Facebook Users Ask Court To Revive Suit Over Tracking

Four Facebook users have asked a federal appeals court to restore their privacy lawsuit accusing the company of tracking them throughout the web via the "Like" button.

"The legal principles involved in this case are straight-forward," counsel for the users argues in papers filed Monday with the 9th Circuit Court of Appeals. "Facebook was caught tracking its subscribers’ most intimate web-browsing (and linking the tracking to actual user identity) despite public assurances that users could avoid the tracking by logging out."

The battle dates to 2011, when users alleged in a class-action complaint that Facebook violated federal and state privacy laws, as well as its own privacy policy, by collecting data about people through its social widget. The consumers said Facebook gathered data about its users whenever they visited sites with a "Like" button, even if the users were logged out of the service.



The lawsuit came soon after Australian developer Nic Cubrilovic reported that Facebook was able to identify users whenever they visited sites with the "like" button. At the time, Facebook said that a "bug" allowed the company to receive data about logged-out users. The company also promised to fix the bug, and said it never retained data that tied users' IDs to the sites they visited. (Facebook's practices subsequently changed. Currently, the company intentionally collects some information from logged-out users.)

U.S. District Court Judge Edward Davila in San Jose, Calif. dismissed the lawsuit last year. He said in the ruling that Facebook didn't violate the federal wiretap law because it didn't "intercept" communications on sites with a "like" button. That law prohibits companies from intercepting electronic transmissions without the consent of at least one party.

He also ruled in November that the users couldn't proceed with claims that Facebook violated its own policies, or that it violated a California privacy law. Davila also said in his ruling that the users hadn't shown that they suffered an economic injury as a result of the alleged privacy violations.

The users are now asking the 9th Circuit to reverse Davila's ruling and reinstate the case.

Among other arguments, they say that the "misappropriation of economically valuable personal data" is the type of economic harm that warrants a lawsuit.

They also say they should have been able to proceed with claims that Facebook's alleged tracking is the type of activity that violates California's privacy laws.

"Non-consensual secret tracking of web browsing history, when linked to user identity, is 'highly offensive,'" they argue.

The social networking service is also facing another privacy battle in the 9th Circuit Court of Appeals. That matter stems from allegations that Facebook tracked users at health sites -- including ones operated by the American Cancer Society, Melanoma Research Foundation and University of Texas MD Anderson Cancer Center -- via the "Like" widget.

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