• by Wendy Davis  @wendyndavis, February 12, 2021

A group of Facebook users are urging the Supreme Court to stay out of a long-running battle centered on claims that the company violated a privacy law by tracking logged-out users via the “Like” button in 2010 and 2011.

Facebook recently asked the Supreme Court to review a 9th Circuit Court of Appeals ruling that allowed consumers to pursue privacy claims, including an allegation that Facebook violated the Wiretap Act -- which prohibits companies from intercepting electronic transmissions without at least one party's consent.

Counsel for the consumers counters in papers filed Thursday that the 9th Circuit correctly interpreted the wiretap law, and that the case isn't consequential enough to warrant review by the Supreme Court.

“The decision below will have little practical significance outside this case,” class counsel writes.

The legal 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.)

A group of Facebook users led by Perrin Aikens Davis brought a class-action complaint soon after Cubrilovic's report appeared. They alleged that Facebook violated federal and state privacy laws, as well as its own privacy policy, by collecting data about people through its social widget.

In 2017, U.S. District Court Judge Edward Davila in San Jose, California dismissed all claims. 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 then appealed to the 9th Circuit, which revived the bulk of the lawsuit.

The appellate judges specifically rejected the argument that the presence of a “Like” button on a publishers' site made Facebook a party to the communications between the publishers and users.

Last year, Facebook asked the Supreme Court to review that ruling. The company argued in its petition that it “was not an uninvited interloper to a communication between two separate parties,” but was instead “a direct participant in communications with plaintiffs’ browsers.”

The company added that the 9th Circuit ruling could subject tech companies to liability for “commonplace, lawful business practices.”

The Silicon Valley organization Internet Association, U.S. Chamber of Commerce and other groups make a similar argument in a friend-of-the-court brief urging the Supreme Court to hear the case.

The consumers counter that Facebook now says it seeks users' consent before tracking them, rendering the question of whether it previously violated the law “academic.”