• by Wendy Davis  @wendyndavis, July 22, 2024

X Corp. is urging a federal appellate court to reject a Washington state resident's attempt to revive claims that the company violated an “anti-pretexting” law by asking users to provide contact information for security purposes, but then harnessing that information for ad targeting.

In papers filed Friday with the 9th Circuit Court of Appeals, X (formerly Twitter) argues that the state anti-pretexting law -- which prohibits anyone from fraudulently obtaining phone records -- wasn't intended to apply in situations where “legitimate businesses” receive telephone-related information directly from consumers.

X's new papers mark the latest development to stem from revelations that between 2013 and 2019, the platform inadvertently allowed marketers to target people based on phone numbers and emails collected for security purposes.

The company disclosed in 2019 that the phone numbers and email data were mistakenly incorporated into an ad platform that allows companies to use their own marketing lists -- including customers' email addresses and phone numbers -- to target ads on the social platform.

The Federal Trade Commission fined X $150 million over the privacy gaffe.

In April 2022, Washington state resident Glen Morgan alleged in a class-action complaint brought in Spokane County Superior Court that the ad-targeting glitch violated Washington's anti-pretexting law. The case was transferred to federal court at X's request.

Last year, U.S. District Court Judge Mary Dimke in the Eastern District of Washington dismissed the suit, ruling that obtaining a phone number would not violate the anti-pretexting law, which refers to telephone “records.”

She said in a written decision that the pretexting law is “plainly focused” on protecting call-history data, as opposed to consumers' own phone numbers.

Morgan recently asked the 9th Circuit to reverse that ruling and reinstate the lawsuit.

His lawyers argue both that the case should have remained in state court and that the Washington statute should have been interpreted to cover phone numbers.

The statute itself defines telephone records as information retained by a telecom that "relates to" numbers dialed, incoming calls, or other data that would appear on a phone bill, such as the length of calls.

Morgan's counsel contends that language should be interpreted to include users' phone numbers.

But X counters in its new papers that the statute's definition of telephone records shows that the term was meant to cover “difficult-to-obtain, nonpublic information,” and not phone numbers, which are often publicly available.

The 9th Circuit has not yet set a date for argument in the matter.