• by Wendy Davis  @wendyndavis, November 27, 2020

Facebook is urging the Supreme Court to take up a long-running dispute about whether tracking logged-out users via the “Like” button violates a federal law restricting the interception of online communications.

In a petition filed quietly last week, the social networking service argues that the battle over tracking “presents a question of critical importance” -- namely, whether “certain ubiquitous practices in the technology industry involving computer-to-computer communications violate the federal Wiretap Act.”

The petition comes several months after the 9th Circuit Court of Appeals ruled that Facebook's alleged tracking may have violated the law.

The battle dates to 2011, when Australian developer Nic Cubrilovic reported that Facebook was able to identify users, including ones who were logged out of the service, 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 subsequently changed its policies, which now allow some data collection from logged-out users.)

Soon after Cubrilovic's report, several users brought a class-action complaint alleging 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 complaint specifically accused Facebook of violating the federal wiretap law by intercepting communications. That law prohibits companies from intercepting electronic transmissions without at least one party's consent.

U.S. District Court Judge Edward Davila in San Jose, California dismissed the lawsuit in 2017. He ruled that Facebook didn't “intercept” any communications, and that the users could have taken steps to prevent data transmissions -- such as by blocking cookies, browsing in “incognito mode,” or installing privacy plug-ins.

Davila also said the users hadn't shown that they suffered an economic injury.

The users then appealed to the 9th Circuit, which revived the bulk of the claims.

The appellate judges said the allegations, if true, could show that Facebook the federal wiretap law by intercepting communications. The judges specifically rejected the idea that the presence of a “Like” button on a publishers' site made Facebook a party to the communications between the publishers and users.

Facebook now argues in its petition to the Supreme Court that the appellate panel wrongly interpreted the wiretap law.

The lower-court ruling “casts doubt on the legality of common business practices integral to the internet’s basic operation,” Facebook writes in its petition for review.

“Facebook was not an uninvited interloper to a communication between two separate parties; it was a direct participant in communications with plaintiffs’ browsers,” the company writes.

Facebook adds that the decision, if left in place, could subject tech companies to criminal and civil liability for “commonplace, lawful business practices that enhance internet users’ experiences.”