Judge Won't Dismiss Privacy Suit Against Facebook

OAKLAND, Calif. — A federal judge yesterday refused to dismiss a class-action lawsuit that claims Facebook illegally scans privates messages for targeted advertising purposes.

The suit involving Facebook, described as the “world’s largest social networking platform” with approximately 1.2 billion users worldwide, is of particular importance to website operators worldwide as more online privacy law cases get filed in courts.

The class suit, brought on by lead plaintiff Matthew Campbell last year, contends that Facebook private messages are supposed to relay private communications, and that Facebook's violates the federal Wiretap Act and California's Invasion of Privacy Act and its Business and Professions Code by scanning them.

In the suit, Campbell claims that Facebook treats web links in private messages as "likes," and that if there's a link in a message the linked site received an additional "like" on its counter.

Facebook uses this data regarding “likes” to compile user profiles, which it then uses to deliver targeted advertising to its users, the suit said.

Facebook countered it stopped updating the link counter using messages to deliver targeted advertising to users two years ago and further argued that users consented to messages’ “interception” for purposes of facilitating delivery, thus Facebook has blanket immunity for any use of that information other than for the purpose of committing a criminal or tortious act."

But in a hearing in October Facebook counsel said that it still conducts some analysis of users' messages to protect against viruses and filter out spam.

U.S. District Judge Phyllis Hamilton on Tuesday, in  her order granting in part and denying in part Facebook's motion to dismiss, said that she rejected Facebook’s argument that plaintiffs expressly consented to the interceptions.

"[T]he use of that web crawler may constitute a separate 'interception' under the Wiretap Act," she wrote in denying Facebook's claims it violated the federal Wiretap Act.

"When asked, at the hearing, which portion of this policy provided notice of Facebook’s practice of scanning users’ messages, Facebook’s counsel pointed to the disclosure that Facebook 'may use the information we received about you' for “data analysis,” Hamilton wrote.

"However, this disclosure is not specific enough to establish that users expressly consented to the scanning of the content of their messages — which are described as 'private messages' — for alleged use in targeted advertising."

Hamilton also denied part of Facebook's motion to dismiss claims under the state Privacy Act, as well as its request to pare injunctive relief.

"Facebook moves to strike plaintiffs' request for injunctive relief, arguing that it ceased the challenged practice 'nearly two years ago,'" Hamilton wrote. "However, plaintiffs have adequately alleged that there is a 'sufficient likelihood' that Facebook could resume the practice, so the court denies Facebook's request to strike the prayer for injunctive relief at this time."

The class-action plaintiffs are seeking an injunction against Facebook to stop the practice of scanning URLs in private messages, as well as statutory damages, which includes $100 for each day that Facebook violated the state Privacy Act, per each member of the class.

View yesterday's order