• by Wendy Davis  @wendyndavis, August 15, 2023

A federal judge signaled Tuesday that he is inclined to allow Facebook users to proceed with a lawsuit alleging that Meta Platforms tracks online visits to hospital websites and monetizes the data collected from those sites.

In a ruling described as a “tentative opinion,” U.S. District Court Judge William Orrick indicated that he will allow the patients to proceed with claims that Meta violated federal and California wiretap laws, as well as laws regarding larceny and unjust enrichment.

Orrick also suggested he was likely to dismiss several other claims, including one alleging that Meta violated a California consumer protection statute.

Orrick plans to hold a hearing in the matter on Wednesday, and said he was issuing the tentative ruling “to help the parties prepare and focus their arguments” in advance of that hearing.

The battle began in May of 2022, when several patients alleged in a class-action complaint that Meta tracks their visits to hospital websites via the Meta Pixel.

The patients, who are proceeding anonymously, sued soon after The Markup reported that 33 of the country's top 100 hospitals have the Meta Pixel, on their sites.

That code sends Facebook IP addresses of people who use the hospital sites to schedule a doctor's appointment, according to The Markup. 

Meta can also potentially draw on tracking cookies to identify some patients who are logged in to Facebook when they visit a hospital site, according to The Markup.

The complaint included claims that Meta violated various wiretap and privacy laws, and that the company misrepresented its policies by claiming that publishers only send data to Meta if they have the legal right to do so.

The plaintiffs alleged that statement wasn't true, because the health sites that allegedly sent data were subject to the Health Insurance Portability and Accountability Act, which prohibits doctors and hospitals from sharing information about patients without their consent.

Meta urged Orrick to dismiss the lawsuit at an early stage in the proceedings, arguing that the Meta Pixel is not in itself illegal.

“There is nothing inherently unlawful or harmful about the pixel-based analytics technology at the heart of this case,” the company wrote in papers filed in May. "This technology helps web developers measure certain actions users take on their websites ... and use that information to grow their businesses and improve online user experiences.”

The company also said outside developers configure their websites and decide what information to transmit, but added that its “Business Tools Terms” instruct web developers not to send health information.

“It is ultimately the developer, not Meta, that controls the code on its own website and chooses what information to send,” Meta added.

Last year, Orrick rejected the patients' request to prohibit Meta from gathering or using patient information obtained from sites of health organizations covered by the Health Insurance Portability and Accountability Act.

Orrick said at the time that the patients raised potentially strong claims, and that the allegations against Meta were “troubling.”

But he also said Meta presented evidence that it invested in a filtering system to prevent receiving “potentially sensitive information at scale.”