Judge Says Android Users Need More Info In Facebook Class Action

A federal judge recently told Android users who filed a class action lawsuit that they need to explain specifically which permissions were granted before Facebook allegedly gathered data.

“If you’re making claims of misrepresentation and omission, you need specific language,” said U.S. District Judge Richard Seeborg.

Judge Seeborg critiqued the plaintiffs’ claims and lack of specific language during a dismissal hearing prompted by Facebook’s recently filed motion to dismiss the class action lawsuit.

Although the Android users claim that the social media company wrongfully gathered their phone call and text data, Facebook argues that the plaintiffs did not suffer any “concrete and particularized injury.”

“It must be something beyond the boiler plate invasion of privacy,” said Facebook’s attorney. “It must be coupled with some promise not to do something, or particularly sensitive information that could create some kind of risk.”

Android users filed their Facebook class action in March 2018 alleging that the company’s Messenger app on Android smartphones collected text and call data without consent.

Data was allegedly collected prior to October 2017 and included the data and time of each call, call durations, if a call was outgoing, incoming, or missed, and similar data for text messages.

The plaintiffs claim that Facebook then used this data for monetary advertising purposes.

Facebook pushed back against these claims, saying that they never uploaded the data without consent and that the Android users had opted into the collection of data.

Plaintiffs responded to this argument, saying the social media giant misled consumers by requesting permission to access user contacts instead of their phone call and text data.

However, Judge Seeborg repeatedly asked plaintiff counsel to identify the specific words displayed in Facebook’s requests for permissions.

The judge also asked for the details regarding when plaintiffs saw these permission prompts. Judge Seeborg noted that the specific language of the prompts is important for litigation.

“We all agree that is your obligation,” Judge Seeborg said during the hearing. “You can’t just generally say there was a prompt during all this period of time.”

At the beginning of the hearing, Judge Seeborg reportedly said he was inclined to dismiss the plaintiffs’ claims with leave to amend.

However, Judge Seeborg has not issued a ruling so far regarding the motion to dismiss, so the Android users’ claims are still intact for now.

Should he dismiss the claims with leave to amend, plaintiffs will have the opportunity to amend their allegations and file their complaint again.

The Dec. 6 hearing occurred one day after the British government released documents detailing internal operations of Facebook.

One document from February 2015 allegedly included an email from a company employee, calling the decision to collect Android call and text data a “high-risk” move “from a PR perspective.”

Plaintiffs are represented by L. Timothy Fisher, Neal Deckant, and Scott A. Bursor of Bursor & Fisher PA.

The Android Facebook Class Action Lawsuit is Williams, et al. v. Facebook Inc., Case No. 3:18-cv-01881-RS, in the U.S. District Court for the Northern District of California.

UPDATE: On May 23, 2019, Facebook asked a California federal court to dismiss a class action lawsuit that claims its Messenger app gathers user data, insisting that the plaintiffs failed to show any real injury.

UPDATE 2: On Aug. 29, 2019, a federal judge decided that Facebook must face a class action alleging that the Messenger app records call and text logs of Android users.