Smith v. Facebook, Inc.
262 F. Supp. 3d 943
N.D. Cal.2017Background
- Plaintiffs are Facebook users who visited pages on seven non‑California "Healthcare Defendants" websites that contained Facebook social plugins (Like/Share buttons). Plaintiffs allege Facebook harvested browsing data (via referer headers, cookies, IP, fingerprinting) and identified/tracked them.
- Plaintiffs sued Facebook and the Healthcare Defendants asserting Wiretap Act, California Invasion of Privacy Act, California constitutional privacy, intrusion upon seclusion, negligence and related claims; some claims targeted only Facebook, others only the Healthcare Defendants.
- The Healthcare Defendants embed Facebook code that causes visitors' browsers to make background requests to Facebook; the websites do not themselves receive or transmit the tracking data beyond enabling the browser-to-Facebook connection.
- Defendants moved to dismiss under Rules 12(b)(1), 12(b)(2), and 12(b)(6), arguing lack of personal jurisdiction over Healthcare Defendants and that Plaintiffs consented to Facebook’s tracking via Facebook’s Terms/Data/Cookie Policies.
- The court concluded it lacks personal jurisdiction over the Healthcare Defendants (no purposeful availment/direction; embedding third‑party code is insufficient), and that Plaintiffs consented to Facebook’s tracking (policies reasonably disclosed tracking of visits to third‑party sites), so statutory and privacy claims against Facebook fail.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction (specific) over Healthcare Defendants | Embedding Facebook tools amounts to sending users’ medical data to Facebook and purposefully directing activity at California (where Facebook is headquartered). | Mere embedding of third‑party Facebook code does not constitute targeting California or purposeful availment; Healthcare Defs. do not participate in Facebook’s data collection. | Dismissed for lack of specific personal jurisdiction; embedding third‑party code insufficient to establish purposeful direction. |
| Personal jurisdiction (general) over Healthcare Defendants | Systematic sending of user data to Facebook establishes continuous/systematic contacts with California. | Contacts are insufficiently continuous/systematic to render defendants "at home" in California. | Dismissed for lack of general jurisdiction; contacts fall well short of "at home." |
| Forum‑selection clause in Facebook TOS | Plaintiffs argued forum clause in Facebook’s TOS binds web developers/users and creates jurisdiction in Northern District of California. | Clause governs disputes between Facebook and its users, not third‑party litigants suing the Healthcare Defendants. | Clause does not create jurisdiction over Healthcare Defendants in suits by third parties. |
| Consent to Facebook tracking and statutory/privacy claims | Facebook’s disclosures were inadequate/vague and not HIPAA‑level; plaintiffs lacked meaningful notice/consent. | Facebook’s Data and Cookie Policies expressly disclosed tracking on third‑party sites; plaintiffs admitted agreeing to Facebook’s policies. | Plaintiffs consented; statutory (Wiretap Act, CIPA) and privacy/tort claims against Facebook are barred; consent also defeats related common‑law and constitutional privacy claims. |
Key Cases Cited
- Int'l Shoe Co. v. Washington, 326 U.S. 310 (Due process requires minimum contacts for personal jurisdiction)
- Calder v. Jones, 465 U.S. 783 (Calder effects test for purposeful direction)
- Daimler AG v. Bauman, 571 U.S. 117 (General jurisdiction requires contacts making corporation "at home")
- Burger King Corp. v. Rudzewicz, 471 U.S. 462 (Purposeful availment and forum contacts principles)
- Ashcroft v. Iqbal, 556 U.S. 662 (Plausibility standard for pleadings)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (Plausibility standard for complaints)
- Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 (Ninth Circuit standard for prima facie showing of jurisdiction)
- Pebble Beach Co. v. Caddy, 453 F.3d 1151 (Application of Calder test in Ninth Circuit)