A class action lawsuit was filed against a major social media company for allegedly transmitting "Referrer Headings" to advertisers when users clicked on the advertisers' advertisements. These Referrer Headings told the advertiser the website the user was on prior to clicking on the advertisement and also transmitted the user's ID and username. The plaintiffs alleged that this practice violated the Electronic Communications Privacy Act (ECPA), including Title I of the act (the Wiretap Act) and Title II (the Stored Communication Act), among various California state law and common law claims. The social media site moved to dismiss the complaint, and the District Court for the Northern District of California granted its motion with respect to the Wiretap Act, Stored Communications Act, and California Unfair Competition Law claims. The court's rationales for the Wiretap Act and the Stored Communications claims were similar. The court noted that the Wiretap Act prohibits divulging the contents of a communication while it is being transmitted to anyone other than the intended recipient. The Stored Communications Act prohibits disclosing a stored communication to anyone other than the intended recipient. However, if the clicking on an advertisement constitutes an electronic communication from the user to the social media site, the communication is exempted by the plain language of both portions of the ECPA, since the user is the intended recipient. And, if the clicking on an advertisement constitutes a communication from the user to the advertiser, it is also exempt since the social media site is the conduit between the user and the advertiser. The court dismissed these two counts without prejudice, allowing the plaintiff to re-file and allege specific facts showing that the information disclosed was not part of the communications to the plaintiff. The plaintiff re-filed on June 13, 2011.

TIP: In reaching its decision to dismiss the plaintiff's claims under California's Unfair Competition Law, the court concluded that the social media website's users did not pay to use the website and therefore, as a matter of law, the plaintiff could not state a claim under California's Unfair Competition Law, which requires a loss of monetary or personal property (and personal information did not constitute property for purposes of the law). The court distinguished an earlier case where it had found that an ISP's disclosure of sensitive financial information constituted a property loss. In that earlier case, the users had paid the ISP to receive the ISP's services, whereas here the user did not pay the social media site to receive its services.