• by Wendy Davis  @wendyndavis, December 29, 2020

A long-running privacy battle over how Facebook tracks people through the web could affect a broad array of commonplace online activity, the Silicon Valley organization Internet Association, U.S. Chamber of Commerce and other groups are telling the Supreme Court.

The organizations are urging the court to hear Facebook's appeal of a recent decision by the 9th Circuit Court of Appeals, which said Facebook may have violated the federal wiretap law by allegedly tracking logged-out users via the “Like” button.

If that type of tracking violates the wiretap law, then “a vast quantity of everyday online communications” might also violate the law, the groups contend in a friend-of-the-court brief filed Monday.

“The Ninth Circuit’s erroneous interpretation of the Wiretap Act threatens to criminalize computer-to-computer communications that are common and fundamental to the operation of modern webpages,” they add.

The battle dates to 2011, when Australian developer Nic Cubrilovic reported that Facebook was able to identify logged-out users whenever they visited sites that had a "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.)

After the report appeared, several Facebook users claimed in a class-action complaint that the company's alleged data collection violated federal and state privacy laws, as well as its own privacy policy. Among other claims, the users accused Facebook of violating the federal wiretap law, which 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.

The users appealed to the 9th Circuit, which revived the bulk of the case, including a claim that Facebook violated the federal wiretap law. In their ruling, the judges rejected the idea that a “Like” button on a publishers' site made Facebook a party to the communications between the publishers and users.

Earlier this month, Facebook asked the Supreme Court to hear the case.

“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 wrote in its petition for review.

The Internet Association and other groups agree with Facebook that it should be considered a party to the communication. The organizations also say the 9th Circuit's decision doesn't take into account the complexities of the online ecosystem.

“The realm of communications implicated by the Ninth Circuit’s decision is immense,” the groups argue. “If left in place, the decision would cast a shadow of potential massive civil and criminal liability over the web.”