On May 12, 2011, a federal judge in San Jose largely dismissed a lawsuit filed by two California men who alleged that Facebook violated state and federal privacy laws by handing over personal information to advertisers without the knowledge or consent of users.

The men alleged that when Facebook users click on advertisements, Facebook sends a “Referrer Header” to the advertiser which reveals the specific webpage someone was looking at prior to clicking on the advertisement.

Such information, the men said, contained personal information that people do not expect will be turned over to advertisers.

“Users expect that certain aspects of their communications concerning advertisers–namely, their identities and the webpage they were viewing at the time they clicked on an advertisement–will be configured by Defendant to be private,” the men claimed.


But these plaintiffs were not able to convince Judge James Ware of the United States District Court for the Northern District of California that such allegations violated federal or state laws.

Judge Ware first analyzed the allegations under the federal Wiretap and Stored Communications Acts and held that the plaintiffs failed to state a claim under either law.

Judge Ware wrote that federal law assumes that when a user of a service like Facebook sends information to that service, the user consents to sharing any disclosed information.

California state law was of no help either.  California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, which protects someone’s “money or property” from unfair competition, did not apply because “personal information” does not constitute property.

Similarly, Judge Ware held that California’s Consumer Legal Remedies Act (the “CLRA”), Cal. Civil Code  § 1750, cannot apply to Facebook as the CLRA only applies in situations where a person “purchases” goods or services.  Judge Ware noted that Facebook’s services are free.

Judge Ware dismissed these causes of actions (among others) without prejudice, which means that the plaintiffs are free to re-file the complaint if they can fix their allegations.

But the plaintiffs will need more than simply “Facebook shares my personal data without my permission.”

The thrust of Judge Ware’s decision is that by signing up to use Facebook, and by agreeing to turn over personal information, a user can’t later complain where that personal information goes.

The scary conclusion is that under federal and California law, it may be ok for Facebook to hand over personal information that a user is not aware is being shared.

Comment