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.