September 19, 2020

Facebook won’t easily shake private messaging suit


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facebookBy Ross Todd, The Recorder

OAKLAND­ — U.S. District Judge Phyllis Hamilton is not, she disclosed Wednesday, a Facebook user. But the Oakland judge, who is presiding over a privacy suit against the ubiquitous social networking site, seemed less reluctant about joining the legal debate over how modern technology intersects with decades-old federal wiretapping laws.

After more than an hour-and-a-half of arguments, Hamilton hinted that at least a portion of a lawsuit claiming that Facebook illegally scanned users’ private messages could survive a motion to dismiss. To determine whether the company’s alleged actions qualify as an “interception” under wiretapping laws, Hamilton indicated she needed more information about the way Facebook processes private messages.

Plaintiffs lawyers sued Facebook in 2013 on behalf of a proposed class of the social network’s users. Plaintiffs claimed that the company illegally intercepted the content of private messages whenever users include a link to an outside website. The lawsuit drew on research reported in October 2012 by the Wall Street Journal that showed when users linked to other sites in Facebook messages, those links added to the number of “Likes” counted on third-party websites.

On Wednesday Facebook lawyer Joshua Jessen, a partner at Gibson, Dunn & Crutcher, argued the suit targets “routine commercial conduct that was completely innocuous.” He repeatedly referred to the Like count as an “anonymous, aggregate” number, and insisted the practice of increasing the count based on links ceased shortly after the Wall Street Journal story.

Hamilton asked Jessen if Facebook also stopped the underlying scanning of URLs that caused the Like counts to go up.

Jessen answered that anything that is shared on Facebook is by definition analyzed by computers to prevent hacking, to keep users from being bombarded with spam messages, and to detect malware.

“So the answer to my question is no?” Hamilton asked.

“There is analysis that’s going on,” Jessen said. “We don’t think that analysis runs afoul of the Wiretap Act or any other criminal statute,” he said.

Jessen argued that plaintiffs claims should be dismissed because users consent to Facebook’s processing of the messages through the site’s data use policy. He also argued that Facebook, as an electronic communication service, is exempt from liability under the Wiretap Act for activity that falls within the “ordinary course of business.”

Just what qualifies for that exemption has been the subject of some back and forth among judges in the Northern District. Hamilton’s decision in the Facebook case could help clarify just how far technology companies can go in screening user communications without facing exposure under the federal Wiretap Act, which carries statutory damages of up to $10,000 per violation.

On Wednesday, lead plaintiffs’ lawyer Michael Sobol of Lieff Cabraser Heimann & Bernstein argued that Facebook’s activity was not disclosed to users and therefore must fall outside the “ordinary course of business.”

“Every court that has looked at an issue similar to this, which is the secret acquisition of a private message, has found that’s outside the ordinary course” of business, he said.

The case is distinguishable from one decided last year by U.S. Magistrate Judge Paul Grewal, Sobol argued, because that case dealt with a publicly disclosed change in business practices.

Grewal sided with Google Inc. and dismissed a lawsuit targeting the way the company tracks users’ personal data across a wide array of its products. He found that electronic communication services have “broad immunity” under the exemption. That decision followed a ruling from U.S. District Judge Lucy Koh finding that Google’s scanning of Gmail messages to sell targeted ads didn’t fit the exemption.

Judge Hamilton, who noted that she does not use Facebook during oral arguments, pointed out there were two well-reasoned takes on the ordinary course of business in the Northern District and said she’d likely land “somewhere in the middle of those two.”

Arguing for Facebook, Jessen said, “We think ordinary course of business means what it says, which is business activities that are carried out routinely and as a matter of course.”

He asked, “Even if you accept their allegations as true, how is this not the ordinary course of business?”

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