• by Wendy Davis , 2 hours ago

Two California residents are asking a federal appeals court to reconsider their privacy claim against Quest Diagnostics, which allegedly shared website visitors' browsing data with Meta via its analytics pixel.

Last month, the 3rd Circuit Court of Appeals refused to revive the lawsuit, ruling that even if the allegations regarding data sharing were true, Quest would not have violated California's wiretap law.

In a motion filed last week, attorneys for Angela Cole and Beatrice Roche argue that the prior ruling wrongly interpreted California's wiretap law, which prohibits companies from reading or learning the contents of communications in transit, without all parties' consent. That law also prohibits anyone from aiding and abetting a violation of the restrictions on eavesdropping.

Cole and Roche are now seeking a new hearing in front of the entire 3rd Circuit.

The new motion comes in a dispute dating to 2022, when Cole and Roche alleged in a class-action complaint 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 sent to Meta's Facebook.

U.S. District Court Judge William Martini in New Jersey dismissed the complaint, ruling that the allegations, even 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.

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 sided with Quest, 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 panel judges pegged their ruling to an earlier decision in a lawsuit alleging that Google ran afoul of California's wiretap law by circumventing a no-tracking setting. A panel of the 3rd Circuit ruling in that case said Google could be sued over some privacy-related claims, but not for alleged violations of California's wiretap law.

Attorneys for Cole and Roche argue in their new papers that the panel's 2015 decision was wrong -- and that the ruling in favor of Quest -- likewise is wrong.

They now want the 3rd Circuit to vacate the 2015 ruling and adopt the reasoning of a 2020 decision by another federal appellate court -- the 9th Circuit Court of Appeals, which has taken a different view of the wiretap law. In 2020, the 9th Circuit revived a class-action complaint alleging that Meta violated wiretap laws by tracking people on outside sites via the “Like” button.

The 3rd Circuit hasn't yet indicated when it will rule on the motion.