John O'Brien Jan. 7, 2015, 4:15pm



OAKLAND, Calif. (Legal Newsline) – A federal judge is allowing Wiretap Act claims made against Facebook in a class action lawsuit to proceed.




On Dec. 23, U.S. District Judge Phyllis Hamilton denied Facebook’s request to dismiss claims made under the Wiretap Act. She also dismissed a claim under the California Internet Privacy Act and allowed another one to continue, while dismissing a claim under the Unfair Competition Law.








The lawsuit alleges Facebook violated users’ privacy by using data from private messages to generate targeted advertisements.




“At this stage of the case, the court is unable to determine whether Facebook unlawfully ‘redirected’ the content of plaintiffs’ private messages,” Hamilton wrote.




“While Facebook must certainly receive the contents of any message in order to transmit it to the recipient(s), there is no evidentiary record from which the court can determine whether Facebook ‘redirected’ messages in order to scan their content for use in increasing ‘like’ counters and for targeted advertising.”




The complaint was first filed on Dec. 30, 2013. It was consolidated with another similar privacy complaint on April 15, and Facebook filed its motion to dismiss in July.




Facebook’s attorneys argued that the plaintiffs couldn’t allege an actionable “interception,” consented to the alleged interception and the challenged conduct involves “stored communications” not governed by the Wiretap Act.




It also argued that any alleged interception falls within the “ordinary course of business” exception of the act.




Hamilton noted that the exception has been subject to extensive litigation in her district, the Northern District of California.




“The court also finds it significant that the statute exempts activities conducted by a ‘provider of wire or electronic communication service in the ordinary course of its business,’” she wrote.




“The use of the word ‘its’ indicates that the court must consider the details of Facebook’s business, and must not rely on a generic, one-size-fits-all approach that would apply the exception uniformly across all electronic communication service providers.




“However, Facebook has not offered a sufficient explanation of how the challenged practice falls within the ordinary course of its business, which prevents the court from determining whether the exception applies.”




Hamilton also dismissed a claim made under the Unfair Competition Law, ruling the plaintiffs have not adequately alleged that they have lost any money or property as a result of Facebook’s conduct.




“Plaintiffs argue that they have a property interest in their personal information, including the content of their messages, but courts have consistently rejected such a broad interpretation of ‘money or property,’” she wrote.




From Legal Newsline: Reach editor John O’Brien at jobrienwv@gmail.com.


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