9th Circuit Confirms Facebook Health Tracking Class Action Dismissal

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On Thursday, a three-judge Ninth Circuit panel determined that a lower California court made the right decision to scrap a Facebook class action lawsuit brought forward by users who claimed that the social media company illegally shared data about users’ visits to medical websites.

According to the panel, Facebook users had indeed consented to having their data shared with heath care organizations, because that type of data sharing was covered by Facebook’s privacy policy that each user agrees to.

The Facebook health data sharing class action lawsuit argued that Facebook, American Cancer Society, Inc, American Society of Clinical Oncology Inc. and five other health care organizations were in the wrong.

The users claimed that the information shared about their browsing on heath websites was “qualitatively different” from other types of data collected and possibly shared by the social media giant, and consequently, is not covered in Facebook’s terms of service.

However, the panel disagreed, saying that they do not concur that the health care data is “so different or sensitive,” as claimed by the users.

The panel went on to note that “the data show only that plaintiffs searched and viewed publicly available health information that cannot, in and itself, reveal details of an individual’s heath status or medical history. Moreover, many other kinds of information are equally sensitive.”

In their Facebook health data class action, the users said that because the health care websites the users accessed promised to not share data with third parties, Facebook could not have obtained consent to use searchers’ data.

The panel disagreed on this point as well, saying that “Facebook’s terms and policies make no such assurance, and Facebook is not bound by promises it did not make.”

The Facebook health data class action lawsuit was first thrown out in May 2017, when U.S. District Court Edward J. Davila dismissed claims that Facebook violated the Wiretap Act, the California Invasion of Privacy Act, along with other laws and duties.

Like the three-judge panel from the Ninth Circuit, Judge Davila and the district court found that the users had indeed consented to having their health website searches tracked by Facebook.

Judge Davila also determined that the health care websites in question did not have have sufficient ties to California to be considered under the California Invasion of Privacy Act.

In an attempt to fight back against Judge Davila’s decision to throw out the Facebook class action lawsuit, the users and their attorneys presented oral arguments in front of an appeals court in October in San Fransisco.

The Facebook users’ attorneys argued that the lower court should not have read Facebook’s consent to data use information out of context, because they had not considered “the entirety of the circumstances.”

Attorney for the Facebook users claimed the fact that the plaintiffs consented to terms of use should be considered effectively meaningless because most users only note that Facebook claims to care about users’ privacy and do not thoroughly investigate privacy terms.

The Facebook users are represented by Jay Barnes of Barnes & Associates.

The Facebook Health Data Sharing Class Action Lawsuit is Smith, et al. v. Facebook Inc., et al., Case No. 17-16206, in the U.S. Court of Appeals for the Ninth Circuit.