Facebook Privacy Class Action Lawsuit Could Be Trimmed

A judge is mulling whether or not to trim a Facebook privacy class action lawsuit following a hearing regarding the social media giant’s latest motion to dismiss. At issue is the company’s practices regarding what plaintiffs allege are private messages.

More specifically, “When a user composes a Facebook message and includes a link to a third, the company scans the content of the Facebook message, follows the enclosed link, and searches for information to profile the message-sender’s web activity,” the Facebook class action lawsuit says. The plaintiffs’ class action lawyers argue that this is theft of property, regardless of the Wiretap Act provisions cited by Facebook.

The Silicon Valley company kept up with its “ordinary business use” defense in front of U.S. District Judge Phyllis Hamilton. According to one news report, the company’s defense team described the practice of scanning messages as a common part of business that it already uses for child pornography and other dangerous content. However, the judge found that the scanning is still continuing.

She noted that she will probably issue a decision similar to those involving Google and a separate one involving its Gmail service. The differences regarding the collection of user data and the creation of targeted ads based on user emails have been seen differently by lower court justices in the Ninth Circuit.

Still, as the Facebook class action lawsuit notes, “Representing to users that the content of Facebook messages is ‘private’ creates an especially profitable opportunity for Facebook, because users who believe they are communicating on a service free from surveillance are likely to reveal facts about themselves that they would not reveal had they known the content was being monitored.”

If the company needed to store data from users in order to provide special features for the network, then, plaintiffs argue in the Facebook class action lawsuit, it would be accurate to say that they are exempt from the Wiretap Act because it is part of their business. However, “This practice is not done to facilitate the transmission of users’ communications via Facebook,” in spite of users seeing “assurances [that] affirmatively state … only senders and intended recipients are privy to the contents of” those messages, the class action lawsuit says..

The plaintiffs are represented by class action lawyers from Lieff Cabraser Heimann & Bernstein LLP, Carney Bates & Pulliam PLLC, Pomerantz LLP and Tostrud Law Group PC.

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 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.