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Facebook Private Message Scanning Lawsuit Can Proceed

By Mark Wilson, Esq. | Last updated on

So, what has Facebook been up to lately? As it turns out, the social media corporation that's desperate to mine your life for ad dollars may have gone a little too far. Last year, Matthew Campbell alleged in a federal class action complaint that Facebook scanned the contents of users' private messages in order to better advertise at them.

Facebook moved to dismiss, but earlier this week, a federal district judge in Oakland, California, denied the motion, allowing the lawsuit to proceed.

Just Your Ordinary Course of Business

So why did Facebook think that scanning users' private messages shouldn't be actionable? The complaint claimed that Facebook routinely hid from users the fact that its much-ballyhooed privacy settings kept information private from other users, but not from Facebook itself. Campbell said these practices violated the federal Wiretap Act, the California Invasion of Privacy Act, and California's Unfair Competition Law.

Facebook argued that there was no unlawful interception. It must necessarily scan messages in order to deliver them, it said, and plaintiffs' only objection was to how the messages were used. The Wiretap Act prevents interception, not use, and therefore the claim should be dismissed.

All of this hinged on whether Facebook's use, or interception, or whatever you want to call it, occurred during the "ordinary course of business." This exception exempts from liability any "interception" that occurs during the course of business. Makes sense, right? Facebook has a point here: As the third-party message platform provider, it has to "intercept" messages from one user to another in order to deliver them.

Not So Ordinary, After All

Judge Phyllis Hamilton wasn't willing to accept such a broad application of the exception, though. Finding two Gmail privacy cases from the U.S. District Court for the Northern District of California persuasive, Hamilton said that the Wiretap Act covers "only interceptions that are "instrumental" (or "facilitate[]" or are "incidental") to the provision of electronic communication services."

Hamilton also wasn't impressed with Facebook "attempting to have it both ways." On the one hand, Facebook said that the plaintiffs' claims about Facebook's use of messages for targeted advertising were "lacking 'any factual basis whatsoever.'" But then Facebook claimed in the same documents that targeted advertising was part of its ordinary business. Whoops. In the end, Hamilton rejected Facebook's contention that any activity that generates money falls within the "ordinary course of business." She also said that there was a difference between scanning a message in order to deliver it and scanning a message in order to extract its contents for the purpose of advertising.

Facebook also argued that the plaintiffs consented to the scanning of their messages as part of the user agreement, in which users agree that Facebook can "use the information [it] received about you" for "data analysis." Hamilton said that such a waiver, though, was too broad and nonspecific to cover scanning private messages; the purported consent wouldn't put a user on notice that his or her private messages were being scanned.

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