In Re: Zynga Privacy Litigation

A claim under the Electronic Communications Privacy Act must make an allegation that the contents of a communication were disclosed in order to survive a motion for dismissal.

The plaintiffs in this appeal have been consolidated from multiple cases where the plaintiffs were alleging that Facebook, a social media company, and Zynga, a company who produces social gaming applications, had committed violations of the Wiretap and Stored Communications Privacy Acts of the Electronic Communications Privacy Act (ECPA). They alleged that Zynga disclosed identifying user information gleaned from referer headers–unique identifiers sent to a server when the user clicks on a link–by programming their applications to collect this information and send it to third parties and advertisers. The ECPA provides that the “contents” of a communication cannot be disclosed by a recipient unless the party seeking to receive the information is also an “intended” recipient. The district court dismissed plaintiff’s complaint for failure to state a claim because it found that the plaintiffs had intended for Facebook, Zynga, and the third parties to receive the information. Plaintiffs appealed to the Ninth Circuit, arguing that because of privacy policies which precluded these companies from disclosing personally identifiable information, the exception in the ECPA for intended recipients should not apply. The panel found that the information in the referer headings–specifically user identities–was excluded from the ECPA’s definition of “contents” and instead should be considered “record information,” because it does not constitute the “substance, purport, or meaning” of the communication. Since this “record information” is not the subject of the privacy afforded by the ECPA, the information is not protected even though it is personally identifying. As a result, the panel held that because the plaintiffs only made allegations regarding the information disclosed by referer headers they did not properly allege a disclosure of the “contents” of any communication. AFFIRMED.