District Court Upholds Facebook’s Practice of Forwarding User Information to Online Advertisers

Staff Writer

In a recent case, Facebook users alleged that Facebook knowingly forwarded personal information to online advertisers without its users’ consent, in violation of the Electronic Communications Privacy Act, 18 U.S.C. § 2510, et seq., the Wiretap Act, 18 U.S.C. § 2510, et seq., and various California state laws.  See In re Facebook Privacy Litigation, 2011 WL 2039995 (N.D. Cal. May 12, 2011). After finding that Facebook merely transmitted users’ information to the intended recipient, the district court dismissed the plaintiffs’ claims against the social media giant.

The Electronic Communications Privacy Act forbids providers of “electronic communications services” from knowingly divulging the contents of a stored electronic communication to any entity other than the intended recipient or addressee. See 18 U.S.C. § 2702(a)(1), § 2511(3)(a); In re Facebook, 2011 WL 2039995, at *4-5. Similarly, the Wiretap Act provides a civil cause of action for “any person whose electronic communication is ‘intercepted, disclosed, or intentionally used in Violation of the Act.” In re Facebook Privacy Litigation, 2011 WL 2039995, at *4 (citing 18 U.S.C. § 2520(a)). Importantly, neither Act forbids communications providers from transmitting information to the intended recipient of the communication.

The plaintiffs’ complaint rested on allegations that Facebook did not obtain users’ consent before transmitting personal information to online advertisers. As the court summarized, when a Facebook user clicks on a third-party advertisement posted on Facebook.com, Facebook transmits a referral to the advertiser. Id. at * 1. This referral “reveals the specific webpage [sic] address that the user was looking at prior to clicking on the advertisement,” and thus may transmit “substantial” information about the user, such as the user’s name, gender and picture. Id. Through these transmissions, the court noted, Facebook “shares users’ personal information with third-party advertisers without users’ knowledge or consent, in violation of [Facebook’s] own policies.” Id.

The district court ultimately held that this advertising practice was not unlawful because Facebook did not disclose the users’ information to an unintended recipient. Rather, the court found that either Facebook or the advertiser was the intended recipient of the communication (the “click” itself); and under either interpretation, Facebook simply facilitated transmission of the communication to the appropriate recipient. See Id. at *5-6. Although the district court dismissed the plaintiffs’ claims without prejudice, this decision will leave Facebook users without further recourse unless the plaintiffs can overcome this technical hurdle.

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