Facebook Private Message Class Action Moves Forward

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A class action lawsuit filed against Facebook, Inc. alleging privacy violations will move forward even though Facebook claims that it has mostly stopped the practice scanning private messages.

U.S. District Judge Phyllis Hamilton said in her Dec. 23 ruling that she was dismissing part of the Facebook class action lawsuit and keeping part of it.

The first Facebook privacy class action lawsuit was filed in December 2013 by plaintiff Matthew Campbell, alleging that the social media company scans users’ private messages and treats mentions of a website in a message as if the user “liked” that company on its website, which it then used for advertising purposes.

They allege that “Facebook uses this data regarding ‘likes’ to compile user profiles, which it then uses to deliver targeted advertising to it users,” Judge Hamilton explains.

Plaintiffs Michael Hurley and David Shadpour filed their Facebook invasion of privacy class action lawsuit in January, making similar allegations.

The plaintiffs charged Facebook with violating the federal Electronic Communications Privacy Act, also known as the Wiretap Act, California’s Invasion of Privacy Act and California’s Business and Professions Code.

They want to represent a nationwide class of Facebook users “who have sent or received private private messages that included URLs in their contend, from within two years before filing of this action up through and including the date when Facebook ceased its practice.”

Facebook said in an October hearing that it ceased the practice of using website mentions to increase a companies number of likes in 2012, and that any scanning of users’ private messages is only for the purpose of preventing viruses, spam messages and for protecting “the integrity of the site.”

However, Judge Hamilton said that “the fact that Facebook can configure its code to scan message content for certain purposes, but not for others, leaves open the possibility that the challenged practice constitutes a separate ‘interception.’

“Simply put, the application of the ‘ordinary course of business’ exception to this case depends upon the details of Facebook’s software code, and those details are simply not before the court on a motion to dismiss, and thus, the court must deny Facebook’s motion on that basis,” she added.

The plaintiffs said that Facebook’s practices still violate privacy laws because the private messages are supposed to be private communications.

Judge Hamilton kept the Wiretap Act violation claim due to the fact that users have not consented to having their private messages intercepted.

The California federal judge also kept the California privacy violation charges and kept the plaintiffs request for injunctive relief.

“Facebook moves to strike plaintiffs’ request for injunctive relief, arguing that it ceased the challenged practice ‘nearly two years ago,'” Judge Hamilton said.

“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,” she added.

Judge Hamilton dismissed one section of California’s privacy act and the state’s business code.

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