Antitrust Law Daily Wrap Up, PRIVACY NEWS: Twitter charged with monitoring users’ private Direct Messages without consent, (Sep 17, 2015)

By Linda O’Brien, J.D., LL.M.

Online social network Twitter intercepts and monitors the private Direct Message communications of Twitter users without their consent and replaces third party website hyperlinks in those messages with Twitter’s own referral hyperlinks in order to increase its perceived value to advertisers, according to a complaint filed in the federal district court in San Francisco (Raney v. Twitter, Inc., September 14, 2015).

Twitter, Inc. is a popular online social networking service that enables users to create, read, and share short 140-character messages called “tweets.” Founded in 2006, Twitter has 316 million active users who collectively transmit over a half billion tweets per day. Wilford Raney registered for a Twitter account in 2009 and has publicly tweeted more than 200,000 times from his personal computer and smartphone.

According to the complaint, to begin using Twitter, a consumer selects a unique Twitter user name, provides contact information, and agrees to Twitter’s terms of service. Then the Twitter user is invited to “follow” other Twitter users to see tweets and begin to write their own tweets, which are public by default. Public tweets allow Twitter to track when issues are trending and who follows whom. Twitter compiles this information, adds it to third party sources, and builds digital profiles of users to sell to advertisers. Twitter also monitors tweets for hyperlinks to other websites and replaces those links with a new hyperlink to www.t.co, a website owned and operated by Twitter. The reason for the link service is to measure the impact Twitter brings to advertisers through referrals.

Recognizing that users may want to share information privately, Twitter created the “Direct Message” system, which allows users to write communications that would purportedly only be accessible and read by the sender and the recipients. Since Twitter represents that Direct Messages are private messages, Twitter users rely on those representations to form the understanding that Direct Messages allow them to communicate privately as opposed to through public tweets, the complaint alleges.

The complaint states that contrary to Twitter’s representations, Direct Messages are not private. Instead, Twitter intercepts and reads the contents of each Direct Message while in transmission and monitors Direct Messages for hyperlinks that can supplement its link service. While Twitter acknowledges that it replaces hyperlinks in public tweets, it does not disclose that it looks for and replaces hyperlinks found in private direct messages. Moreover, Twitter never obtains consent from users to read, monitor, and alter Direct Messages.

When Twitter replaces a hyperlink with its own referral link, the Direct Message looks unadulterated to the sender of the message. However, when a Twitter user clicks on a masked hyperlink, Twitter receives a referral credit since an advertiser can identify Twitter as the referrer of its web traffic, thereby increasing the perceived value of marketing through Twitter. Additionally, Twitter benefits by tracking and generating analytics from users that click on the replaced hyperlinks through the use of “cookie” technology. Through cookies, Twitter can not only track users as they connect to its own websites, but also as they surf the web. Twitter partners with website operators to include “tweet this” buttons on their websites that expand Twitter’s tracking and analytics capabilities, the complaint alleges.

Twitter’s replacement of hyperlinks in private Direct Messages demonstrates that Twitter intercepts and reads the contents of every Direct Message and receives several benefits from this practice, including the ability to track users based on information they would not reveal in public tweets. Yet, Twitter never obtains its’ users’ consent and, as such, Twitter’s practices disregard consumers’ privacy, the complaint also states.

The plaintiff asserts claims for violations of the Electronic Communication Privacy Act and California Invasion of Privacy Act. The action seeks declaratory and injunctive relief, damages, pre- and post-judgment interest, costs of suit, attorney fees, and any other just and proper relief.

The case is No. 3:15-cv-04191.

Attorneys: Samuel M. Lasser and Rafey S. Balabanian (Edelson PC) for Wilford Raney.

Companies: Twitter, Inc.

News: Privacy CaliforniaNews