• by Wendy Davis  @wendyndavis, 5 hours ago

Siding with Elon Musk's X Corp., a federal appellate court on Wednesday refused to reinstate a Washington state resident's claim that X, formerly Twitter, violated a state “anti-pretexting” law by asking users to provide contact information for security purposes, then using that information for ad targeting.

The decision, issued by a three-judge panel of the 9th Circuit Court of Appeals, upheld a dismissal order issued by U.S. District Court Judge Mary Dimke in the Eastern District of Washington. She ruled in 2023 that Washington's anti-pretexting law -- which prohibits anyone from obtaining phone records through fraud -- aims to protect people's privacy interest in their call histories, not their phone numbers.

Wednesday's 9th Circuit decision grew out of revelations that between 2013 and 2019, X mistakenly incorporated users' email addresses and phone numbers into an ad platform that allows companies to use their own marketing lists to target ads on the social platform.

In 2022, the Federal Trade Commission fined X $150 million over the privacy gaffe.

That same year, Washington resident Glen Morgan brought a class-action complaint against the company. He alleged that the ad-targeting glitch violated a Washington law prohibiting anyone from using “fraudulent, deceptive, or false means” to obtain telephone records of state residents.

X urged Dimke to dismiss Morgan's complaint for several reasons. Among other arguments, the company argued merely obtaining a user's phone number from him or her doesn't violate the state pretexting law, which refers to telephone “records.”

“If the legislature meant for 'telephone record' to include something as basic as the user’s own number, it surely would have said as much,” X argued in a written motion.

Dimke agreed with X, writing that Washington's law is “plainly focused on protecting the consumer’s call history data,” as opposed to a consumer's own phone number.

Morgan then appealed to the 9th Circuit, arguing that the Washington statute 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 contended that this language should be interpreted to include users' phone numbers.

But X countered that the statute was meant to cover “difficult-to-obtain, nonpublic information,” and not phone numbers, which are often publicly available.

The 9th Circuit judges agreed with X, writing that the Washington law was meant to “protect highly sensitive information from pretexting.”

The judges said in an unsigned opinion that the state law covers telephone records, not numbers.

“The definition of a 'telephone record' includes difficult-to-obtain, nonpublic information about a customer’s calling behavior -- such as who, when, and how long they are calling -- revealing that protection of an individual customer’s phone number is not the purpose of this statute,” the judges wrote.