Kyla Asbury Jun. 25, 2014, 12:51pm

OAKLAND, Calif. (Legal Newsline) – Facebook has filed a motion to dismiss in a lawsuit against it for allegedly violating users’ privacy by using data from private messages to generate targeted advertisements. 

Facebook believes the plaintiffs have failed to state a claim under the Wiretap Act, according to Facebook’s motion to dismiss, which was filed June 17 in the U.S. District Court for the Northern District of California.

“Plaintiffs’ Wiretap Act claim fails as a matter of law for three separate reasons: (1) Plaintiffs have not alleged (and cannot allege) an actionable ‘interception;’ (2) they consented to the alleged interceptions; and (3) the challenged conduct does not involve communications acquired ‘during transmission,’ but instead involves ‘stored communications’ not governed by the Wiretap Act,” the motion states.

By creating a free Facebook account — a necessary prerequisite to sending or receiving a Facebook message — every user agrees to Facebook’s terms of service and further affirms that he or she has reviewed the disclosures in Facebook’s Data Use Policy.

The Data Use Policy provides “important disclosures about how [a user] can use Facebook to share with others and how [Facebook] collect[s] and can use [user] content and information,” according to the motion.

Matthew Campbell, Michael Hurley and David Shadpour each admit they established a Facebook account and reviewed and agreed to these policies before electing to use Facebook’s free services, the motion states.

Because the shortcomings in the class action complaint go to the plaintiffs’ theory, and are not mere technical pleading defects, allowing further amendment would be futile, the motion states. The complaint should be dismissed with prejudice, it says.

In the complaint, the plaintiff claim contrary to its representation, “private” Facebook messages are systematically intercepted by the company in an effort to learn the contents of the users’ communications.

The complaint was first filed on Dec. 30. It was consolidated with another similar privacy complaint on April 15.

During the course of the last year, independent security researchers discovered that Facebook reviews the contents of its users’ private Facebook messages for purposes unrelated to the facilitation of message transmission, according to the complaint.

“When a user composes a Facebook message and includes a link to a third part website… the company scans the content of the Facebook message, follows the enclosed link and searches for information to profile the message-sender’s web activity,” the complaint states.

This practice is not done to facilitate the transmission of users’ communications via Facebook, but, because it enables Facebook to mine user data and profit from those data by sharing them with third parties-namely advertisers, marketers and other data aggregators, according to the suit.

The plaintiffs are seeking an order determining that the action may be maintained as a class action; judgment against Facebook for the asserted causes; appropriate declaratory relief against Facebook; preliminary and permanent injunctive relief against Facebook; and statutory damages.

They are represented by Michael W. Sobol, Melissa Gardner, Rachel Geman and Nicholas Diamand of Lieff Cabraser Heimann & Bernstein LLP; and Hank Bates, Allen Carney and David Slade of Carney Bates & Pulliam PLLC.

Facebook is represented by Joshua A. Jessen of Gibson, Dunn & Crutcher LLP.

The case has been assigned to District Judge Phyllis J. Hamilton.

U.S. District Court for the Northern District of California case number: 4:13-cv-05996

From Legal Newsline: Kyla Asbury can be reached at


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