Plaintiffs Seek Cert. in Facebook Private Messaging Class Action

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The lead plaintiffs in a putative class action that accuses Facebook Inc. of “rampant abuses of its users’ privacy” by scanning private messages filed a motion in California federal court, seeking class certification of their claims brought under the Electronic Communications Privacy Act (ECPA) and California’s Invasion of Privacy Act (CIPA).

The ECPA protects the right to privacy in electronic communications by preventing social networking sites, email providers, cell phone companies, and other electronic messaging corporations from divulging personal data without legal process.

Electronic communications protected by ECPA include pretty much most forms of electronic communications including text messages, instant messages, emails, and Facebook private messages fall under that umbrella.

In December 2013, Matthew Campbell of Pulaski County, Ark., and Michael Hurley of North Plains, Ore., filed a consumer privacy class action against Facebook in the U.S. District Court for the Northern District of California. Both men, who are Facebook users, claim to have used Facebook’s private messaging feature to send messages that included, among other things, Internet uniform resource locator links (URLs).

Campbell and Hurley allege that Facebook “systematically intercept[s]” users’ private messages and scans their contents, including any URLs sent within those messages. Thereafter, the plaintiffs say, Facebook uses the gathered information “to profile the message-sender’s web activity” for the purpose of displaying targeted third-party advertising to them.

The plaintiffs say that Facebook is scanning its users’ private messages to provide data to advertisers marketers, and other data aggregators. According to the complaint, Facebook is downplaying these violations of consumer privacy.

“Facebook’s attempts to disregard — and consign to the past — ECPA’s and CIPA’s legal limits — cannot distract from the core, common concern of this litigation: Facebook structured its system to capture content of private messages, to use that information for its own, undisclosed purposes, and to store that information in perpetuity,” the users said. “This privacy intrusion is common to a class of users ascertainable from Facebook’s data.”

In filing the motion for class certification in November, the plaintiffs contended that the company intentionally intercepted private messages, a violation of the Electronic Communications Act, arguing the case that the company’s URL preview program is commonly used to track the URL links attached to private messages sent by users.

Facebook has presented several arguments that the accusations of tapping into users’ private messages to generate targeted advertisements are unfounded, arguing in June that the plaintiff failed to state their claim under the Wiretap Act and requested the charges be dismissed.

Just last month, Facebook again argued against the plaintiff’s ECPA and CIPA claims, stating that users have the option to delete the link preview before sending messages or can opt to send private messages through the Facebook Messenger Mobile App, which does not produce link previews.

But, U.S. District Judge Phyllis J. Hamilton was not persuaded when she denied Facebook’s motions to dismiss in December 2014, ruling that any activity that generates revenue should be considered within the “ordinary course of its business” exception to the Wiretap Act.

The plaintiffs seek to represent a Class of all Facebook users in the United States who have sent or received private Facebook messages that included a URL within the content of the message. They allege violations of the ECPA, CIPA and California’s unfair competition law (UCL).

In addition to seeking judgment on their asserted claims, the plaintiffs seek preliminary and permanent injunctive relief, statutory damages, costs and attorney fees.

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

The Facebook Private Message Scanning Class Action Lawsuit is 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 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 2: 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 3: 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.