Judge approves nonmonetary Facebook settlement over Android data scraping

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Update: 

• A California federal judge unenthusiastically approved a settlement agreement made between Facebook and a class of Android users claiming the company scraped and sold their data and text logs to advertisers without their consent.
• On Oct. 20, U.S. District Judge Richard Seeborg said he would approve the settlement even though he felt the deal, which awards only injunctive relief, provides no class notice and allows class counsel to collect up to $1.08 million in fees and expenses, is empty, Law360 reports.
• “I think perhaps the absence of a lot of achievements, from my perspective, balances against the fact that I don’t think it was a particularly strong case,” the judge says. “I suppose the end message is [that] with no great enthusiasm, I’m inclined to go ahead and approve the final settlement and approve the attorney fees amount and bring this to a conclusion.” 
• Class representatives will receive $1,500 each in incentive awards.

(Sept. 3, 2019)

A judge recently decided that Facebook must face a class action alleging that the Messenger app records call and text logs of Android users.

Facebook attempted to dismiss the Messenger class action, arguing that plaintiffs in the case failed to show that their call and text data was gathered and sold without consent.

U.S. District Judge Richard Seeborg recently rejected this argument and said that Facebook cannot escape claims that they violated Android users’ rights with their alleged data scraping scheme.

Judge Seeborg referenced an expert testimony from the Android user plaintiffs which reportedly showed that Messenger users had their data scraped before they gave consent. The same expert also provided further testimony that Android users were likely affected by the issue for even longer than expected since most people don’t update their smartphones regularly.

This reportedly means that users may have used the alleged data scraping version of the Facebook Messenger app even after the social media site released updates to fix the problem.

According to the California federal court judge, this expert testimony sufficiently supported the plaintiffs’ allegations – allowing the case to move forward. However, Judge Seeborg cautioned the plaintiffs that they do not have a “guaranteed path to victory.”

“Stating that many or even most consumers failed to update their Android phones to foreclose Facebook’s continued scraping of user call and text logs is not the same as asserting that these particular plaintiffs shared in that failure,” Judge Seeborg wrote in his Messenger class action ruling.

“Nevertheless […] it is enough to create a dispute of material fact with respect to Facebook’s factual attacks regarding which Android version plaintiffs were using and whether they consented to an explicit prompt to access their call and text logs.”

Although Judge Seeborg kept the Facebook Messenger class action lawsuit alive, he did dismiss plaintiff claims regarding Facebook Lite.

According to the judge, the Android users failed to show that they had actually downloaded the app in question. However, Judge Seeborg kept the plaintiffs’ privacy claims in play, saying that the claims were still valid in this stage of the Messenger class action.

“In contrast to whether plaintiffs downloaded the Facebook Lite app — a fact readily within their control outside of discovery — evidence of who, if any, third parties Facebook may have disclosed plaintiffs’ call and text logs, whether intentionally or inadvertently, are wholly within Facebook’s control,” Judge Seeborg said.

“To expect plaintiffs to produce evidence to counter Facebook’s factual attack on these grounds is inappropriate at this stage of litigation.”

Android users filed their Facebook Messenger class action lawsuit in March 2018, claiming that the app violated their privacy by collecting call and text data logs. This information was allegedly sold to third parties for advertising purposes.

According to the Facebook Messenger class action, Android users gave the app permission to access their contacts but never gave permission for the app to access their call and text data logs.

The users claim that the alleged data scraping scheme collected phone call dates and times, dialed phone numbers, names of contacts called, duration of calls, and whether or not the calls were incoming, outgoing, or missed.

The Facebook users are represented by L. Timothy Fisher, Scott A. Bursor and Neal J. Deckant of Bursor & Fisher PA.

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

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