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In re Zynga Privacy Litigation

United States Court of Appeals, Ninth Circuit

May 8, 2014

IN RE: ZYNGA PRIVACY LITIGATION, NANCY WALTHER GRAF; RICHARD BEILES; HOWARD L. SCHREIBER; JOHN SWANSON; LELLANIAH ADAMS; VALERIE GUDAC; WILLIAM J. O'HARA; IRIS PHEE; ZENA CARMEL-JESSUP; SHELLEY ALBANI; CHRISTOPHER BROCK; KAREN BRYANT; BARBARA MOSKOWITZ, Plaintiffs-Appellants,
v.
ZYNGA GAME NETWORK, INC., a Delaware corporation, Defendant-Appellee. IN RE: FACEBOOK PRIVACY LITIGATION, MIKE ROBERTSON, as representative of the class, Plaintiff-Appellant,
v.
FACEBOOK, INC., a Delaware corporation, Defendant-Appellee

Argued and Submitted, January 17, 2014, San Francisco, California

Page 1099

Appeals from the United States District Court for the Northern District of California. D.C. No. 5:10-cv-04680-JW, D.C. No. 5:10-cv-02389-JW. James Ware, District Judge, Presiding.

Adam J. Levitt (argued), Grant & Eisenhofer P.A., Chicago, Illinois; Francis M. Gregorek, Betsy C. Manifold, Rachele R. Rickert, and Patrick H. Moran, Wolf Haldenstein Adler Freeman & Herz LLP, San Diego, California; Jonathan Shub, Seeger Weiss LLP, Los Angeles, California; Michael J. Aschenbrener, Aschenbrener Law, PC, San Francisco, California, for Plaintiffs-Appellants Nancy Walther Graf, John Swanson, Richard Beiles, Howard L. Schreiber, Lellaniah Adams, Valerie Gudac, William J. O'Hara, Iris Phee, Zena Carmel-Jessup, Shelley Albani, Christopher Brock, Karen Bryant, and Barbara Moskowitz.

Kassra Nassiri (argued), Nassiri & Jung LLP, San Francisco, California; John Joseph Manier, Nassiri & Jung LLP, Los Angeles, California, for Plaintiff-Appellant Mike Robertson.

Richard L. Seabolt (argued), Oliver E. Benn, Suzanne R. Fogarty, Duane Morris LLP, San Francisco, California, for Defendant-Appellee Zynga Game Network, Inc.

Aaron Martin Panner (argued), Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, D.C.; Matthew D. Brown, Cooley LLP, San Francisco, California; James M. Penning, Cooley LLP, Palo Alto, California, for Defendant-Appellee Facebook, Inc.

Before: Arthur L. Alarcón, Richard C. Tallman, and Sandra S. Ikuta, Circuit Judges. Opinion by Judge Ikuta.

OPINION

Page 1100

IKUTA, Circuit Judge

The plaintiffs in these cases appeal the district court's dismissal with prejudice of their claims for violations of the Wiretap Act and the Stored Communications Act, two chapters within the Electronic Communications Privacy Act of 1986 (ECPA). The plaintiffs allege that Facebook, Inc., a social networking company, and Zynga Game Network, Inc., a social gaming company, disclosed confidential user information to third parties. We have consolidated these cases for this opinion and conclude that the plaintiffs in both cases have failed to state a claim because they did not allege that either Facebook or Zynga disclosed the " contents" of a communication, a necessary element of their ECPA claims. We therefore affirm the district court.[1]

I

Facebook operates Facebook.com, a social networking website. Zynga is an independent online game company that designs, develops, and provides social gaming applications that are accessible to users of Facebook. To understand the claims at issue, some background on Facebook and internet communication is necessary.

A

Social networking and gaming websites provide an internet forum where users can interact with each other and share information. Anyone may register to use Facebook's social networking site, but registrants must provide their real names, email addresses, gender, and birth dates. Facebook does not charge any fees to sign

Page 1101

up for its social networking service. Upon registration, Facebook assigns each user a unique Facebook User ID. The User ID is a string of numbers, but a user can modify the ID to be the user's actual name or invented screen name. Facebook considers the IDs to be personally identifiable information.

Facebook users upload information to the site to share with others. Users frequently share a wide range of personal information, including their birth date, relationship status, place of residence, religion, and interests, as well as pictures, videos, and news articles. Facebook arranges this information into a profile page for each user. Users can make their profiles available to the public generally, or limit access to specified categories of family, friends, and acquaintances.

To generate revenue, Facebook sells advertising to third parties who want to market their products to Facebook users. Facebook helps advertisers target their advertising to a specific demographic group by providing them with users' demographic information. For example, a purveyor of spring training baseball memorabilia can choose to display its ads to males between the ages of 18 and 49 who like baseball and live in Phoenix, Arizona, on the theory that the members of that particular demographic group will be more likely to click on the ad and view the offer. Nevertheless, Facebook's privacy policy states that it will not reveal a user's specific identity and that only anonymous information is provided to advertisers.

In addition to its social networking and advertising services, Facebook offers a platform service that allows developers to design applications that run on the Facebook webpage. Zynga is one such developer. It offers free social gaming applications through Facebook's platform that are used by millions of Facebook users. Until November 30, 2010, Zynga's privacy policy stated that ...


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