Facebook failed to demonstrate that scanning private user messages sent using the social media website qualifies as an "ordinary course of business practice" that would be exempt from wiretap laws, according to a federal court judge.
The lawsuit was filed as a class action complaint in December 2013 by three Facebook users, who alleged that private messages containing website addresses were covertly intercepted to mine information about users as well as to generate "Likes" for the linked website. The plaintiffs also alleged the collected information could then be used for targeted advertising or data aggregation.
The plaintiffs are asking for a minimum of $10,000 for each Facebook user whose messages were scanned in such a way -- with an estimated 1.2 billion users worldwide, that could add up to a mammoth financial penalty.
Facebook, headquartered in Menlo Park, had filed a motion to dismiss the lawsuit, which United States District Court Judge Phyllis Hamilton denied on Dec. 23.
"Facebook's unwillingness to offer any details regarding its targeted advertising practice prevents the court from being able to determine whether the specific practice challenged in this case should be considered 'ordinary'," the judge wrote. "... An electronic communications service provider cannot simply adopt any revenue-generating practice and deem it 'ordinary' by its own subjective standard."
The judge noted that it's too early in the court proceedings to determine the merit of any claims against the social media company and that further evidence will have to be developed, particularly with regard to the technical details of how the site handles messages, as the complaint moves forward.
Facebook said it stopped scanning private message contents to generate "Likes" by October 2012, while still analyzing for viruses, spam and other features that could damage the "integrity of the site," according to court documents.
In its motion for dismissal, Facebook argued that all users agree to its terms of service, which disclose that the company gets data about them whenever they use the site.
Furthermore, the company said, its data use policy discloses that it will "use the information we receive about you in connection with the services and features we provide to you and other users like your friends, our partners, the advertisers that purchase ads on the site, and the developers that build the games, applications, and websites you use."
It also challenged the lawsuit's contention that the "Likes" constituted a means of generating targeted advertising revenue, calling that incorrect.
A Facebook spokesperson told the Almanac that the lawsuit was without merit and will be defended vigorously.