• by Wendy Davis , Yesterday

Attorneys for a woman diagnosed with anorexia are attempting to revive her lawsuit against Eating Recovery Center, which allegedly shared her data with Meta via its analytics pixel.

The woman, who proceeded as an anonymous Jane Doe, claimed in a class-action complaint that the Eating Recovery Center violated various state laws, including California's wiretap law, by embedding the Meta pixel on its website. She is among numerous web users who have sued a variety of online companies for allegedly transmitting ad-targeting data to Meta, Google or other companies via analytics tools.

Last month, U.S. District Court Judge Vince Chhabria ruled in favor of Eating Recovery Center, based on his interpretation of the wiretap statute.

But attorneys for the plaintiff are now arguing to Chhabria that his reading of the 1967 wiretap law "produces an absurd result" and contradicts lawmakers' intentions.

Chhabria's ruling came in a lawsuit brought in 2023, when "Jane Doe" alleged that she provided her name and insurance information to the Eating Recovery Center's website, took online diagnostic quizzes, and researched eating disorders and treatments while on the site.

Soon after, she began receiving ads for Eating Recovery Center on Facebook "that were tailored to her specific eating disorder and symptoms," according to her class-action complaint. She also allegedly began receiving targeted email ads from the Eating Recovery Center to an email address associated with her Facebook account.

Her complaint included a claim that the Eating Recovery Center violated California's wiretap statute, which prohibits anyone from reading or learning (or attempting to read or learn) the contents of communications in transit, without all parties' consent. That law also prohibits a third party (such as Eating Recovery Center) from aiding and abetting the eavesdropping restrictions.

Chhabria ruled in favor of Eating Recovery Center on the grounds that Meta did not read (or attempt to read) communications while they were "in transit," elaborating that information travels to Meta in encrypted packets that must be reassembled before Meta's system can "filter" the data and decide what to store.

"The filtering operation indisputably takes place after the communication has already traveled from the website visitor to the website operator," he wrote.

"It’s worth pausing here to acknowledge how strange this outcome is," Chhabria added. "Regardless of whether it is receiving the communication a second before or after it reaches the website, Meta is effectively engaging in the same conduct."

Counsel for the plaintiff is now arguing to Chhabria that his ruling effectively guts the state wiretap law -- the California Invasion of Privacy Act (CIPA).

The ruling "prevents the statute from applying to all forms of electronic communications because all transmit messages in an incomprehensible form that cannot be understood until received, de-coded, and processed by a device," the attorneys argue in a motion to "alter or amend" the judgment.

"For example, when CIPA was enacted, landline telephones transmitted voices as incomprehensible electric current or electromagnetic waves that could not be understood until received and converted into sound waves by the recipient’s phone and processed by the recipient’s brain," counsel writes.

"Likewise, as the Court noted, modern computers, cell phones and land lines transmit communications via incomprehensible data packets that cannot be understood until received, de-coded, and processed by the recipient’s device."

Counsel adds that other judges have interpreted "in transit" as the time between when the data is sent to an outside company and when that company stores the information.

"Rather than using an interpretation that produces an absurd result and contradicts statutory intent, the court should follow the majority of courts and interpret 'in transit' as the period between transmission and digital storage," counsel writes.

Chhabria hasn't yet indicated when he will rule on the request.

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.