On December 30, 2013, a class action suit was filed against Facebook for its use of members’ private data. The lawsuit is led by two Facebook users named Michael Hurley and Matthew Campbell, though it purports to represent all Facebook users within the United States.

In 2010, Facebook unveiled a feature that allowed members to send private messages controlled completely by the users. They stressed the privacy features that this new messaging feature allowed. Hypothetically, those messages were just supposed to be viewable by the sender and recipient(s) of the message. Neither Facebook nor any third-party were supposed to have access to the messages.

The suit alleges that this was false. According to an inspection by “independent security researchers” last year, Facebook has been scanning the contents of those messages to use for marketing and other purposes. The suit alleges two main ways in which Facebook has been doing so. The first is when a user sends a private message with a link. For example, suppose someone sent you an article on lawstreetmedia.com, The link will register with Facebook, and the site will follow it to see to where it leads. If it is a site that has a Facebook page, as many do, Facebook registers that as a “like” on that company’s public page. That has a number of troubling implications. For example, I know I’ve definitely sent an article link to a friend before because I disagreed with the article. I definitely wouldn’t want a like to register on that site’s Facebook page as a result. It also means that it would be possible to fabricate likes–a company could make sure its page got linked in messages a lot, and likes would register as a result.

The suit also alleges that Facebook mines that sort of data sent in privates messages for use by either Facebook itself or third parties. It is then used for marketing or advertising purposes.

The suit states that Facebook’s use of private messages in such a way violates the Electronic Communications Privacy Act–an electronic version of the law preventing someone from opening another person’s mail. The argument that Facebook is expected to utilize is that Facebook isn’t reading the messages–just grabbing data from them.

This isn’t the first time that Facebook has been accused of such practices. In 2012, the Wall Street Journal pointed out that Facebook does scan its messages for keywords related to criminal behavior. Google has been the focus of similar allegations. There is a silver lining to Facebook’s use of private messages, however, as they also can sometimes filter out spam or malware before an unsuspecting user opens it. An internet security expert named Graham Cluley added, “[i]f you didn’t properly scan and check links, there’s a very real risk that spam, scams, phishing attacks, and malicious URLs designed to infect recipients’ computers with malware could run rife.”

The suit is demanding an injunction for Facebook to stop its behavior. The two plaintiffs also want Facebook to pay the members of the suit $100 a day for each violation, or $10,000. Given that the suit claims to include all American Facebook users who have had their private messages used in such a way, I would assume that’s a lot of people and could equal a pretty hefty sum.

Honestly, I wasn’t too surprised that Facebook used data in such a way. I pretty much assume that sites track activity always–but maybe I’m just a cynic. One of the best indicators for how this lawsuit will go for Facebook may come from the similar pending lawsuit involving Google. This September it was ruled that the suit would go forward–potentially becoming a big problem for Google. I’m sure we’ll see suits from other social media and communication sites in the months and years to come. Google and Facebook are just the beginning.

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Anneliese Mahoney (@AMahoney8672) is Lead Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

Featured image courtesy of [Sean MacEntee via Flickr]

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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