Facebook and the Wiretapping Act: Are Your Messages Private or Not?

  • Oct 7, 2014
  • Simon Clark
  • Uncategorized

Has online privacy ever been more hotly debated, defended and – allegedly – infringed upon? As technology continues to make it easier to socialize, shop, and live our lives through the Internet, consumers are also facing increasing risks and threats to their personal data and security. Data breaches are one thing – and just last week the largest breach so far was announced by JP Morgan – but there’s also the question of personal communications. In theory, electronic communication - including e-mails, text messages and private messages sent via social media sites – are covered by the Wiretap Act, a federal law prohibiting the interception of communications. In practice, however, companies including Google and Facebook have faced multiple legal challenges over allegations that their practice of scanning messages for keywords and URLs constitutes “reading.” It’s a tricky problem, relying in part on semantics, but the results of these cases will have real world effects for us all. Should Google be able to scan your e-mails without your permission, and then direct advertisements to you based on the topics? Does Facebook have the right to scan all the URLs you send in private messages? They say they do – and argued as much in a California court just last week.

Facebook is currently facing a proposed class action lawsuit accusing the company of “harvesting” URLs from private messages for the purpose of generating “likes” for associated pages. Claims were brought under the Wiretap Act on the basis that even if it’s a computer doing it, “reading” a message before it is delivered is illegal. The company recently filed a motion to dismiss – a request to the judge to throw out the case on the grounds that it’s meritless – and, in its defense, argued that users have already agreed to the company’s terms of service, including accepting that everything shared on the site can be collected by Facebook. The Wiretap Act, Facebook argued, says nothing about users having a say in what’s done with their information if they’ve already consented to its interception or recording. It’s not exactly a reassuring argument, and it will be interesting to see if the company can convince a judge that their terms of use cover such wide-ranging things.

When Google faced similar claims earlier this year – the company was accused of scanning emails to direct advertisement to users – the judge hearing the case in the Northern District of California ruled in the company’s favor, dismissing a lawsuit filed by Gmail users whose emails had been “read” by software. The proposed class action filed against Facebook, currently pending before Judge Phyllis Hamilton, shares significant traits with Google’s suit, company attorneys argued. However, when asked by Judge Hamilton whether Facebook had stopped scanning messages since the allegations were first made, Facebook’s attorneys admitted that scans were still carried out. Judge Hamilton has now suggested that rather than dismiss the entire class action, “some of the arguments in the complaint will survive.” One of the questions being considered is whether Facebook users who filed the suit are upset over the scanning of their messages, or the resulting “likes.” Attorneys for Facebook noted that the company has stopped adding “likes” to users’ accounts based on messages URLs. It’s not much, but it’s a good start.

The suit was first filed in January, and with no sign of resolution yet – Facebook’s motion to dismiss looks like it will be part of a larger story – Facebook users should think hard about how much they’re willing to share and divulge on a platform that may have a legal right to collect anything uploaded to its servers. Internet privacy is still very much in flux, and lawsuits like this one are important reminders that consumers must be aware of their rights and willing to fight for them as need be.

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