Facebook Battles Users Over Tracking At Health Sites

Facebook is urging an appellate court to rule that users can't sue the company for allegedly violating their privacy by tracking them at health sites.

"Facebook’s policies told users exactly the kind of information that Facebook was collecting and how it was using that information," the company says in papers filed Monday with the 9th Circuit Court of Appeals. "Plaintiffs are bound by their consent to those policies."

The company's argument comes in response to users' request that the 9th Circuit revive a privacy lawsuit against the company. The battle dates to last year, when three web users proceeding under the pseudonyms "Winston Smith," "Jane Doe 1," and "Jane Doe 2" 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 allegedly collected information via the "Like" button, and then drew on the data to sell targeted ads.



The three users say they exchanged communications about health conditions that they or a family member suffered from. Smith alleged that he had melanoma, while Jane Doe 1 said she had back pain, and Jane Doe 2 said her husband had an intestine transplant.

Smith and the others 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 web users also sued the health sites for allegedly violating their own privacy policies, which promised to refrain from sharing users' personally identifiable information.

In May, U.S. District Court Judge Edward Davila in the Northern District of California dismissed all claims against Facebook and the health sites. Davila ruled that the users consented to Facebook's data-gathering efforts, because the company discloses online that it collects information from third-party sites that use Facebook services, including the "Like" button and Facebook log-in button. He also ruled that he lacked jurisdiction over the health site operators because they aren't based in California.

Smith and the others recently asked the 9th Circuit to revive their lawsuit. One of their key arguments is that they didn't consent to share information about their visits to health sites with Facebook.

They argue that Facebook's disclosures didn't give people reasonable notice that their activity at health sites was being tracked, and that the disclosures conflicted with the promises made by the health sites themselves. "No reasonable user who viewed Facebook’s and the health care entities’ disclosures would have understood that Facebook was collecting the information at issue," they write.

Facebook counters that it informs users during the sign-up process about tracking and targeted ads.

"Facebook’s policies told users exactly the kind of information that Facebook was collecting and how it was using that information," the company writes. "Plaintiffs are bound by their consent to those policies."

The company also says it doesn't share names, email address or other contact information, and that users can opt out of receiving targeted ads.

The users are expected to respond early next year to Facebook's arguments.

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