In re Facebook Internet Tracking Litigation
140 F. Supp. 3d 922
N.D. Cal.2015Background
- Plaintiffs (Facebook users during May 27, 2010–Sept. 26, 2011) allege Facebook used session and persistent (tracking) cookies to collect and link browsing data — including after users logged out — by embedding Facebook code (e.g., Like button) on third‑party sites.
- Plaintiffs claim Facebook’s tracking captured personally identifiable browsing history and that such data has significant market value; they seek class relief for multiple statutory and common‑law claims.
- Facebook moved to dismiss under Fed. R. Civ. P. 12(b)(1) (standing) and 12(b)(6) (failure to state a claim); the court granted the motion in large part.
- The court held Plaintiffs lack Article III standing for most common‑law and certain statutory claims because they failed to plead a concrete economic injury tied to Facebook’s conduct.
- The court found statutory standing (at least at pleading stage) only for claims under the Wiretap Act, the Stored Communications Act (SCA), and California’s Invasion of Privacy Act (CIPA), but dismissed those claims for failure to state a claim.
- Specific defects: Wiretap Act — plaintiffs did not allege interception of "contents" as defined; SCA — cookies are not the kind of temporary "electronic storage" covered; CIPA — pleading lacks specificity about use of a "machine, instrument, or contrivance" and does not adequately allege acquisition of communication contents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing (injury in fact) | Collection and retention of valuable personal browsing data deprived plaintiffs of economic value and opportunity to monetize their data | Plaintiffs allege only abstract/ speculative loss of data value; no concrete economic harm or foreclosed market opportunities | Dismissed for most claims — plaintiffs failed to allege a concrete, particularized injury under Article III |
| Statutory standing for privacy statutes | Violations of Wiretap Act, SCA, and CIPA confer concrete statutory injuries | Statutory rights do not cure absence of Article III injury for common‑law/economic claims; some statutes still require economic harm | Plaintiffs have statutory standing to pursue Wiretap Act, SCA, and CIPA claims at pleadings stage; UCL/CLRA/CCCL require economic injury and therefore fail |
| Wiretap Act — whether intercepted data are "contents" | Cookies and browsing data reveal webpage content visited and are protected "contents" | The Act’s "contents" excludes address/record information; cookies/headers are akin to referer/address info | Dismissed — alleged cookie/ browsing records do not plausibly plead interception of "contents" required by Wiretap Act |
| SCA and CIPA — whether cookies/ tracking satisfy statutory elements | Persistent cookies stored on users’ browsers and remote collection constitute electronic storage / unauthorized connection | SCA covers temporary/intermediate electronic storage incidental to transmission; cookies ≠ covered storage; CIPA allegations lack factual specificity about a "machine/contrivance" and acquisition of contents | Dismissed — SCA claim fails because cookies are not the temporary electronic storage contemplated; CIPA claim insufficiently pleaded and lacks specific facts |
Key Cases Cited
- Wolfe v. Strankman, 392 F.3d 358 (9th Cir.) (distinguishes facial and factual 12(b)(1) challenges)
- Thornhill Publ’g Co. v. General Tel. Elec., 594 F.2d 730 (9th Cir.) (court may determine lack of federal jurisdiction from complaint’s face)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (Supreme Court) (Article III standing elements)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (Supreme Court) (plausibility pleading standard)
- In re Zynga Privacy Litig., 750 F.3d 1098 (9th Cir.) ("contents" under Wiretap Act excludes referer/address‑type information)
- In re DoubleClick Privacy Litig., 154 F. Supp. 2d 497 (S.D.N.Y.) (discussion on "electronic storage" and cookies)
- United States v. Forrester, 512 F.3d 500 (9th Cir.) (no reasonable expectation of privacy in visited IP addresses)
- Ashcroft v. Iqbal, 556 U.S. 662 (Supreme Court) (court need not accept conclusory legal allegations)
- Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097 (9th Cir.) (12(b)(6) dismissal standard)
- Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (Supreme Court) (plaintiff must show actual or threatened injury)
- Warth v. Seldin, 422 U.S. 490 (Supreme Court) (statutory standing requires distinct and palpable injury)