Facebook Privacy Class Action Suit Could Include Millions of Users

Facebook Generic - Getty - H 2016
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Facebook Generic - Getty - H 2016

Anyone who has sent or received a private Facebook message containing a link during the past five years could be part of a class action lawsuit against the social media giant.

Matthew Campbell sued Facebook in 2013, on behalf of himself and others who use the service, claiming the company is using private information for targeted advertising.

U.S. District Court Judge Phyllis J. Hamilton on Wednesday partially certified the class consisting of "all natural-person Facebook users located within the U.S. who have sent, or received from a Facebook user, private messages that included URLs in their content (and from which Facebook generated a URL attachment), from within two years before the filing of this action up through the date of the certification of the class."

That means the window for messages that could qualify someone as part of the class opened on Dec. 30, 2011.

In certifying the class, Hamilton does not rule on the merit of the claims but only if a class-wide resolution is appropriate. Hamilton compares this case to a Yahoo! email-scanning lawsuit that was granted class status earlier this year and subsequently settled

The initial complaint claims Facebook scanned messages for links to boost its social plug-in functionality, which connects to "like" counters on third-party websites and uses that information to deliver targeted advertising to its users.

In the motion for class certification, the plaintiffs added two more accusations: Facebook uses the data generated from scanning messages to generate recommendations for other users, and it shares the data with third parties. Hamilton's ruling says these new claims are derived from a review of Facebook's source code, which hadn't been produced at the time the initial complaint was filed.

"Plaintiffs explain that, when a Facebook user composes a message with a URL in the message's body, Facebook generates a 'URL preview,' consisting of a brief description of the website and a relevant image from the website," Hamilton writes. "Facebook keeps a record of these 'URL previews' — the record being called an 'EntShare.'"

Those EntShares are tied to the user who sent the message and incorporated it into Facebook's "secret algorithms" to generate recommendations, according to the motion. 

Hamilton has directed the plaintiffs to amend their complaint to include the allegations of sharing data with third parties and revise their class definition, which was modified slightly from the initial complaint.  

She denied the motion for class certification in terms of proving that "damages are capable of measurement on a class-wide basis," but allowed the plaintiffs to amend their complaint. 

Instead of seeking actual damages, the plaintiffs are seeking damages measured by Facebook profits or statutory damages. "The question of 'whether or not there was actual damage to the plaintiff' would vary between class members," Hamilton says.

The amended complaint is due June 8.