Private Facebook messages without Privacy? You Knew that Didn't You?

Privacy concerns are not fairing well overall when it comes to protecting social media users. And as I tell clients and friends, it's those pesky privacy policies and terms of use that perpetuate a general lack of understanding as to exactly what the user is giving up in exchange for the social media fun. And, even for consumers who attempt to understand the the end of all those pages of legalease... the user is left with a Hobson's choice. Take it or leave it. Thus, part of the problem is a terribly obvious one. We are, in fact, willing to GIVE AWAY privacy "rights" in order to use services that profit from what they know about us. What they know is not, for the most part, being gained clandestinely.  As it turns out, we seem to have a voracious appetite for pontificating on almost any subject, sharing selfies depicting cartoon-like expressions that were not allowed in the family photos of our youth, and blissfully taking part in the lives of our "friends" without all the messy commitment and responsibility that accompanies friendship.  Social media websites profit on all this fun. They aren't the only ones turning our data into dollars. But for now,  I'm interested in social media disclosures and a little case currently making its way through the federal court system.  The case is Campbell v Facebook, Inc., and it involves a particular feature on Facebook that most of us probably use from time to time.  And, this is the FUN thing about the case, it involves whether or not users have knowingly consented to having their "private messages scanned".  If it turns out the allegations are correct, the argument that users were provided sufficient disclosure is flimsy. 

Here is a portion of the argument offered by Facebook's counsel at a hearing to decide if the case should be dismissed or allowed to move forward.  "When asked, at the hearing, which portion of this policy provided notice of Facebook's practice of scanning users' messages, Facebook's counsel pointed to the disclosure that Facebook 'may use the information we received about you' for “data analysis.” Notably, the Court was not convinced by this argument and held that this disclosure was "not specific enough to establish that users expressly consented to the scanning of the content of their messages – which are described as“private messages” – for alleged use in targeted advertising. The Court rejected Facebook's argument that "users have already consented to the messages' “interception” for purposes of facilitating delivery, and thus, Facebook has blanket immunity for any use of that information other than for the purpose of committing a criminal or tortuous act."  Plaintiffs' alleged that "Facebook uses a “web crawler” to scan any URLs that are contained in messages, and to increase the corresponding web page's “like” counter accordingly, and the use of that “web crawler” may constitute a separate “interception” under the Wiretap Act."  After considering these arguments, the Court rejected Facebook's argument that the plaintiffs expressly consented to the alleged interceptions. (Emphasis added)  Campbell v. Facebook Inc., No. C 13-5996 PJH, 2014 WL 7336475, at *9 (N.D. Cal. Dec. 23, 2014)

So, the case will move forward and we will see how privacy concerns fair. Most consumers may be willing to give away privacy in exchange for the Facebook fun, but I bet they don't want their private messages unknowingly scanned. And a clear disclosure, regarding the message feature, is likely to change the way most consumers use that feature.