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A class action on behalf of all Facebook users active between May 27, 2010 and September 26, 2011, alleges that Facebook violated federal and state privacy laws by tracking users even when they were logged out of Facebook.
However, a district court threw out the lawsuit, finding that the plaintiffs lacked standing to bring the claims, and that even if they did have standing, Facebook's actions as alleged did not violate any privacy laws. On appeal, the Ninth Circuit Court of Appeals disagreed, saying that the class action can move forward.
Facebook allegedly stopped tracking this user data only after a blogger revealed Facebook's practices. The plaintiffs are not alleging that Facebook sold this data to third parties.
The Ninth Circuit panel found that the plaintiffs, who were active Facebook users in 2010, had suffered a clear violation of a statutorily and historically recognized right to privacy, if their allegations were true. Because of this, they had standing to move forward on claims Facebook violated the Wiretap Act, the Stored Communications Act, and the Children's Internet Protection Act, among others.
In addition, the appeals court held that the Facebook users did enough to show that Facebook, if it acted as alleged, did potentially violate the Wiretap Act, CIPA, and California's invasion of privacy law.
And while Facebook did allow users to prevent Facebook from using cookies, this opt-in measure is a fact-based defense that needs to be litigated at trial, not at the pleadings stage.
The panel did, however, affirm the dismissal of some claims, including a breach of contract claim. The lawsuit now heads back to lower court to be litigated on the merits.
Bad Day for Facebook and Big Tech (FindLaw's D.C. Circuit)
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