• by Wendy Davis  @wendyndavis, May 24, 2023

A lawsuit accusing Meta Platforms of tracking app users hinges on “sheer speculation,” the company says in a new bid to convince U.S. District Court Judge Araceli Martinez-Olguin in San Francisco to throw out the case.

“This case rests on nothing more than sheer speculation layered atop a mischaracterized blog post -- not on any well-pled facts,” the company argues in papers filed Tuesday.

The complaint against Meta turns a “hypothetical concern into a conclusory allegation,” the company adds.

Meta's argument comes in a class-action complaint filed last September, when Wayne Mitchell and other Facebook users claimed that the company wrongly collects data from mobile users, including iPhone users who did not explicitly consent to tracking.

Apple doesn't allow developers to collect data from app users unless they opt in to tracking.

The complaint alleges violations of the federal wiretap law, as well as various California state laws.

Mitchell sued shortly after security researcher Felix Krause reported on his blog that Facebook and Instagram can track app users who click on in-app links to retailers, advertisers, or other outside companies.

Meta is able to do so because its apps automatically open a Meta browser when people click on links. That browser then injects tracking code into those outside sites, according to Krause.

Krause added that Meta told him the injected code helps to aggregate events such as online purchases, and that the code respects Apple's privacy setting.

Earlier this year, Meta sought a dismissal at an early stage of the proceedings, arguing that the complaint's core allegation -- that Meta monitors all activity by users in in-app browsers -- isn't supported by Krause's blog post.

The users opposed that request, arguing earlier this month that their allegations regarding tracking were plausible enough to warrant further proceedings.

Meta on Tuesday pressed Martinez-Olguin to dismiss the complaint with prejudice -- which would prevent the users from revising their claims and bringing them again.

“The sole alleged factual basis for plaintiffs’ core claims is a purported expert’s supposed say-so: they point to the Krause post as their basis for claiming that Meta collects everything that users do on third-party websites in the in-app browser and that Meta uses the data for advertising purposes in violation of Apple’s ... policy,” Meta writes.

“The Krause post does not in fact say these things,” Meta continues, adding that the post itself contains disclaimers that “make clear that he is not making these assertions.”

Martinez-Olguin is expected to hold a hearing in the matter on July 20.