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Ninth Circuit Rules Facebook Users Suffered “Clear” Privacy Invasion

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A privacy lawsuit against Facebook was revived by a Ninth Circuit Court of Appeals panel, which ruled that Facebook users could pursue multiple claims under both federal and California privacy laws. The opinion was filed on Thursday by Judge Sidney R. Thomas, joined by Judge Milan D. Smith Jr. and Judge Katherine Vratil. Perrin Davis and other members of the class are represented by Kaplan, Fox & Kilsheimer. Facebook is represented by Cooley.

The lawsuit began in 2011 when Facebook users accused the company of storing cookies and tracking their activity on websites outside of Facebook where there was a “like” button, even when the users were logged out of Facebook. They also accused the company of selling their personal profiles and browsing history to advertisers. The case was dismissed in 2017 after a California District Judge, Edward Davila, ruled that the claims fit under the Wiretap Act and that the petitioners did not have legal standing and had not suffered economic harm. The judges on the appeals court panel affirmed some of the district court’s decisions and reversed others.

Facebook did not dispute that they engaged in tracking practices after users had logged out through pages with “like” buttons. The Ninth Circuit ruled that Facebook users had encountered a clear invasion of privacy and Facebook should not have collected logged-out user data. “Facebook’s user profiles would allegedly reveal an individual’s likes, dislikes, interests, and habits over a significant amount of time, without affording users a meaningful opportunity to control or prevent the unauthorized exploration of their private lives,” Thomas wrote.

The panel said the plaintiffs “sufficiently alleged” that Facebook’s practices violated the Wiretap Act and the California Invasion of Privacy Act. The opinion says the ultimate question of whether Facebook had invaded privacy to an extent that a reasonable individual would be offended could not be resolved at the pleading stage of the lawsuit, but that there are enough facts to not dismiss the case.  “When we consider the sensitivity of that data, moreover, we conclude there remain material questions of fact as to whether a reasonable individual would find the information collected from the seven million websites that employ Facebook plug-ins ‘sensitive and confidential,’” the opinion says.

According to an article by Reuters, a Facebook spokeswoman said the class action suit does not have merit and Facebook will continue their defense. 

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