• by Wendy Davis  @wendyndavis, April 12, 2021

A Washington state resident is pressing her bid to proceed with a lawsuit accusing Twitter of violating a state law by inadvertently drawing on users' phone numbers for ad targeting.

Last month, U.S. Magistrate Judge Brian Tsuchida in Seattle recommended dismissing the lawsuit, on the grounds that Twitter's alleged conduct didn't amount to a violation of the state law.

On Friday, lawyers for Darlin Gray asked U.S. District Court Judge Richard Jones to reject that recommendation and allow the lawsuit to proceed.

“Twitter did not create, implement, or execute systems that honored users’ designations as to use of their telephone numbers. Instead, Twitter increased its revenue, by increasing the price of its advertising,” Gray's lawyers say in their new court papers.

The lawsuit, filed by Gray in September, stems from Twitter's disclosure that it inadvertently used email addresses and phone numbers of some users to serve them targeted ads. The email addresses and phone numbers were collected for security purposes, but the data was mistakenly fed into Twitter's ad-targeting platforms.

Gray alleged in a class-action complaint that Twitter violated a Washington state law that prohibits anyone from selling telephone records, or deceptively obtaining telephone records.

Tsuchida said the lawsuit should be dismissed at an early stage for several reasons. Among others, he said a customer's own telephone number isn't covered by the law.

“Because a 'customer’s telephone number' is not expressly included in the definition of 'telephone record,' ... it is not a telephone record,” he wrote.

Tsuchida also said that even if telephone numbers were covered by the law, Twitter didn't “sell” them.

“Advertisers provide their own customer lists to Twitter and Twitter uses those lists to distribute the advertisements,” he wrote. “Plaintiff does not explain how Twitter’s inadvertent use of telephone numbers should give rise to a reasonable inference of an intentional sale of telephone numbers, when the telephone numbers are not given to advertisers.”

Tsuchida also ruled that Gray's allegations were too vague to support her claim that Twitter obtained the information deceptively.

Gray's lawyers are now urging Jones to reject that recommendation. They argue that people's telephone numbers should be considered “records,” for purposes of the law.

“As a matter of internal grammar and logic the statutory text alone identifies a protected category, which includes a person’s telephone number,” they write.

They also say Tsuchida prematurely decided factual questions, including whether Twitter “sold” phone numbers, in the company's favor.

“It stands to reason that advertisers who paid more for a targeted ad product received access to information -- like phone numbers -- that assured them they got what they paid for,” Gray's lawyers contend.

Twitter is expected to respond to Gray's request by April 23.

The FTC is separately investigating whether Twitter's use of the data for advertising violated a consent decree that prohibits the company from misrepresenting its privacy policies.

Twitter said recently that it expects to pay up to $250 million to settle the probe.