In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 4

NOTICE by Facebook Inc. of Pendency of, action, Ung v. Facebook, Inc., No. 112-cv-217244 (Ung), pending in the Superior Court of the State of California, County of Santa Clara Facebook intends to move the Superior Court for a stay of proceedings in Ung pending resolution this matter. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Gutkin, Jeffrey) (Filed on 3/16/2012) Modified on 3/19/2012 (cv, COURT STAFF).

EXHIBIT C

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JEFFS. WESTERMAN (SBN 94559)
[e-mail]
2 DAVID E. AZAR(SBN 218319)
[e-mail]
3 MILBERGLLP
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One California Plaza
4 300 S. Grand Avenue, Suite 3900
Los Angeles, CA 90071
5 Telephone: [phone]
Facsimile: 213-617-1975
6
Attorneys for Plaintiffs
7
[Additional Counsel on Signature Page]
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David H. Yamasaki
Chief Executive Of ic
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Case: 1-11-

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

II

COUNTY OF SANTA CLARA

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Plaintiffs,
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FACEBOOK, Inc.

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Defendants

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case No

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CLASS ACTION COMPLAINT
COMPLAINT FOR:
VIOLATION OF ARTICLE I, SECTION I
OF THE CALIFORNIA CONSTITUTION
AND UNJUST ENRICHMENT
JURY TRIAL DEMAN'DED

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$395 00

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RYANUNG,
Clll CHENG and
I3 ALICE ROSEN,
14 on Behalf of Themselves and All Others
Similarly Situated,

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CLASS ACTION COMPLAINT
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TABLE OF CONTENTS

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Page
3

CLASS ACTION COMPLAINT ................................................................................................... I
4

NATURE OF THE ACTION ......................................................................................................... I
5

JURJSDICTION AND VENUE ..................................................................................................... I

6
THE PARTIES ................................................................................................................................ I
7

STATEMENT OF FACTS: ............................................................................................................ 2
8

About Facebook, Its "Like" Button, and Facebook Connect ..................................................... 2
9

Facebook ................................................ ................................................................................... 2
10

The Facebook '"'Like" Button .................. ................................................................................... 2
II

Facebook Connect. ...................................................................................................................... 3
12

13

Facebook Uses the "Like" button and Facebook Connect To Track Facebook Members and
Non-Members ............................................................................................................................. 3

14 CLASS ACTION ALLEGATIONS .............................................................................................. 6

15 FIRST CAUSE OF ACTION (Violation of Article l, Section I of the California Constitution) .. 7
16 SECOND CAUSE OF ACTION (Unjust Enrichment) .................................................................. 8
17 PRAYER FOR RELIEF ................................................................................................................. 9
18 DEMAND FOR JURY TRIAL ...................................................................................................... 9
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CLASS ACTION COMPLAINT
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1
2

CLASS ACTION COMPLAINT

Plaintiffs allege the following, upon personal knowledge with respect to themselves, and

3 on information and belief derived from, among other things, investigation of counsel and review

4 of public documents, as to all other matters:
5
6

NATURE OF THE ACTION
l.

This is an action on behalf of a class of millions of California Internet users (as

7 defined herein) who have visited one or more websites displaying the Facebook "Like" button

8 (as defined below). The action arises from Facebook's surreptitious use of the "Like" button and
9 "Facebook Connect" to collect and store sensitive, private, and personally identifiable
10 information in violation of Article I, Section l of the California Constitution. The information is
II

secretly collected and stored regardless of whether the website visitor clicks the "Like" button

12

and, in most cases, regardless of whether the Internet user is a Facebook member.

13
14

15

JURISDICTION AND VENUE
2.

This Court has jurisdiction over these proceedings because defendant Facebook is

headquartered in the State of California, transacts business within this state, has committed

16 wrongful acts within lhe state, and has committed wrongful acts that have caused injuries to
17 persons within the state.
18

3.

Venue lies in this court because many of those affected by defendants' v.Tongful

19 conduct reside in this county, and many of the potential witnesses reside and work in this county.

20
21

TilE PARTIES
4.

Plaintiff Ryan Ung resides in San Francisco. Mr. Ung is a Facebook member who

22 visited websites that display the Facebook "Like" button. Facebook used the "Like" button to
23

track and collect his browsing histocy and link it to personally identifiable information without

24 his consent.
25

5.

Plaintiff Chi Cheng resides in San Francisco.

Mr. Cheng is a non-Facebook

26 member who visited a website in the Facebook Connect network and subsequently visited a
27 website displaying the Facebook "Like" button. Facebook used the Like Button and Facebook

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DOCSIS5534lv4

1 Connect to collect his browsing history and personally identifiable information without his
2

3

consent.
6.

Plaintiff Alice Rosen resides in Sunnyvale, California. Ms. Rosen is a

non~

4 Facebook member who visited a website in the Facebook Connect network and subsequently
5

visited a website displaying the Facebook "Like" button. Facebook used the Like Button and

6 Facebook Connect to collect her browsing history and personally identifiable information

7 without her consent.

8

7.

Defendant Facebook ("hereinafter "Facebook") is a Delaware Corporation that

9 maintains its headquarters in Santa Clara County, California.

Facebook conducts business

lO throughout California, the nation, and internationally.
II

STATEMENT OF FACTS:
About Facebook, Its "Like" Button, and Facebook Connect

12

13 Facebook
14

8.

Facebook is the world's largest social networking website with more than 500

15 million registered users worldwide.
16

9.

Facebook requires that Facebook registrants provide their actual names, rather

17 than merely create a «screen name" or "user name" as is commonplace with other, non-social
18 networking website registrations.

Facebook then assigns each Facebook member a user ID

19 number that uniquely identifies that member.
20 The Facebook "Like" Button
21

10.

The Facebook "Like" button is an image displaying a thumbs-up symbol

22 accompartied by the word "'Like." According to Facebook, the "Like" button allows Facebook
23

members to share third-party content that they find interesting, funny, or for which they have

24 some sort of affinity with other Facebook members.

When a Facebook member clicks the

25 "Like" button on a website, an item appears on the user's Facebook profile page with a link back
26 to the website. Anyone can implement the "Like" button on their website by adding a computer
27 code, which is available for free and provided for by Facebook.

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1

2
3

"[t]he Like button lets a user share your content with friends on Facebook. When
the user clicks the Like button on your site, a story appears in the user's friends'
News Feed with a link back to your website.

4

i
r

11.

12.

Facebook promotes the "Like" button to website owners as follows:

Website owners have a substantial financial incentive to include the "Like" button

5 on their websites because it tends to increase traffic to the website and thereby increase the
6

amount the website owner can charge for displaying advertising on the website. Indeed, more

7 than 2.5 million websites have integrated the Facebook "Like" button. According to comScore,
8

those 2.5 million websites include all of the top ten sports sites, nine of the top ten news sites,

9 nine of the top ten entertainment sites, and 18 of the top 25 retails sites. Overall, 80% of the

10 United States' comScore top websites are fully integrated. Evei)' day, 10,000 more websites add
11

the "Like" button.

The "Like" button has become so deeply embedded in our societal

12

consciousness that we sometimes do not even realize how much it has permeated our culture. It

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is an indelible part of the "online experience."

14

Facebook Connect

15

13.

Facebook Connect enables Facebook members to log onto third-party websites,

16 applications, mobile devices, and gaming systems with their Facebook identity. While logged
17 on, users can connect with friends via these media and post information and updates to their
18

Facebook profile. Within a year of its launch in December 2008, Facebook Connect was on

19 almost 1 million websites, and in March 2009 more than 40 million unique visitors ofFacebook
20

Connect implementations were counted.

21

Facebook Uses the "Like" button and Facebook Connect To Track Facebook Members
and Non-Members

22

14.

Unbek:n0\\-11St to Internet users, Facebook uses the "Like" button to track Internet

23

users as they browse the web and thereby collects private and, in some cases, sensitive
24
information about them.

Facebook follows Facebook members and, m some cases, non-

25
members as they browse the Internet, linking their records of each new page visited to

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Facebook's records of all the "Like" button- or Facebook Connect-affiliated pages that the user
27
has visited in the previous minutes, months, and years. 1t may thereby construct and update a

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1 long-term profile of what particular users are doing with their web browsers. Anyone who has
2 used the Internet to seek advice about hemorrhoids, sexually transmitted diseases, abortion, drug
3 rehabilitation, dementia -

the list goes on and on -

can be reasonably certain that Facebook

4 has tracked at least some of those visits and in many cases, identified them with a particular
5 individual, such that the information can easily be incorporated into a personal profile for sale to
6 marketers of all sorts, or to be put at the disposal of the United States or state government
7 agencies. The information is collected even if the website visitor does not click on the "Like"
8 button. This practice was brought to light by Arnold Roosendaal, whose work in progress,
9

Facebook

Tracks

and

Traces

Everyone:

Like

This!,

IS

available

at

10 http:/www.ssrn.com/abstract=l717563.
II

15.

The tracking mechanism differs depending on whether the Internet user is a

12 Facebook member or not.
13

(a)

Facebook Members: Upon registration, Facebook implants tracking

14 cookies on the members' computers. Each time the member visits a site displaying the Facebook
15 "Like" button, the updated Facebook cookie information, including the member's most recent
16 browsing history, is sent to Facebook Facebook can then link the cookie information with the
17 member's unique Facebook identifier, thereby associating the personally sensitive information
18 with the particular user and his account information. This occurs regardless of whether the
19 Facebook member clicks the "Like" button.

20
21

(b)

If a Facebook member deactivates his or her account through the process

Facebook provides, the entire account is nevertheless kept by Facebook, which can continue to

22 link data to the account just as when the account was active. If the users wish to delete the
23

account entirely, such that Facebook no longer has access to their personal data, they must make

24 a specific request to Facebook that takes two weeks to process.

25

(c)

Non-Facebook Members: Facebook implants tracking cookies on the

26 computers ofnon-Facebook members when the non-Facebook member visits one of the million
27 websites in the Facebook Connect network Thereafter, Facebook's data profile of the non28

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member is updated each time the non-Facebook member visits a site displaying the Facebook

2 "Like" button, even if the non-member does not click the ''Like" button. The data profile is
3 anonymous unless the non-member subsequently joins Facebook, at which point Facebook can
4 associate the previously anonymous "file" with the member and his or her account information,
5 which includes, at a minimUlll, the members' names and addresses. Facebook thus tracks and
6

collects extensive information about non-Facebook members- i.e. individuals who consciously

7 choose not to participate in Facebook. If a user subsequently opens an account on Facebook, aU
8

of the previously compiled information can be linked to the Facebook account holder and, from

9

that time on, all subsequent requests for Facebook content are accompanied by the Facebook

l 0 identifier unique to the user.
11

16.

The personal information collected by Facebook is an asset of the sort that is

12 priced, bought, and sold in discrete units for marketing and other pmposes. 'Websites and stores
13 can . .

easily buy and sell infonnation on valued visitors with the intention of merging

14 behavioral with demographic and geographic data in ways that will create social categories that
15

advertisers covet and target with ads tailored to them or people like them." Joseph Turow,

16 Jennifer King, Chris Jay Hoofuagle, Amy Bleakley & Michael Hennessy, Americans Reject
17 Tailored

Advertising

and

Three

Activities

that

Enable

18 http://papers.ssm.com/sol31papers.cfm?abstract_id=l478214.

It

(Sept.

29,

2009),

The more information that is

19 known about a consmner, the more a company will pay to deliver a precisely targeted
20

advertisement to him or her.

21

Change, Preliminary Staff Report (Dec. 2010) ("F.T.C. Report"), at 24.

22
23

17.

See F.T.C., Protecting Consumer Privacy in an Era of Rapid

Personal data is viewed as currency. '""In many instances, consumers pay for free

content and services by disclosing their personal information," according to former F.T.C.

2 4 commissioner Pamela Jones Harbour. F.T.C. Roundtable Series 1 on: Exploring Privacy (Matter
25

No. P095416) Dec. 7, 2009, at 148. (available athttp://www.ftc.gov/bcp/

26 workshops/privacyroundtables/PrivacyRoundtable_ Dec 2009_Transcript. pdf). In Property,
27

Privacy, and Personal Data, Professor Paul M. Schwartz wrote:

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Personal information is an important currency in the new millennium. The
monetary value of personal data is large and still growing, and corporate America
is moving quickly to profit from this trend. Companies view this information as a
corporate asset and have invested heavily in software that facilitates the collection
of consumer information.

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2

3

4 Paul M. Schwartz, Property, Privacy, and Personal Data, 117 Harv. L. Rev. 2055, 2056-57
5 (2004).
6

18.

On February 28, 2011, the Wall Street Journal published an article under the

7 headline 'Web's Hot New Connnodity: Privacy," in which it highlighted a company called
8 "Allow Ltd.," one of nearly a dozen companies that offer to sell people's personal information
9

on their behalf and give them 70% of the sale. An Allow Ltd. customer received a payment of

10 $8.95 for letting Allow tell a credit card company he is shopping for new plastic. !d.
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CLASS ACTION ALLEGATIONS
19.

Pursuant to California Code of Civil Procedure § 382, Plaintiffs bring this action

13 on behalf of themselves and two subclasses of Internet users: 1) all Facebook members who
14 visited a website displaying the Facebook "Like" button from April 22, 20IO to the date of filing
15 of this complaint; and 2) all non-Facebook members who visited a website in the Facebook
16 Connect network and subsequently visited a website displaying the Facebook "Like" button from
17 April22, 2010 to the date of the filing of this complaint. Venue is proper in this Court because
18 defendant Facebook maintains its principal place of business in this county and the defendants
19 engaged in wrongdoing in this county.
20

21

20.

This Court has jurisdiction over these proceedings because defendant Facebook is

located in the State of California, Facebook transacts business within this state, has committed

22 wrongful acts within the state, and has committed wrongful acts that caused injury to persons
23 within the state.
24

21.

This action is properly maintainable as a class action.

25

22.

The Class is so numerous that joinder of all members is impracticable. There are

26 tens of millions oflnternet users who have been tracked via the Facebook "Like" button.
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23.

2

alia, the following:

3

There are questions of law and fact that are common to the Class including, inter

(a)

whether Facebook engaged in conduct that invaded Plaintiffs' pnvacy

5

(b)

whether Plaintiffs had a reasonable expectation of privacy as to the

6

interests invaded;

7

(c)

whether the invasion of privacy was serious;

8

(d)

whether this invasion of privacy caused Plaintiffs to suffer injury, damage,

9

loss, or harm; and

10

(e)

4

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interests;

whether Facebook was unjustly enriched by the unauthorized acquisition

of Plaintiffs' personally identifiable information.
24.

Plaintiffs will fairly and adequately represent the Class. Plaintiffs are committed

13

to prosecuting this action and has retained competent counsel experienced in litigation of this

14

nature. Plaintiffs' claims are typical of the claims of other members of the Class and Plaintiffs

15 have the same interests as the other members of the Class.
16

25.

Plaintiffs anticipate no difficulty in the management of this litigation.

17

26.

Defendants have acted in a manner that affects Plaintiffs and all Class members

18 alike, thereby making appropriate injunctive, declaratory, and other relief appropriate with
19 respect to the Class as a whole.

20

27.

The prosecution of separate actions by individual members of the Class would

21

create a risk of inconsistent or varying ad,judications with respect to individual members of the

22

Class, establish incompatible standards of conduct for defendants or adjudications with respect to

23

individual members of the Class, and could be dispositive of the interests of other members or

24 substantially impair or impede their ability to protect their interests.
25

FIRST CAUSE OF ACTION
(Violation of Article 1, Section 1 of the California Constitution)

26
27

28.

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Plaintiffs incorporate each and every allegation as if fully set forth herein.

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29.

Article I, Section I of the California Constitution states that "All people are by

2

nature free and independent and have inalienable rights. Among these are enjoying and

3

defending life and liberty, acquiring, possessing, and protecting property, and pursuing and

4

obtaining safety, happiness, and privacy." CaL Const. art I,§ I.

5

30.

Plaintiffs had a legally protected interest in their personal Internet browsing

31.

Plaintiffs reasonably expected that their browsing history would remam

6 history.
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10

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anonymous.
32.

Facebook committed a serious invasion of Plaintiffs' privacy interest by using the

Like" button and Facebook Cormect to secretly track Plaintiffs' website browsing history.
33.

By the acts, transactions and courses of conduct alleged herein, defendant violated

Plaintiffs' inalienable right to privacy.

SECOND CAUSE OF ACTION
(Unjust Enrichment)

14

15

34.

Plaintiffs incorporate each and every allegation as if fully set forth herein

16

35.

Plaintiffs and the Class have conferred a benefit on Facebook. Facebook has

17 received and retained money belonging to Plaintiffs and the Class as a result of collecting and

18 storing its users' personal information, which is an asset, and selling it to third parties for
19 marketing purposes without the Internet users' knowledge.

20

36.

Facebook appreciates or has knowledge of this benefit.

21

37.

Under principles of equity and good conscience, Facebook should not be

22

permitted to retain money belonging to Plaintiffs and the Class that it unjustly received as a

23

result of its actions.

24

38.

25

Plaintiffs and the Class have suffered loss as a direct result of Facebook's

conduct

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39.

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Plaintiffs, on their own behalf and on behalf of the Class, seek imposition of a

2

constructive trust on a restitution of the proceeds Facebook received as a result of its conduct

3

described herein and attorneys fees and costs pursuant to Cal. Civ. Proc. Code§ 1021.5.

4

II

5

PRAYER FOR RELffiF
WHEREFORE, Plaintiffs and members of the Class seek relief against defendant as

6 follows:
7

A.

Declaring that this action is properly maintainable as a class action and certifying

8 Plaintiffs as the representatives of the Class.

9
10
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B.

Declaring that Facebook's actions, as described

here~

violate Article[, Section 1

of the California Constitution. Cal. Const. art I, § 1.
C.

Awarding injunctive and other equitable relief as is necessary to protect the

12
interests of Plaintiffs and the Class including, inter alia, an order prohibiting Facebook from

13
14

IS

engaging in the wrongful and unlawful acts described herein.

Disgorgement of aU revenue earned from selling or otherwise trading on the

D.

16 private information obtained from Plaintiffs and the Class via the Facebook "Like" button.

17
18

E.

Awarding Plaintiffs and the Class their reasonable litigation expenses and

attorneys fees; and

19

Awarding such other and further relief as equity and justice may require.

F.

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21
22

DEMANDFORJURYTRIAL
Plaintiffs hereby demand trial of their claims by jury to the extent authorized by law.

23 DATED: May6,2011

MILBERGLLP

24

JEFFS. WESTERMAN
DA
E.AZ

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