Court Sides With Facebook Over Tracking At Health Sites

Siding with Facebook, a federal appellate court refused to revive claims that the company violated users' privacy by tracking them at health sites.

A three-judge panel of the 9th Circuit Court of Appeals ruled Thursday that users who sued consented to Facebook's tracking practices by accepting the company's terms of service.

The ruling stems from a 2016 lawsuit filed by three users who alleged in a class-action complaint that Facebook gathered data about their 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 users -- who proceeded under the pseudonyms "Winston Smith," "Jane Doe 1," and "Jane Doe 2" -- alleged 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.



The lawsuit alleged 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.

Last May, U.S. District Court Judge Edward Davila in the Northern District of California dismissed all claims against Facebook. He ruled that the users consented to the data gathering, noting that Facebook discloses online that it collects information via the "Like" button and Facebook log-in button.

Smith and the others then 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 argued 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 wrote.

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

The appellate judges agreed with Facebook that the company gave users adequate notice about its tracking practices. “Plaintiffs claim that -- though they gave general consent to Facebook’s data tracking and collection practices -- they did not consent to the collection of health-related data due to its “'qualitatively different' and 'sensitive' nature,” the judges wrote. “We do not agree that the collected data is so different or sensitive.”

The panel added that the the plaintiffs only sought out “publicly available health information that cannot, in and of itself, reveal details of an individual’s health status or medical history.”

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