

I think --

BY MR. JESSEN:

8

Q.

Right.

9

A.

-- you know, I maybe talked to them

10

in the room with the code for the last half

11

hour.

12
13

Q.

And other than you and the

attorneys, was anyone else there that day?

14

A.

No.

15

Q.

What was the purpose of going to

16
17
18

look at the code on or about August 4, 2015?
A.

That was to start looking for

code --

19

Q.

Uh-huh.

20

A.

-- that was relevant to the

21

conclusions that are here in this report,

22

looking for how these things were handled.

23
24
25

Q.

You were looking for code that

supported the conclusions in your report?
A.

I was looking for code relevant to
Page 165
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

the things that I discuss in the report,

2

proving it or disproving it.

3
4

Q.

How long did you review the code

that day?

5

A.

Seven or eight hours, I would guess.

6

Q.

And then when was the second time

7

you reviewed the code actually at the -- at the

8

Palo Alto office?

9
10

A.

I think it was in October of this

year.

11

Q.

October 14th, 2015?

12

A.

That sounds good.

13

Q.

Could that -- could it be that?

14

A.

Ah, that's exactly when it was, yes.

15

Q.

That date sticks out in your mind

16
17
18

Could that --

for a particular reason?
A.

I ran a marathon the day before I

flew out there.

So --

19

Q.

Okay.

20

A.

-- it was a little complicated

21

travel thing, yes.

22

Q.

Which marathon?

23

A.

Chicago.

24

Q.

Nice.

25

Was it -- were attorneys there with
Page 166
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

you that day as well?
A.

David Rudolph came at the very end

3

of the day, I think the last half hour I was

4

there.

5

rest of the day.

But there were no lawyers there the

6

Q.

Was anyone else there?

7

A.

No one was in the room with me.

8

Q.

How many hours did you review the

9
10
11
12

code for that day?
A.

I'd guess it probably was the same,

seven or eight hours.
Q.

Okay.

And was the purpose of that

13

review the sort of same as the first review, to

14

look for code that was relevant to the issues

15

you were going to be opining on?

16

A.

It was.

I had a more specific set

17

of things that I was looking for.

18

mean all of it was just kind of looking at how

19

-- understanding how specific systems within

20

Facebook operated.

21
22

Q.

But yeah, I

What were the more specific things

you were looking for?

23

A.

So in particular I was looking at

24

Taste.

25

that visit.

I know I looked for code on Taste in
And then I think there were -- so
Page 167
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

I had identified a number of files on my first

2

visit that I thought were interesting, and I

3

think there were a few additional ones that I

4

wanted to make sure that I looked at and kind

5

of traced the related functionality around with

6

on that second visit, just with respect to the

7

messaging procedures in general.

8
9
10
11

Q.

So other than those two days of

reviewing the Facebook code, what other review
of the code have you done in this case?
A.

So there's a code reviewer still

12

there looking at the code who's been there for

13

months, it seems like.

14

direction.

15

He's working at my

So I -- the first time I went out

16

there -- remember you said that was August -- I

17

was the first one to look toot code.

18

Q.

Uh-huh.

19

A.

I -- as I mentioned before, none of

20

this code is -- at all overlaps with what was

21

in the Rembrandt case, but I did have a general

22

understanding of how it was structured, like

23

what kind of directories there were.

24
25

So I, you know, looked for the
messaging directories and identified the major
Page 168
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

files that I thought were associated with that.
In addition, I think on that first

3

visit I also identified the files that were in

4

Alex Himel's declaration.

5

in the declaration he sent.

6

the -- those specific files.

7

They were redacted
So I looked for

Based on that, I developed a --

8

actually a pretty good understanding of what

9

was going on.

But as I keep saying, it's super

10

complicated code.

11

reviewer has been doing is following the paths

12

that I wanted a kind of deeper verification on.

13

Because it can take hours and hours to trace

14

down those particular connections in the code.

15

So a lot of what the code

So that's -- between my first visit

16

and my second, that's mostly what he was doing,

17

really just verifying the things that I found

18

in my first visit.

19

On the second visit, there are a

20

couple of files that he had mentioned he

21

thought were relevant that I looked at.

22

And then I started looking at Taste,

23

which the code reviewer hadn't looked at, did

24

the same kind of thing.

25

understood that it worked, I looked through the

Based on how I kind of

Page 169
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

files there.

I identified the ones that kind

2

of, on a high level, looked like they were

3

relevant.

4

And I've been directing him to kind

5

of look at particular connections in the code

6

to verify that it works the way I thought it

7

did and -- to just flush out that

8

understanding.

9

In addition to that, I had pretty

10

extensive notes from my visits there.

11

spent some time just kind of putting that

12

together.

13

just jot down some notes to figure -- and then

14

figure out how it all fits together."

15

So I

Because there was a lot of, "Let's

I also have printouts of the source

16

code.

17

on my two visits there, which are the ones

18

cited here in Bates numbers.

19

Almost all of that is files that I found

I think there's one file that the

20

code reviewer found that I hadn't seen myself.

21

And -- and that's one where I reviewed the code

22

in printout form instead of on the computer at

23

the Cooley office.

24

Q.

The reviewer is David Cartt?

25

A.

That's right.
Page 170
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Are you relying on Mr. Cart's

2

representations at all about the functionality

3

of the code?

4

A.

I'm not.

5

Q.

Are you relying on his

6

representations about the actual code that he

7

reviewed?

8
9
10

A.

I -- I don't understand what that

question means.
Q.

Well, if he tells you he -- he -- "I

11

look at these ten files," I mean is that -- I

12

assume you rely on that.

13
14

A.

So I believe him that he said he

looked at them.

15

Q.

Right?

16

A.

I can't really form any opinions

17
18
19
20

based on the fact that he looked.
Q.

When you say he's working at your

direction, what do you mean by that?
A.

So we have calls frequently where

21

he'll kind of say, "Here's what I looked at

22

today.

23

Here's what seems to be happening."
And I'll ask him to spend his time

24

the next day looking at -- you know, chase down

25

this feature.

Or see how these things connect.
Page 171
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Or don't bother looking at that anymore.

2

look at this other thing.

3

Q.

Who's paying Mr. Cartt?

4

A.

I don't know.

5

Q.

Not you?

6

A.

Not me.

7

Q.

Okay.

Let's

8

What is he still looking for

in Facebook's code?

9

MR. RUDOLPH:

I'm going to instruct

10

the witness not to answer.

11

communications between the expert and counsel.

12

This goes to

BY MR. JESSEN:

13

Q.

Are you going to follow your --

14

A.

I'll -- I'll do what he says.

15

Q.

-- attorney's instruction?

16

Well, let me ask it like this:

17

Without divulging the substance, is Mr. Cartt

18

looking for source code to confirm opinions

19

you've already reached, or is he looking for

20

code to -- that would inform new opinions?

21

MR. RUDOLPH:

22

BY MR. JESSEN:

23
24
25

Q.

Same instruction.

Are you going follow your counsel's

instruction?
A.

I am.
Page 172
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Okay.

2

A.

Does anybody ever not?

3

Q.

I haven't seen it.

4

Okay.

It's not beyond

the realm of possibility.

5
6

Yes?

How much longer do you think
Mr. Cartt's going to be looking at the code?

7

MR. RUDOLPH:

Same instruction.

8

THE WITNESS:

I'll do what he says.

9

MR. JESSEN:

10

for the substance of the conversation.

11
12

Well, I'm not asking

MR. RUDOLPH:

If you know the answer

to that question, you can -- you can answer.

13

THE WITNESS:

14

really know.

15

So I don't -- I don't

won't be held to?

16

Can I give you an answer that I

BY MR. JESSEN:

17

Q.

Yeah.

I'm not going to hold you to

18

it.

I'm just trying to get a sense of how much

19

longer he's going to be looking at it.

20
21

MR. RUDOLPH:

THE WITNESS:

I would totally

have to speculate.

24
25

Oh.

speculate.

22
23

Don't -- don't

BY MR. JESSEN:
Q.

How much more time do you think you
Page 173
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

need him to look at the code?

2

You can give me a -- I don't want

3

you to guess, but you can give me your best

4

estimate.

5

MR. RUDOLPH:

Don't -- don't guess.

6

THE WITNESS:

Let me give you some

7

qualifications maybe.

8

have to guess even if -- even if I give you

9

some qualifications.

10

No.

I would totally

BY MR. JESSEN:

11

Q.

Okay.

All right.

12

A.

One answer that a Facebook engineer

13

gave in a 30(b)(6) deposition, he was asked a

14

question about how many -- "How many times have

15

you been deposed before?"

16

And he said, "More than two and less

17

than 10,000," which I thought was a little

18

snarky.

19

But I would say, in terms of days,

20

that's probably true for how long Mr. Cartt

21

will be reviewing the code.

22
23
24
25

Q.

I don't think it was less than

10,000, but...
The -- okay.

You're aware that

Facebook employees have given 30(b)(6)
Page 174
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

deposition testimony?

2

A.

Yes.

3

Q.

That included a discussion of the

4

source code functionality?

5

A.

Yes.

6

Q.

Okay.

And you were present either

7

telephonically or virtually for the deposition

8

of Michael Adkins on October 28, 2015?

9
10

A.

that deposition, yes.

11
12

I believe I was there for most of

Q.

And you read that deposition

transcript?

13

A.

Yes.

14

Q.

Did you request any source code

15

printouts based on information about source

16

code files that Mr. Adkins testified about?

17

A.

I understand the question and -- so

18

I don't -- I don't think he simply mentioned

19

something and I said, "Print that code out for

20

me."

21

You know, not having it in -- in

22

front of me, you know, just going on my best

23

recollection, most of what he went through

24

there was code I was already familiar with.

25

had either looked at it or reviewed it myself.
Page 175
Veritext Legal Solutions
877-955-3855

I

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

I'm sure he looked at some other

2

files that just didn't seem to have anything

3

relevant.

4

If there was anything that he

5

mentioned that I didn't know about, I would

6

have asked David Cartt to take a look at it and

7

print it out for me if I had to.

8
9
10
11

But I don't recall, off the top of
my head, anything specific from his deposition
that I hadn't already looked at.
Q.

Are you aware that Mr. He, Ray He,

12

which is the same as Ray He I mentioned

13

earlier, H-E, was als- -- also gave 30(b)(6)

14

deposition testimony on source code

15

functionality that same day, October 28, 2015?

16

A.

I -- I don't know that I knew that.

17

Q.

Okay.

You're not -- you didn't

18

review any testimony from Mr. He given on

19

October 28, 2015, correct?

20

A.

Not that I recall.

21

Q.

And you weren't there -- you didn't

22

appear for that deposition telephonically or

23

through the computer.

24

A.

That's right.

25

Q.

You know why -- you know why you
Page 176
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

have a -- you're not aware of that or...

2
3

A.

I don't know why

I don't know.

4
5

I -- I don't know.

Q.

Okay.

Did you review the deposition

transcript of Jiakai Liu?

6

A.

I think I've seen parts of that.

I

7

don't remember if I've read the whole thing or

8

not.

9

know I've seen parts of that, but I -- I just

I do know that he was deposed.

And I

10

don't remember if I got the whole transcript or

11

not.

12
13

Q.

What about the deposition transcript

of Mike Vernal?

14

A.

That I don't --

15

Q.

He's --

16

A.

-- believe I've seen.

17

Q.

Okay.

How much total the time do

18

you think Mr. Cartt has spent reviewing the

19

source code?

20

A.

It's hard for me to tell because

21

I -- I know part of the time he's there

22

part-time, and he works on some other cases.

23

Probably a couple hundred hours, I would guess.

24

Q.

25

Who is -- do you know a Gary

Stringham?
Page 177
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

I do.

2

Q.

Who is he?

3

A.

He's another code reviewer.

4

Q.

And was he -- was he also reviewing

5

the Facebook code at some point in this case at

6

your direction?

7

A.

He was.

8

Q.

But at some point he stopped doing

9

the code, and the code review went to

10

Mr. Cartt?

11

A.

Yes.

12

Q.

What was the reason for the switch

13

from Mr. Stringham to Mr. Cartt?

14

MR. RUDOLPH:

I'm going to instruct

15

the witness not to answer that.

16

MR. JESSEN:

17

MR. RUDOLPH:

On what grounds?
It goes to

18

communications between attorneys and Dr.

19

Golbeck.

20
21

BY MR. JESSEN:
Q.

Do you have an understanding,

22

separate an apart from any communication you've

23

had with plaintiffs' counsel, regarding why

24

Mr. Stringham stopped doing the code review?

25

A.

No.

I think it's all stuff that
Page 178
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

we've talked about.
Q.

Do you know how long Mr. Stringham

3

reviewed the source code -- Facebook source

4

code?

5

A.

I think it was a few weeks that he

6

was out there looking at it, but I don't really

7

remember beyond that.

8

Q.

And I forgot to mention this

9

earlier, but when he instructed you not to

10

answer earlier, you're going to follow his

11

instruction?

12

A.

I am.

13

MR. JESSEN:

Okay.

14

we're at a good stopping point.

15

THE WITNESS:

16

THE VIDEOGRAPHER:

17

Okay.

I think

Great.
Off the record at

12:54.

18

This is the end of Media Unit No. 2.

19

(A lunch recess was taken.)

20

THE VIDEOGRAPHER:

21

On the record at

1:50.

22

This is the beginning of Media Unit

23

No. 3 in the deposition of Dr. Jennifer

24

Golbeck.

25

BY MR. JESSEN:
Page 179
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Okay.

Welcome back, Dr. Golbeck.

2

A.

Thanks.

3

Q.

If you could direct your attention

4

to Paragraph 16 of your report, which is

5

Exhibit 3, starting on Page -- the bottom of

6

Page 3.

7

A.

Yep.

8

Q.

Paragraph 16 of your report lists

9
10

the issues you have been asked to opine on; is
that correct?

11

A.

That's correct.

12

Q.

All right.

Let's just briefly walk

13

through these.

14

"The structure and function of Facebook's

15

messaging system."

16

You -- number -- or Letter A:

Do you see that?

17

A.

Uh-huh.

18

Q.

That's one --

19

A.

Yes.

20

Q.

-- issue you've been asked to opine

22

A.

It is.

23

Q.

During what period of time have you

21

on?

24

been asked to opine on the structure and

25

function of Facebook's messaging system?
Page 180
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

So I've -- I've looked at it really

2

throughout the -- the time that the code and

3

the documents covered, which I believe

4

basically go back to 2009.

5

Q.

Okay.

6

A.

So I've provided opinions on that

7

whole period but obviously focused on the class

8

period, which I believe starts in2000 -- end of

9

-- very end of 2011.

10

Q.

Okay.

So you're starting -- you've

11

-- I understand you've looked at documents and

12

code going back to 2009.

13
14

But how far in the -- in the future
then from 2009 are you going --

15

A.

Oh.

16

Q.

-- specifically with respect to your

17

opinion on the structure and function of

18

Facebook's messaging system?

19

A.

So I have a few documents from post

20

2012 that I've considered, but I think the bulk

21

of the material I have, including the source

22

code, only goes up to December of 2012.

23

Q.

Okay.

Would you feel comfortable

24

opining on the structure and function of

25

Facebook's messaging system after 2012?
Page 181
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

So it depends on the questions that

2

you have for me.

3

that I think I'd be very comfortable with.

4

others, depending on how detailed the question

5

is --

6

Q.

There are some things that -And

You're not assuming that the code

7

that exists now is the same as it was in 2012,

8

are you?

9

A.

I'm sure the code has changed.

The

10

-- my -- my understanding -- and again, this is

11

getting into legal details -- is that the code

12

that is -- that we were provided, which goes up

13

I think to December 30th, 2012, is the code

14

that Facebook thought was relevant.

15

what I have to go on.

16

Q.

So that's

Right.

17

But again, my question is you're not

18

assuming the code in existence now is the same

19

it was -- as it was in 2012.

20

that assumption.

21

Or are you?

22
23

A.

No.

I'm -- I'm certain that there

have been changes to the code since 2012.

24
25

You're not making

Q.

You don't know what those changes

are?
Page 182
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

No.

2

Q.

Okay.

B on Page 4, the second topic

3

you've been asked to opine on is:

4

interception of private message content."

5

"Facebook's

You see that?

6

A.

I do.

7

Q.

What do you mean by the word

8
9

"interception"?
A.

So my understanding, as it applies

10

here, is essentially that it's the redirection

11

of the private message content to be used by

12

code that's -- that's not related to or

13

necessary for the delivery of the private

14

message.

15
16
17

Q.

What do you mean by redirection of

the private message content?
A.

That the content of the message --

18

I'm just trying to think how to rephrase that

19

because it makes sense to me.

20

The content of the message is sent

21

to code that is -- that performs some other

22

purpose than delivering the message.

23
24
25

Q.

Content of the message is sent to

Facebook code?
A.

In this case, we're talking about
Page 183
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Facebook code.

2

if it were third party code, too, depending.

3

Q.

I think my analysis would apply

But you're not claiming that

4

Facebook is redirecting the content of private

5

messages to third parties, are you?

6
7
8
9

A.

That's correct.

I'm not claiming

that.
Q.

Okay.

So when you talk about an

interception, you're talking about the

10

redirection of private message content within

11

another part of Facebook for purposes that you

12

think are necessary to deliver the message?

13

A.

That's a fair summary, yes.

14

Q.

Okay.

15

What do you mean when you --

when -- by "private message content"?

16

A.

What's unclear about that?

17

Q.

I'm not saying it's unclear.

I'm

18

just trying to figure out what you're --

19

what -- what specifically you're talking about.

20

A.

Oh.

I'm not trying to be snarky,

21

but I would say it's the content of private

22

messages.

23

detail --

24
25

Q.

I -- I -- I'm just not sure what

So everything that I type into -- if

I send you a message, everything that I type
Page 184
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

into the text box --

2

A.

Would be content.

3

Q.

That's the contents?

4

A.

Yeah.

5

Q.

Okay.

6

A.

-- discussing before, we were

7

As we were --

talking about the URL attachments, which are --

8

Q.

Right.

9

A.

-- obviously core at issue here.

10

would consider those part of the message

11

I

content.

12

Q.

13

Okay.

That's what I'm getting at.

So that's -- you think -- your view

14

is an attachment of a URL preview is also

15

content.

16

A.

That is, yes.

17

Q.

Okay.

Were you asked to assume that

18

there would have been a, to use your term,

19

interception?

20

A.

No.

21

Q.

Okay.

22

You reached that conclusion

on your own?

23

A.

I did.

24

Q.

Going back to Paragraph 16, you have

25

a sub-bullet point -- or not a bullet point -Page 185
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

but a sub Roman numeral.

It says:

"Whether in

2

what devices Facebook employs to intercept

3

message content."

4

A.

Yes.

5

Q.

What do you mean by "devices"?

6

A.

So in this case, code that, as I

7

said before, is not code used to deliver the

8

message.

9
10

Q.

It's basically separate code.
You've also been asked to opine on

whether the interceptions occurred in transit?

11

A.

Yes.

12

Q.

What do you mean by "in transit"?

13

A.

So whether that redirection of the

14

content to that code --

15

Q.

Yeah.

16

A.

-- took place when the message was

17

not in storage.

18

that message would send and it was delivered to

19

the recipient, that -- that would be the

20

transit period if it was done when the message

21

was between those phases and not in storage.

22

Q.

Uh-huh.

So basically between the point

What -- what do you mean

23

when you say "in storage"?

24

storage are you talking about?

25

A.

What kind of

So in this case, I would be talking
Page 186
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

about, you know, stored in a database, some

2

type of permanent storage where the message

3

kind of sits and is held and can be accessed

4

later.

5

Q.

Uh-huh.

Okay.

You were also asked

6

to opine on whether the interception of private

7

message content was necessary for Facebook to

8

deliver private messages?

9

A.

Yes.

10

Q.

What do you mean by "necessary"?

11

A.

Since these are messages going

12

through Facebook, right, I type it in the

13

Facebook Messenger.

14

by Facebook to another user.

15

I send it.

It's deliver

Facebook obviously has to have that

16

message in order to deliver it, right?

17

fact that Facebook had and delivered the

18

message doesn't mean that it was an

19

interception that -- that would cause any

20

problems under the issues that are at stake

21

here.

22

So the

So I was really looking at if the

23

content of the message was passed to code and

24

the code was not a necessary part of that

25

delivery process.
Page 187
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Is it your understanding that that's

2

a -- that whether or not the code was val- --

3

was necessary for the delivery process, is it

4

your understanding that that's -- that's a --

5

somehow important to the -- to the lawsuit?

6
7
8

A.

important to the lawsuit.
Q.

9
10

It's my understanding that that is

In what way?
MR. RUDOLPH:

Objection.

Calls for

legal conclusion.

11

BY MR. JESSEN:

12

Q.

You can answer.

13

A.

Okay.

So yeah.

I -- I don't want

14

to give too much of a legal opinion.

My

15

understanding of the law is that, if Facebook

16

took the message content and, say, put it

17

through a spam filter, which is one issue that

18

we've talked about --

19

Q.

Uh-huh.

20

A.

-- that that wouldn't necessarily

21
22

constitute a legal problem here.
I haven't really analyzed the spam

23

filters in particular, but there are processes

24

which could be necessary towards the

25

functioning of the messaging system and others
Page 188
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

that aren't.

2

And this -- whether or not it's

3

necessary, my understanding, is important for

4

whether or not these laws were violated.

5

Q.

So your understanding is that, if a

6

message is processed for a reason that's not

7

necessary to the delivering of the message,

8

that the two laws at issue in this case are

9

violated?

10
11

MR. RUDOLPH:

Objection.

Calls for

legal conclusion.

12

THE WITNESS:

I feel like there's a

13

lot of subtlety not captured in what you just

14

said.

15
16

BY MR. JESSEN:
Q.

Well, I'm just trying to -- I'm

17

trying to understand why you think it's

18

important whether or not a specific

19

functionality was necessary for the delivery to

20

the -- delivery of the message.

21

you said that you thought that was like an

22

important issue in the case.

23

And I think

And so I'm just asking you like is

24

it your -- are you under the impression -- I'm

25

not trying to put words in your mouth -- that,
Page 189
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

if a process -- an electronic process takes

2

place on a message -- on a Facebook message

3

that's not necessary to delivering the message,

4

that that violates the statutes at issue in

5

this case?

6
7

MR. RUDOLPH:
legal conclusion.

8
9

Objection.

Calls for

Asked and answered.

THE WITNESS:

So if I can rephrase

that maybe to better reflect my understanding.

10

BY MR. JESSEN:

11

Q.

Sure.

12

A.

It's that, if the message is

13

intercepted and processed by some code, and

14

that code is necessary for the delivery, it's

15

my understanding that the lawsuit at issue in

16

this case would not be violated.

17

of flipping around what you said.

18

So it's kind

I -- from the way that you phrased

19

it, if it's intercepted by code that's not

20

necessary, I think other things have to be true

21

for the laws to be violated.

22

Q.

What other things?

23

A.

For example, bullet point B2 there,

24
25

that it has to occur in transit.
Q.

So your understanding is, if there
Page 190
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

is some electronic process that occurs in

2

transit that's not necessary to delivering the

3

message, then that would violate these laws.

4
5

MR. RUDOLPH:

Objection.

Calls for

legal conclusion.

6

THE WITNESS:

7

pushing my legal education here.

8
9

Yeah.

You're really

So I think those things need to be
true.

My understanding of the law is that

10

there also has to be a device that does that

11

interception.

12
13
14

BY MR. JESSEN:
Q.

Is it necessary to filter messages

for spam in order to deliver them?

15

MR. RUDOLPH:

Objection.

16

THE WITNESS:

What do you mean by

17

"necessary"?

18
19

Form.

BY MR. JESSEN:
Q.

Well, you're talking in your report

20

about things that are necessary.

And so I'm

21

using it in the same way you're using it.

22

Can I -- can Facebook

23

technologically deliver private messages

24

without filtering them for spam?

25

A.

So to that question, can Facebook
Page 191
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

technologically deliver messages --

2

Q.

Uh-huh.

3

A.

-- without filtering them for spam,

4
5

they can.
Q.

Okay.

But you're not of the view, I

6

gather, that filtering messages for spam

7

violates these laws, are you?

8
9

MR. RUDOLPH:

Objection.

Form.

Calls for legal conclusion.

10

THE WITNESS:

I haven't formed an --

11

I haven't stated an opinion on that either way

12

here.

13

implemented, whether or not it would violate

14

these laws.

15

I suppose it could depend on how it's

I haven't thought deeply about it.

I could see it going either way.

16

It's not the basis of my conclusions here

17

though.

18
19

BY MR. JESSEN:
Q.

20

Understood.
Okay.

Going down to the next

21

subpoint, C, Facebook's subsequent use of that

22

private message content, that's something else

23

you've been asked to opine on.

24
25

What do you mean by "use"?
A.

What Facebook does with the content
Page 192
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2
3
4

that is intercepted from the private messages.
Q.

And what content are you referring

to specifically?
A.

So most of -- I think most of what I

5

address in here is the information about the

6

URLs that are attached in those messages.

7

Q.

So the -- the URL attachment.

8

A.

Yes.

9

Q.

What's the difference, in your mind,

10
11

between an interception and subsequent use?
A.

That the interception is actually

12

collecting the content and using it as

13

deploying it in some way.

14
15

Q.

What do you mean by "collecting the

content"?

16

THE WITNESS:

Yeah.

Can you read

17

back to me what I -- what my answer just was?

18

Because I was trying to phrase that, and then

19

it all just went out of my head.

20

MR. JESSEN:

I --

Maybe the court

21

reporter would read it back, her answer

22

beginning with "That the interception."

23

Or if -- you know, I can do it.

24

BY MR. JESSEN:

25

Q.

So I asked you:

"What's the
Page 193

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

difference, in your mind, between an

2

interception and subsequent use?"

3

And your answer was:

"That the

4

interception is actually collecting the content

5

and using it" -- "using it as deploying it in

6

some way."

7

A.

8

Yeah.

That's not the most artful

answer there.

9

So the quest- -- just -- just so I'm

10

clear in my head, the question is the

11

difference between intercepting and using?

12

Q.

Correct.

13

A.

So maybe I can address it the way

14

that I have in the report, and we'll see if

15

that answers your question.

16

Q.

Sure.

17

A.

So -- actually, let me do it this

18

way.

Give me one second.

19

Q.

Of course.

20

A.

So the way that I presented it

21

here -- because I've separated them out into

22

two different sections.

23

interception.

24

hopefully that -- this will clarify what I see

25

as the difference.

Section 3 is on the

Section 4 is on the use.

So

Page 194
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

What I've addressed in Section 3 on

2

the interception is basically collecting,

3

logging, storing information about the private

4

message content.

5

specific things if you want, but that's a

6

general answer.

And we can talk about the

7

Q.

Uh-huh.

8

A.

In Section 4 where I'm talking about

9

the use, I'm talking about, once that "dorta"

10

-- once -- once that data was stored, what did

11

Facebook use it for elsewhere in the system.

12

And I talk specifically about how

13

it's used for recommendations and then the

14

social plug-ins.

15

is stored and collected, what do they do with

16

it.

17

Q.

So basically, after the data

And when -- in that answer when you

18

talk about once the data is stored, you're

19

referring there to persistent storage?

20

A.

So it is persistent storage that I'm

21

talking about there.

22

different than the storage question we were

23

discussing before.

24
25

Q.

That's a little bit

Right.
I'm just -- I just want to
Page 195
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

understand, when you say -- when you talk about

2

uses of private message content, what you mean

3

by that.

4

And this is -- tell me if I'm wrong,

5

but the distinction you're drawing between the

6

interception and the use is uses refer to

7

things that are done with the private message

8

content after that information is in permanent

9

or persistent storage.

10

A.

Which information?

11

Q.

The private message content which

12
13
14

you're saying is intercepted.
A.

I -- I don't think -- I'm not sure

that we're talking about the same thing.

15

Q.

Okay.

16

A.

So -- so I'm not talking about the

17

Help me.

message being in permanent storage.

18

Q.

Okay.

19

A.

Right?

I'm talking about, in this

20

case, the message is intercepted -- and I don't

21

know.

22

we're talking about content -- information

23

about that message is logged or otherwise

24

recorded.

25

Q.

Maybe to get into specifics to help,

So not the message itself.
Uh-huh.
Page 196
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

But --

2

Q.

Okay.

3

A.

-- in this case, information about

4

the URLs.

5

Q.

Uh-huh.

6

A.

The use -- when I'm talking about

7

the use of that information, I'm talking about

8

the use of the data produced from the

9

interception, basically.

10

Q.

Uh-huh.

11

A.

And that is in storage, the logs

12

that came from the sharing of the messages, the

13

other data that's recorded there.

14

So I don't know if that --

15

Q.

Yeah.

16

A.

Okay.

17

Q.

I understand.

18
19

No.

And that's -- that's in persistent
storage?

20

A.

I believe that's true, yes.

21

Q.

Okay.

22

worry.

23

a little more detail.

24
25

Okay.

Yeah.

And don't

We'll -- we'll delve into this in -- in

Going back to Paragraph 16.
A.

Uh-huh.
Page 197
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

One other issue that you have been

2

asked to opine on is whether the class members

3

can be readily determined based on Facebook's

4

own records?

5

A.

Yes.

6

Q.

Who do you understand to be the

7
8
9

proposed class members?
A.

So my understanding is that it's

people since the start of the class period who

10

have sent private message on -- private

11

messages on Facebook with URL attachments.

12
13

Q.

And the start of the class period is

December 30th, 2011?

14

A.

That's my understand.

15

Q.

Two years before the lawsuit was

16

filed?

17

A.

Right.

18

Q.

To -- do you know when it end --

19
20
21
22

when the class ends, the proposed class?
A.

I'm not exactly sure, and it may go

up to the present.
Q.

You also have an understanding that

23

it's not just people who have sent private

24

Facebook Messages but also recipients of those

25

messages with URL -Page 198
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

Oh, yeah.

I --

2

Q.

-- with URLs?

3

A.

I believe that's the case, yes.

4

Q.

Okay.

Then finally you've been

5

asked to opine on whether the Face- -- whether

6

Facebook's unifor- -- whether Facebook

7

uniformly processed private messages during the

8

relevant period.

9

And what do you mean -- when you

10

talk about the relevant period there, what is

11

that period?

12

A.

The class period.

13

Q.

Okay.

14

So December 30th, 2011, up to

the present day, potentially?

15

A.

Potentially.

16

Q.

And I know we talked a little bit

17

about this earlier, but do you feel competent

18

to give opinions about Facebook's messaging

19

system after December 2012 to a reasonable

20

degree of computer science certainty?

21

MR. RUDOLPH:

Objection.

22

THE WITNESS:

I understand the

23
24
25

question.

Form.

I'm -- just give me a second.
So I've looked at the code certainly

from the beginning of the class period up
Page 199
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

through the end of the time the source code was

2

provided.

3

period.

4

So I can speak solidly on that

I'm left with basically what I've

5

been told, which is that Facebook said that was

6

the code that was relevant for the class

7

period.

8

If that's the case, then -- and --

9

and here we're getting into kind of how I've

10

been informed about the process of this case

11

going, right?

12

So if it's the case that Facebook

13

says the code that's relevant is -- is this

14

code, and it goes through December 30th, 2012,

15

that makes me believe that Facebook thinks

16

there were no relevant changes since that

17

period or else I would have seen that code.

18

I would love to see that code, for

19

what it's worth.

20

assertions beyond what I've been able to look

21

at.

22

Q.

But I can't make any certain

So it sounds like that's a long way

23

of saying no, which -- which to go back to my

24

question, do you feel competent to give

25

opinions about Facebook's messaging system
Page 200
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

after December 2012 to a reasonable degree of

2

computer science certainty?

3
4

MR. RUDOLPH:

Objection.

Form.

Misstates prior testimony.

5

THE WITNESS:

6

BY MR. JESSEN:

7

Q.

So --

And I -- I -- because we're limited

8

on time, I mean I -- I understand what you've

9

said about what you've been informed and

10

whatnot.

11

I just want to know can -- do you

12

feel comfortable or competent to give me

13

opinions on the messaging system after December

14

2012 to a reasonable degree of computer science

15

certainty?

16
17

MR. RUDOLPH:

Object to form.

Asked

and answered.

18

THE WITNESS:

Yeah.

I mean it's --

19

I would like a stronger answer on this

20

question.

21

didn't produce any code after 2012 because they

22

don't think there's any relevant code there,

23

then I would be very certain about this.

24

Facebook doesn't think there's anything

25

interesting for me to see since that point.

Like if it's the case that Facebook

Page 201
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

If there's some other reason that

2

Facebook hasn't produced code since 2012, then

3

I'm kind of left in the dark.

4
5

So it depends on the answer to this
question --

6

BY MR. JESSEN:

7

Q.

So --

8

A.

-- right?

9

So I've been informed

that that's the case, that Facebook said this

10

is all the relevant code.

And if that's the

11

case, then I can make that determination.

12

But I feel like there's legal things

13

going on that are -- are different from what I

14

might want to have access to.

15

so based on what I've been told, I'll make that

16

conclusion.

17

that I don't know about, then -- then I could

18

see there being, you know, a different

19

conclusion potentially to draw starting in

20

2013.

21

And -- you know,

If there's other things going on

I'm -- I really want to answer your

22

question, but I feel like this is -- you know,

23

there's not just science happening in this

24

space in terms of what I've been given access

25

to.
Page 202
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

2

Right.
So you feel comfortable giving

3

opinions about the operation of Facebook's

4

messaging system after December 2012 only on

5

the assumption that there have not been any

6

material changes since that time; is that fair?

7

A.

That's definitely fair.

8

Q.

But otherwise, if that weren't

9
10

correct, then you probably wouldn't feel
comfortable doing that.

11
12

MR. RUDOLPH:
prior testimony.

13
14

Objection.

Misstates

Asked and answered.

THE WITNESS:

I would certainly want

to see something from 2013 on.

15

BY MR. JESSEN:

16

Q.

Uh-huh.

17

A.

If -- if I were informed that the

18

Facebook code had substantial changes in the

19

messaging architecture since then, I would like

20

to see the code.

21

documentation that might stand in place of the

22

code, but I would want more of that information

23

than I have now.

24
25

Q.

I could potentially see other

Let me ask you this question:

There

are a number of practices -- and we're going to
Page 203
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

get into them -- which you describe in your

2

report and -- and say at one point have

3

happened at Facebook.

4

Can you tell me, to a reasonable

5

degree of computer science certainty, whether

6

those things are still happening today?

7
8

A.

So we're talking about the -- the

things in the section on use, for example.

9

Q.

Yeah.

10

A.

I -- I know we'll get into them

11

specifically, but in --

12

Q.

Yeah.

13

A.

-- Section 4.

14

Q.

We'll get into it in more detail,

15
16

Yeah, so --

but I just want to start at a high level.
A.

Yeah.

The answer's no.

So I was

17

able to verify, you know, for some of them,

18

2010, 2011, that those practices were

19

happening.

20

Q.

Right.

21

A.

Have not been able to find yet in

22

the code whether it's still happening or not.

23

And there's evidence that makes me believe it

24

is, but I haven't been able to verify that with

25

any degree of certainty.
Page 204
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Okay.

Okay.

So now let's look at

2

Paragraph 17.

These are the opinions -- an

3

overview of the opinions that you're actually

4

offering, correct?

5

A.

That looks right.

6

Q.

Okay.

So we're going to get into A:

7

"The structure and function of Facebook's

8

messaging description is described in detail in

9

Section 3 below."

10

We'll go talk about that.

Your second conclusion, B, is:

11

"Facebook intercepted and redirected users'

12

private message content using various

13

code-based devices while the message was in

14

transit, and this interception was not

15

necessary for Facebook to deliver private

16

messages."

17

See that?

18

A.

I do.

19

Q.

There you -- you use the words both

20

"intercepted" and "redirected."

21

Were you drawing a distinction

22

between those two things, or are they -- are

23

you describing the same -- do they describe the

24

same thing?

25

A.

I think I'm describing the same
Page 205
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

thing there.
Q.

Part of the conclusion is that

3

Facebook intercepted and redirected users

4

private message content using various

5

code-based devices.

6

A.

Uh-huh.

7

Q.

What does that mean, "code-based

8
9

devices"?
A.

So we discussed devices back up in

10

Paragraph 16.

I was asked to give an opinion

11

if there was a device -- in B1 --

12

Q.

Uh-huh.

13

A.

-- whether and what devices --

14

Q.

Right.

15

A.

-- Facebook employs.

So this is the

16

code that intercepts the messages.

17

That's what

the code-based devices are.

18

Q.

The Facebook source code.

19

A.

Specific parts of the Facebook

20
21
22

source code.
Q.

Uh-huh.

Have you ever used the term

"code-based devices" in your academic career?

23

A.

I don't think so.

24

Q.

Why not?

25

A.

This is not the kind of thing I
Page 206
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

study.

2

don't think, yeah.

3
4

I don't write about code at all, I

Q.

Why are you using that terminology

here "various code-based devices"?

5

A.

I don't understand the question.

6

Q.

Well, I guess it makes sense -- if

7

you were saying -- if you were describing

8

something that the source code were -- was

9

doing, I could understand that.

10

But why are you referring to

11

portions of the source code, lines of source

12

code as devices?

13

A.

So I was asked to give an opinion on

14

whether there were devices that intercepted

15

messages.

16

Q.

Right.

17

A.

There are things that intercept

18

messages.

19

And my understanding of "device," as I was

20

asked to give an opinion on, is that these

21

particular lines of code would be that device

22

that's doing the interception.

23

Q.

That's these specific lines of code.

You were -- you were asked to assume

24

that lines of source code could be a device, or

25

you reached that conclusion independently?
Page 207
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

I was not asked to assume anything.

2

I was asked to give an opinion on if Facebook

3

had a device that intercepted messages.

4

found lines of code that I believe intercept

5

the messages.

6

opinion on a device.

7

code is the device that does the interception.

8
9
10

Q.

I

And so I was asked to give an
Yeah, it seems like that

But you've never referred to source

code previously in your academic career as a
device, have you?

11

A.

That's correct.

12

Q.

What is a device?

13

A.

It's a thing that does a thing.

14

Q.

Okay.

Your conclusion C is:

15

"Facebook used the intercepted private message

16

content to provide recommendations to Facebook

17

users and to provide analytics to third-party

18

developers and Web sites as well as increment

19

the Like social plug-in counter."

20

You see that?

21

A.

Yes.

22

Q.

What do you mean by

23

"recommendations"?

24

A.

Suggesting content.

25

Q.

What kind of content specifically?
Page 208
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

So I believe in this case we're

2

talking about suggesting URLs that other users

3

would be interested in seeing.

4

Q.

And by the way, is it fair to

5

assume -- and again, we'll get into it in more

6

detail.

7

But when you talk about the

8

intercepted private message content, you're

9

talking about the URL attachment?

10

A.

I think that's safe, yeah.

11

Q.

Okay.

You also talk about your

12

conclusion is that Facebook used this content

13

to provide analytics to third-party developers

14

and Web sites.

15

What do you mean by "analytics"?

16

A.

Let me just go to that section.

17

Q.

Sure.

18

A.

So I discuss this -- and I'm sure

19

we'll get there eventually --

20

Q.

Yes.

21

A.

-- in the section on in- -- the

22

"Insights in Developer API" that provides

23

information about how users are interacting

24

with particular URLs and potentially breakdowns

25

of demographic information based on that
Page 209
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

activity.
Q.

None of that information that you're

3

referring to when you talk about analytics is

4

personally identifiable information, is it?

5

A.

I don't believe it is.

6

Q.

Okay.

7
8
9

That would be sort of

aggregated, anonymous data?
A.

In general, I think that's right.

I -- you know, I can think of some edge cases

10

that may have ended up being personally

11

identifiable, but that's the exception and not

12

the rule.

13

Q.

Okay.

You talk about providing

14

analytics to the third-party developers and Web

15

sites.

16

A.

Uh-huh.

17

Q.

Are you drawing any kind of

18

distinction between third-party developers and

19

Web sites?

20

A.

Let me make sure before I --

21

Q.

Sure.

22

A.

-- answer that.

23

So I don't think I've drawn a

24

distinction here.

I think with that section,

25

flipping back through here, I'm -- I'm
Page 210
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

referring particularly to the API queries.

2

Q.

Okay.

3

A.

I -- I believe that's what I'm

4
5
6

referring to there.
Q.

And do you understand the API

queries to be different than the insights?

7

A.

Yes.

8

Q.

What's your understanding of the

9
10

difference between those two things?
A.

So insights was really a -- I think

11

of it as a dashboard, right?

12

go look at statistics.

13

at which you can write code to interact with

14

and make queries to Facebook.

15

A place you can

The API is just a point

I don't know that -- there's

16

certainly some overlap in the data that you can

17

get from either.

18

what the data is.

19

need the dashboard, and you -- you're writing

20

code with an API query.

21

Q.

I don't think it's the same,
But with the insights you

And you understand that, with the

22

insights, that was information that was

23

available to the owner of that particular

24

domain?

25

A.

That's my understanding of it, yes.
Page 211
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Okay.

Okay.

And then your final

2

two conclusions, which I'm not going to get

3

into in detail now, but we'll -- we'll touch on

4

it a bit:

5

from Facebook's own records using various query

6

methods and through self-identification," and,

7

"Facebook source code operated consistently

8

during the relevant period," correct?

"Class members can be determined

9

A.

Yes.

10

Q.

Do you have any understanding as to

11

the relevance of your conclusions to

12

plaintiffs' motion for class certification?

13
14

A.

I'd I have a high-level

understanding.

15

Q.

What is it?

16

A.

That for class certification -- so

17

am I -- are you asking kind of in general for

18

all of these conclusions?

19

Q.

Sure.

20

A.

Okay.

So that last point, that the

21

class members can be determined, it's my

22

understanding that that speaks to

23

ascertainability, which is necessary for class

24

certification.

25

And the conclusions about
Page 212
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

intercepting the message with a device in

2

transit, I don't know that that has to do with

3

the class but has to do with whether Facebook

4

is doing what they're accused of doing.

5

I don't understand the -- like all

6

the in-depth legal issues, but I don't know if

7

they'd certify a ascertainable class if they

8

didn't think Facebook was doing anything wrong.

9

So it seems like the two go together.

10

Q.

Do you intend to offer any other

11

opinions or conclusions other than those listed

12

in your report?

13

A.

Like ever?

14

Q.

Well, in this case.

15

A.

Okay.

16

I meant that.

So my understanding is that

17

discovery is still open.

18

possibility that I may come across new

19

information.

20

Q.

So I think there's a

Do you have -- you have any other

21

opinions now that you're aware of that you are

22

planning to give that are not reflected in this

23

report?

24

A.

Not right now.

25

Q.

Okay.

I don't think so.

Since you finalized your
Page 213
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

report, have you conducted any additional

2

research or reviewed any additional documents

3

related to this matter?

4
5

A.

We're certainly still reviewing

source code, and I've --

6

Q.

Right.

7

A.

-- been talking to David Cartt --

8

Q.

Uh-huh.

9

A.

-- and guiding him through what to

10

look at there.

11

I don't believe I've looked at any

12

new documents from Facebook since submitting

13

the report.

14

been any.

15

Q.

And I don't know if there have

In the course of your review and

16

analysis in this case, have you seen any

17

evidence that Facebook ever -- Facebook ever

18

used URLs shared in private messages to deliver

19

user profiles?

20

MR. RUDOLPH:

21

BY MR. JESSEN:

22
23
24
25

Q.

Sorry.

Objection.

I meant develop.

Vague.

Develop

user profiles.
A.

Oh.

You know, it depends what you

mean by a user profile.
Page 214
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2
3

Q.

Well, what do you -- what does that

mean to you?
A.

So I have seen evidence that there's

4

data recorded about specific users and the URLs

5

that they shared in a database.

6

In a way that it could be -- I mean

7

I could actually write the one line of code,

8

having seen the Facebook code, that would allow

9

me to pull up for a user a list of all the URLs

10

that they had shared.

11

legitimately could be called a user profile.

12

I think that

I haven't seen that query itself in

13

the Facebook code.

14

data is there makes me feel like there -- that

15

we're pretty close to having a user profile

16

from the record of those URL attachments.

17

Q.

But the fact that all that

Doesn't Facebook -- I mean Facebook

18

Messages are sitting on Facebook servers,

19

right?

20

A.

Yes.

21

Q.

So they have all the messages that

22
23
24
25

anyone on Facebook has ever sent, right?
MR. RUDOLPH:

Objection.

Lacks

foundation.
THE WITNESS:

It's my understanding
Page 215

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

that that's true.

2
3
4
5
6
7

BY MR. JESSEN:
Q.

Do you consider that to be a user

profile as well?
A.

I would not nec- -- no.

I don't

think I'd consider that to be a user profile.
Q.

Do you have -- have you seen any

8

evidence that Facebook ever used URLs shared in

9

private messages to develop user profiles for

10

the purpose of deliver -- delivering targeted

11

advertising?

12

MR. RUDOLPH:

Objection.

13

THE WITNESS:

Again, depends on your

14

definition of "targeted advertising."

15
16

Is there a particular kind that
you --

17
18

Vague.

BY MR. JESSEN:
Q.

Well, you've studied this.

You have

19

some -- what do you understand "targeting

20

advertising" to mean?

21
22

A.

Yeah.

I mean we define our own

things in research.

23

Q.

Right.

24

A.

So, you know, I'd say we have, for

25

example, Facebook recommending URLs to people
Page 216
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

based on data gathered from private message

2

shares.

3

of targeted advertising, that Facebook is

4

advertising these URLs to users.

I think that can be considered a form

5

Q.

But would --

6

A.

I'm not sure if that's what you're

7
8

asking.
Q.

Well, no.

9

I mean you actually think that that

10

was -- someone suggesting a URL was a form of

11

advertising?

12

MR. RUDOLPH:

Objection.

13

THE WITNESS:

I mean academically we

14

Form.

totally would count that in the space of --

15

BY MR. JESSEN:

16

Q.

Okay.

17

A.

-- recommender systems.

I mean

18

because you think about it like Amazon

19

recommends you something.

20

advertising that thing to you.

21
22
23

Q.

It's totally

But they're -- they're recommending

something that you should buy.
A.

Yeah.

So if -- if you want to

24

restrict this to people buying things.

25

But

academically -Page 217
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Well --

2

A.

-- we don't make that distinction.

3

Q.

-- let's talk -- I mean earlier you

4

talked about a Web site that you developed when

5

you were doing your thesis, and you said there

6

was no advertising.

7

A.

Right.

8

Q.

But you also said it was making

9

recommendations and ratings.

10

A.

But it wasn't --

11

Q.

So --

12

A.

-- it wasn't doing the

13

recommendations in this way, which -- which I

14

mentioned, right?

15
16

You could go to a page, and it would
tell you how much it thought you would like it.

17

Q.

Uh-huh.

18

A.

But it wouldn't proactively suggest.

19

That active offering and proactive suggestion,

20

in the literature, the academic space I work

21

in --

22

Q.

Right.

23

A.

-- is very much the same thing as

24

targeted advertising.

So academically I would

25

link those things together.
Page 218
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

I could see a way that -- that

2

they're distinguished, but I'd want to know how

3

you're considering it.

4

Q.

Well, I mean but do you understand

5

advertising is something that's done in order

6

to generate revenue by the entity that's doing

7

the advertising?

8
9

MR. RUDOLPH:

Objection.

Form.

Lacks foundation.

10

THE WITNESS:

So I think that that's

11

a fine definition.

12

rules out recommended URLs on Facebook as a

13

form of targeted advertising since it's

14

Facebook doing the advertising.

15
16
17
18

I don't think that actually

BY MR. JESSEN:
Q.

Have you -- Facebook's doing what

advertising?
A.

If Facebook's recommending URLs to

19

someone, then that's a form of targeted

20

advertising, and Facebook potentially can

21

profit from that by increased engagement.

22

If you have a specific question --

23

Q.

Well --

24

A.

-- that --

25

Q.

Well, I'm just -- you're -- you're
Page 219
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

starting to give opinions that aren't in your

2

report, which --

3

A.

Which I'd love not to do.

4

Q.

-- makes me wonder if -- that's part

5

of the reason I went over like are these all

6

your opinions earlier.

7

So let me ask it this way:

Do you

8

have any opinion given in this report regarding

9

whether or not Facebook has used URLs shared in

10

private messages to develop user profiles?

11

A.

So are you going to ask me that

12

question also about advertising?

Because I

13

want to flip through just to remind myself.

14

Q.

Yes.

I'm going to ask --

15

A.

And so I want to look --

16

Q.

Yes.

17

A.

-- at them both at the same time.

18

Q.

Of course.

19

A.

All right.

20

Q.

Sure.

21

A.

I'll do it as quick as I can.

22

Q.

Of course.

23

A.

So looking through here -- so if I

24

catch it that I've missed it later on, I'll say

25

so.

But I don't -Page 220
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Sure.

2

A.

-- believe that -- it doesn't look

3

like anywhere I've discussed explicitly user

4

profiles or targeted advertising.

5

Q.

Okay.

So you're not -- you're not

6

offering an opinion on -- you're not offering

7

any opinion on whether or not Facebook has used

8

private message content, to use your term, to

9

build user profiles or serve target

10
11
12
13
14
15

advertisements, correct?
A.

So I have no opinions that

explicitly use those terms here.
Q.

But do you have opinions that you

think fall under that umbrella?
A.

I mean it's the discussion that we

16

were just having.

So I wasn't -- I wasn't

17

asked to offer an opinion on specifically -- I

18

mean I don't think it says like, "Is there a

19

user profile created?

20

advertising" --

Is there targeted

21

Q.

Okay.

22

A.

-- "done?" right?

23

Q.

You weren't --

24

A.

So I --

25

Q.

-- asked to offer an opinion on
Page 221
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

that.

2

A.

I don't believe so.

3

Q.

Earlier you mentioned, when you were

4

talking about the different parts of

5

Facebook -- "What is Facebook?" I asked you,

6

and you said --

7

A.

Uh-huh.

8

Q.

-- there was a -- there was a part

9
10

of it that had a -- you said -- you mentioned
an advertising component.

11

And when I talk about targeted

12

advertising, that's really what I'm talking

13

about --

14

A.

Okay.

15

Q.

-- the advertising components of

16
17

Facebook as discussed by you earlier.
And I guess my question is do you

18

have any evidence that URLs shared in private

19

messages were ever used in connection with that

20

advertising component?

21

MR. RUDOLPH:

Objection.

22

THE WITNESS:

So from what I've

Form.

23

seen, I don't have any evidence that -- that

24

those URL shares were used for that kind of

25

targeted advertising.
Page 222
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

BY MR. JESSEN:
Q.

3

You -- you -- okay.
You have information that some

4

shares were used for recommendations but not

5

for that kind of target advertising.

6

A.

That's right.

7

Q.

Okay.

Okay.

Let's look at

8

Paragraph 19.

And this is under the section of

9

your report titled "Facebook's Interception of

10

Private Message Content."

11

talk about Facebook's private message

12

architecture or functionality.

13

providing an overview of Facebook's private

14

message architecture.

15

And you initially

In here you're

Paragraph 19 you're -- and you're

16

describing sort of what happens when someone

17

types a URL into a private message.

18

You say:

"She types her text, and

19

if she types, pastes or otherwise enters a URL

20

into the body of the message, Facebook detects

21

the URL as she types.

22

extracts the URL from the message and sends it

23

to Facebook servers."

24
25

Once it sees a URL, it

See that?
A.

I do.
Page 223
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Are you claiming that that process

2

is a -- an interception or redirection of

3

private message content?

4

A.

Yes.

I know I have a specific

5

statement about this in here that I just want

6

to look up.

Well, we'll probably get there.

7

Q.

Sure.

8

A.

Okay.

9

But no.

So I'm not claiming

that this particular part of the process,

10

basically putting that preview into the message

11

before I send it, I'm not claiming that that's

12

the interception.

13

Q.

Okay.

Why not?

14

MR. RUDOLPH:

Objection.

15

THE WITNESS:

That's a really

16

complicated question.

17
18

Are you asking me to list why it
wouldn't count?

19
20

Form.

BY MR. JESSEN:
Q.

Well, why don't -- I guess you're --

21

why don't you think that's an interception or

22

redirection?

23

A.

It potentially could be an

24

interception.

I -- so -- so this is an issue

25

that I've thought a little about.

But again,
Page 224

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

like it's getting into legal things that I

2

don't have a full grasp of.

3

Can there be a perfectly allowable

4

interception?

5

if it's like totally allowed under every law?

6

That's a kind of legal question, right?

7

like that's actually the nature of what you're

8

asking me.

9

Q.

We can move on.

10

A.

Okay.

11

Q.

And --

12

A.

-- trying to be difficult.

14

Q.

No, no, no.

15

A.

-- know that --

16

Q.

No.

17

A.

Okay.

18

Q.

Let's move on.

13

Does it count as an interception

I feel

Like --

I'm not --

I just

--

19

Okay.

I just -- it's okay.

Then you drop a footnote at

20

the end of Paragraph 19, Footnote 3, which

21

says:

22

which the Facebook system operates.

23

code and data, run the code, provide Web

24

content and manage back-end functionality.

25

Essentially every part of Facebook, other than

"Facebook servers are the computers on
They store

Page 225
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

the code that runs in the user's browser, is

2

running on Facebook servers, and those servers

3

provide every element of Facebook that a user

4

interacts with."

5

Did I read that correctly?

6

A.

That looks right.

7

Q.

You would agree with me that those

8

servers -- those Facebook servers are necessary

9

to the operation of Facebook's messaging

10

system?

11

A.

Yes.

12

Q.

You talk a little bit about

13

JavaScript in some of your paragraphs, and I'm

14

not going to get into too much detail, but one

15

of the points you make is that most -- a high

16

percentage of users -- Internet users have

17

JavaScript enabled?

18

A.

Yes.

19

Q.

Would you agree with me that, even

20

if the total percentage is only 1 to 2, which

21

some of the -- some of the things here -- you

22

cite in Paragraph 21 say, that that's still

23

millions and millions of people --

24

MR. RUDOLPH:

25

Objection.

Form.

BY MR. JESSEN:
Page 226
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

Q.

-- running browsers that don't have

JavaScript enabled?

3

MR. RUDOLPH:

Objection.

4

THE WITNESS:

Are we talking in the

5

Form.

U.S. or worldwide?

6

BY MR. JESSEN:

7

Q.

In the U.S.

8

A.

It gets you to about a million, I

9

think, right, if we're doing 1 percent of like

10

how many computers are there.

11

person?

12
13

Q.

All right.

Is there one per

We can look at the

article, but I -- given the time constraint...

14

A.

Okay.

15

Q.

It's a lot of people.

16

A.

A lot.

17

Q.

Okay.

In Paragraph 22 you talk

18

about -- you say:

"The URL detection process

19

is also described by Ray He, an engineer at

20

Facebook.

21

deposition, Mr. He states, 'When the user types

22

in a URL, the client-side code -- well, this is

23

the JavaScript -- running on the user's

24

browser, would defect that the entered a URL

25

and will attempt to create an attachment for

In his September 25th, 2015

Page 227
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

them to sends.'"

2

Do you see that?

3

A.

I do.

4

Q.

And then in Paragraph 23 you say,

5

based upon your analysis of Facebook source

6

code, the process appears in certain files,

7

right?

8

A.

Yes.

9

Q.

And I just want to confirm -- this

10

tracks what we were saying earlier -- that

11

process there, you're not saying that's the

12

interception, correct?

13

A.

That's correct.

14

Q.

Paragraph 24 you say:

"After this

15

code detects that Alice has typed a URL in her

16

private message, a request is sent to Facebook

17

servers to retrieve information" to -- "related

18

to the URL.

19

this information is to create a URL preview

20

within the private message.

21

the preview as a," quote, "brief description of

22

the URL and, if available, a relevant image

23

from the Web," end quote.

24
25

One of the purposes of retrieving

Facebook describes

What did you mean in the second
sentence where you say one of the purposes of
Page 228
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

retrieving this information is to create a URL

2

preview?

3

A.

Like what are the other purposes?

4

Q.

Yeah.

5

A.

So if it's the first time that a

6

user has entered a URL, if Facebook has never

7

seen that URL before --

8

Q.

Right.

9

A.

They create other data -- they have

10

data structures in the back end -- about that

11

URL that has information beyond what's included

12

in the preview, for example.

13
14
15

Q.

Are you referring to the global

share object?
A.

The global share object.

Right.

16

But that gets created if a -- if Facebook sees

17

a URL for the first time.

18

information in that object beyond just what

19

appears in the preview.

And there's

20

Q.

Well, what other information?

21

A.

There's a lot.

It has -- so in --

22

are you asking me in general what's in those

23

global --

24

Q.

Yeah.

25

A.

-- shared objects.
Page 229
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

I mean if you know.

2

A.

Yeah.

I think they contain some

3

information about when that URL was crawled for

4

the first time.

5

user ID of the person who created -- who

6

initiated that call.

7

They can contain the Facebook

Some of them have lists of user IDs

8

of people who have shared that later on.

9

that obviously wouldn't be there on the first

10

time it's accessed.

11

So

that data structure.

12

But that is recorded in

But the -- if you print it out,

13

there's pages of information that's contained

14

there.

15

Q.

Uh-huh.

16

A.

Those are the kind of humanly

17

understandable ones that I remember off the top

18

of my head.

19

Q.

But do you understand that the

20

purpose of the global share object is to

21

generate a URL preview?

The primary purpose.

22

A.

I -- I don't understand that.

23

Q.

Okay.

24
25

Why not?

I mean do you disagree with that, or
do you just not have a basis for knowing one
Page 230
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

way or the other?

2

A.

I think the latter.

So I agree --

3

Q.

Okay.

4

A.

-- that it's used for that preview.

5

I just don't know if that's its primary purpose

6

within Facebook.

7

Q.

You go on to say in Paragraph 25:

8

"The process of detecting the URL within a

9

private message, executing code to find

10

information about the URL and then processing

11

that information analysis message window

12

employs what Facebook refers to as a share

13

scraper or scraper."

14

You see that?

15

A.

I do.

16

Q.

Are you familiar with the term

17

"share scraper" or "scraper"?

18

A.

I am.

19

Q.

You've heard those before?

20

Those --

you've heard those terms before?

21

A.

I have.

22

Q.

What do you understand them to mean?

23

A.

So within the Facebook context or

24
25

general?
Q.

Both.
Page 231
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

So "scraper" is a term widely used

2

in -- in this kind of context on the Web where

3

you go out to a page, and you have code that

4

basically processes the content of that page to

5

extract some information.

6

scraping the page.

So we call that

7

Q.

Uh-huh.

8

A.

"Share scraper" I think is a term

9

I've only seen in the Facebook context

10

specifically.

11

describe this process.

12

Q.

And that's used in their code to

The term "scraper" or "scraping,"

13

that doesn't have a pernicious meaning, does

14

it?

15
16

MR. RUDOLPH:

Vague.

Form.

17
18

Objection.

BY MR. JESSEN:
Q.

And what I mean by that is it's

19

describing a process of gathering information

20

from a Web site.

21
22

It's -- is there something sinister
about scraping?

23
24
25

MR. RUDOLPH:

Objection.

THE WITNESS:

Yeah.

Form.

Vague.
I would say, in
Page 232
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

general, no, that it's not generally considered

2

sinister.

3

BY MR. JESSEN:

4

Q.

Okay.

And then in Footnote 10 you

5

say:

"The share scraper is analogous to the

6

Web crawler referenced in Plaintiff's

7

consolidated amended complaint."

8

You see that?

9

A.

I do.

10

Q.

And there you're referring to the

11

Facebook share scraper when you say the, quote,

12

share scraper?

13

A.

Yes.

14

Q.

Okay.

15

A.

Basically the same thing.

What is a Web crawler?
It's a

16

piece of code that goes to a Web site and reads

17

the code for that page and extracts some

18

data --

19

Q.

Uh-huh.

20

A.

-- to be used.

21

Q.

And in this case, the share scraper

22

or the Web crawler is being used to generate a

23

preview -- a URL preview?

24
25

A.

Well, it's used to create that

global share object, which -Page 233
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Right.

2

A.

-- in turn, will create --

3

Q.

Got it.

4

A.

-- the preview.

5

Q.

The preview.

6
7

And this happens before the message
is sent, correct?

8

A.

That's correct.

9

Q.

You have any understanding about

10

whether this process of scraping is used across

11

Facebook's Web site?

12

For example, if I put a -- if I type

13

a URL into a post on my timeline or my wall,

14

you understand that the same processes are in

15

place to generate the URL preview?

16

A.

17
18

Yes.
MR. JESSEN:

Okay.

I think we've

been going a little over an hour.

19

Do you guys want to take a break?

20

THE WITNESS:

Great.

21

MR. RUDOLPH:

Okay.

22

THE VIDEOGRAPHER:

23

Off the record at

2:53.

24

(A short recess was taken.)

25

THE VIDEOGRAPHER:

On the record at
Page 234

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

3:15.

2
3

BY MR. JESSEN:
Q.

Let's take a look at Paragraph 28 in

4

your report.

5

depiction of a preview in a message window.

6

Right above Paragraph 28 is a

Would you agree with that?

7

A.

Yes.

8

Q.

And in Paragraph 28 you say:

9

"However, this preview analysis message is not

10

the only result of the data structure created

11

by Facebook's code.

12

actually part of an attachment to the message

13

so that, while a preview is rendered visually

14

in Alice's message window, this attachment is

15

separate and distinct from the message itself."

16

The preview returned is

Did I read that correctly?

17

A.

Yes.

18

Q.

The first sentence, what do you mean

19

by that?

20

What do you mean when you say:

21

"This preview analysis message is not the only

22

result of the data structure created by

23

Facebook's code"?

24
25

A.

I think -- I think what I'm

referring to there is that, in addition to this
Page 235
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

preview, there's also that global share object

2

that we were talking about before --

3

Q.

Uh-huh.

4

A.

-- the break.

5

Q.

Uh-huh.

Okay.

So it's your

6

understanding that the URL attachment to the

7

message is separate and distinct from the

8

message itself, correct?

9
10

A.

I'm -- I'm sorry.

Can you just

repeat that?

11

Q.

Yeah.

12

A.

I was looking at that last sentence

13

there.

14

Q.

15

Sorry.

I was just reading from

that.

16

It's your understanding -- or the

17

report says the URL attachment to the message

18

is separate and distinct in the message itself?

19

A.

Let -- let me just review that.

20

Q.

Sure.

21

A.

The language is kind of flying out

22

of my head.

23

Q.

No worries.

24

A.

Right.

25

So I think that is referring

to -- there's the message itself.

I think
Page 236

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

that's referring to the text of the message

2

that I send, which can still have that URL in

3

it --

4

Q.

Uh-huh.

5

A.

-- but I don't think it has to.

6

Q.

Uh-huh.

7

A.

And then there's this distinct

8
9

attachment.
Q.

Okay.

Then in Paragraph 30, just

10

skipping ahead, that -- you say:

"When Alice

11

finishes the message and hits send, both the

12

text of her message and the URL attachment are

13

sent to Facebook's servers," right?

14

A.

I do.

15

Q.

Would the URL attachment always be

16

sent with the -- with the text of the message?

17

A.

If there is an attachment --

18

Q.

Yes.

19

A.

-- then, yeah, I believe, when Alice

20

hits send, both of them always get sent,

21

assuming everything functions the way it's

22

supposed to.

23
24
25

Q.

And assuming the user doesn't delete

the URL attachment?
A.

Well, right.

So if the attachment
Page 237

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

exists, it's sent.

2

then it's not there to be sent.

3

Q.

If the user deletes it,

Right.

4

Moving back up to Paragraph 29, you

5

say:

"As described in further detail below,

6

Facebook has pulled data related to this URL

7

from a global share object, which is a data

8

structure that Facebook uses to track its

9

users' interaction with URLs across the Web."

10

What is the basis for your statement

11

that a global share object is a data structure

12

that Facebook uses to track its users'

13

interactions with URLs across the Web?

14

A.

Which part of that?

15

Q.

Track its users' across -- track its

16

users' interactions with URLs across the -- the

17

-- the Web.

18

A.

So I've -- so I've looked at those

19

global share objects.

20

I've looked at outputs

of those.

21

Q.

Right.

22

A.

And, you know, also looked at code

23

dealing with them.

And they have, you know, a

24

number of fields that are used exactly for that

25

purpose, to track how Facebook users are
Page 238
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

interacting with the URL represented in that

2

object.

3

Q.

What field are you referring to?

4

A.

So as I mentioned when we were

5

talking about this before, you know, not having

6

it in front of me, I do recall that some of

7

those have a Facebook ID of the creator, and

8

some of those global share objects also had

9

lists of IDs of users who had shared the

10

object.

11

In addition to that, there are a

12

number of fields tracking how often the URL has

13

been shared, posted, clicked and liked.

14

There's a number of those aggregate scores.

15

Q.

Are you referring -- we're going to

16

get to this -- but to the field that's -- I

17

think it's called tracking into?

18

A.

Yes.

19

Q.

Okay.

20

understanding that's one field.

21
22
23

Now, it's -- it's my

But is that -A.

It's one field, but it has five

values within it that --

24

Q.

Sure.

25

A.

-- represent five different metrics
Page 239
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

that --

2

Q.

Right.

3

A.

-- were tracked.

4

Q.

Right.

5

You mentioned that the global share

6

object might have a list of IDs of users who

7

had shared it.

8
9
10
11

And would that include Facebook IDs
of users who had shared a URL in a private
message?
A.

So my impression is not.

I

12

haven't -- I don't believe I've tracked this in

13

the code.

14

of those global share objects.

15

I've actually looked at the output

And, you know, I don't have that

16

here in the reports.

17

just right at hand for me.

18

the case that that list is only people who have

19

posted it in a more public forum.

20

Q.

So the details aren't
But I believe it's

And again, with respect to Paragraph

21

29, you're talking about how the preview is

22

generated.

23

further" -- "further detail below, Facebook has

24

pulled data related to this URL from a global

25

share object."

You say:

"As described in

Page 240
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Why is Facebook pulling data from

2

the global share object, based on your

3

understanding?

4
5

A.

Why did they go to the global share

object to create that preview?

6

Q.

Yes.

7

A.

So it -- so my understanding is that

8

it's both faster than rescraping the URL every

9

time and that it gives a consistent experience.

10

So for -- I think like for a while,

11

when a new URL comes in, a user's able to edit

12

the title or the description.

13

while, that ability goes away, so everybody

14

seeing that URL gets the same preview.

15

Q.

But after a

Would pulling -- would Facebook

16

pulling data to generate the preview from the

17

global share object also possibly help avoid

18

crashing certain Web sites by avoiding

19

requesting data from the -- from those sites

20

too many times?

21
22

MR. RUDOLPH:
Lacks foundation.

Objection.

Form.

Incomplete hypothetical.

23

THE WITNESS:

24

BY MR. JESSEN:

25

Q.

It's possible.

And is it your understanding that,
Page 241
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

if a user included a URL in a private message,

2

Facebook was always able to detect that URL and

3

create a URL preview to attach to the message?

4
5
6

A.

I'm sorry.

Repeat that question,

please.
Q.

7

Yeah.
Is it -- was it always the case --

8

or is it always the case that, if a user types

9

a URL into a private message, that Facebook is

10

able to detect the -- detect that URL and then

11

use that to create a URL preview?

12

A.

If the user has JavaScript enabled

13

and, you know, the network's all functioning

14

correctly, I think it's -- it's always the

15

case, yeah.

16
17
18

Q.

Do you know if -- what would happen

if that -- if the URL is on a URL blacklist?
A.

So I know Facebook will check

19

against some of those blacklists for malicious

20

URLs.

21

exactly what appears.

22

I don't remem- -- I don't remember

You know, I've looked at -- I've

23

seen that happen now.

24

story about that, and I tested it.

25

There was just a new

I think now what it does is say
Page 242
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

"Unable to create attachment," or something

2

like that.

3

Q.

Uh-huh.

4

A.

I didn't look into that going back.

5

MR. JESSEN:

And one thing I will

6

do -- I should have done this earlier -- we are

7

designating this transcript highly

8

confidential, attorneys' eyes only.

9

parts of it discuss source code as well.

I think

10

So that's for the court reporter.

11

BY MR. JESSEN:

12
13

Q.

Okay.

Okay.

Let's go ahead and

take a look at Paragraph 32.

14

And this is in the section of your

15

report "Facebook's Interception and Logging of

16

Private Message Content, Creation of Share

17

Objects."

18

In Paragraph 32 you say:

"Facebook

19

has large and complex data behind its site.

20

They store this in a data model called TAO, The

21

Associations and Objects.

22

suggests, there are two pieces in this model,

23

objects and associations."

24
25

As the name

Did I read that correctly?
A.

Yes.
Page 243
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Is it your understanding that all

2

Facebook data objects and associations are

3

stored in TAO?

4
5

A.

That all objects and associations

are stored in TAO?

6

Q.

Sure.

7

A.

That's my understanding.

8

Q.

And what do you -- what's your basis

9
10

for that?
A.

Having read documents from Facebook

11

itself on -- on how they're storing that data,

12

which I have cited there.

13

code, there seems to be this connection between

14

TAO and the objects and associations that I've

15

looked at.

16

Q.

Also looking at the

Do you -- are there some objects --

17

I mean does -- is it possible Facebook creates

18

some objects that are not stored in TAO?

19

A.

I -- I think it's definitely the

20

case that there's some data that's not stored

21

in TAO.

22

data, what you call an object and not, like

23

that becomes a very kind of fuzzy space.

24

So there -- we've def- -- I've

25

You know, to -- when you're storing

definitely seen data that's not stored in TAO
Page 244
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

on Facebook.

2

Q.

Uh-huh.

3

A.

We can probe more deeply if it's an

4
5

object if you want.
Q.

6

Sure.
Paragraph 33 you say:

"Objects

7

represent things on Facebook, users' pages,

8

check-ins, comments, locations, et cetera.

9

Associations represent the relationships

10

between objects.

11

between users, a like that connects a user to a

12

page or a location that is tied to a user

13

check-in."

14

Those could be friendships

Do you see that?

15

A.

Uh-huh.

Yes.

16

Q.

And we talked a little bit earlier

17

about objects in the context of object-oriented

18

programming.

19

Do you --

20

A.

Yes.

21

Q.

-- remember that?

22

And creation of an object in

23

object-oriented programming is not something

24

that's unusual, is it?

25

A.

So these are not object-oriented -Page 245
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

MR. RUDOLPH:

Objection.

Vague.

THE WITNESS:

These are hot

Form.

3
4

object-oriented programming objects that we're

5

talking about here.

6

BY MR. JESSEN:

7

Q.

What's your basis for saying that?

8

A.

Well, object-oriented programming

9

objects are objects that exist in code as it's

10

being executed, not data that's stored

11

somewhere.

12

Q.

13

somewhere?

14

A.

TAO is a -- a data storage system.

15

Q.

Uh-huh.

16

A.

So it's -- TAO object is not an

17
18

So this is data being stored

object-oriented programming language object.
Q.

So this is a different -- when you

19

talk about these kind of objects, object

20

represent things, you would draw a distinction

21

between those kinds of objects and objects

22

that's are used in object-oriented programming?

23

A.

There's -- there's definitely a

24

difference.

25

Objects in both cases represent

things.
Page 246
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Uh-huh.

2

A.

But objects in an object-oriented

3

programming context --

4

Q.

Yeah.

5

A.

-- are -- if we're going to get

6

technical on it, are instantiations of classes.

7

Q.

Right.

8

A.

And a class is something that you

9

define in your code.

It has a name.

It has

10

associated data points, attributes of that

11

class, and associated methods or functions.

12

So to -- to kind of give a simple

13

example, I could create a class in

14

object-oriented programming for a dog, right?

15

And the dog has a --

16

Q.

Uh-huh.

17

A.

-- a birthday and a name and a

18

color.

19

there's methods, things the dog can do.

20

could sleep, and it could eat, and it could

21

walk and whatever else.

22

Those are the attributes.

And then
It

So that's a -- a generic concept of

23

what an object would be.

And then you

24

instantiate that.

25

dog named Rex in object oriented programming.

So I'll make a particular

Page 247
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

And that's a -- just a different

2

thing than if a have a -- a data store

3

somewhere that also represents data as object.

4

They're just technically different concepts.

5

Q.

Uh-huh.

Okay.

In Paragraph 34 you

6

say:

"There are a number of objects that

7

Facebook creates in the process of scanning

8

private messages that include URLs."

9

You see that?

10

A.

I do.

11

Q.

What do you mean by the word

12
13

"scanning"?
A.

So I mean looking at what's in

14

private messages that include URLs.

15

this case we're looking at the URL attachment.

16
17
18
19

Q.

And in

So Facebook is looking in -- looking

in the URL attachment?
A.

Facebook code is looking at the URL

attachment, yes.

20

Q.

Is that unusual?

21

A.

Compared to what?

22

Q.

Anything.

23

Is it an unusual process for

24

Facebook code to be looking at an attachment

25

that is being sent with a -- with a message?
Page 248
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

MR. RUDOLPH:

Form.

THE WITNESS:

I mean Facebook does

Vague.

3
4

Objection.

it for all messages.

5

I don't think that's the question

6

you're asking, but I -- I don't understand what

7

you want me to compare this to.

8
9

BY MR. JESSEN:
Q.

Well, I asked you what you meant by

10

the word "scanning," and you said that's

11

looking at what's in private messages that

12

included URLs.

13

at the URL attachment.

14

And in this case, we're looking

And I'm just trying to understand

15

what you were saying, what you meant by that.

16

I mean you said Facebook code is looking at the

17

URL attachment.

18

But is that different than

19

looking -- looking at the attachment -- or in

20

the attachment, rather?

21
22

A.

I don't think that there's a

substantive difference --

23

Q.

Okay.

24

A.

-- "at" or "in."

25

Q.

Earlier you said that an
Page 249
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

interception was -- involved collecting

2

content.

3

And you distinguished that from a

4

use, which I think you said -- might have said

5

was deploying that content.

6

those lines.

7

Something along

When you said an interception

8

involved collecting content, collecting it from

9

where?

10

A.

So in this case, it's -- so the

11

interception involves both collecting and

12

redirection.

13

about collecting information that's in that URL

14

attachment and then redirecting it to code that

15

then operates on it.

16
17
18

Q.

So in this case, we're talking

And by redirecting it to code, what

does that -- what does that mean?
A.

Taking the information about the

19

message and the URL attachment and directing

20

that to code that is not part of the message

21

delivery process.

22

Q.

Okay.

If part of the interception

23

is collecting the content, I guess -- sorry if

24

my question was inartful -- but from where is

25

Facebook collecting the content?
Page 250
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

From the private message.

2

Q.

And where is the private message --

3

where is it residing when this happens?

4
5

MR. RUDOLPH:

THE WITNESS:

10
11
12
13
14
15
16
17

I'm not quite sure

what you're asking.

8
9

Form.

Vague.

6
7

Objection.

BY MR. JESSEN:
Q.

Is it on a Facebook server?

Is it

somewhere else?
A.

It is -- it has been sent to the

Facebook server.
Q.

All right.

So it's actually on the

Facebook server when that happens.
A.

Right.

As opposed to on the user's

computer.
Q.

Uh-huh.

Okay.

You go on to say --

18

after you say there are a number of objects

19

that Facebook creates in the process of

20

scanning the private messages that include

21

URLs:

22

and global URL share objects.

23

share object contains details about the

24

specific user's interaction with the given URL;

25

while the global URL share object contains

"Two of these are user URL share objects
The user URL

Page 251
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

information related to all the interactions

2

between Facebook users and a given URL."

3

See that?

4

A.

I do.

5

Q.

Do you consider the creation of

6

these two objects -- these two share objects to

7

be unlawful?

8
9

MR. RUDOLPH:

Objection.

Calls for

legal conclusion.

10

THE WITNESS:

11

time with the -- yeah.

12

offering an opinion on whether it's legal or

13

not.

14

Yeah.

I have a hard

I have a hard time

BY MR. JESSEN:

15

Q.

Uh-huh.

Why is that?

16

A.

I am not an expert on this law at

17

all.

18

understanding of the law and what I've been

19

asked to opine on in a technical sense.

20

haven't read this law and definitely not an

21

expert on it.

22

You know, I -- I have a -- a basic

Q.

But I

Do you find it unusual or surprising

23

that Facebook is creating a share object once

24

the URL attachment reaches a Facebook server?

25

MR. RUDOLPH:

Objection.

Form.
Page 252

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Vague.

2

THE WITNESS:

3

a global share object?

4
5

A user share object or

BY MR. JESSEN:
Q.

Just -- sorry.

When I say just -- I

6

think of it as global share object, which is

7

the canonical representation of the URL, and

8

then just a share object, which would be an

9

individual share.

10

A.

Okay.

11

Q.

So -- but -- I'm going to ask you

12

about both.

13

But is it unusual that they are

14

creating a -- you call it a user share

15

object -- but the share object that represents

16

that particular share of the URL attachment?

17
18

MR. RUDOLPH:

Form.

THE WITNESS:

And you're -- you're

Vague.

19
20

Objection.

talking about in a private message?

21

BY MR. JESSEN:

22

Q.

Yes.

23

A.

I was very surprised by that.

24

Q.

Why is that?

25

A.

You know, just like if I'm sending a
Page 253
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

-- if I'm posting something generally, it

2

doesn't surprise me if I'm sharing it publicly.

3

If I'm sending a private message, I think of

4

that much more like texting where Facebook is

5

just facilitating the delivery.

6

So I was very surprised at the fact

7

that they were creating metadata in a way

8

that's totally unnecessary for that message to

9

get delivered when I sent a private message.

10
11

Q.

object to be metadata?

12
13

Would you consider the user share

A.

This is another gray area, but I'd

say it definitely has metadata in it.

14

Q.

What about the creation of the

15

global share object; was that surprising to

16

you?

17

A.

The -- the actual creation of the

18

global share object, you know, which occurs

19

when I type in that URL the first time, not

20

actually on the send, that I didn't find

21

specifically surprising that there would be

22

a -- a canonical representation of a URL within

23

Facebook.

24
25

I was surprised at what was being
tracked there in the tracking info from private
Page 254
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

messages for largely the same reasons.

2
3

Q.

What do you mean by that, what was

being tracked there in the tracking into?

4

A.

That the fact that I had shared a

5

URL with someone over a private message was

6

aggregated into public information, displayed

7

as Likes about that URL.

8

very surprising.

9
10

Q.

I -- I found that

That it was part of an aggregate --

aggregated information?

11

A.

Yes.

12

Q.

You're not saying that it was -- in

13

the global share object, someone could tell

14

that you had shared a particular URL in a

15

private message, are you?

16

A.

That's correct.

17

Q.

You're just saying the counter went

19

A.

Yes.

20

Q.

And then for a period of time when

18

up.

21

the Like button social plug-in included

22

messages -- message shares, that that went up

23

as well.

24

A.

Right.

25

Q.

Okay.

So if I've got -- let me -Page 255
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

let me see if I understand.

2

You're not saying the creation of a

3

global share object is an interception,

4

correct?

5
6

MR. RUDOLPH:

Objection.

Form.

Calls for legal conclusion.

7

THE WITNESS:

You know, when we --

8

we talked about this before, I have this sort

9

of struggling with my understanding of -- of

10

the law and if you can have a legal

11

interception.

12
13

It's certainly not the interception
that I'm talking about here.

14
15

BY MR. JESSEN:
Q.

16

Understood.
Are you saying, however, that the

17

creation of a user -- user share object

18

representing that particular share does

19

constitute an interception?

20

A.

I am.

21

Q.

Okay.

Would your answer be the same

22

for a share object created from a URL

23

attachment in a public post?

24
25

A.

I don't know.

I would just have to

think a lot more about all of the technical
Page 256
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

things surrounding that.

2

different context.

3
4

Q.

You understand that the technical

aspects of it, though, are the same, right?

5
6

It's just such a

MR. RUDOLPH:

Objection.

Form.

Lacks foundation.

7

THE WITNESS:

The technical aspects

8

of creating a user share object in a post for a

9

URL attachment?

10

BY MR. JESSEN:

11

Q.

Yes.

12

A.

Yeah.

13
14

My understanding is that

that's basically the same.
Q.

So you consider it to be an

15

interception in the context of private

16

messages, but you're not sure if it would be an

17

interception in the context of a post.

18

A.

Correct.

19

Q.

And you don't -- why?

20
21
22

Why -- why are the reasons for the
distinction?
A.

One is a direct message from one

23

person to another.

24

private.

25

It's intended to be

We call them private messages.
The other is a broadcast.

And so,
Page 257

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

you know, it gets, again, to the legal issues,

2

which, you know, I'm not an expert on.

3

Is it -- is it possible to have like

4

a wiretapped intercept of a broadcast post?

5

I -- I mean I haven't thought at all in depth

6

about what that would mean.

7

lots of questions about the legal issues

8

surrounding it.

9

Q.

I probably have

So I just don't know.

Well, earlier I think you said that

10

you considered an interception to be a -- and

11

I'm not trying to misstate your testimony.

12

correct me if I get it wrong -- an interception

13

to be a collection of message content that was

14

not necessary to facilitate delivery of the

15

message.

16

A.

I -- I think that's accurate.

17

Q.

So

So by that same -- is a -- is a

18

share object necessary to facilitate delivery

19

of a public post?

20

MR. RUDOLPH:

Objection.

21

THE WITNESS:

I don't know.

22

25

I

haven't looked at depth of that issue.

23
24

Form.

BY MR. JESSEN:
Q.

Do you understand that the -- that

the -- in the context of private messages, as
Page 258
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

well as public posts, that the share object is

2

necessary to render the URL attachment to the

3

recipient of the message?

4

MR. RUDOLPH:

Objection.

Vague.

5

THE WITNESS:

That depends what you

6

mean by -- actually -- so you're saying that

7

the UR -- the user URL share object, you're

8

asking if that is necessary to render preview

9

rather than the global share object?

10
11

BY MR. JESSEN:
Q.

I'm not drawing necessarily a

12

distinction between those two at the moment.

13

But I mean I think we discussed earlier and

14

your report discusses this, that the -- the --

15

the global share object is used to generate

16

that URL preview, which becomes an attachment

17

to the message and then is sent to a Facebook

18

server, at which point the user-specific share

19

object is created.

20

And so I'm really focused on that

21

user -- are you aware of the fact that a user

22

share object is necessary to render the

23

attachment to the recipient of the message?

24
25

MR. RUDOLPH:

Objection.

Lacks

foundation.
Page 259
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

THE WITNESS:

I don't believe that's

true.

3

BY MR. JESSEN:

4

Q.

Why do you say that?

5

A.

For so many reasons.

So one is that

6

-- so that preview basically has three

7

elements, that attachment preview that comes

8

up.

9

Q.

Uh-huh.

10

A.

Let's say four.

It has an image.

11

It has a title.

It has a description.

And it

12

has a link that you can click on it to go to

13

the Web site.

14

Q.

Okay.

15

A.

There's lots of ways that that

16

preview can be rendered.

17

you look at the Facebook messaging code on the

18

desktop as it exists now, for example, if you

19

look at what gets sent to Facebook from the

20

browser -- like if I start typing a message, it

21

has an attachment, I click send, it actually

22

sends a JSON object, J-S-O-N, from my browser

23

to Facebook that has all of that data

24

explicitly encoded in it already.

25

Q.

And, for example, if

Uh-huh.
Page 260
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

It's not just a reference to the

2

global share object, though I think that's in

3

there.

4

description and the link in the data that's

5

sent from my browser back to Facebook.

It has the title and the photo and the

6

So Facebook receives that.

If I'm

7

sending a message to you, they can deliver that

8

message to you.

9

attachment already and could simply display

It has that JSON-encode

10

that information to you in the preview format,

11

which is actually how it's rendered in the

12

browser, requiring no intermediate interaction

13

with any objects between the sending and the

14

delivery.

15

Q.

So -- okay.

So you're saying --

16

you're saying there are or ways that you could

17

do it.

18

But do you know if the way that the

19

system is actually built, the Facebook

20

messaging system, that the way that it's set up

21

is the share object -- the user share object is

22

created to render the preview to the recipient?

23

A.

24

works.

25

Q.

That is not how I understand that it

Why do you say that?
Page 261
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

So the rendering of the attachment

2

on the recipient side is -- so it's client-side

3

code running in the recipient's browser that

4

processes formatted data that Facebook sends

5

down to represent that attachment.

6

Those objects, necessary or not, are

7

never sent as, say, PHP objects to the client

8

side.

There's just data about them that's

9

sent.

So it's not necessary to have an object

10

for the client -- the recipient's client-side

11

system to render that preview, which is just a

12

little HTML object in the window.

13

Q.

But what about storing it -- on the

14

other part of it is coming back and being able

15

to access the preview -- if you go back to your

16

inbox, say, after you've done it for -- you've

17

been away from it for a week or two, go back,

18

and you can look, do you have an understanding

19

as to the role of a share -- the user-specific

20

share object place in allowing a person to do

21

that?

22
23
24
25

A.

Are you asking how is that used or

is it necessary?
Q.

How is it used in the actual

implementation of the Facebook messaging
Page 262
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

system?

2

Like does the -- does the

3

user-specific share object allow that to

4

happen?

5
6

MR. RUDOLPH:

Objection.

THE WITNESS:

Yeah.

Form.

Vague.

7

I'm not sure

8

how much detail I have on that in here.

9

me just a quick second --

10

Give

BY MR. JESSEN:

11

Q.

Sure.

12

A.

-- to flip it.

13

Yeah.

So I don't think I have

14

anything in here that's looking at the

15

rendering for the recipient of that preview.

16

Is it the case that Facebook

17

references that user share object?

18

Potentially.

19
20

Q.

Is it necessary?

Absolutely not.

Meaning -- meaning you could -- that

you could envision other implementations of it.

21

A.

Many.

22

Q.

Do you know if the user-specific

23

share object allows a Facebook user to go back

24

and into their messages folder and see the --

25

see the URL attachment in the future?
Page 263
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

MR. RUDOLPH:

Objection.

Form.

Asked and answered.

3

THE WITNESS:

Yeah.

I -- so I have

4

nothing in the report about that.

5

top of my head, I don't remember look at the --

6

looking at the messaging code for how the

7

message was received.

8
9

And off the

I know that the rendering -- the
actual rendering in the client side just uses

10

data that's sent.

11

object.

12

use that user share object for rendering on the

13

recipient side.

14
15

It doesn't require the

But I'm unaware of how Facebook might

BY MR. JESSEN:
Q.

Is it your position that the

16

creation of any kind of object in connection

17

with sending a message would constitute an

18

interception?

19
20

MR. RUDOLPH:

THE WITNESS:

25

Like an illegal

interception?

23
24

Calls for

legal conclusion.

21
22

Objection.

BY MR. JESSEN:
Q.

I mean I -- that's what you're

opining on in your report, I assume.
Page 264
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

A.

That -- that's fine.

I just want to

make sure we're not --

3

Q.

Yeah.

4

A.

-- talking past each other where

5

you're --

6

Q.

Right.

7

A.

-- talking about something that I --

8

Q.

You talk about interceptions of

9

content in this.

10

And I'm wondering if the creation of

11

an object in connection with the transmission

12

of a message, any object, you would consider to

13

be an unlawful interception.

14

MR. RUDOLPH:

Same objection.

15

THE WITNESS:

Yeah.

I think that's

16

maybe just too hypothetical for me to answer as

17

you've asked it.

18

BY MR. JESSEN:

19

Q.

Why is that?

20

A.

You know, I'm trying to come up with

21

examples either way, which I'm just kind of

22

making up.

23
24
25

So I think it probably -- my answer
to everything -Q.

Well -Page 265
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

-- is always it depends.

And I

2

think it probably does.

3

could be talked through an exhaustive and

4

convinced one way or the other.

5

that there's potentially a lot of variables to

6

consider.

7

Q.

But I don't know.

I

But I think

Well, let me give you an example.

8

So we produced in this case -- there are

9

objects that are created for each message

10

that's transmitted on the platform called ENT

11

messages.

12
13

Have you seen any of those?
A.

14
15
16
17

I may have seen some of those.
Were those for the -- the

plaintiffs?
Q.

They were for, yeah, like 19

messages.

18

A.

I did see those.

19

Q.

Some subset of that.

20

Is it your position that the

21

creation of those messages would be an unlawful

22

interception?

23
24
25

MR. RUDOLPH:

Objection.

Calls for

legal conclusion.
THE WITNESS:

You know, I didn't
Page 266

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

analyze them from that perspective.

2

can't say right now.

3

Q.

Okay.

So I just

What about -- we also

4

produced -- there are objects that may be

5

created when -- and they have -- there's a

6

thread in a message, thread objects.

7
8

Would those -- would the creation of
those objects be unlawful interceptions?

9
10

MR. RUDOLPH:

Objection.

Calls for

legal conclusion.

11

THE WITNESS:

Yeah.

Again, I would

12

just -- I -- I haven't analyzed it from that

13

perspective.

14

jump to an answer now without taking the time

15

to give it some careful thought.

16
17

I wouldn't -- I wouldn't want to

BY MR. JESSEN:
Q.

So what is it that -- what is it

18

that makes creating a -- an object from a URL

19

attachment -- what is it that -- that -- that

20

specifically makes that an unlawful

21

interception?

22

MR. RUDOLPH:

23

legal conclusion.

24

Objection.

Calls for

testimony.

25

Mischaracterizes prior

THE WITNESS:

So my feelings on why
Page 267

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

that's an issue and why that was a much clearer

2

issue is that creating that object is not

3

necessary to the delivery of the message.

4

know, is it necessary to create an object for

5

the message itself for a thread?

6

don't know.

7

depth.

8

either way to me.

You

You know, I

I haven't thought through it in

But it's not as obvious either --

9

But creating an object for the URL

10

share is not necessarily -- not necessary for

11

delivery.

12

BY MR. JESSEN:

13

Q.

Well, you --

14

A.

And that's why I've addressed that

15

issue here.

16

Q.

You say in Paragraph 32 of your

17

report that objects represent things on

18

Facebook, right?

19

A.

On 30 -- Paragraph 33, yes.

20

Q.

I'm sorry.

21

33.

I'm sorry.

Paragraph

Objects represent things on Facebook.

22

So the -- so a user share object

23

represents a share of a URL attachment by a

24

user, right?

25

A.

That's right.
Page 268
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

Q.

It's -- it's an -- some -- it's an

object -- it's representing a thing, correct?

3

A.

Yes.

4

Q.

Okay.

5

And that's unlawful because

it's not necessary to deliver the message.

6

That is your opinion?

7

MR. RUDOLPH:

8

Objection.

Calls for

legal conclusion.

9

THE WITNESS:

Yeah.

So I've

10

addressed it here because I believe, in the

11

context of all the other facts, that -- that

12

that becomes the issue.

13

That's right.

BY MR. JESSEN:

14

Q.

What other facts?

15

A.

That there's a device that -- the

16

code that does the intercepting and that it

17

happens in transit.

18

Q.

Well, by your definition of

19

"device," wouldn't any object be created by a

20

device?

21
22
23

Because you -- you've testified that
a device is lines of code.
So by definition, wouldn't any

24

object associated with a message be intercepted

25

by a device?
Page 269
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

That could be true.

2

Q.

And according to you, if that

3

happens before the message has been delivered,

4

then that's in transit, right?

5
6
7

A.

From how I've analyzed the way that

these messages are processed, yes.
Q.

So any use of source code to

8

generate a mess- -- to generate an object while

9

a message -- before a message reaches a point

10

of persistent storage, in your view, that's

11

illegal.

12
13

MR. RUDOLPH:
legal conclusion.

14

Objection.

Calls for

Misstates prior testimony.

THE WITNESS:

That object would have

15

to be unnecessary to the delivery of the

16

message.

17
18
19
20

BY MR. JESSEN:
Q.

If it's unnecessary for the delivery

of the message, it's unlawful.
A.

And all --

21

MR. RUDOLPH:

Object --

22

THE WITNESS:

Sorry.

23

MR. RUDOLPH:

Objection.

24
25

Calls for

legal conclusion.
THE WITNESS:

And all the other
Page 270

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

things.

2
3

BY MR. JESSEN:
Q.

Right.

Which is what -- which --

4

which is what I was mentioning in my earlier

5

question.

6

A.

7

Right.
MR. JESSEN:

Let me -- okay.

I

8

think we've been going maybe -- actually, maybe

9

less than an hour.

I'm not sure.

10

Are we getting close.

11

THE VIDEOGRAPHER:

12

minutes left.

13
14

We have about 12

MR. JESSEN:

Let's go to the end of

this tape.

15

BY MR. JESSEN:

16

Q.

Are you okay with that?

17

A.

Yes.

18

I just want -- I -- I maybe want to

19

add here, on these questions about what I

20

believe is unlawful or not --

21

Q.

Right.

22

A.

This is based on my understanding of

23

the law as it's been explained to me.

But I

24

just want to be clear that I'm not trying to

25

offer opinions on the law here, just offer
Page 271
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

opinions on what Facebook does and does not do.
Q.

Okay.

So if your -- if the law that

3

has been explained to you was inaccurate, then

4

some of your conclusions might be inaccurate as

5

well; is that fair to say?

6

A.

I think maybe the opposite, that I'm

7

-- I don't know if, you know opposite.

That --

8

that I'm making conclusions like Facebook

9

creates this thing.

10

Q.

Right.

11

A.

Or reads this or stores this here.

12

And the law could mean something else, but I

13

still think Facebook does that thing.

14

Q.

To your -- you think -- I mean tell

15

me if I'm wrong, but your -- you can give -- as

16

a computer scientist, you can give an opinion

17

on the operation of something, source code,

18

servers, something along those lines; but you

19

can't really give an opinion on whether or not

20

that conduct would -- would fall within the --

21

fall underneath these two statutes, the Wire

22

Tap Act and the California Invasion of Privacy

23

Act; is that accurate?

24

MR. RUDOLPH:

Objection.

25

THE WITNESS:

I -- I think that's

Form.

Page 272
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

right.

2

asked to opine on.

3

So there were particular issues I was

BY MR. JESSEN:

4

Q.

Right.

5

A.

The law was explained on why those

6

were important.

7

Q.

Uh-huh.

8

A.

You know, and I certainly considered

9
10

my understanding of the law as I looked at
this.

11

But I'm not trying to offer an

12

opinion on did Facebook do an illegal thing or

13

not.

14

which I'm told would be illegal, but basically

15

did they do X, Y and Z.

I'm trying to say did they do X, Y and Z,

16

So if -- if the law -- if my

17

understanding of the law were wrong, so say it

18

actually -- like you're allowed to intercept

19

stuff in transit, you know, I'm still saying

20

that Facebook intercepts it in transit.

21

that doesn't matter.

22

Q.

Maybe

Well, you -- the only reason I'm

23

kind of getting into this is because you give

24

opinions sort of -- that talk about, you know,

25

Facebook's intercepting content while it's in
Page 273
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

transmission using devices.

2

And so that's sort of -- it seems

3

like you are giving a -- giving an opinion with

4

-- at least within a legal frame work.

5

But I mean would you sort of -- can

6

you really -- can you really give an opinion on

7

whether or not something constitutes an

8

interception?

9

there are these objects that are created from

10

URL attachments and leave it at that?

11
12

Like are you qualified to say, "And
that's an interception, in my opinion"?

13
14

MR. RUDOLPH:
Asked and answered.

15
16

Or instead can you just say

Objection.

Form.

Compound.

THE WITNESS:

Yes.

I understand

what you're asking.

17

So I think I'm -- I'm operating on

18

my understanding of what an interception is.

19

BY MR. JESSEN:

20

Q.

Right.

21

A.

So if it were the case that I

22

misunderstood or was wrongly informed what an

23

interception was, then potentially those

24

conclusions could be wrong.

25

But I'm -- yeah.

I'm not trying to
Page 274

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

offer an opinion on -- on the law and just much

2

more an opinion on here's what I observe being

3

done in the system and let you guys all sort

4

out what's legal and what isn't.

5

Q.

Okay.

You're familiar with the

6

article -- excuse me -- in the Wall Street

7

Journal "How Private Are Your Private

8

Messages?" by Jennifer Valentino-DeVries and

9

Ashkan Soltani dated October 3rd, 2012?

10

A.

Yes.

11

Q.

When's the first time you became

12
13

aware of that article?
A.

I believe it's sometime after I

14

started working on this case.

15

having read it before.

16
17

Q.

MR. RUDOLPH:

Objection.

Form.

THE WITNESS:

Like where in the

Vague.

20
21

When exactly does the -- when

is user-specific share object created?

18
19

Okay.

I don't remember

process?

22

BY MR. JESSEN:

23

Q.

Well, sure.

24

A.

I think I have -- well, let me --

25

Let's start with that.

let me try the easy answer first, and then -Page 275
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Okay.

2

A.

-- we'll see.

3

Q.

Sure.

4

A.

It's created relatively early in the

5

processing between when I hit send and when the

6

message is delivered to the recipient.

7

Q.

What does it mean -- what do you --

8

does the entire delivery process take -- how

9

long does it take?

10

A.

Less than a second.

11

Q.

So what does it mean to say its

12

created relatively early in a process that

13

takes less than a second?

14

A.

Well, there's a bunch of steps.

15

Q.

Right.

16

A.

And it's one of --

17

Q.

Yeah.

18

A.

-- the earlier steps in that

19

process.

20
21

MR. JESSEN:
tape now.

22
23

I think we can end this

I need a short break.
THE VIDEOGRAPHER:

Off the record at

4:09.

24

This is the end of Media Unit No. 3.

25

(A short recess was taken.)
Page 276
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

THE VIDEOGRAPHER:
4:44.

3
4

On the record at

This is the beginning of Media Unit
4 in the deposition of Dr. Jennifer Golbeck.

5

BY MR. JESSEN:

6

Q.

Welcome back, Dr. Golbeck.

7

On Paragraph 38 of your report, if

8

you could direct your attention to that, you

9

say:

"The ENT global share also contains a

10

number of tracking information fields,

11

including share count, post count, Like count,

12

comment count and click count.

13

each represent the number of times Facebook

14

users have engaged in the specific action

15

related to the URL at issue."

16

These counts

Did I read that correctly?

17

A.

Yes.

18

Q.

And do you have an understanding of

19

which of the counts reflects URL attachments

20

shared in messages?

21

A.

I believe that's share count.

22

Q.

Okay.

In 39 you go on to say:

23

"When the user sends a private message

24

containing a URL, whether it is new to Facebook

25

or not, the share count field of the ENT global
Page 277
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

share is incremented.

2

count that" -- "the count that indicates how

3

many times the URL has been shared goes up by

4

one."

5

In other words, the

See that?

6

A.

Yes.

7

Q.

Are you saying that that always

8

happened whenever a user sends a URL in a

9

message, that the share_count field is

10
11
12
13

incremented?
A.

If there's the URL attachment to

that message, I believe that's correct.
Q.

Are you aware of any circumstances

14

where, even if there is a URL attachment, the

15

count in the -- in the share_count field would

16

not increase?

17
18
19
20

A.

If the code works like it's supposed

to, it should always go up.
Q.

What about -- are you familiar with

race conditions?

21

A.

Yes.

22

Q.

And do you have an understanding

23

that race conditions in this context could

24

prevent the count from going up for any given

25

URL share in a message?
Page 278
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2
3
4

A.

Yes.

I would count that as a type

of error.
Q.

Okay.

And database failures could

also cause that?

5

A.

Absolutely.

6

Q.

Okay.

Are you saying that

7

incrementing the share count field in the

8

global share -- I'm sorry -- the share count

9

value in the tracking info field of the global

10

share object, is that part of the intercepting

11

that you're claiming?

12

MR. RUDOLPH:

Objection.

13

THE WITNESS:

Yeah.

Form.

I believe

14

that's part of what I'm saying, is that part of

15

the interception.

16
17

BY MR. JESSEN:
Q.

If that -- if the field in that --

18

or if the counter in that field in the global

19

share object was not incremented, would that

20

mean that there was no -- would that mean that

21

there was not an interception?

22

A.

There are other ways that that --

23

that data from those URL attachments is

24

intercepted aside from this count.

25

Q.

For -- involving global -- involving
Page 279
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2
3
4

share objects or...
A.

In -- do you mean involving the ENT

global share?
Q.

Yeah.

Or a -- or a user-specific

5

global share -- I'm sorry -- user-specific

6

share object.

7

A.

So if this value were not

8

incremented by one, and the other types of

9

interceptions still happened, then there would

10
11
12
13

still be an interception.
Q.

What are the other types of

interceptions you're referring to?
A.

There's the creation of user URL

14

share object.

15

which I get to in the next section.

16

Q.

Okay.

There's also a log of the share,

So -- so incrementing --

17

incrementing -- I'm trying to figure out what

18

is the interception.

19

Sounds like you're saying, if a

20

share object is created, that's -- if a

21

user-specific share object is created, that's

22

an interception, regardless of whether the

23

tracking info field is incremented; is that

24

correct?

25

A.

I believe that's correct, yes.
Page 280
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Okay.

So you don't actually

2

consider the tracking info field, whether it's

3

incremented or not, to be part of the

4

interception, right?

5

A.

That's not what I said.

6

Q.

Okay.

7

A.

There are several interceptions that

8
9

So it is part of it.

take place.
Q.

Uh-huh.

And these are all things --

10

in your opinion, the several interceptions are

11

electronic processes taken place -- taking

12

place that aren't necessary to deliver the

13

message?

14
15
16
17
18
19

That's what makes them
interceptions?
A.

Are we going back to my legal

understanding?
Q.

Whatever you're opining on in this

case.

20

A.

Okay.

21

Q.

And I think you're giving -- you

22

seem to be -- you talk about interceptions,

23

so...

24
25

A.

Yes.

So there are three or four,

depending how you count ways -Page 281
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Uh-huh.

2

A.

-- that messages are intercepted by

3

Facebook where the contents of the message are

4

redirected to code that's not necessary for the

5

delivery of the message.

6

Q.

7

Right.
So any -- any -- any processing of a

8

message that is not necessary to deliver it you

9

would consider to be an interception.

10

MR. RUDOLPH:

Objection.

11

THE WITNESS:

I'd have to see

12

specific examples.

13
14

Form.

BY MR. JESSEN:
Q.

I'm just trying to figure out where

15

you're drawing the line, because it seems kind

16

of like an arbitrary line.

17
18
19
20
21
22

A.

I'm not sure where your confusion

lies.
Q.

Okay.

So -- all right.

So the creation of the share object,
you consider that to be an interception.
Incrementing the share count value

23

in the tracking info field in the global share

24

object, you consider that -- is that a separate

25

interception?
Page 282
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

Yes.

2

Q.

Okay.

3

Another type of interception.
I'm going to get to the

logging.

4

But are those the only two

5

interceptions that involve share objects,

6

either user-specific or global share objects?

7
8
9

A.

I -- I believe that's correct.

They're the only two that I've listed in here.
Q.

And I think we went over this

10

earlier, but you don't have a way -- if I gave

11

you a global share object for a particular URL,

12

and you looked at the tracking info field, and

13

you looked at the share count portion of that

14

field, and let's say it was a number that said

15

7,563, there's no way for you to tell me to

16

take that number and work backwards and figure

17

out which Facebook users shared that URL

18

attachment in a private message, correct?

19
20
21

A.

If all you're giving me is that in

global share with that number, that's correct.
Q.

Okay.

Is there other information,

22

if I gave you, that would allow you to figure

23

that out?

24
25

A.

The user-specific URL's share

objects have information that indicates that
Page 283
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

they are shares from private messages.

2

if I had access to that data and the URL, I

3

could trace it back.

4
5

Q.

And so

If you had -- if you had access to

the user specific share objects.

6

A.

Correct.

7

Q.

But you still wouldn't be able to

8

tell -- even if there was a user-specific share

9

object that was connected to the global share

10

object, you still wouldn't be able to tell if

11

that particular user-specific share object

12

incremented the tracking info field, right?

13

A.

I don't think that's correct.

14

Q.

Okay.

15

Well, I thought that's what

you said earlier.

16

Where -- where am I going wrong?

17

A.

So if a user URL share object is

18

created --

19

Q.

Right.

20

A.

It means that a user has sent a URL

21

attachment to their Facebook message.

And

22

short of errors in the code, that will always

23

increment the share count field in the ENT

24

global share object in addition to creating the

25

user URL share object.
Page 284
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

Q.

are there not, from time to time?

3
4

But there are errors in the code,

A.

There could be errors in the code

from time to time.

5

Q.

And so you couldn't tell me -- you

6

could make a guess, but you couldn't tell me

7

with reasonable certainty that yes, this

8

particular URL share -- URL share did increment

9

that counter, correct?

10

A.

I think that's unfair.

I think I

11

would have a high degree of certainty that the

12

counter was incremented.

13

Facebook code, I think it's quite rare that you

14

get database failures that prevent these sorts

15

of things from being recorded.

16
17

Q.

20

Are you aware of the testimony of

Mr. He that this counter was not very accurate?

18
19

Having looked at the

A.

I don't recall that testimony.

I'm

Q.

Are you aware of his testimony that

--

21

there -- at different times, due to database --

22

database failures and other related issues, the

23

information was lost, particular shares?

24

A.

I do recall that, yes.

25

Q.

Okay.

So -Page 285
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

I still think --

2

Q.

-- you can't --

3

A.

-- I'd be making a reasonable

4

estimate.

5

Q.

6

right?

7

A.

8
9

You'd be making an estimate, though,

Yes.

There could be -- it could be

some digits off based on system errors.
Q.

And it could be -- okay.

Well, we

10

don't have to get into the other aspects.

11

Given the time, we won't.

12

So earlier we were talking about --

13

you were talking about that the user specific

14

share object is created early in the

15

transmission process.

16

Recall that testimony?

17

A.

I do.

18

Q.

And is that user-specific share

19

object created when the message has reached a

20

Facebook server and is in temporary storage?

21
22

A.

It has reached a Facebook server and

is not in temporary storage.

23

Q.

Why not?

24

A.

I -- I don't know how to answer that

25

question.
Page 286
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Is it in memory?

2

A.

It is stored in memory.

3

Q.

What's the difference between memory

4
5

and temporary storage?
A.

Storage is -- so memory allows you

6

to operate on some data if it's in memory.

7

Storage, temporary or permanent, is a place

8

where information is stored that it can't be

9

operated on.

10
11
12

Q.

What do you mean "operate on"?

By

whom?
A.

You can use it in code, do some

13

operations with that data.

14

out of storage to be processed.

15

Q.

It has to be taken

So if a message or -- if a message

16

or a URL attachment is in temporary storage, it

17

can't be operated on?

18

A.

I think that's correct.

19

Q.

Are you aware of the fact that the

20

Facebook Messages product uses a so-called

21

store-and-forward model?

22

A.

Yes.

23

Q.

Okay.

24

A.

That the message is stored at

25

What does that mean to you?

different steps along the way and then
Page 287
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2
3
4

forwarded on to following steps.
Q.

What are the various places where

it's stored along the way?
A.

Having looked at the Facebook code,

5

I don't see it very much stored along the way.

6

I see generally the sent messages received,

7

it's put through a series of steps that I

8

looked at, and it's delivered.

9

There may be additional steps in the

10

final delivery that I haven't looked at because

11

the interceptions that I've talked about here

12

take place early in the process.

13
14

Q.

Facebook messaging product than Michael Adkins?

15
16

Would you have more expertise on the

MR. RUDOLPH:
Vague.

Objection.

Calls for legal conclusion.

17

THE WITNESS:

18

MR. JESSEN:

19

Form.

So -I didn't think that

would be a hard question to answer.

20

BY MR. JESSEN:

21

Q.

Go ahead.

22

A.

So I don't think so.

My hesitation

23

is that, in some of the 30(b)(6) depositions,

24

we've heard Facebook employees say they don't

25

really know how specific parts of a system
Page 288
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

works, even though they worked on it.

2

don't remember if he's one of those.

3

Q.

4

And I

So I just want to understand.
Your testimony is that, when share

5

objects are created, they're not in -- they're

6

not in electronic storage?

7

testimony?

8
9

MR. RUDOLPH:

Is that your

Objection.

Form.

Asked and answered.

10

THE WITNESS:

We're talking about

11

the message being in storage, not the objects

12

being in storage?

13
14

BY MR. JESSEN:
Q.

Well, when the -- you're saying that

15

the URL -- the U -- the creation of the share

16

object is an interception.

17
18

A.

Yes.

And The message is not in

storage at the point that that's created.

19

Q.

Is the URL attachment in storage?

20

A.

It is not.

21

Q.

It's not in any kind of storage?

22

Temporary?

Not in any kind of temporary

23

storage?

24
25

A.

I think that's right.

So there's a

-- there's potentially a separate object with
Page 289
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

that data that's stored.

2

message and the attachment, no.

3

memory.

4
5
6

Q.

But the actual
They're in

Isn't memory a -- a way to

temporarily store things?
A.

I think in the context we were

7

talking about message delivery here, and when

8

we're talking about processing, no.

9

Q.

10
11
12
13
14

But it is on a Facebook server.
All this stuff's on a Facebook

server, right?
A.

All -- yeah.

All this code's

executing on a Facebook server, yes.
Q.

In Paragraph 43, you talk about

15

logging of private message content.

16

"Once Facebook intercepts the URL content of a

17

user's private messages in the form of user URL

18

share objects and ENT shares, it logs that

19

content in numerous ways, including" it's --

20

"in various tables."

21

You say:

Do you see that?

22

A.

Yes.

23

Q.

Are you saying that the logging

24

occurs after the message has already been

25

intercepted?
Page 290
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

That the -- the user URL share

2

object is created, and that is one of the

3

interceptions.

4

I believe it's the case that, in the process of

5

creating that, this logging occurs.

6

Q.

Just thinking back to the code,

So is it part of -- would you

7

consider that -- the logging to be part of the

8

interception?

9

A.

Yes.

10

Q.

What is logging?

11
12
13
14

We talked about

this a bit earlier, but refresh my memory.
A.

It's essentially recording -- gen-

-- generally recording something that happened.
Q.

Okay.

Is it unusual?

15

MR. RUDOLPH:

Objection.

16

THE WITNESS:

Logging this kind of

17

thing or logging -- having logs in general?

18
19
20
21
22
23
24
25

Vague.

BY MR. JESSEN:
Q.

Well, in -- first let's start in

general.
A.

In general, no.

Things like

accesses to Web pages are logged all the time.
Q.

Okay.

Is the kind of logging that

you're talking about here unusual?
MR. RUDOLPH:

Objection.

Form.
Page 291

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

THE WITNESS:

I think this is.

I

was surprised that this was happening.

3

BY MR. JESSEN:

4

Q.

Why do you say that?

5

A.

Why was I surprised that it was

6

happening?

7

Q.

8
9

Yeah.

And why -- and why do you

think it's unusual?
A.

I -- I think it's unusual for

10

companies to look at -- you know, companies,

11

but certainly other places, to look at the

12

contents of messages and create records of the

13

activities of those contents that are outside

14

the scope of what's necessary to deliver the

15

message.

16

Q.

I find that unusual.
What sources did you consult to

17

understand whether and how Facebook logs URL

18

data from private messages?

19

A.

So I certainly looked at the code.

20

I -- looking at Paragraph 46 in here, I cite

21

some testimony from Xin Liu and from Ray He.

22

believe I also cite some Facebook documents

23

about the logging issue, both for

24

and for Nectar.

25

Q.

I think when you said testimony by
Page 292
Veritext Legal Solutions
877-955-3855

I

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Xin Liu, you're referring perhaps to an e-mail

2

from 2010.

3

A.

Yeah.

4

Q.

In Paragraph 45, you -- first of

5

all, what are --

I'm sorry.

You're right.

what's -- what -- what is

6
7

A.

So we call it

just for

8

short.

9

Q.

Okay.

10

A.

It's a table that has a record of

Fair enough.

11

the user ID, the fact that they have shared a

12

URL, the time that they've done it, I believe

13

it points to the global ENT share.

14

an indicator that that action was taken in a

15

private message or not.

16

Q.

And there's

You do discuss some of these things

17

in Paragraph 45.

18

table records the user ID, an action that user

19

has taken like a share or a Like, the time of

20

that action, and points pointers to data

21

structures that have more information about the

22

URL, in this case sent through a private

23

message."

24
25

You say:

"The

You don't actually cite anything in
support of that.
Page 293
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

, you're referring perhaps to an e-mail

2

from 2010.

3

A.

Yeah.

4

Q.

In Paragraph 45, you -- first of

5

all, what are --

I'm sorry.

You're right.

what's -- what -- what is

6
7

A.

So we call it

just for

8

short.

9

Q.

Okay.

10

A.

It's a table that has a record of

Fair enough.

11

the user ID, the fact that they have shared a

12

URL, the time that they've done it, I believe

13

it points to the global ENT share.

14

an indicator that that action was taken in a

15

private message or not.

16

Q.

And there's

You do discuss some of these things

17

in Paragraph 45.

18

table records the user ID, an action that user

19

has taken like a share or a Like, the time of

20

that action, and points pointers to data

21

structures that have more information about the

22

URL, in this case sent through a private

23

message."

24
25

You say:

"The

You don't actually cite anything in
support of that.
Page 293
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2
3

What are you basing that statement
on?
A.

That actually is in the

4

file, which I do cite at least

5

in Paragraph 49.

6

of the fields in

7

That has a full description

I believe I cite it somewhere else

8

in the report that I'd be happy to look through

9

if you want me to find it.

10
11

MR. JESSEN:
document.

12
13

16

This will be Exhibit 4.
(Deposition Exhibit 4 was marked for

identification.)

14
15

Let me mark another

BY MR. JESSEN:
Q.

Okay.

So I've handed you several

printout -- source code printouts.

17

A.

Uh-huh.

18

Q.

And I believe the -- you

19

referenced -- well, Paragraph 49 of your

20

report, I think.

21

A.

Correct.

22

Q.

And so -- and then you have a

23

footnote to paragraph -- I'm sorry -- footnote

24

to 28 referencing Page 14183.

25

Is this what you're sort of relying
Page 294
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

upon?

2

A.

Yes.

3

Q.

And which parts specifically are you

4

relying on for your -- the first sentence in

5

Paragraph 45?

6

A.

So in Paragraph 45 I list that this

7

looks at a record of the user ID, I believe

8

that's on line 16; the action the user has

9

taken, which is line 15, the time of the action

10

on line 13; the pointer to data structures,

11

which I believe is on both 17 and 18; and then

12

is posted on line 20 is an indicator of whether

13

it was publicly posted or not, which would

14

indicate its in a private message.

15
16
17

Q.

Based on your analysis of the code,

when did this logging in
A.

start?

I don't know that I actually saw

18

when it started.

19

It certainly started before

the class period.

20

Q.

Okay.

21

A.

2010 there were issues with the

22
23
24
25

table that were corrected.
Q.

Do you know if the logging and share

stats continue past December 2012?
A.

I believe it did, but I don't have
Page 295
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

access to the code after that point.

2

Q.

Why do you believe it did?

3

A.

All of the code up until that point

4

that operates with the

5

operated up till that point in the same way.

6

So it could be that, on January 1st, 2013, all

7

of the code was changed.

8

unlikely to me.

9
10

Q.

table

That seems highly

You said there was a -- a fix in

2010?

11

A.

Correct.

12

Q.

What was that?

13

A.

They weren't properly marking that

14

messages were -- that these shares were taking

15

place in private messages.

16

URL share data was being exposed publicly, and

17

there were a few attempts to update what was in

18

the table to hide the fact that those private

19

message shares were being recorded.

So private message

20

Q.

What do you mean "hide"?

21

A.

Well, they -- I mean one fix for the

22

fact that private messages were being logged

23

and exposed would be to stop logging private

24

messages, which isn't what they did.

25

put in a flag to say hide these pieces of data

They just

Page 296
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

from people who are publicly looking.
Q.

3
4

MR. RUDOLPH:
speculation.

5
6

Why did they do that?
Objection.

Calls for

Lacks foundation.

THE WITNESS:

Why did they make the

change?

7

BY MR. JESSEN:

8

Q.

Correct.

9

A.

So there's a few places that I cite

10

in here.

11

Just give me one second.
Yeah.

So I think the main fix for

12

excluding this -- I don't recall, and I don't

13

see it listed here, what their motivation was

14

for making that change.

15

Q.

But are you -- are you -- is it

16

possible that -- I mean you said that they

17

were -- private messages were being exposed.

18

Do you -- do you think they didn't

19
20
21
22
23
24
25

want those private messages exposed?
Could that -- could that have been
the motivation to make the change?
MR. RUDOLPH:

Objection.

Calls for

speculation.
THE WITNESS:

I -- from all of the

documents that I've looked at, Facebook is
Page 297
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

concerned about people being concerned about

2

their privacy but not necessarily concerned

3

about stopping the things that people are upset

4

about.

5

from seeing that.

6

They are concerned with stopping people

So it could be the case that they

7

were concerned about privacy.

8

the case that they were concerned that people

9

would be upset about it.

10

BY MR. JESSEN:

11

Q.

Or it could be

Is there a distinction between a

12

social network logging information and keeping

13

records internally and exposing that

14

information to the entire world?

15
16

MR. RUDOLPH:

Objection.

Form.

Vague.

17

THE WITNESS:

18

Yes.

BY MR. JESSEN:

19

Q.

Okay.

20

A.

One is kept internally, and one's

21
22
23

What's the distinction?

exposed to the world.
Q.

It sounds like, in your mind,

they're both equally bad.

24

A.

I think they're both bad.

25

Q.

Equally bad?
Page 298
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

They're --

2

MR. RUDOLPH:

Objection.

Form.

3

THE WITNESS:

They're both privacy

4

violating.

5

but I think it's privacy violating either way.

6
7
8
9

I think it's worse to expose it,

BY MR. JESSEN:
Q.

What do you mean by "privacy

violating"?
A.

I mean if the post office started

10

opening my mail, scanning it and posting it

11

online, I'd be really upset.

12

that was to stop posting it online but to keep

13

opening it and scanning it and reading it, that

14

would still be an invasion of my privacy.

15

Q.

If their fixed to

You think it's an invasion of

16

privacy for Facebook to keep track of

17

aggregated data regarding the kind of URLs that

18

are shared on its Web site?

19

A.

Sent in private messages or sent

20

generally?

21

Q.

Both.

22

A.

I think it is a violation of privacy

23

to scan the contents of private messages even

24

to create aggregated data.

25

Q.

Why is that?
Page 299
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

Because they're private.

2

Q.

Then how is that an invasion of a --

3

of privacy if it's aggregated data,

4

nonpersonally identifiable?

5

A.

So I don't know how philosophical

6

you want to get on this.

7

established in the psychological community, is

8

the ability for one person to control what they

9

disclose to whom and when.

10

But privacy, well

So it's not simply that sharing

11

information violates privacy.

12

made a choice to share it; and in the case

13

where I'm sending a private message, that

14

message is intended for the person that I'm

15

sending it to.

16

with Facebook, the contents of that message,

17

then Facebook going in there without my consent

18

or understanding violates my privacy in that I

19

have not made a conscience choice to share that

20

data with Facebook at that time.

21
22
23
24
25

Q.

It's that I've

If I don't intend to share that

Is -- is Facebook, in your view,

scanning every message that contains a URL?
A.

Every -- well, what do you mean by

"scanning"?
Q.

You -- that was your -- you used the
Page 300
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

word.

2

A.

At what point in the process?

3

Q.

Any point.

4

A.

So --

5

Q.

From the time the message is -- from

6

the time the message is -- you press send until

7

delivery.

8
9

A.

If that message has a URO

attachment, I believe --

10

Q.

Okay.

11

A.

-- they're, short of code errors,

12
13

looking at all of them, yes.
Q.

And if -- they're not looking at it

14

if it's just got -- if it doesn't have an

15

attachment.

16

A.

17
18

MR. RUDOLPH:

THE WITNESS:

23
24
25

Form.

I haven't looked at

all of that yet in the code.

21
22

Objection.

Vague.

19
20

I haven't --

BY MR. JESSEN:
Q.

But you don't know that they're

doing that now.
I mean you don't have and opinion
that they're scanning messages that just
Page 301
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

contain a URL and don't have a URL attachment,

2

right?

3

A.

4

Right.

5

Q.

6
7
8
9
10

I don't offer any opinions on here.

But you -- and you don't have any

reason to think they are doing that, do you?
A.

I -- I just don't know.

I haven't

looked.
Q.

Do you have a reason to think

they're doing it?

11

A.

I have no reason either way.

12

Q.

Okay.

So for some reason they're

13

just looking at the ones that have the

14

attachments.

15
16

MR. RUDOLPH:

Objection.

Form.

Argumentative.

17

THE WITNESS:

18

Is that a question?

BY MR. JESSEN:

19

Q.

Yeah.

20

A.

What --

21

Q.

That --

22

A.

What are you asking?

23

Q.

That's what they're doing.

24
25

Your view is they're just scanning
the ones -- they're scanning the ones that have
Page 302
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2
3
4
5

attachments.
A.

They are scanning the ones that have

attachments.
Q.

Because of the -- because the

preview was created.

6

Coincidently, those just happen to

7

be the ones they're scanning if there's a

8

preview; is that -- that's your testimony.

9
10

MR. RUDOLPH:

Objection.

Misstates prior testimony.

11

THE WITNESS:

Form.

Argumentative.

I'm not sure I totally

12

understand the question.

13

attachments of messages with URLs that have the

14

preview attachment.

15

They are scanning the

BY MR. JESSEN:

16

Q.

But not the others.

17

A.

I don't know if they're doing the

18
19

others.
Q.

Okay.

Well, why -- why -- why are

20

they doing one and not the other, in your

21

opinion?

22
23
24
25

MR. RUDOLPH:
Lacks foundation.

Objection.

Form.

Calls for speculation.

THE WITNESS:

So I don't know that

they're not doing the other.
Page 303
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2
3

BY MR. JESSEN:
Q.

But you don't have any information

that they are.

4

A.

I haven't looked either way, right?

5

There's --

6

Q.

You haven't looked?

7

A.

I have not -- that's right.

I have

8

not looked in the code about scanning of the

9

message content itself yet.

10

Q.

Okay.

11

A.

So I don't know if that answers your

12
13

question.
Q.

14
15

Let's move on to your discussion of
Nectar.

16
17
18
19

Right.

What is Nectar?
A.

Nectar is another platform for

logging on Facebook.
Q.

And what do you base -- what's

20

your -- what's your understanding of Nectar

21

based upon?

22

A.

I've seen it used in the code.

And

23

then also, as you can see here in this section

24

starting at Paragraph 52, there are a number of

25

references to Nectar in Facebook documents
Page 304
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

that -- that describes things being logged

2

there.

3

Q.

What gets logged in Nectar?

4

A.

Just give me one second to review --

5

Q.

Sure.

6

A.

-- what I have here.

7

So if you look in Paragraph 52, this

8

Facebook document that I've cited says that in

9

Nectar they are logging relevant actions that

10

create relationships or show clickable links,

11

including things from the inbox.

12

That same document that goes on to

13

say:

14

Nectar platform and Nectar content action."

15

And then I'm referring to code in

16

"The places that we log the data are in

Paragraph 54.

17

Q.

Uh-huh.

18

A.

I've quickly flipped through here --

19
20

I could look deeper if you want -- to this
e

e

r

that

21

refers to Nectar and the way that they're

22

logging details there.

23

Q.

So is it safe -- I mean the e-mail

24

you cited from July 2010, is it -- is it -- is

25

it -- can you say, to a reasonable degree of
Page 305
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

computer scientific certainty, that what's

2

described in an e-mail is how the system is

3

operating?

4

A.

Like do I think the Facebook

5

engineers are lying to each other about what

6

they're recording where?

7

Q.

No.

8

Can you -- can you read an e-mail --

9

rand an unfortunately we don't have time to --

10

to do it.

11

But can you -- can you look at an

12

e-mail and discern from an e-mail that discuss

13

many different types of data and many different

14

types of information what's going on in the

15

code?

16

A.

Ah --

17

Q.

And in -- in -- in -- go ahead.

18

A.

So I think you can draw a lot of

19

conclusions from things that engineers discuss

20

in e-mail.

21

No.

22

events in Nectar.

23

Could I reproduce the code from it?

But I do cite to code here also that logs

Q.

You say that, when a URL -- in

24

Paragraph 54:

"When a URL is scraped or"

25

prescraped -- "or a prescraped URL is accessed,
Page 306
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Facebook logs the event in Nectar."

2
3

What -- what do you mean by
"scraped" or "a prescraped URL is accessed"?

4

A.

I believe that's referring to an

5

access to an ENT global share object.

6

want to look at that code to make sure if you

7

want me to go in -- in depth to that.

8
9

Q.

But I'd

When a global share object is

accessed by what?

10

A.

I believe the share scraper code.

11

Q.

So before the message is sent?

12

A.

I believe that's right.

13

Q.

Is it possible that the logging in

14

Nectar was only being done on a sample --

15

sample basis?

16

A.

It seems unlikely, given how I've

17

seen it used in the code, but I suppose it

18

could be possible.

19
20

Q.

cut through some of this.

21
22

I'm just -- and again, I'm trying to

But there's a reference in the code
to a

.

23

A.

Where is --

24

Q.

And --

25

A.

-- that in the code.
Page 307
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

Q.

It's -- so if you go to the Bates

No. FB 14195 in Exhibit 4.

3

A.

Okay.

4

Q.

And -- yeah.

5

column,

So on the left-hand

, it references a

.

6

A.

It does.

7

Q.

So does that affect your conclusion

8

at all or...

9

A.

That line does not, no.

10

Q.

Why not?

11

A.

So that's pulling something called a

12

share scrape log rate.

13

the sampling were being done here, you would

14

see that sampling rate actually used to adjust

15

whether or not a function was called.

16

doesn't happen.

17

But it actually -- if

And that

It's just a variable that's passed

18

in to the creation of the event variable.

19

There's nothing in this line that says how

20

that's used -- nothing in this function.

21

Q.

22

in Nectar?

23

A.

Other besides what?

24

Q.

Scraped or prescraped URLs being

25

What other kinds of data are logged

accessed.
Page 308
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

So again, going back to Paragraph 52

2

and 53, in reference to that e-mail, they talk

3

about logging actions that create relationships

4

or show clickable links.

5
6

Q.

And so your testimony is that that

information is also contained in Nectar?

7

A.

Yes.

8

Q.

Have you seen that in the code?

9

A.

I don't recall if I have or not.

10

I've looked at a lot --

11

Q.

Because what --

12

A.

-- of code.

13

Q.

-- you're citing here is an e-mail

14

from July of 2010.

15

And can you tell me, to a reasonable

16

degree of computer science certainty, that this

17

information discussed in that e-mail in

18

Paragraph 52 is reflected in the Nectar log --

19

or in -- excuse me -- in Nectar?

20

A.

I think it's reasonable to draw a

21

conclusion from an e-mail between Facebook

22

engineers that say, "We're doing X," that they

23

were, in fact, doing X.

24
25

Q.

The e-mail doesn't exactly say what

you're saying it says, which is the issue.
Page 309
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

MR. RUDOLPH:

2

BY MR. JESSEN:

3

Q.

4

Hold --

But -- but that wasn't my question.
The question was can you tell me,

5

based upon a reasonable degree of computer

6

science certainty, that that information is

7

reflected in Nectar?

8
9

MR. RUDOLPH:
Argumentative.

10

Objection.

Form.

Asked and answered.

THE WITNESS:

I -- I think my

11

answer's the same.

12

conclude from an -- an e-mail between Facebook

13

engineers that what they say is happening is

14

happening.

15
16
17

I think it's reasonable to

BY MR. JESSEN:
Q.

Assuming you -- assuming you've

interpreted the e-mail correctly, right?

18

A.

Yes.

19

Q.

Okay.

Let's talk a little bit about

20

the various uses of what you refer to as

21

intercepted private message data.

22

Is it fair to say that all the uses

23

you are discussing involve the use of

24

aggregated nonpersonally identifiable

25

information?
Page 310
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

MR. RUDOLPH:

Objection.

2

THE WITNESS:

So I think, when we --

3

Form.

we briefly touched on this before --

4

BY MR. JESSEN:

5

Q.

Yeah.

6

A.

-- that the activity feed presents

7

an edge case where there could be personally

8

identifiable information exposed.

9

The other cases all use aggregated

10

data that reasonably seems to be not personally

11

identifiable.

12

Q.

When you referred earlier -- I think

13

you said that some private message content had

14

been -- I don't want to misquote you, but It

15

think you said exposed?

16

A.

Yes.

17

Q.

Was that a reference to the activity

18

plug-in or something --

19

A.

The activity --

20

Q.

-- else?

21

A.

-- feed plug-in, yes.

22

It was a

reference --

23

Q.

And --

24

A.

-- to that.

25

Q.

And what were you referring to there
Page 311
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

specifically?
A.

There's an issue where -- that

3

popped up that I really didn't -- with an ex-

4

-- an exter- -- a person external to Facebook

5

identified that, if I sent you a private

6

message with a URL in it, that the URL that I

7

sent to you could appear in the activity feed

8

of my friends as a URL they might want to check

9

out; which, if it's something like New York

10

Times, is not personally identifiable; if it's

11

a link to the draft version of my personal Web

12

site or, you know, pictures of me that I don't

13

want exposed to the public, suddenly that

14

becomes visible and is potentially identifiable

15

with me.

16
17

Q.

And so when that was happening,

wouldn't -- I mean tell me if I'm wrong.

18

But is your understanding that it

19

wouldn't say "Jen Golbeck," you know, "shared

20

this link."

21

recommend that link or the -- it would say

22

"Someone shared this" in the activity feed.

23

It would just -- that -- it would

I mean is that your understanding?

24

A.

25

I believe the latter is correct.

Right.
Page 312
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Okay.

But you're saying, depending

2

on the URL, a URL could -- some URLs could be

3

personally identifiable depending on sort of

4

what it is.

5

A.

Right.

6

Q.

Is it your understanding that that

7

was a -- that was a bug back in the 2010, 2011

8

time period?

9

A.

You know, I don't know if I'd call

10

it a bug.

11

consequence of how it was implemented.

12
13

Q.

But it could be an un- -- unintended

And do you have an understanding

that Facebook ultimately resolved that issue?

14

MR. RUDOLPH:

Objection.

Form.

15

THE WITNESS:

I do, yes.

My

16

understanding is that they changed that.

17

BY MR. JESSEN:

18

Q.

You don't think that that was

19

intentional functionality on their part, do

20

you?

21
22
23

MR. RUDOLPH:

Objection.

Calls for

speculation.
THE WITNESS:

I don't think that

24

they set out with the intention of saying, "We

25

will take private message shares that could be
Page 313
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

sensitive and show them to other people."

2
3

I think they probably didn't care,
and that's why it happened.

4

BY MR. JESSEN:

5

Q.

Why do you think they didn't care?

6

A.

This would be a really simple thing

7

to prevent from happening if that kind of

8

privacy concern were at the forefront in your

9

development.

10
11

Q.

Would the -- do you know what year

this issue...

12

A.

I believe 2010.

13

Q.

Okay.

14
15
16

And do you know when they --

when they fixed that?
A.

2011.

So actually, I think 2011 is

the only year I know.

17

Q.

Okay.

18

A.

Yeah.

I'm not...

19
20
21

I'm not sure if 2010 was when

the activity feed was introduced.
Q.

Okay.

And that was before the class

period started in this case, right?

22

A.

That's correct.

23

Q.

Okay.

24
25

You talk a little bit about

recommendations.
What's your understanding of
Page 314
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

recommendations -- the recommendations widget?

2

A.

What about it?

3

Q.

Like what was it?

4
5
6
7
8
9

What was the

recommendations functionality?
A.

It recommended links to people that

Facebook thought they might be interested in.
Q.

And were those recommendations made

on Facebook.com or on that particular Web site?
A.

I believe they were external.

It

10

was a third-party plug-in for use on other Web

11

sites.

12

Q.

And what's your understanding of

13

how -- how certain URLs were recommended on

14

those Web sites?

15

A.

That there was a Facebook plug-in

16

widget that would display those recommended

17

links.

18

window and would display those recommended

19

links in it.

20
21
22

Q.

It sorted of had its own separate

And what determined what links were

recommended?
A.

It's a pretty complex process,

23

actually, generating those recommendations.

24

don't know that I have a full handle on --

25

Q.

I

Uh-huh.
Page 315
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

-- all of the code for the entire

2

process.

3

the data that we're talking about here that I

4

cite in the report.

5

Q.

There's some specific files that use

Was -- is it fair to say that, for a

6

period of time, the URLs shared in Messages --

7

URL attachments -- because they incremented one

8

of the -- one of the values in the tracking

9

info field in this global share object,

10

which -- that influenced, among many other

11

things, how popular that particular URL was,

12

and thus, you know, how likely it was to be

13

recommended on a third-party Web site?

14

A.

That's a fair characterization.

15

Q.

Okay.

And at -- other kinds of URL

16

shares went into that calculation as well, such

17

as public posts, comments on URLs, so on and so

18

forth.

19

A.

Right.

20

Q.

Okay.

And is it your understanding

21

that at some point Facebook stopped including

22

URLs -- URL attachments in private messages in

23

that calculation?

24
25

A.

I'm actually just unsure.

The code

has changed since the initial file that
Page 316
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

identified and cited here.

2

looking to try to see one way or another if

3

those values are being used now.

4

Q.

Okay.

And I'm still

So in Paragraph 60 when you

5

say in the last sentence -- and you're

6

referring to recommendation -- "This use proves

7

that private message content was used to affect

8

these external recommendations made to other

9

users," you're referring to the URL attachment

10

which led to the creation of a user-specific

11

share object which incremented the tracking

12

info field in the global share object, which

13

informed the recommendations.

14

A.

I think that -- that's a fair

15

description of the process.

16

that incrementing of the field in the global

17

share object necessarily follows exactly like

18

you said from the creation of the user share

19

object.

20

Q.

I'm not sure if

But the -- the essence of i tis right.
There could be variability regarding

21

whether or not a user share object incremented

22

the tracking info field?

23

A.

I would just want to look at the

24

code to see if that's a single unified process

25

or separate process.

That's the only thing I'm
Page 317

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2
3

catching on there.
Q.

Okay.

You have a section called

"Insights Developer API."

4

And let's talk a little bit about --

5

what are you referring to in this section

6

specifically?

7

the -- the use of this private -- this

8

intercepted private message content that you're

9

referencing here?

10

A.

What sort of a gravamen of

This provided demographic

11

information about people who had interacted

12

with URLs of external Web sites, in this case

13

shared those URLs in a private message.

14

Q.

And you do cite a lot of -- well,

15

what -- in -- in -- in reaching -- you cite a

16

lot of e-mails and sort of other documents in

17

this section.

18

Were you able to observe in the code

19

itself the -- the phenomena that you're

20

discussing?

21
22
23

A.

I haven't been able to track it down

in the code yet.
Q.

Okay.

Do you know if, throughout

24

the entire class period, URL attachments shared

25

in messages were reflected in the Insights
Page 318
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

dashboard?

2

A.

3
4

I don't know if they were reflected

there for the whole class period.
Q.

And similarly, do you know if, to

5

the extent they were reflected in

6

Domain Insights, they would have been reflected

7

in the demographic information?

8
9
10
11

A.

Can you rephrase that

question for me?
Q.

Yeah.

Sorry.

That was a poorly

worded question.

12
13

I'm sorry.

So for the duration of the class
period, do you know -- well, strike that.

14

The -- earlier I think you testified

15

you haven't been able to track down in the code

16

whether, throughout the entire class period,

17

URL attachments shared in messages were

18

reflected on the Insights dashboard.

19

Would you say the same thing about

20

specifically demographic information from URL

21

attachments and messages?

22

that was reflected of the insights dashboard?

You don't know if

23

A.

For the entire class period?

24

Q.

Correct.

25

A.

That's correct.
Page 319
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Do you -- do you know that it was

2

implemented for -- for some part of the class

3

period?

4

A.

So I have this cited in Paragraph

5

74, experiments that Ashkan Soltani ran that

6

suggest that they were included in there.

7
8

I have not tracked down the code
related to that yet.

9

Q.

Uh-huh.

10

A.

Be the same as the other code we

11

were talking about.

12

strongly suggest that it was included there.

13

Q.

But his experiments

And so that would be things like

14

gender, age range, language, country, that sort

15

of -- sort of broad demographic data?

16

A.

Correct.

17

Q.

Okay.

And -- and we discussed this

18

briefly earlier, but Domain Insights allowed

19

the owner of a domain to go in an access

20

certain kinds of analytics about people's

21

interactions with his or her Web site?

22

A.

Right.

23

Q.

Okay.

Do you know, for any given

24

Web site, whether the Insights dashboard was

25

actually viewed by the domain owner?
Page 320
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

I'm sorry.

2

Q.

Yeah.

3

Can you repeat that?

Sorry.

Do you know, for any given Web site,

4

whether or not the insights dashboard for

5

that -- reflecting information for that site

6

was actually viewed by or accessed by the

7

domain owner?

8
9
10

A.

I'm certain that information exists

at Facebook, but I haven't seen any of it.
Q.

But I'm -- I'm asking like would the

11

owner of the domain -- is there way -- a way to

12

tell if the -- do you know if the owner of the

13

domain ever actually went and looked at it?

14

A.

The answer's the same.

I'm sure

15

that information exists at Facebook.

16

That's

just not information I have.

17

Q.

Okay.

18

A.

So you could tell, for any given

19

domain --

20

Q.

Oh, I see what --

21

A.

-- if someone --

22

Q.

-- you're saying.

23

A.

-- had accessed it and -- and looked

24

at it.

25

Q.

I see what you're saying.

Okay.
Page 321

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

What's your understanding regarding

2

the relationship between external node

3

recommendations --I'm sorry -- external node

4

recommenders and Taste?

5
6

A.

My understanding -- let me just go

back to that.

7

My understanding is that Taste

8

replaced functionality of the external node

9

recommender.

10

Q.

Uh-huh.

And do you know, for -- for

11

the duration of the class period, if Taste has

12

used information from URLs shared in messages?

13

A.

I don't know.

14

Q.

Okay.

Regarding Paragraph No. 79,

15

"API Queries," we talked, again, about this a

16

bit earlier, but what are your -- your

17

conclusions with respect to API queries is

18

that you could -- you could -- you could query

19

the API for a given Web site and get sort of

20

general analytics data about interactions with

21

the site?

22

A.

Right.

You could get the counts of

23

how many people had shared the URL, which

24

included --

25

Q.

Uh-huh.
Page 322
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

-- shares through private messages.

2

Q.

Uh-huh.

Were the shares from

3

private messages broken out separately from --

4

from broader shares, or were they included with

5

another category?

6
7
8

A.

I believe all the -- all the shares,

public and private, were grouped together.
Q.

Okay.

Do you know if this

9

information -- if URL -- URLs shared in private

10

messages are still reflected in the information

11

accessible through API queries?

12

A.

I believe they are not.

13

Q.

Okay.

14

Do you know when that

stopped?

15

A.

I don't know.

16

Q.

Okay.

You talk a little bit about

17

incrementing the Like counter in -- starting on

18

Page 23 of your report.

19

A.

Quite a bit about it.

20

Q.

Yeah.

21

That's true.

You're aware that, for a period of

22

time, there was what you describe as double

23

counting?

24

A.

Yes.

25

Q.

You discuss that on Paragraph 83.
Page 323
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

Do you think that was an intentional
thing Facebook did --

3

A.

I don't --

4

Q.

-- or do you think it was a bug?

5

A.

I don't --

6

MR. RUDOLPH:

Objection.

Form.

7

THE WITNESS:

I don't know if I'd

8

put it in either category.

I certainly don't

9

think they set out with the intent of counting

10

twice.

11

about it in their internal messages.

12

But they didn't seem super concerned

BY MR. JESSEN:

13

Q.

About counting twice?

14

A.

Yeah.

They -- they wanted to fix

15

it, but they were not unhappy with the high

16

Like counts, was my reading of those messages.

17

Q.

Okay.

Do you know, during the time

18

that -- that the -- the Like counts were being

19

incremented by two, do you know if the

20

information in the tracking info field in the

21

global share object was also being incremented

22

by two?

23
24
25

A.

I understand your question.

I'm

just thinking about how the code connects this.
I believe that's correct, looking at
Page 324
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

the code that I have here.
Q.

And really in -- in Paragraphs 85 --

3

we're running short on time -- but 85 through

4

93, you really discuss -- actually, strike

5

that.

Let's move on.

6

Are you of the view, Dr. Golbeck,

7

that keeping a count of the times that a URL is

8

shared across a Web site, including in private

9

messages, is unlawful?

10

MR. RUDOLPH:

11

THE WITNESS:

Yeah.

It's a really

legal question.

14
15

Calls for

legal conclusion.

12
13

Objection.

BY MR. JESSEN:
Q.

Should it be unlawful?

16

MR. RUDOLPH:

Same objection.

17

THE WITNESS:

Depends.

18

MR. JESSEN:

19

answer on that one.

20
21

(Discussion off the stenographic
record.)

22
23
24
25

I bet I know your

BY MR. JESSEN:
Q.

Just want to go back to something we

discussed earlier briefly.
If a user composes a message and a
Page 325
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

URL preview is generated, and then the user

2

hits the send button, and the body of the

3

message is sent along with the URL attachment,

4

and that message goes to a -- message and the

5

attachment go to a Facebook server, if -- if

6

the message and the attachment, okay, if

7

they're in memory on a Facebook server, and the

8

message is awaiting final delivery to a

9

recipient, do you consider that message to be

10

in temporary intermediate storage incidental to

11

the electronic transmission?

12

A.

13
14

MR. RUDOLPH:
Form.

15
16

Q.

21

Objection.

Calls --

Would you -MR. RUDOLPH:

-- for legal

conclusion.

19
20

Objection.

BY MR. JESSEN:

17
18

I would not --

BY MR. JESSEN:
Q.

Would you -- you understand there

could be a difference of opinion on that?

22

MR. RUDOLPH:

23

BY MR. JESSEN:

24
25

Q.

Objection.

That other computer scientists might

disagree with what you're saying there?
Page 326
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

MR. RUDOLPH:

2

Calls for speculation.

3
4
5
6
7

Form.

BY MR. JESSEN:
Q.

Or do you think the view that you're

espousing is beyond dispute?
A.
dispute.

8
9

Objection.

I always think my views are beyond
No.

That's not true.

I could see someone trying to wedge
a technical argument that would say it was

10

temporary storage incidental to the

11

transmission.

12

think it's like such a slimy manipulation of

13

the term as to render it meaningless.

14

someone could disagree with --

I think it's -- honestly, I

So

15

Q.

I'll --

16

A.

-- it, but I'd -- I would think very

17
18
19

strongly that they were wrong about that.
Q.

code could be a device?

20
21

MR. RUDOLPH:

THE REPORTER:

Could you repeat that

because of the siren.

24
25

Objection.

Argumentative.

22
23

Almost like saying a line of source

BY MR. JESSEN:
Q.

Almost like saying a line of source
Page 327
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

code could be a device?

2

A.

Are you implying that I'm slimy?

3

Q.

No.

4

A.

You know I do patent testimony,

5

right?

6

details.

So I'm really good at the technical

7

Q.

8

testimony.

9

No, I know.

Okay.

I know you do patent

Let's talk -- and you and I

10

could have very interest philosophical

11

conversations, by the way, but we'll have to

12

save those --

13

A.

Off the record.

14

Q.

-- for another -- another time.

15

Okay.

Let's -- I want to go to --

16

you have a discussion on -- starting on Page 27

17

that says:

18

A.

Yes.

19

Q.

I want to talk a little -- I have

"Class members are ascertainable."

20

some questions about that.

21

briefly earlier.

22
23
24
25

We talked about it

In Paragraph 102 you discuss the
proposed class in this case.
And do you understand that the -what we call the putative class members must be
Page 328
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

natural persons?

2

You understand that?

3

A.

I do.

4

Q.

Located within the United States.

5

You understand that?

6

A.

Yes.

7

Q.

Okay.

8

Who sent or received a

message from a Facebook user.

9

You see that?

10

A.

A private message.

11

Q.

Right.

12
13
14
15

I use "private message" and

"message" synonymously.
A.

That's part of our core

disagreement.
Q.

16

Perhaps.
That included a URL in its

17

content --

18

A.

Yes.

19

Q.

-- correct?

20

A.

Yes.

21

Q.

And from which Facebook generated

22

the URL attachment, correct?

23

A.

Yes.

24

Q.

From within two years of the filing

25

of this action, which is December 31st, 2011 -Page 329
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

or excuse me -- December 30th, 2011, up through

2

the date of class certification.

3

A.

I see that, yes.

4

Q.

Okay.

So that's the proposed --

5

that's the -- that's the class that the

6

plaintiffs are asking the court to certify.

7

In Paragraph 103, you say that, to

8

retrieve a list of class members, the code

9

process should be relatively straightforward.

10

A database query could be used to select the

11

Facebook user IDs of everyone whose actions had

12

created an ENT share from a private message,"

13

correct?

14

A.

Yes.

15

Q.

Okay.

And "ENT share" is synonymous

16

in this context with "user-specific share

17

object"?

18

A.

Correct.

19

Q.

Okay.

Is it your expert opinion

20

that the Facebook user IDs of everyone whose

21

actions had created an ENT share from a private

22

message constitutes a list of every member of

23

the proposed class and known nonclass members?

24
25

A.

I'm just thinking through that.

I -- I do understand the question.
Page 330
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Yeah, yeah.

2

A.

Just let's me repeat it so I'm --

3

Take your time.

I'm answering correctly.

4

If we have the Facebook IDs of all

5

the people who have sent the message that makes

6

this object, is that enough to identify the

7

members of the class?

8

Q.

Yeah.

I think that's basically it.

9

A.

I think that's right then.

10

Q.

Well, although I should add, I mean

11

because the class also includes people who've

12

received messages with URL -- with URLs in

13

their content and from which a URL attachment

14

was generated.

15
16
17
18

So how would you identify those
people?
A.

The people who had received the

message?

19

Q.

Yeah.

20

A.

So if you have it, I would want to

21

look at it to make sure -- to look at this --

22

at the ENT share objects to see if the

23

recipient's listed in there.

24

recall if the recipient is or not.

25

obviously don't have that in the report here.

I just don't
And I

Page 331
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

MR. JESSEN:
one.

We'll mark this as Exhibit 5.

3
4

Let's take a look at

(Deposition Exhibit 5 was marked for
identification.)

5

THE WITNESS:

6

MR. JESSEN:

7

swap that out?

8

Thank you.
Oh.

Can we

wrong one.

9

MR. RUDOLPH:

10
11

I'm sorry.

I'm sorry.

I gave you the

Okay.

BY MR. JESSEN:
Q.

Okay.

So this -- what's -- the

12

court reporter's handed you Exhibit 5, which is

13

a document with the production numbers FB 6038

14

to 6084.

15
16

This is -- I'll just represent is an
ENT share for a particular URL share.

17

Just take a look, and let me know if

18

you can -- you're able to identify the

19

recipient.

20

A.

21
22

Thank you.
So trying to go through this

quickly, I don't see the recipient --

23

MR. RUDOLPH:

Don't -- okay.

24

THE WITNESS:

-- listed here.

25

BY MR. JESSEN:
Page 332
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2
3

Q.

I didn't see it either when we went

through it earlier.
A.

So if -- given that that's the case,

4

the code examples that I have here would

5

retrieve the senders of those messages.

6

Q.

Uh-huh.

7

A.

From there, because we have

8

information about -- about the message itself,

9

and as you mentioned, there are objects created

10

that represent the message in addition to

11

representing --

12

Q.

Uh-huh.

13

A.

-- the attachment, you should be

14

able -- there would be an extra step required

15

beyond what I have here to identify the

16

recipients.

17

this data to then the recipients of the

18

messages with an additional step.

19
20
21

Q.

But you should be able to go from

What do you think that additional

step would entail?
A.

So you'd modify these slightly so

22

that, instead of just selecting the ID of the

23

person who's -- who was the creator in that ENT

24

share object, you would retrieve the

25

message and -- you know, I haven't looked at
Page 333
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

this structure -- at the data structure for

2

storing the message.

3

But -- but certainly one way or

4

another will get you to the recipient because

5

you can see that in your messages folder,

6

right?

7

look at those messages and see that you sent it

8

to a recipient or vice versa and if the

9

attachment is there.

10

Like you can go through and actually

Q.

Is that similar to the

11

self-identification mechanism you -- you also

12

propose in this?

13

A.

Well, self-identification you'd have

14

to ask -- you know, people would be doing it

15

themselves.

16

with code.

17

Q.

By Facebook --

18

A.

By --

19

Q.

-- or --

20

A.

-- Facebook.

21

Q.

You're saying looking -- actually

This could be done automatically

22

looking in people's inboxes to see if the URL

23

attachment was visible?

24
25

I mean is that -- forgive me if I
got it wrong, but is that what you're
Page 334
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

proposing?

2

A.

No, no, no.

I'm just saying the

3

fact that -- so you, for example, or I can go

4

to our messages folders on Facebook --

5

Q.

Right?

6

A.

-- and retrieve any of those

7

messages shows that the data is stored

8

together, the sender, the recipient and the

9

message ID.

10

So certainly you could self-identify

11

that way.

12

connected -- it has to be for Facebook to be

13

able to display it -- you could use this method

14

to select the people who had sent those

15

messages and the message IDs, and from there,

16

because we know they're all connected, identify

17

the recipients of those messages that had the

18

attachment.

19

Q.

But because we know that data is

Would the search -- would the

20

results of the query that you discuss in sort

21

of Paragraphs 103 and 104, would that identify

22

share object -- user-specific share objects

23

associated with deleted messages or deleted

24

accounts?

25

A.

I'm not sure about either.

I'm not
Page 335

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

sure what Facebook deletes.

So if you delete

2

your Facebook account, generally, the last I

3

checked, Facebook did not actually delete the

4

data with your account.

5

a year later and --

So you could come back

6

Q.

Uh-huh.

7

A.

-- sign up again, and everything you

8

had done would be there.

9

at depth into this, but I believe that those

10

So I haven't looked

messages would be there also.

11

As for deleted messages, I'm not

12

sure.

13

like if Facebook gets rid of these ENT shares

14

if someone deletes a message or not.

15

Q.

I haven't looked at what the process is,

Would the results of your query

16

identify messages with URL share attachments

17

that were blocked by site integrity processing?

18

A.

So my understanding -- and -- and

19

this could have changed over time -- is that

20

Facebook won't actually carry -- follow through

21

with this process if the URL is blocked.

22

Q.

The process -- what process?

23

A.

Of creating --

24

Q.

Of creating the --

25

A.

-- the objects.
Page 336
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

Okay.

Would the results of your

2

query identify messages with URL share

3

attachments that did not result in the creation

4

of a share object for one reason or another?

5
6

A.

Like in the case of these code

errors?

7

Q.

Yeah.

8

A.

Then I think it would not if -- I'm

9

sorry.

10

Sure.

Just so -- repeating this.
If -- if there was a URL in the

11

message but the -- and there was a URL

12

attachment but the ENT share object did not get

13

created?

14

Q.

Correct.

15

A.

Okay.

16

It would not identify that

then.

17

I think would be okay actually,

18

because if that object doesn't get created, the

19

person probably isn't a member of the class.

20

Q.

Uh-huh.

You don't have any way, I

21

gather, of identifying Facebook users who type

22

the URL into the text of a message, had a URL

23

preview generated, and then deleted that

24

preview before they sent the message, correct?

25

A.

That's correct.

I don't know how
Page 337

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

you would know that.

2

Q.

3

excuse me.

4

Okay.

And your query "quode" --

Pardon me.
Your query code in Paragraph 104 is

5

based upon the attributes you identify in

6

Paragraph 99, correct?

7

A.

That's correct.

8

Q.

And in Paragraph 99 you say that

9
10

certain attributes show that a given ENT share
was created from a private message, correct?

11

A.

Yes.

12

Q.

Okay.

So if these attributes are

13

under- or over-inclusive of members of the

14

purported class, the resulting list from your

15

query will similarly be over- or

16

under-inclusive, right?

17

MR. RUDOLPH:

Objection.

18

THE WITNESS:

If they were, I think

19

that would be true.

20
21
22
23

Form.

BY MR. JESSEN:
Q.

And I gather -- do -- do these

messages -- I'm sorry.

Pardon me.

Do these attributes identify only UR

24

-- URL shares in messages or other kinds of

25

shares for messages?
Page 338
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

Only URL shares.

2

Q.

Did these attributes identify only

3

messages with a URL in their text?

4

MR. RUDOLPH:

Objection.

Form.

5

THE WITNESS:

I believe it's the

6

case that this is actually based on the

7

attachment and not on the text of the message.

8
9

BY MR. JESSEN:
Q.

Okay.

So this could include a

10

message that -- like if I type in a URL and

11

then a preview is generated, and then I delete

12

the URL but I keep the preview and send it,

13

that would -- that would pick up that

14

message --

15

A.

That's right.

16

Q.

-- as well, right?

Okay.

17

Do these attributes -- strike that.

18

There was a period of time -- and

19

this is discussed in Alex Himel declaration --

20

when you could go to a Like button social

21

plug-in on a third-party Web site, and one of

22

the options was you could click "Share in

23

private message."

24

A.

Yes.

25

Q.

And then from there you could -- you
Page 339
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

could -- you could share the URL in a message.

2

Do you know if -- if the -- your --

3

the attributes that you identify would pick up

4

those kinds of shares?

5

A.

So I'd want to go back and -- and

6

revisit Himel.

But I believe it's the case

7

that they would.

8

-- because I kind of remember them making a

9

point about this.

I believe that -- that those

10

Q.

Uh-huh.

11

A.

I believe it's the case that those

12

share and private message messages were treated

13

the same way in the data.

14

here, so I'd want to confirm that --

But it's not in

15

Q.

Okay.

16

A.

-- to be sure.

17

Q.

Do these attributes -- these four

18

attributes, do they identify only messages

19

including a nonFacebook URL?

20
21
22

A.

That's correct.

This is only

nonFacebook URLs.
Q.

Do these attributes distinguish

23

between messages whose senders are physically

24

located in the United States and others?

25

A.

These attributes do not make that
Page 340
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

distinction.
Q.

Do these attributes distinguish

3

between URLs shared in private messages before

4

December 30th, 2011, and those shared after

5

December 30th, 2011?

6
7
8
9
10
11
12

A.

The attributes in Paragraph 99 don't

address the date.
Q.

Do these attributes identify URL

message shares that were logged in any way to
Nectar?
A.

So the queries that I have using

these --

13

Q.

Uh-huh.

14

A.

-- are on the ENT share objects.

15

They're not on the Nectar data.

16

was -- if there were a case where there were

17

not overlap there, it was -- I don't -- I don't

18

know if this could be the case.

19

think harder about it.

20

So if there

I'd have to

But hypothetically, if it were

21

logged to Nectar and not in an ENT share or the

22

reverse, if they didn't match, then you'd be

23

missing one or the other.

24

missing what's in Nectar.

25

Q.

You'd be -- you'd be

Right.
Page 341
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

So these attributes, they -- you

2

couldn't tell from these attributes whether the

3

URL message share was logged to Nectar; is that

4

accurate?

5
6

A.
Nectar.

So you're -- I'm not querying
So --

7

Q.

Right?

8

A.

-- you know, if that were the

9

question that I would ask --

10

Q.

Uh-huh.

11

A.

-- that I were asked, I'd actually

12

want to go back to the code a little bit to --

13

to connect the Nectar logging process with this

14

to kind of see exactly where the dependencies

15

and connections are.

16

querying Nectar with these properties.

17

Q.

Okay.

But certainly this is not

Do these attributes identify

18

URL message shares that resulted in an

19

increment in the

20

A.

21

table?

Again, this is not querying the
table.

22

Q.

Got it.

23

A.

But this is a code connection

24

between the creation of the objects this would

25

identify and that incrementing.
Page 342
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

What's that code connection?

2

A.

Like do you want specific lines?

3

Q.

No, but just in general.

4

A.

So there --

5

Q.

If you remember.

6

A.

There are lines of code.

So I -- I

7

know I have -- I was just looking at it.

8

are lines of code that do the logging for the

9

There

table that's connected to this.

10

Q.

Okay.

11

A.

Theoretically it's possible, but

12

they could be different for some of these

13

errors.

14

shares; it's not querying

15

Q.

16
17

But again, this is querying the ENT

Right.
Do these attributes identify URL

message shares that were utilized by Taste?

18

A.

It does not.

19

Q.

Do these attributes identify URL

20

message shares that were displayed in any

21

recommendations plug-in?

22

A.

Does not.

23

Q.

Do these attributes identify URL

24

message shares that were displayed in any

25

activity feed?
Page 343
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

No.

2

Q.

Do these attributes identify URL

3

message shares that were included in data from

4

any API available to third parties?

5
6
7

A.

It does not uniquely identify those,

Q.

Do these attributes identify URL

no.

8

message shares that were reflected in Insights

9

data?

10

A.

No.

11

Q.

What about demographic data made

12
13

available to third parties?
A.

No.

I mean in all cases these

14

things certainly could have been used this way.

15

But they're not distinguished in the query

16

here.

17
18

Q.

They could have been, sort of a

case-specific issue.

19

A.

I think that's right.

20

Q.

Yeah.

21

So I just have a few more

along this same lines.

22

A.

Sure.

23

Q.

Do these attributes identify URL

24

message shares that resulted in any increment

25

in the Like counter on a third party Web site?
Page 344
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

I just want to make sure -- I know

2

you've given me a bunch of these questions --

3

just so I'm answering them correctly.

4

are only going to identify ENT share objects.

So these

5

Q.

Understood.

6

A.

All these things that you're asking

7

about, as I'm agreeing that they're not shown

8

there, is that that data's not connected to

9

these objects.

10

Q.

Understood.

11

A.

Okay.

12

Q.

And I've only got a couple more.

13

And I'm sorry --

14

A.

Okay.

15

Q.

-- it's a little repetitive.

16

A.

No.

I just wanted to make sure,

17

when I say no, it doesn't show up there, that

18

we're -- that I'm answering --

19

Q.

Yeah?

20

A.

-- within your asking.

21

Q.

Yeah.

I'm just trying to understand

22

exactly what your -- what these attributes

23

would identify and what they -- what they

24

wouldn't.

25

A.

Okay.
Page 345
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

Q.

So these attributes wouldn't

2

identify whether or not a message share had

3

resulted in an increment in a Like button

4

social plug-in counter on a third-party Web

5

site.

6

A.

Correct.

7

Q.

Okay.

Do these attributes

8

distinguish between messages whose senders or

9

recipients are natural persons and those that

10
11
12
13
14

are not?
A.

That can be kind of a very

philosophical question.
Q.

Especially since you study

artificial intelligence.

15

A.

Yeah.

I mean that's the thing,

16

right?

17

have bots with accounts, right, artifical

18

intelligence with accounts --

If -- so Facebook doesn't want you to

19

Q.

Uh-huh.

20

A.

-- and would block those.

21

But, you know, if it didn't know if

22

I had written a bot to do that, since Facebook

23

has no way of distinguishing that, even though

24

they technically don't allow it, it wouldn't

25

distinguish.

That's assuming, you know, people
Page 346
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

are violating those terms of Facebook.

2
3

Q.

You -- you say it wouldn't
distinguish.

6
7

I just want to make sure I

heard you correct.

4
5

Okay.

A.

Correct.

So if I signed up a bot,

Facebook --

8

Q.

Right.

9

A.

-- didn't know it was a bot, and it

11

Q.

Right.

12

A.

-- started sending private messages,

10

13
14

--

you wouldn't be able to distinguish that.
Q.

Do these attributes distinguish

15

between messages sent by Facebook users and

16

those that were sent by nonFacebook users?

17
18
19

A.

I don't think you could send one of

these messages if you weren't a Facebook user.
Q.

Do these attributes distinguish

20

between messages whose users knew about and

21

consented to the alleged interceptions?

22
23
24
25

A.

I don't know how anyone would have

known about and consented to the interceptions.
Q.

But -- okay.

But it's possible that

someone could have, right?
Page 347
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

Yeah.

Like I guess if Facebook

2

engineer would have known this was happening,

3

this would identify the Facebook engineer even

4

if he or she had consented.

5

filter out manually --

But it's easy to

6

Q.

But you --

7

A.

-- afterwards.

8

Q.

-- you could tell -- these

9

attributes wouldn't tell you -- and I --

10

consent is a -- is an issue that the Court will

11

decide.

12

But you couldn't tell -- you could

13

get a list of people who had sent messages

14

containing URL shares, but these attributes

15

aren't going to tell you which of those users

16

consented to the conduct that you're

17

complaining about, right?

18
19

MR. RUDOLPH:

Objection.

Calls for

legal conclusion.

20

THE WITNESS:

Short of making a

21

legal conclusion, yes, because consent is just

22

not recorded.

23

BY MR. JESSEN:

24

Q.

Say that -- consent is not recorded?

25

A.

Yes.

This is all accessing data
Page 348
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

that Facebook has recorded.

2

Q.

Oh, I see.

3

A.

They haven't --

4

Q.

Oh, I see.

5

A.

-- recorded if I know about it or

6

have consented.

7

pull that out.

8
9

MR. JESSEN:
saying.

10
11

I see what you're

Okay.
I think we have maybe five minutes

left.

12
13

So these attributes wouldn't

THE VIDEOGRAPHER:

You've six

minutes.

14

MR. JESSEN:

Six?

15

If you guys just give us like five

16

minutes, we'll look through our notes, figure

17

out...

18
19

THE VIDEOGRAPHER:

Off the record at

6:19.

20

(A short recess was taken.)

21

THE VIDEOGRAPHER:

22

6:38.

23
24
25

On the record at

BY MR. JESSEN:
Q.

Dr. Golbeck, you have some

statements in your report regarding your view
Page 349
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

that if Facebook Message is delivered when it

2

reaches HBase and is in persistent storage at

3

that time.

4

You remember that?

5

A.

Yes.

6

Q.

Okay.

If Facebook created

7

user-specific share objects based on URL share

8

attachments in private messages, after the

9

message and the attachment had reached HBase,

10

would you consider that to be an interception?

11

MR. RUDOLPH:

Objection.

12

THE WITNESS:

Certainly not as I've

13

Form.

analyzed it here.

14

BY MR. JESSEN:

15

Q.

Okay.

16

A.

You know, it's a hypothetical.

It

17

seems like probably not, but I would want to

18

see the actual details of -- of what's

19

happening in the process to be sure.

20
21
22
23
24
25

Q.

I gather you still would view that

as a privacy violation?
MR. RUDOLPH:

Objection.

Form.

Incomplete hypothetical.
THE WITNESS:

I -- personally I

would, yes.
Page 350
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

BY MR. JESSEN:
Q.

Yes.

Okay.

3

Do you think that you're more

4

privacy sensitive than a lot of people?

5
6

MR. RUDOLPH:

Objection.

Form.

THE WITNESS:

I don't think so.

Vague.

7

I

8

think I'm more privacy invasion aware than most

9

people.

10

BY MR. JESSEN:

11

Q.

Okay.

12

A.

But when I talk to people about the

13

things that I view as privacy invasions that

14

are happening that not --

15

Q.

Right.

16

A.

-- everybody knows about, they tend

17
18
19

to be as spooked and appalled as I am.
Q.

Do they alter their conduct

typically after learning of these practices?

20

MR. RUDOLPH:

21

Calls for speculation.

22

THE WITNESS:

Objection.

Form.

Lacks foundation.
So I -- you know, I

23

can't really know.

But when I do go and give

24

these talks that I mentioned to you, I show

25

this video called "Take This Lollipop," which
Page 351
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

you should try if you never have.

2

creepy Facebook stalker guy look at your

3

profile.

4

Makes a

And I always get lots of people

5

saying, "I'm just going to go delete my

6

Facebook account right now," which is not a --

7

really a Facebook issue, and it certainly

8

doesn't have to do with private messages.

9

But yeah.

People -- I think, when

10

they find out about privacy issues like this,

11

definitely contemplate changing their behavior.

12

Whether they do is a question because there's

13

not a lot of alternatives other than totally

14

opting out of online life.

15
16

BY MR. JESSEN:
Q.

Let's go back to the section on

17

ascertainability.

18

couple of questions about -- you say in

19

paragraph 105 on Page 29:

20

were not an option, direct code could be

21

written to access the data."

22

I want to just ask you a

And then you say:

"If database queries

"For each share

23

object, something like the following checks

24

would determine if it were a share generated

25

from that private message."
Page 352
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

See that?

2

A.

Yes.

3

Q.

I just want to understand exactly

4

what -- what -- exactly what are you proposing

5

there?

6
7
8
9

Like are you proposing a -- a manual
look-up process for every share object?
A.

Certainly not manual.

It would be

code.

10

Q.

Okay.

11

A.

So one could, for example, get a

12

list of all the ENT share objects, loop through

13

them with this query, which would identify

14

those that were created from private messages.

15
16

Q.

How is it -- how is it different

from what you were proposing in your query --

17

A.

So the --

18

Q.

-- code?

19

A.

-- the foundation of it --

20

Q.

Yep?

21

A.

-- is essentially the same.

22

Q.

Uh-huh.

23

A.

Paragraph 104 is SQL, S-Q-L, code.

24
25

Paragraph 105 is roughly PHP code.
Q.

Uh-huh.
Page 353
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

A.

So it's just a matter of is it a

2

query you would make in a database because the

3

data's accessible in that way.

4

Q.

Right.

5

A.

Or is it one that you would write

6
7

separate code for.
Q.

Do you know -- you have any sense

8

for how much time and effort it would take to

9

generate these -- these lists of proposed class

10
11
12

members?
A.

From a programming perspective or a

computational time perspective?

13

Q.

Let's do both.

14

A.

So I -- I have no idea how long it

15

would take to run this --

16

Q.

Uh-huh.

17

A.

-- just because Facebook has a

18

pretty sophisticated C loud-based architecture.

19

Q.

Yeah.

20

A.

So it'd be a lot different than me

21
22

running it on my computer.
Generating the code, you know, the

23

core of it would be very fast, you know,

24

something you can do in a few minutes.

25

Actually implementing it so it would run, you
Page 354
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

know, it should take somebody a day or two to

2

kind of work out all the bugs and -- and --

3

Q.

Okay.

4

A.

-- figure it out.

It shouldn't take

5

-- for a competent Facebook engineer, it

6

shouldn't take an inordinate amount of time.

7

MR. JESSEN:

8

further questions at this time.

9

Okay.

I don't have any

I would renew my request for those

10

three e-mails between Dr. Golbeck and the

11

plaintiffs' counsel before she was engaged.

12
13

MR. RUDOLPH:

We're -- we're going

to have to get back to you on that.

14

MR. JESSEN:

15

MR. RUDOLPH:

16

to -- to look into it.

17

MR. JESSEN:

Okay.

And I'll just --

Haven't had have time

Even though I think

18

it's unlikely I would bring you back, I will

19

just reserve my right to bring you back if need

20

be.

21

THE WITNESS:

22

that we have left on the record.

23

fun.

24

MR. JESSEN:

25

THE WITNESS:

For the 15 seconds
That'd be

They might -I'll totally do 15
Page 355

Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

seconds.

2

MR. JESSEN:

They might give me

3

another -- you know, little -- little bit --

4

but hopefully that won't be necessary.

5

THE WITNESS:

There -- there's

6

nothing too exciting in those e-mails.

7

No.

8

communications.

I know.

9
10

I shouldn't talk about any of the

MR. JESSEN:
your time.

Well, thank you for

Happy birthday.

11

THE WITNESS:

12

MR. JESSEN:

13

Thank you.
And I have no further

questions.

14

MR. RUDOLPH:

15

THE VIDEOGRAPHER:

16
17
18
19
20

So...

Yeah.

No questions.
Off the record at

6:44.
This is the end of Media Unit 4 and
the end of the deposition.
(Whereupon, the proceeding was
concluded at 6:45 p.m.)

21
22
23
24
25
Page 356
Veritext Legal Solutions
877-955-3855

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1
2

CERTIFICATE OF NOTARY PUBLIC
I, Bonnie L. Russo, the officer before

3

whom the foregoing deposition was taken, do

4

hereby certify that the witness whose testimony

5

appears in the foregoing deposition was duly

6

sworn by me; that the testimony of said witness

7

was taken by me in shorthand and thereafter

8

reduced to computerized transcription under my

9

direction; that said deposition is a true

10

record of the testimony given by said witness;

11

that I am neither counsel for, related to, nor

12

employed by any of the parties to the action in

13

which this deposition was taken; and further,

14

that I am not a relative or employee of any

15

attorney or counsel employed by the parties

16

hereto, nor financially or otherwise interested

17

in the outcome of the action.

18
19
20

<%signature%>

21

Notary Public in and for

22

the District of Columbia

23
24

My Commission expires:

June 30, 2020

25
Page 357
Veritext Legal Solutions
877-955-3855