Issue: Scanning of private messages

Lieff Cabraser represents plaintiffs in litigation against Facebook for allegedly scanning and intercepting users’ private email messages on its social network. In December 2013 Facebook users represented by Lieff Cabraser and co-counsel filed a nationwide class action lawsuit alleging that Facebook intercepts certain private data in users’ personal and private e-mail messages on the social network and profits by sharing that information with third parties.

May 2, 2017 Update re Case Settlement

On April 26, 2017, a Northern District of California Federal Court granted preliminary settlement approval to a class action, filed December 31, 2013, alleging that Facebook intercepted the content of Facebook messages, without consent, in violation of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510, et seq. and Cal. Penal Code §§ 630, et seq. The settlement class includes all natural-person Facebook users located within the United States and its territories who have sent, or received from a Facebook user, private messages that included URLs in their content (and from which Facebook generated a URL attachment), from December 30, 2011 to March 1, 2017.

As part of the injunctive-relief-only settlement, Facebook has confirmed that the challenged conduct has ceased—namely, Facebook confirms that it no longer utilizes data from URLs within private messages to (1) generate recommendations to its users; (2) share user data with third parties; or (3) increase “like” counter numbers on third party websites. In addition, during the course of this litigation, Facebook made changes to its operative disclosures to its users, stating that it collects the “content and other information” that people provide when they “message or communicate with others,”—thereby further explaining the ways in which Facebook may use that content. Facebook has also agreed to display additional educational language on its United States website for Help Center materials concerning its processing of URLs shared within messages.

On August 9, 2017, at 9 a.m., at the United States District Court for the Northern District of California, Oakland Courthouse, Courtroom 3 – 3rd Floor, 1301 Clay Street, Oakland, California 94612, before the Honorable Phyllis L. Hamilton, the Court will hold a hearing to determine whether final approval of this class action settlement is appropriate. If approved, class members will release their ability to seek or obtain any other injunctive relief related to the claims asserted in this lawsuit. Class members will not release any claims for monetary relief.

Class Counsel’s motion in support of final approval of the settlement, and application for attorneys’ fees, costs and expenses not to exceed $3.9 million, including a service award of $5,000 for each of the two Class Representatives, will be filed no later than May 26, 2017. Class members may submit comments or objections to the settlement or the requested fees and expenses. Any opposition, comment, or objection must be filed or mailed to the Court as described at paragraphs 9-11 of the Court’s Order granting Preliminary Approval and available at the link below, no later than June 26, 2017.

You may view the settlement agreement and other related documents (including Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement, the Court’s Order Granting Preliminary Approval of Class Action Settlement, Plaintiffs’ Motion for Final Approval of Class Action Settlement, Plaintiffs’ Motion for Award of Attorneys’ Fees and Incentive Awards, and any opposition or reply papers related to these motions) as these documents become available by clicking on the relevant highlighted text in this paragraph.

Plaintiffs and the Class are represented by Carney Bates & Pulliam, PLLC and Lieff, Cabraser, Heimann & Bernstein, LLP.

Types of Communications Offered on Facebook

Facebook describes the communication options it offers users as, in relevant part, “[d]epending on whom you’d like to share with.” The options range from the broadest possible audience (a post which the public may see, including via searches on the internet), to posts viewable by small groups of friends, to Facebook messages shared “privately” with a single individual. Facebook claims the privacy of its messaging function as “unprecedented” in terms of user control and the prevention of unwanted contact.

The Facebook Alleged Privacy Violation Explained

The complaint alleges that when a user composes a private Facebook message and includes a link to a third party website (a “URL”), Facebook does not treat this message as private. Instead, Facebook scans the content of the message, follows the enclosed link, and searches for information to profile the message-sender’s web activity. This enables Facebook to mine aspects of user data and profit from that data by sharing it with third parties – namely, advertisers, marketers, and other data aggregators.

Almost all of Facebook’s revenues come from third party advertisements that are targeted at users based upon their personal data. “The alleged concealed scanning of private user messages serves as a means for Facebook to gather data to be employed in Facebook’s marketing efforts,” stated attorney Michael W. Sobol, the chair of Lieff Cabraser’s consumer protection practice group.

The complaint alleges that Facebook’s scanning of the private messages of its users violates the federal Electronic Communications Privacy Act and California privacy and unfair competition laws.