• by Wendy Davis  @wendyndavis, August 22, 2024

Meta has asked a federal judge in California to authorize an immediate appeal of his ruling requiring the company to face allegations that it wrongly tracked Facebook users' visits to websites operated by health care providers.

In a motion filed Wednesday, the company argues that the ruling, issued by U.S. District Court Judge William Orrick in the Northern District of California, is at odds with a recent decision issued by a different federal judge -- Vince Chhabria, also in the Northern District of California. Last month, Chhabria dismissed a lawsuit alleging that Google's analytics tool collected sensitive data from health care sites.

That conflict warrants an immediate review by the appellate court, Meta writes.

“Judge Chhabria’s ruling shows that reasonable jurists can disagree on this question, meaning that there is (at least) a reasonable possibility that this court’s ruling on intent could be reversed on appeal,” Meta writes.

The motion comes in a dispute dating to May 2022, when several Facebook users alleged in a class-action complaint that Meta tracks their visits to hospital and health-care websites via the Meta Pixel -- analytics code that transmits information about website visitors.

The patients, who are proceeding anonymously, sued soon after The Markup reported that 33 of the country's top 100 hospitals have the Meta Pixel on their sites.

Meta urged Orrick to dismiss the matter, arguing that its pixel isn't in itself illegal, and that it didn't intentionally receive sensitive health data. The company specifically said it instructs outside web developers who install the tracking code to avoid sending health information, and that it attempts to filter out sensitive data.

In January, Orrick allowed the users to proceed with some claims, including that Meta engaged in “intrusion upon seclusion” -- a broad California concept that allows people to sue for “highly offensive” privacy violations.

Last month, Chhabria sided with Google in a similar lawsuit. He ruled in that matter that even if the allegations regarding data collection from health sites were true, they wouldn't show Google intended to receive health care data.

Chhabria specifically noted in the ruling that he disagreed with Orrick's contrary conclusion.

Meta argues that it would be more efficient for an appellate court to weigh in on the question now than to wait until after the case goes to trial.

“Given the significance of this intent issue for this pixel case (and others), the Ninth Circuit’s resolution of it is inevitable,” Meta writes. “The only question is when appellate review will occur: now (when definitive guidance from the Ninth Circuit could spare the Court and parties extensive efforts) or after final judgment (when the costs of those efforts are sunk).”