On Monday, the nation’s high court rejected, without explanation, Facebook Inc.’s invitation for it to review a decision permitting Facebook users’ Wiretap Act claims to proceed. The suit was filed nearly ten years ago when users accused the company of storing their cookies and tracking their activity on websites outside of Facebook containing a “like” button, even when they were logged out of Facebook. The plaintiffs also claimed that the social media platform sold their personal profiles and browsing histories to advertisers.
Facebook’s petition challenged the Ninth Circuit Court of Appeals’ unanimous April 2020 decision that partly reversed and partly affirmed the trial court’s findings. The appellate panel ruled, in relevant part, that Facebook users had standing to sue and could pursue some of their claims, including those brought under the Wiretap Act.
In its petition for a writ of certiorari, Facebook contended that “this case presents a question of critical importance on which the circuits are openly divided: do certain ubiquitous practices in the technology industry involving computer-to-computer communications violate the federal Wiretap Act?” The company argued that the appellate court disregarded the act’s language and that its ruling contradicted other circuit’s reasoned decisions.
In addition, Facebook espoused several policy arguments. The company contended that the court should grant its petition and address the alleged circuit split forthwith because “most leading internet companies are based in the Ninth Circuit, so future plaintiffs will bring their Wiretap Act claims there, preventing additional courts from addressing this issue.”
It further noted that since the Ninth Circuit’s decision, plaintiffs have already brought Wiretap Act class actions involving similar allegations in California against Google and Microsoft. “The risk of massive civil damages—and even possible criminal prosecution—will hang over the internet sector and stifle future innovation,” the social media company warned.
The Supreme Court’s denial sends the case back to federal court in San Jose, California for further proceedings before Judge Edward A. Davila.
Before the Supreme Court, the plaintiffs are represented by Gupta Wessler PLLC, Grygiel Law LLC, Simmons Hanly Conroy LLC, and Kaplan Fox & Kilsheimer LLP, and Facebook by O’Melveny & Myers LLP.
