Facebook Fights To Keep EU Privacy Investigation Confidential

A European investigation of Facebook could play a key role in a privacy lawsuit currently pending in federal court in California, where the social networking service is accused of scanning people's private messages.

The California case dates to late 2013, when Facebook users Matthew Campbell and Michael Hurley alleged in a class-action complaint that Facebook interprets links within users' messages to each other as “Likes,” and then includes them in the total number of “Likes” that appear on the publishers' pages via social plug-ins.

Campbell and Hurley say that activity violates the federal wiretap law, which prohibits companies from intercepting electronic communications without users' consent.

Last December, in the Northern District of California rejected Facebook's bid to dismiss the case. Several months later, the consumers and Facebook agreed to attempt to settle the dispute through mediation. In the meantime, however, both sides continue to request evidence from each other that would be relevant if the matter goes to trial.

In papers filed this week, lawyers for Campbell and Hurley say they want Facebook to turn over documents and other material submitted by Facebook to the Office of the Irish Data Protection, which investigated the company in 2012 for potential violations of European privacy law.

As part of its probe, the European regulators allegedly asked Facebook to provide information about how it scanned users' messages -- “the precise issue at the heart of this case,” according to the consumers' lawyers.

“Facebook was specifically asked 'to provide information about what, if any scanning (aside from anti-virus and anti-spam scanning) is performed on user’s private message content,'” the lawyers say in a papers submitted this week to U.S. Chief Magistrate Judge Maria-Elena James in Oakland. “Facebook has argued that some of its users may have known of its practices related to scanning private messages, and thus impliedly consented to same. It is therefore incontrovertibly relevant that a sophisticated regulatory body, having no idea that Facebook was engaging in this behavior, sought clarification about 'any scanning [of] user’s private message content.'”

Facebook counters that the material is both confidential and irrelevant to the California lawsuit.

“There can be little doubt that foreign companies will be less forthcoming with the IDPC (Irish Data Protection Commissioner) in the future if they know that their communications may be judged and dissected for entirely unrelated purposes in a United States court,” Facebook argues.

“Moreover,” the company adds, “the results of the IDPC’s audit of Facebook Ireland are publicly available. Plaintiffs have no need for the confidential communications between the IDPC and Facebook Ireland relating to the audit.”

Some of the allegations raised by Campbell and Hurley first surfaced in 2012, when security researcher Ashkan Soltani (now at the Federal Trade Commission) reported that Facebook interprets links within users' messages to each other as “Likes,” and includes them in Like-counters on publishers' pages.

Facebook told The Wall Street Journal at the time that no private information is exposed, but confirmed that the Like-counter "reflects the number of times people have clicked those buttons and also the number of times people have shared that page's link on Facebook." The social networking service has said it stopped the practice in 2012.

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