The Uphill Climb Continues for Privacy Class Actions: Ninth Circuit Affirms Dismissal of Claims Against Facebook, Zynga

by Dorsey & Whitney LLP
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On May 8, 2014, the U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. District Court for the Northern District of California’s decision to dismiss with prejudice consolidated consumer class-action claims against the social network Facebook and the social gaming company Zynga. (In re Zynga Privacy Litig., 9th Cir., No. 11-18044, 5/8/14). Zynga is best known for its popular Facebook game “FarmVille,” which users engage with via Facebook’s online platform.

Plaintiffs alleged that Facebook and Zynga had violated two sections of the Electronic Communications Privacy Act (“ECPA”): the Stored Communications Act, 18 U.S.C. § 2702(a)(2), and the federal Wiretap Act, 18 U.S.C. § 2511(3)(a), by disclosing user confidential information to third parties. The Ninth Circuit disagreed, finding that, in order to violate the ECPA, a company must disclose the “contents” of a user communication to a third party, and that Facebook and Zynga’s alleged disclosure to third parties of users’ Facebook ID and the address of the Facebook page the user was viewing constituted disclosure of only “record information,” which is permitted by the ECPA.

When a user clicked on an advertisement or the Zynga game icon on Facebook, the user’s web browser sent an HTTP request containing a “referer header” in order to access the online resource requested. The referer header contained the user’s Facebook ID and the address of the Facebook page the user was viewing at the time. According to plaintiffs, Zynga’s Facebook-based gaming applications collected the information in the referer header and transmitted this information to advertisers and third parties in violation of the ECPA.

The Ninth Circuit reviewed the plain meaning and history of the ECPA and concluded that the ECPA distinguishes between disclosure of customer “record information,” such as name, address, and subscriber identity, which is permitted under the law, and disclosure of the “contents of communications,” or the “intended message conveyed by the communication,” which is not lawful.

The court disagreed with plaintiffs’ arguments that a Facebook ID and/or information about the webpage a user was viewing constituted “contents of communications” because such information could lead advertisers to learn other information about users. Finding that the “referer header information at issue here includes only basic identification and address information, not a search term or similar communication made by the user,” the Ninth Circuit concluded that Facebook and Zynga were not disclosing the contents of user communications, and therefore that plaintiffs had failed to state a claim under the ECPA. The Ninth Circuit thus joins the relatively consistent and long line of cases dismissing creatively pled consumer class actions asserting claims for non-economic consequences. See, e.g., In re Google Inc. Privacy Policy Litigation, 2012 WL 6738343 (N.D. Cal. Dec. 28, 2012); Pirozzi v. Apple, 2012 WL 6652453 (N.D. Cal. Dec. 20, 2012); In re Barnes & Noble Pin Pad Litig., 2013 WL 4759588 (N.D. Ill. Sept. 3, 2013).

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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