David vs. Goliath contest pits a small startup against one of the most
powerful technology companies in the world.
Ted Kramer, founder of Six4Three, at Baker Beach in San
DaSilva / for NBC News
Solon and Cyrus Farivar
REDWOOD CITY, Calif. — Ted Kramer seemed on edge. While
sitting at a Starbucks store recently talking to a reporter, he
kept looking over his shoulder mid-conversation, scanning people
and cars passing by.
For years, Kramer, 35, founder of the now-defunct
startup app developer Six4Three, has been involved in a
high-stakes legal battle with Facebook. He suspects the technology
company has hired people to surveil him, because he says he has
seen people taking photos outside his San Francisco apartment.
Facebook says the surveillance claim is “absolute
fantasy” and denied monitoring Kramer.
Kramer’s concern is far from the most bizarre thing
about his lawsuit, which has prompted an investigation by the
British Parliament and shows no sign of resolution.
The David vs. Goliath contest pits Kramer’s small
startup, which in 2013 built a short-lived app to identify
Facebook photos of users’ friends in bikinis, against one of the
most powerful technology companies in the world. Six4Three sued
Facebook in 2015 in state court in San Mateo County after Facebook
restricted its access to the user data that its app, called
Pikinis, and thousands of other apps, relied on to function.
The case started small, and initially attracted little notice
beyond tech blogs, but it has grown into a massive headache for Facebook.
Over the course of the case, the social media giant was forced to turn
over thousands of pages of internal documents, which show Facebook’s
years-long efforts to control its competitors by sharing or withholding
Facebook user data. The documents — some of which were published by the
British Parliament last year and more of which were recently obtained by
Duncan Campbell, a British journalist who shared
them with NBC News and other media outlets — show how Facebook
publicly described its decisions as driven by user privacy concerns, while
the company was actually focused on threats from competitors.
“It’s like we are fishing in this tiny boat with no one else
around and we somehow managed to hook a massive great white shark on our
line,” Kramer said in his first extensive public comments on the case, a
lengthy emailed response to questions that were screened by his attorney.
The emails were exchanged between meetings in San Francisco and Redwood
“We’ve kept it on the line for four years and have been slowly
but surely reeling it in,” Kramer continued in one of the emails. “The
more we reel it in, the more tricks it finds to try to yank itself off the
line. But it’s still on that line. It has almost tipped our boat over a
few times and it may end up tipping the boat over very soon. But we will
hold onto that rod even while drowning. We’ll keep pulling that line in.
We might go down, but the shark’s coming with us."
Facebook reiterated its view that Six4Three’s lawsuit is
“meritless” and in an emailed statement questioned the startup’s claims
about what the internal documents show.
“As we've said many times, Six4Three — creators of the Pikinis
app — cherry-picked these documents from years ago as part of a lawsuit to
force Facebook to share information on friends of the app's users,” Paul
Grewal, Facebook’s deputy general counsel, told NBC News in a statement.
“The set of documents, by design, tells only one side of the story and
omits important context. We still stand by the platform changes we made in
2014/2015 to prevent people from sharing their friends' information with
developers like the creators of Pikinis.”
NBC News has not been able to determine whether the documents
represent a complete picture. Facebook declined to provide additional
evidence to support its view that they were cherry-picked.
Facebook has publicly painted Six4Three as an unsuccessful
company that sought to exploit the same privacy vulnerabilities in
Facebook’s platform as the data-harvesting boogeyman Cambridge Analytica.
But some experts believe the significance of Kramer’s lawsuit
goes far beyond an app that might be viewed as unsavory.
“Ted is at the center of one of the most important questions of
our decade: How can personal information and privacy be used to harm
competition?” said Ashkan Soltani,
who previously served as the Federal Trade Commission’s chief technologist
and is now an independent privacy researcher based in Oakland, California.
Still, Kramer’s crusade has found few public allies in the tech
At least half a dozen prominent investors and startup founders
told NBC News in private conversations that they’re rooting for Six4Three,
but that they would not say anything publicly that could harm their
relationship with the social network.
As a result of the lawsuit, Kramer fears becoming an outcast in
Silicon Valley. But his goal has not changed: to put Facebook’s entire
business model on trial — particularly what he views as the company’s
bait-and-switch of offering Facebook user data to apps like Pikinis and
then removing it.
“This is all because I am standing up for what is right and
trying to hold Facebook accountable for its fraud,” Kramer said in an
email, “something state and federal governments should have done a long
SIX4THREE’S CASE AGAINST FACEBOOK
Six4Three’s legal case is relatively simple: The startup alleges
Facebook never gave it a fair chance to compete.
From 2010 until April 30, 2015, the Graph API gave all Facebook
apps access to a vast dataset of not only individual users, but their
friends as well. This trove included private messages, check-ins, events,
locations, relationships, and — crucially for Six4Three — photos.
Six4Three’s app, Pikinis, and thousands of other apps of that
era, such as Tinder and Vine, were predicated on having relatively easy
access to Facebook user data.
But then, in April 2014, Facebook announced that it would make
the Graph API far less permissive, removing apps’ access to the data. All
older apps were given a year to retool.
Six4Three sued on April 10, 2015, 20 days before the older
version of Graph API was shut down.
In Six4Three’s most recent amended complaint, filed in January
2018, the startup accuses Facebook of a “series
of fraudulent and anti-competitive schemes” designed by its CEO,
Mark Zuckerberg. According to leaked documents from the Six4Three lawsuit,
Zuckerberg began efforts to shut down apps’ access to user data in 2011
and 2012 — several months before Six4Three was founded.
If Facebook had been transparent about those efforts, “then
Six4Three never would have started its business,” Kramer said.
Among a long list of things that Six4Three has asked
the court to impose is a restoration of the earlier version of the more
permissive Graph API. That’s something Facebook has vowed not to do.
A Facebook spokeswoman noted that the Pikinis app had not even
fully launched in the spring of 2014 when the company announced that apps’
access to user data would be shut down.
HOW TED KRAMER STARTED SIX4THREE
Kramer didn’t set out to become Facebook’s antagonist. In fact,
he began his career as a baseball player.
Kramer returned home to New York in 2007 and soon began working
as a teacher. He later joined his high school friend Thomas Scaramellino’s
energy software company, Efficiency 2.0. After the startup sold to a
larger company, Kramer joined WeWork in 2013 and oversaw the rollout of
its co-working spaces to new cities across the United States and Europe.
Shortly before starting at WeWork, Kramer attended a meetup
group in New York focused on machine learning. He was “enthralled” by a
professor’s talk on visual pattern recognition software that could
automatically classify species of birds.
This fascination led him to found Six4Three in late 2012, using
$250,000 in funding from Scaramellino. He built the company while employed
Scaramellino declined to comment.
Kramer said he didn’t set out to create an app to find bikini
photos — he initially wanted an app to find sports logos and other brand
The plan, Kramer said, was to use Facebook photos to train
software that could do this. He chose to focus on an “admittedly low-brow”
application as a provocative way to get young adults to consent to sharing
their Facebook photos, he said.
But Facebook received no complaints about the app while it was
live, according to the leaked internal documents, and never sent Six4Three
any notices of privacy violations, according to Kramer.
“Facebook continues to tell the court and the media that it shut
down Six4Three because it was a sketchy app and wanted access to data that
Facebook had locked down allegedly for privacy reasons,” Kramer said.
“That is complete pablum. It’s simply not what happened.”
A Facebook spokeswoman told NBC News that the company did not
mislead Six4Three or other app developers.
“They claim that we promised developers unrestricted access to
data forever, which is not true,” the spokeswoman said.
Facebook has previously noted
that Six4Three attracted only $412 in app download sales.
FEW ALLIES FOR SIX4THREE
Six4Three has sought allies in its legal fight, starting a website
inviting aggrieved companies to its side. (Facebook characterized the
website as “slander.”)
But Six4Three has had a tough time drawing support for two
reasons: First, Pikinis is a hard app to defend, and second, few want to
take on one of the largest companies in the world.
Brookman, a former Federal Trade Commission lawyer who is now the
director of consumer privacy and technology policy at the Consumers Union,
was blunt: “This app should not exist. I’m sorry.”
He added that while he agrees with Six4Three that Facebook’s
strategy should be scrutinized, the company does not make a sympathetic
victim. Even Facebook skeptics may find reasons not to side with
Six4Three, he said. “If Cambridge Analytica was suing Facebook for
stopping access, I also don’t think they would get allies, no matter how
Facebook may be annoying or making bad choices,” he said. “The enemy of my
enemy is not always my friend.”
Kramer said that Six4Three has received supportive emails and
phone calls from startup founders and investors. But few have been willing
to publicly denounce the company over fears that it could jeopardize their
relationship with the platform, according to both court filings and NBC
News’ private conversations with several founders.
Ali and Hadi Partovi, the entrepreneur and investor brothers who
co-founded the learn-to-code platform Code.org,
for example, expressed sympathy with Six4Three in emails and depositions
included in court filings.
“Confidentially, Ali and I agree with a lot of this, and it was
a very emotional and trying experience to bet our company on the Facebook
platform, only to see the platform turn into quicksand and see our
investment lose value overnight,” Hadi
Partovi said in an email to Six4Three’s attorney David
Godkin in August 2017 that referred to the difficulties the brothers
had when their music startup iLike worked with Facebook in the 2000s.
“However, given our personal relationships with Sheryl Sandberg
and Mark Zuckerberg, I’m not sure we’d want to be part of a formal
litigation effort,” Partovi said. “We’d have much more to lose than to
In 2016, Facebook donated
$15 million to the brothers’ Code.org nonprofit.
Hadi Partovi released a statement to NBC News: "While most
people who bet on the early Facebook Platform last decade felt badly about
the outcome, Facebook probably lost the most after investing in a platform
that didn’t live up to its potential. I trust that Sheryl and Mark gained
valuable lessons and will draw on this experience in the future. I have
moved on, and I’m sure so have others."
A Facebook spokeswoman said of Six4Three: “The idea that they
can’t get anyone to join them because of personal relationships is
Only a handful of startups affected by Facebook’s platform
changes have been willing to speak on the record about the case.
“I’m not super excited to say that I’m going to get in the ring
with Facebook, because I have a company to build and they have a lot more
money than me,” Nick Soman,
the former CEO of the matchmaking app LikeBright and current CEO of health
care startup Decent, told NBC News.
While Kramer and Scaramellino have been struggling to bolster
their ranks, they have hurt their own cause. Months before Six4Three’s
lawsuit was set to go to trial in April 2019, Kramer angered the judge
overseeing the case late last year after releasing a cache of sealed
documents to a British member of Parliament.
In the run-up to a business trip to London last fall, Kramer was
given a series of parliamentary orders to hand over a set of private
documents that were part of the ongoing Six4Three lawsuit. While Kramer
initially said that he could not provide them as they were under seal by
the court, he eventually complied.
That decision set off a legal firestorm in California, particularly after
the member of Parliament, Damian Collins, published
many of the sealed documents.
The San Mateo County judge hearing the Six4Three case called
Kramer’s release of sealed documents a “compromise of the integrity of our
litigation system” during a hearing last month.
Since the London episode, Six4Three’s lawyers have tried to
quit. Kramer and Scaramellino have tried to find alternate lawyers to
represent Six4Three, but Kramer said that the first six firms they
approached would not take on the case because of a conflict: They already
count Facebook as a client.
Facebook says the implication that the company has blocked
Six4Three’s ability to hire new counsel is “ridiculous.”
After NBC News contacted Facebook for comment on the documents
leaked to NBC News and the Six4Three case, Facebook’s lawyers wrote to the
judge, claiming that Six4Three had leaked the documents to a “national
broadcast network” and seeking to depose Six4Three’s founders. Six4Three
denied leaking the documents.
Kramer is trying to build a new co-working office space startup,
but he says the legal battle has left him on the brink of personal
“It means my new business is at risk, living in San Francisco is
at risk, acting as a consultant is at risk, my reputation is at risk,
finding employment is at risk,” Kramer told NBC News.
Facebook, he said, wants “to financially destroy me and everyone
associated with Six4Three’s efforts before the full truth can be exposed
in front of a jury at trial.” (Facebook said that Kramer’s claim that the
company is trying to ruin him and his associates is also “ridiculous.”)
Nonetheless, Six4Three is pressing on.
“The past few months have been extremely
stressful,” Kramer said, “but the way I handle that is by continuing to
remind myself that I am doing the right thing, and giving up is not an