• by Wendy Davis  @wendyndavis, July 31, 2018

Facebook is asking a federal appellate court to refuse to revive a lawsuit accusing the company of tracking logged-out users throughout the web via the "Like" button.

The company argues in new court papers that the consumers who filed suit shouldn't be able to proceed because didn't allege that they were harmed by Facebook, or that Facebook broke any promises to them.

"They have not identified a single specific piece of data that Facebook supposedly received while they were logged out," Facebook writes in a brief submitted Monday to the 9th Circuit Court of Appeals. "Plaintiffs fail to allege that Facebook made or breached any promise regarding the receipt of data from logged-out users during the relevant period."

The legal battle dates to 2011, when several 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 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. The wiretap law prohibits companies from intercepting electronic transmissions, without the consent of at least one party.

He also ruled last year 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 judge added that Facebook's users could have taken steps to prevent the tracking, such as by blocking cookies, using ""incognito mode" browser settings, or installing plug-in "browser enhancements."

The users recently asked the 9th Circuit to reverse Davila's ruling and reinstate the case. The advocacy group Electronic Privacy Information Center is backing that request.

"Users expect that their web browsing history will remain private -- no one imagines a marketing executive standing over their shoulder and taking notes as they use the Internet," EPIC wrote in a friend-of-the-court brief filed recently with the 9th Circuit Court of Appeals.

Facebook is asking the 9th Circuit to reject requests to revive the case. The social networking service raises several arguments, including that the users who sued didn't establish that they had a "reasonable expectation of privacy" in the identities of the sites they visited.

Facebook writes that California's privacy law only protects people against the spread of "sensitive and confidential" information. In this case, the consumers didn't specify which sites they visited while logged out, and therefore "failed to allege that the fact that they visited those sites is 'sensitive,' 'confidential,' or even personal," Facebook argues.

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.