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Facebook, Zynga Privacy Claims Fail in 9th Circuit

(CN) - The 9th Circuit on Thursday declined to revive claims that Zynga and Facebook violated users' privacy by disclosing their confidential information to advertisers and other third parties.

A three-judge panel in San Francisco upheld U.S. District Judge James Ware's dismissal of class actions against Facebook and Zynga Game Network, maker of the popular FarmVille game on Facebook.

Users claimed that when they clicked on an ad or icon in Facebook, their web browsers called up the page using what's known in the industry as a "referer" (sic) header. This header includes a user's Facebook ID and the address of the Facebook page the user was viewing when he or she clicked the link.

In separate lawsuits, Zynga and Facebook users accused the companies of collecting the information contained in the headers and disclosing it to advertisers and other third parties.

They said this violated the federal Electronic Communications Privacy Act and Stored Communications Act, as well as California's consumer and computer fraud statutes.

Judge Ware dismissed both lawsuits on the same day in 2011, finding that the users failed to state a claim under federal law.

Facebook merely connected users and advertisers, he said, and did not process or store the data.

In upholding Ware's rulings, the 9th Circuit appeared to follow the path outlined by Facebook attorney Aaron Panner during oral argument regarding the privacy claims.

Panner had urged the panel to view the header data as a record and not the "contents" of a communication.

"In order for the plaintiffs to state a claim under the Wiretap Act and Stored Communications Act, they must plausibly allege that Facebook and Zynga divulged the 'contents' of a communication," Judge Sandra Ikuta wrote in the 22-page ruling.

"Because information disclosed in the referer headers at issue here is not the contents of a communication as defined in ECPA, the plaintiffs cannot state a claim under those statutes."

Ikuta noted that divulging a user's specific search query, for example, could run afoul of federal law "under some circumstances."

"But the referer header information at issue here includes only basic identification and address information, not a search term or similar communication made by the user, and therefore does not constitute the contents of a communication," she wrote.

However, the 9th Circuit reinstated two of the plaintiffs' state-law claims -- for breach of contract and fraud -- in an unpublished ruling also issued Thursday.

The panel said the users' allegations "are sufficient to show the element of damages" for those claims, but not for their unfair competition claim.

Facebook has since stripped the referer headers of users' private data.


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