## Facts

- Facebook operated a social networking website; Zynga provided Facebook-integrated online games accessible through links on Facebook pages.
- When a Facebook user clicked a link to a Zynga game, Facebook sent an electronic request to Zynga to load the game.
- The request automatically included HTTP referer-header data identifying the webpage from which the request was sent and containing information that could be used (with other data) to identify the user, including a Facebook ID.
- Plaintiffs alleged Zynga collected users’ identities and page-location information from referer headers and sold that information to advertisers and other third parties.
- Putative class actions alleged Facebook and Zynga violated the Electronic Communications Privacy Act (ECPA), specifically the Wiretap Act and the Stored Communications Act (SCA), by disclosing confidential user information through referer headers.
- The district court dismissed the complaints with prejudice for failure to state a claim, concluding the alleged disclosures were not “contents” of a communication under the ECPA.

## Issues

1. Whether Facebook IDs and URLs contained in HTTP referer headers qualify as the “contents” of a communication under the ECPA for purposes of Wiretap Act and SCA liability.
2. Whether Facebook, Zynga, and advertisers were “intended recipients” of the communications (and thus outside the statutes’ disclosure prohibitions).

## Decision

- The Ninth Circuit affirmed the dismissals with prejudice.
- The court held plaintiffs failed to state a claim under the Wiretap Act and the SCA because they did not plausibly allege disclosure of the “contents” of a communication, an essential element of the ECPA claims.
- Referer-header data consisting of a user’s Facebook ID and the URL of the referring webpage was treated as non-content record information, not the “substance, purport, or meaning” of a communication.
- Because the alleged disclosures were not “contents,” the court did not need to decide whether defendants or advertisers were proper recipients.

## Legal Principles

- Under the ECPA, “contents” means the “substance, purport, or meaning” of a communication, not record information generated in the course of transmission.
- Addressing, routing, and other transactional metadata—analogous to “envelope” information—generally falls outside the statutory definition of “contents.”
- Wiretap Act and SCA claims premised on disclosure require allegations that the defendant intercepted or disclosed “contents”; absent content, the claims fail even if transmission and disclosure to third parties are alleged.

## Conclusion

The Ninth Circuit held that Facebook IDs and webpage URLs contained in HTTP referer headers are non-content metadata rather than ECPA-protected “contents,” so allegations that such referer-header data was disclosed or sold did not state claims under the Wiretap Act or the Stored Communications Act.


In re Zynga Privacy Litig., 750 F.3d 1098 (9th Cir. 2014)