• by Wendy Davis , Yesterday

A federal appellate court refused to revive claims that Quest Diagnostics violated California's wiretap law by allegedly sharing web users' browsing information with Meta, via its analytics pixel.

The ruling, issued late last week by a panel of the 3rd Circuit Court of Appeals, stemmed from a class-action complaint brought in 2022 by Angela Cole and Beatrice Roche. They alleged that they visited Quest's website to check on results of medical tests ordered by their doctors, and that information about their activity on the site was transmitted to Meta's Facebook.

"When a user accesses a website hosting the Facebook tracking pixel, Facebook’s software script surreptitiously directs the user’s browser to send a separate message to Facebook’s servers," they alleged.

Their complaint included a claim that Quest wrongly enabled Meta to "eavesdrop" on their online activity, in violation of California's 1967 wiretap law, which prohibits anyone from reading or learning the contents of communications in transit, without all parties' consent. (That law also prohibits a third party from aiding and abetting the restriction on reading or learning the contents of communications in transit.)

U.S. District Court Judge William Martini in New Jersey dismissed the complaint in January. He ruled that the allegations, if proven true, could show only that Quest users' own browsers sent data to Meta. Therefore, Meta would be a party to the communication -- not an eavesdropper -- he ruled.

Cole and Roche appealed to the 3rd Circuit, reiterating their argument that Meta wrongly intercepted content. They argued that while they were visiting questdiagnostics.com to access lab results, Meta "was surreptitiously peeking over their shoulders, secretly learning what content they requested, which webpages they viewed, and which buttons they clicked."

A three-judge panel of the 3rd Circuit disagreed with Cole and Roche, writing that Meta allegedly received a "direct communication" from Cole's and Roche's computers.

"As the recipient of a direct communication from Plaintiffs’ browsers, Facebook was a participant in plaintiffs’ transmissions such that Quest did not aid or assist Facebook in eavesdropping on or intercepting such communications, even if done without the users’ knowledge," the judges wrote.

The lawsuit is one of numerous recent cases brought by web users who claim that online companies violate the California wiretap law by transmitting ad-targeting data to Meta, Google or other companies via analytics tools.

Last month, U.S. District Court Judge Vince Chhabria in the Northern District of California threw out a similar lawsuit brought by a woman with anorexia against Eating Recovery Center. He said in a sweeping ruling that California's wiretap law was "a total mess," adding that it "was not drafted with the internet in mind."

Earlier this year, lawmakers in California's senate approved a measure that would have revised the state wiretap law by effectively allowing companies to access communications for "commercial business purposes," including online advertising and internal research.

That bill stalled in the state assembly.