• by Wendy Davis  @wendyndavis, October 28, 2024

LinkedIn and Facebook were hit with new lawsuits last week over analytics tools that tracked users' activity at health care sites.

In one complaint, a Brooklyn resident identified in court papers as “V.R.” alleged that she booked an appointment at the urgent care center CityMD without realizing that LinkedIn “was tracking her private activity on CityMD’s website using the LinkedIn Insight Tag.”

“LinkedIn used this software to track plaintiff and intercept her communications with CityMD, including communications that contained confidential information related to her medical appointment,” V.R. alleged in a class-action complaint brought in the Northern District of California.

In another suit filed in the same court last week, a California resident identified as “J.S.” alleged that LinkedIn and Meta Platforms tracked her online activity at Spring Fertility Center's website. That complaint also names Spring Fertility as a defendant.

The new suits include claims that the tech companies violated California's wiretap law, which restricts companies' ability to intercept electronic communications.

A LinkedIn spokesperson says the company will show that its ad tools "safeguard member privacy" and that the claims "lack merit."

The cases are part of a wave of recent litigation over web publishers' use of analytics tools that are capable of transmitting personal data. Other lawsuits have alleged that tech companies wrongly tracked visitors' activity on tax preparation sites, the California Department of Motor Vehicles' site, and sites that offer streaming video.

Many of the complaints involving health care sites were seemingly sparked by The Markup's 2022 report that 33 of the country's top 100 hospitals have Meta's tracking code, the Meta Pixel, on their sites.

Before last week, LinkedIn was already facing at least one lawsuit over tracking code at a health care site. In that matter, which was brought in August, a Florida resident identified as “L.B.” alleged that LinkedIn tracked her activity on ReflexMD's site, where she had browsed for information about a weight loss drug.

“Consumers reasonably expect that information related to their medical prescriptions will remain confidential,” that complaint alleged. “However, unbeknownst to Plaintiff and members of the putative class, defendant intercepted this confidential information for target advertising purposes.”

On Friday, LinkedIn urged U.S. District Court Judge Edward Davila to throw out L.B.'s complaint. The company raised several arguments, including that the allegations, even if proven true, would show only that LinkedIn was acting as service provider to ReflexMD.

“An analytics provider that offers a tool to allow customers to process their own data cannot be said to 'read' or 'learn' the contents of a communication,” LinkedIn argued in a written motion.

The company added that L.D.'s complaint lacked allegations that LinkedIn shared her data with advertisers.

“At most, plaintiff contends that the Insight Tag generally sends certain cookies that allow LinkedIn to identify the user associated with certain Insight Tag transmissions, and then offers a conclusory assertion that LinkedIn can use this information to target ads to account holders,” the company wrote. “This bald allegation is not supported by any well-pled facts, and in fact, it is contradicted by the other allegations demonstrating that LinkedIn merely provides data to advertising customers to facilitate their own ad campaigns.”

The law regarding the use of analytics tools at health care sites appears unsettled, and may end up varying state-by-state.

Just last week, Massachusetts' highest court ruled that hospitals do not violate a state wiretap law by transmitting data about website visitors' browsing activity to Google and Meta via analytics tools.

And in July, U.S. District Court Judge Vince Chhabria in the Northern District of California dismissed a complaint alleging that Google's analytics tool wrongly collected sensitive data from health-care sites.

But in January, U.S. District Court Judge William Orrick, also in the Northern District of California, allowed Facebook users to proceed with a lawsuit alleging that Meta Platforms violated federal and state laws by tracking users' visits to health-care providers' websites and monetizing data collected from those sites.