Ninth Circuit Remands Case for Trial
Users of Facebook brought a putative class action alleging multiple claims related to the company’s improper use of plug-ins to track logged-out users’ browsing histories when they visited third party websites. Plaintiffs alleged Facebook then compiled the browsing histories into personal profiles that were sold to advertisers to generate revenue, essentially monetizing users digital footprint. The plaintiffs asserted claims for violations of the, federal Wiretap Act and Stored Communications Act (SCA), the California Invasion of Privacy Act (CIPA) and Computer Data Access and Fraud Act (CDAFA) and claims under California law for statutory larceny, invasion of privacy, intrusion upon seclusion, breach of contract, breach of the duty of good faith and fair dealing, civil fraud, and trespass to chattels. The Ninth Circuit reversed dismissal and is sending the case back for a trial on the merits of the claims for violations of the substantive right to privacy codified in the Wiretap Act, SCA, and CIPA which satisfy the concreteness requirement for injury-in-fact element for Article III standing. The court also found the plaintiffs plausibly alleged a reasonable expectation of privacy, as required to state claims for invasion of privacy and intrusion upon seclusion. And notably, as a matter of first impression, simultaneous, unknown duplication and forwarding of GET requests made to a web page's server do not qualify for the party exemption from liability under Wiretap Act and CIPA. The plaintiffs, however, did fail to sufficiently allege the electronic storage element of SCA claim.