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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

Court Won’t Undo Dismissal of in re Facebook Privacy Litigation

Posted in Advertising & Marketing, Litigation, Online, Social Media, United States

Last week, Judge Ware of the Northern District of California denied a motion to amend his November 2011 dismissal, with prejudice, in In re Facebook Privacy Litigation, a case in which plaintiffs had argued that Facebook improperly transmitted users’ personal information, including User ID numbers or usernames, to third party advertisers.

In his most recent Order, Judge Ware reaffirmed his prior holding that plaintiffs had not stated a claim under the Stored Communications Act (“SCA”) based on an exception to the statute that allows a service provider to divulge the contents of a communication to, or with the lawful consent of, “an addressee or intended recipient” of the communication.

Although plaintiffs argued that the November 2011 dismissal was based on a “mistake of fact” because the prior Order failed to recognize that “the communications at issue . . . were not requests to be connected to advertisers, but rather were communications between [p]laintiffs and Facebook,” the Court found that the prior Order had rejected the SCA claim regardless of whether the alleged communications at issue were addressed to advertisers or to Facebook.  Accordingly, Judge Ware held that plaintiffs were not entitled to the “extraordinary remedy” of an amended judgment.

The In re Facebook Privacy Litigation Court previously dismissed numerous other federal and California state law causes of action, including claims under the federal Wiretap Act, California Computer Data Access and Fraud Act (California Penal Code section 502), and breach of contract.