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Facebook absolved for exposing user info to advertisers

No harm, no foul, etc.

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A federal judge has gutted a lawsuit filed against Facebook for allegedly leaking users' personal information to advertisers on the grounds that they didn't suffer specific injuries and the leak didn't run afoul of wiretap and computer fraud statutes.

The lawsuit, filed in federal Court in San Jose, California, last year, alleges that the social network violated its own privacy policy by including users' ID numbers in referrer headers that were created each time they clicked on an ads. Two California men alleged that the disclosure, which spanned a three-month period earlier that year, shared their personally identifiable information with advertisers. They sued for violations of the Electronic Communications Privacy Act, federal wiretap statutes, breach of contract, and other laws.

On Thursday, US District Judge James Ware threw out all eight of the claims brought in an amended complaint, although he gave the men leave to revive parts of the case if they could bring more specific allegations. The thrust of Ware's dismissal was that the Facebook users didn't document any real harm resulting from the alleged leak.

“Here, in regard to damages, plaintiffs allege only that as a result of the alleged breach of contract, plaintiffs 'suffered injury,'” Ware wrote. “However, plaintiffs fail to allege any actual damages in their complaint. Thus, under California law plaintiffs fail to state a claim for breach of contract.”

Ware used similar reasoning to throw out a claim brought under California's unfair competition law.

The judge went on to strike down claims brought under the Stored Communications Act and statutes prohibiting unauthorized wiretaps on the grounds that information leaked in referrer headers didn't meet the requirements spelled out in those laws.

The ruling is only the latest time a lawsuit brought for alleged privacy breaches has been dismissed because the plaintiffs didn't allege a specific injury. In late 2009, a federal judge threw out claims brought against Express Scripts for a lapse that exposed customers' names, dates of birth, social security numbers, and prescription drug histories. Last year, the Ninth US Circuit Court of Appeals absolved clothing retailer The Gap for exposing sensitive information for 800,000 customers when laptops with unencrypted contents were stolen.

In the lawsuit filed against Facebook, Ware gave the plaintiffs, David Gould and Mike Robertson, until June 13 to file an amended complaint. An attorney for the plaintiffs didn't return a call inquiring whether they planned to do so.

The ruling comes a few days after researchers from Symantect said Facebook exposed millions of user credentials because of a years-old bug that overrides individual privacy settings.

A PDF of Ware's ruling is here, and legal analysis from Venkat Balasubramani of the Technology & Marketing Law Blog is here. ®

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