• by Wendy Davis  @wendyndavis, January 23, 2018

Pressing their claims against Facebook, a group of consumers says the company engaged in "highly offensive" activity by tracking them at health sites.

"Here, the data is as sensitive as it gets -- and its unauthorized acquisition and use is both highly offensive and a serious invasion of privacy," the consumers argue in papers filed Monday with the 9th Circuit Court of Appeals.

The consumers are asking the court to revive their 2016 lawsuit against Facebook. The users, who proceeded under the pseudonyms "Winston Smith," "Jane Doe 1," and "Jane Doe 2," alleged in a class-action complaint that Facebook violated federal and California state privacy laws by gathering 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 gathered 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.

Last 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, noting that the company discloses online that it collects information from third-party sites that use Facebook services -- such as 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.

The users are now appealing to the 9th Circuit. Facebook recently argued that Davila's ruling should be upheld because the company informed users about its data-gathering efforts during the sign-up process.

"Facebook’s policies told users exactly the kind of information that Facebook was collecting and how it was using that information," Facebook argued in papers filed last year.

But the users counter that the Facebook's "vague disclosure buried within a form contract no person is ever likely to read" wasn't sufficient to notify people about the alleged collection of health-related data. The users add that the disclosure conflicted with Facebook's "prominent" statement in its data policy that people's privacy "is important to us."

"Facebook’s more prominent privacy promises and the totality of the circumstances surrounding the activity in question lead to only one conclusion," the users contend. "Facebook’s buried term is not an unconditional license to participate with its third-party partners in the breach of privacy promises...Neither does it permit Facebook to track users’ communications with medical websites, nor to use their medical data for marketing."