Facebook Seeks to Dismiss Message Privacy Class Action Lawsuit

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On June 17, Facebook Inc. filed a motion to dismiss a class action lawsuit accusing it of intercepting users’ private messages in order to generate targeted advertisements, arguing that the plaintiffs have failed to state a claim under the Wiretap Act.

The Facebook privacy class action lawsuit was initially filed in December 2013 by plaintiffs Matthew Campbell and Michael Hurley. They allege that Facebook misleads users of the social media site about the privacy of their personal messages, leading them to believe that only the sender and recipient of the personal message will have access to the message content.

The initial class action lawsuit alleged that Facebook mines the contents of private messages to generate targeted advertisements for the Facebook users. However, Facebook’s motion to dismiss the class action lawsuit notes that the plaintiffs filed an amended complaint which “abandoned their inaccurate, advertising-related allegations … to focus on an unrelated, routine practice involving Facebook’s ‘Like’ button that does not support any viable legal theory.”

According to Facebook’s motion to dismiss the Facebook private message lawsuit, the amended Facebook privacy class action lawsuit alleges that prior to October 2012, when a Facebook user sent a private message that included a link to a website, Facebook would intercept the website’s URL and increase the “Like” count on that web page.

“Plaintiffs’ sole basis for their putative nationwide class action lawsuit is that by simply displaying an aggregate—and anonymous—count of the number of times Facebook users liked or shared content, Facebook allegedly violated criminal ‘wiretapping’ and ‘eavesdropping’ statutes under federal and state law,” Facebook said in its motion to dismiss the privacy class action lawsuit.

Facebook contends that the plaintiffs and the putative Class Members were not injured by the increased “Like” count. Further, the social media giant argues that the class action lawsuit must fail under the Wiretap Act for three reasons.

First, Facebook argues that the plaintiffs did not allege an actionable “interception” because the Wiretap Act excludes the receipt of electronic communications by a provider of the communication service (such as Facebook) in the “ordinary course of business.” Because Facebook receives the electronic communications via private messages in the “ordinary course of business,” there can be no actionable “interception” of data under the Wiretap Act, according to Facebook’s motion to dismiss the email privacy class action lawsuit.

Second, Facebook contends that the plaintiffs consented to any alleged “interception” of the private messages by consenting to Facebook’s Data Use Policy, which informs users that Facebook receives data about users whenever they are logged in to Facebook, including when they send and receive private messages.

Third, the plaintiffs’ Wiretap Act claim fails because a communication must be intercepted during transmission, not while it is in electronic storage, according to the motion to dismiss the class action lawsuit. Facebook argues that the use of private messages to increase the “Like” count of web pages occurred after the messages were sent and stored on the company’s servers, not while the messages were in transmission, and are therefore not governed by the Wiretap Act.

Facebook further argues that allowing the plaintiffs to further amend their complaint would be futile and that the class action lawsuit should be dismissed with prejudice.

The plaintiffs are represented by Michael W. Sobol, Melissa Gardner, Rachel Geman and Nicholas Diamond of Lieff Cabraser Heimann & Bernstein LLP and Allen Carney, Hank Bates and David Slade of Carney Bates & Pulliam PLLC.

The Facebook Privacy Class Action Lawsuit is Matthew Campbell, et al. v. Facebook Inc., Case No. 4:13-cv-05996, in the U.S. District Court for the Northern District of California.

UPDATE: On Feb. 22, 2016, the lead plaintiffs filed a motion in California federal court asking for class certification.

UPDATE 2: On Aug. 2, 2016, the plaintiffs demanded Facebook hand over more source code and documents than the company has already divulged, as well as configuration tables for certain databases.

UPDATE 3: On March 1, 2017, Facebook agreed to settle this class action lawsuit. Under the terms of the proposed settlement, the social networking giant will not offer monetary compensation to Class Members, but it has agreed to stop using Facebook users’ private message data for targeted advertising purposes.

UPDATE 4: On March 3, 2020, an objection claiming that the Facebook privacy class action provided only “worthless injunctive relief” was rejected by the Ninth Circuit Court of Appeals.