Weighing in against Facebook, the watchdog Electronic Privacy Information Center is urging a federal appeals court to allow consumers to proceed with a lawsuit accusing Facebook of violating their privacy by tracking their activity on health sites.
"The users in this case had every reason to expect privacy in their browsing of healthcare websites -- a context where they were disclosing highly sensitive, health-related information," EPIC writes in a friend-of-the-court brief filed this week with the 9th Circuit Court of Appeals.
The organization is weighing in on a dispute dating to last year, when three Web users alleged in a class-action complaint that Facebook gathered data about users' visits to health sites, including ones operated by the American Cancer Society, Melanoma Research Foundation and University of Texas MD Anderson Cancer Center. Facebook collected this data via the "Like" button, according to the court papers. The users also alleged that Facebook uses the data gleaned from health sites to sell targeted ads based on medical topics.
The web users, proceeding under the pseudonyms "Winston Smith," "Jane Doe 1," and "Jane Doe 2," claimed that Facebook violated federal and state privacy laws, including the federal wiretap act, which prohibits companies from intercepting transmissions without at least one party's consent. The consumers also sued the health sites for allegedly violating their own privacy policies, which promised to refrain from sharing users' personally identifiable information.
U.S. District Court Judge Edward Davila in the Northern District of California dismissed all claims against Facebook and the health sites in May. He ruled that the users consented to Facebook's data-gathering efforts because the company discloses online that it collects information from third-party sites. He also ruled that he lacked jurisdiction over the health site operators because they aren't based in California.
"Smith" and the other users are now appealing Davila's decision to dismiss their claims against Facebook to the 9th Circuit.
EPIC is urging that court to revive the lawsuit. The privacy group argues that the users didn't "meaningfully consent" to the data collection by accepting Facebook's terms of service.
"It is simply unrealistic to find that plaintiffs meaningfully consented to Facebook’s third-party tracking practices based on notice alone," EPIC writes.
"Facebook’s assurance that 'your privacy is very important to us' along with the healthcare websites’ explicit promises not to disclose personal data to third parties created the net impression that the plaintiffs would not be tracked while visiting the healthcare websites," EPIC argues.
The watchdog also notes that the health care sites said they didn't share users' personal information.
"The users were communicating with their healthcare providers and disclosing information about their doctors and treatment options," EPIC writes. "They did so with the explicit assurance from the websites they were visiting that their personal information would not be disclosed to others. Given the sensitivity of this information... the plaintiffs had the right to expect privacy."