OAKLAND, Calif. (CN) - In a case with major implications for privacy in Internet communications, a federal judge heard arguments from Facebook and a class who claim the social network illegally scans private messages for content it can use for targeted advertising.
No case has ever claimed Facebook users have property rights as far as their Facebook messages are concerned. Until now.
"That's what we're trying to do here," class attorney Michael Sobol told U.S. District Judge Phyllis Hamilton on Tuesday.
Sobol said his clients have an economic interest in their messages, and that Facebook profited from the control it exercised over the messages without senders' consent.
"There's no question here that these people were truly affected," Sobol said. "Personal control is being lost."
Facebook users Matthew Campbell and Michael Hurley sued Facebook in December 2013 for misrepresenting the privacy of their "private messages."
They claimed the social network scanned messages sent from one user to another, seeking URLs to third-party sites, then used that information to drive up the number of Facebook "likes" on third-party pages.
For instance, Facebook would intercept a user sending a news link to a friend through a private message, and would update the "like" count on that news site's page.
Facebook says it stopped the practice in October 2012, but the class claims it still scans private messages and there's no saying whether the company might use the data it gleans for other profitable purposes.
The class claims Facebook's data-use policy does not disclose the ways their information might be used, or that it intercepts and stores their private messages.
"How do you quantify economic harm?" Hamilton asked Sobol, skeptical about the class's unfair competition claim.
"I quantify it in diminished property interest," Sobol answered. "They're driving up an advertising machine. They're using 'Generation Like' to drive interest and generate advertising dollars."
The bigger questions have to do with privacy laws, such as the Wiretap Act, now known as the Electronic Communications Privacy Act of 1986, which enhanced privacy protections against access and disclosure of electronic communications.
Facebook attorney Joshua Jessen claimed the class doesn't have a claim under the act because of course Facebook receives and stores their messages. That's its ordinary course of business.
Also, all Facebook users consented to its Data Use Policy when they sign up for Facebook's free service, Jessen said.
Finally, for Facebook to have "intercepted" user messages, it would have had to acquire that communication during transmission of the message, not in storing the messages on its servers.
"It's storing content that users are sharing on the platform and that's the nature of the communication," Jessen said. He said that the plaintiffs are not challenging Facebook's having their messages, but objecting "to the specific use the messages are being put to."
"We're really not in a world where the Wiretap Act is applying here," Jessen said. "The Wiretap Act was enacted in order to combat criminal wiretapping. We're not in that universe. We're the provider of the electronic communication service. Of course we're getting the messages. They're being stored on Facebook servers. They're not challenging that we have the right to acquire these messages."
And even if they were, Jessen said, Facebook users have already consented as a matter of law.
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