Facebook, Consumers Agree To Take Privacy Battle To Mediation

 Facebook will attempt to resolve a dispute with consumers who are suing the company for allegedly violating wiretap laws by scanning the “private” message that users send to each other, according to new court papers. The company and lawyers for the consumers recently told U.S. District Court Judge Phyllis Hamilton that they have agreed to meet with a mediator by no later than Aug. 24. On Thursday, Hamilton signed an order sending the potential class-action to mediation.

The legal battle dates to late 2013, when Facebook users Matthew Campbell and Michael Hurley alleged in a class-action complaint that Facebook interprets links within users' messages to each other as “Likes,” and then includes them in the total number of “Likes” that appear on the publishers' pages via social plug-ins.

Campbell and Hurley also alleged that Facebook draws on information within messages in order to increase its “knowledge of the user base.”

Facebook asked for the lawsuit to be dismissed at a preliminary stage. The company raised several arguments, including that it couldn't “intercept” messages that were sent through its own platform.

Late last year, Hamilton rejected Facebook's request, ruling that the company's interpretation of “intercept” was too narrow.

The social networking platform alternatively argued that any interceptions fell within an exception to the federal wiretap law, which exempts conduct that occurs in the “ordinary course of business.”

But Hamilton ruled that Facebook had not yet proven that it was engaged in the ordinary course of business when it allegedly scanned messages in order to convert links into “likes.” She specifically rejected an argument put forward by Facebook's lawyer, who suggested at a hearing in October that any revenue-generating activity fell within the ordinary course of business.

Facebook denied that it uses links embedded in private messages for ad-targeting, but also argued that doing so would fall within the ordinary course of business, according to Hamilton's opinion. She said Facebook's argument on that point was “problematic,” adding that the company “is attempting to have it both ways” by arguing that the ad-related allegations are false, but also using them to bolster its argument that scans were conducted in the ordinary course of business.

That ruling allowed the consumers to continue litigating their lawsuit, but Hamilton noted that they won't necessarily prevail after all of the evidence has come out.

Some of the allegations in the lawsuit first emerged in 2012, when security researcher Ashkan Soltani (now at the Federal Trade Commission) reported that Facebook interprets links within users' messages to each other as “Likes,” and includes them in like-counters that appear on publishers' pages.

Facebook told The Wall Street Journal at the time that no private information is exposed, but confirmed that the Like-counter "reflects the number of times people have clicked those buttons and also the number of times people have shared that page's link on Facebook."

The company has since changed that practice.


By Wendy Davis,
May, 2015


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