Appeals Court Upholds Facebook Message Scanning Settlement

The Ninth Circuit Court of Appeals approved the original settlement in a case brought against Facebook for monitoring communications in its Messenger app. The decision requires Facebook to place a notice, pay $3.89 million in attorney’s fees and costs, and pay $5,000 to each of the two Facebook users who were plaintiffs in the case. Facebook was represented by Gibson, Dunn & Crutcher.

The appeal was brought by Anna W. St. John, a class member who objected to the original settlement. She was represented by Hamilton Lincoln Law Institute. She argued the decision does not do anything to help the broader members of the class, all of those who had their messages scanned. However, the Ninth Circuit panel determined that the district court did not “clearly err” in their decision to not give any award to the entire class. “The class did not need to receive much for the settlement to be fair because the class gave up very little,” says the summary in the Opinion. Judge Friedland said if the litigation were to proceed further the class would still be unlikely to gain anything.

“The parties expended significant effort to try to settle this case.  Several months after the motion to dismiss ruling, they participated in a full-day mediation session,” said Judge Friedland in the Opinion, “almost two years into the parties’ extensive discovery— the parties reached an agreement in principle during their fourth mediation session.”

The original case alleged that Facebook violated the Electronic Communications Privacy Act and the California Invasion of Privacy Act by intercepting messages and tracking when outside URLs were shared in private messages. Plaintiffs Matthew Campbell and Michael Hurley alleged that their private Facebook messages were scanned for URLs and Facebook collected information from them, specifically allowing third parties to show private message shares of a URL as part of the count of how many Facebook users “liked” the page.

The disclosure Facebook agreed to add to its Help Center page for a year states “We use tools to identify and store links shared in messages, including a count of the number of times links are shared.”  The opinion states Facebook stopped using private message URLs to increase likes and giving information to third parties about URL shares in messages in 2012. Facebook confirmed as of the date of the original settlement they were not using information taken from URL shares in private messages for targeted advertising or giving it to any third parties. Facebook did not say as part of the agreement whether they would use the URL data in the future.