Coderights points to the Complaint filed late last month (access a pdf copy here).  I caught it quickly when it was filed, but didn’t have time to take a look.  (I still don't, but I offer quick initial thoughts.) 

Basically, Facebook allows users to send text messages to other users.  It does not verify whether the numbers in question are still in use by the person who is supposedly “friends” with the Facebook user initiating the message.  

As a result, the Complaint alleges, “[n]ew cell phone users are now being assailed with invitations to parties by people they do not know, requests to be designated a “friend” on Facebook’s website, and other often obscure and graphic messages.”  The Complaint alleges that Facebook could fix this problem easily enough, through instituting a number check with Facebook’s partner carriers. 

Plaintiffs’ Claims: 

The named plaintiff received a slew of unwanted text messages from Facebook users and was charged by Verizon for these messages.  (This is another angle that plaintiffs may explore - the underlying $ deal between Facebook and the carriers.)

Plaintiffs assert claims under California’s Computer Crime Law.  Plaintiffs also assert causes under California’s Unfair Competition Law (the ubiquitous “17200”), unjust enrichment, and tresspass.  

What to Make of the Claims:

It’s worth initially noting that Professor Goldman thinks this is an easy 12(b)(6) dismissal under section 230.  

I’m not sure where to begin, really.  The most curious strategic question at the outset is what to make of the fact that Plaintiffs pled only state law claims in federal court.  If you stick to state law claims only you presumably do so because you want to be in state court.  Here, the Class Action Fairness Act would have probably pushed the lawsuit into federal court anyway (?) so Plaintiffs went there from the outset.  But then why did they not plead any federal law claims?

Why didn’t they plead TCPA claims (which belong in state court I think) when one state appellate decision has said that unauthorized text messages can violate the TCPA.   

What also about the CAN-SPAM possibility?  The FCC has indicated that some text messages can violate CAN-SPAM:

The FCC’s ban covers messages sent to cell phones and pagers, if the message uses an Internet address that includes an Internet domain name (usually the part of the address after the individual or electronic mailbox name and the “@” symbol). The FCC’s ban does not cover “short messages,” typically sent from one mobile phone to another, that do not use an Internet address. Also, the FCC’s ban does not cover e-mail messages that you have forwarded from your computer to your wireless device (but the FTC’s rules may restrict such messages).

One significant issue in the CAN-SPAM analysis (apart from whether the “messages use an Internet address that includes an Internet domain name,” which they probably do not), is whether the messages are “commercial messages”.  Does the message promote Facebook or the use of its services predominantly or does it merely allow users to communicate with one another?  (CAN-SPAM regs purport to clarify this issue but they were enacted pre-web 2.0 so they are of limited use.)

What About Section 230?

And finally, what about Section 230?  

I’m not so sure Section 230 applies here.  (There’s been a ton of activity in this area and I haven’t kept track, but my doubts are based on the text of the statute itself and the fact that courts seem less and less inclined to rubber stamp Section 230 dismissals.) 

Section 230 says roughly that no qualifying provider will be treated as the “publisher” or “speaker” of content provided by third parties.  I don’t think any claims against Facebook in this context seek to hold Facebook liable as a "speaker" or "publisher".  See, e.g., this discussion at the Online Liability Blog regarding another case:

The court zeroed in on two key issues impacting whether Section 230 immunity would apply. First, did the FTC seek to treat the defendants as publishers?

In any event, at least some of the claims alleged would probably fall under Section 230’s exceptions (or exclusions). 

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Ultimately does the suit have merit?  It’s tough to say.  On the one hand, Facebook can easily be viewed as just another entity who acts as a conduit and which should not be held liable for the actions of their users.  On the other hand, its conduct has some real world non-Internet consequences, and it’s safe to assume that Facebook would not have implemented the “Facebook Mobile” feature if it would not ultimately aid their bottom line.