Facebook Stops Fighting Wiretap Act Litigation After More Than A Decade

• Published date: 21 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Privacy, IT and Internet, Mobile & Cable Communications, Privacy Protection, Class Actions, Trials & Appeals & Compensation, Advertising, Marketing & Branding
• Law Firm: Holland & Knight
• Author: Mr Paul Bond and Mark S. Melodia

Meta Platforms, Inc. (formerly Facebook) has proposed a national class action settlement of its long-running Facebook Internet Tracking Litigation.¹ According to papers filed by the parties, the settlement class would include more than 124 million Americans. While a settlement does not decide legal controversies, a resolution between one of the leading internet companies and more than a third of the nation will have an impact on how Facebook and other tracking technologies are viewed in court and by Congress.

The plaintiffs contend that between April 22, 2010, and Sept. 26, 2011, Facebook tracked user activity on non-Facebook sites for purposes of targeted advertising. Facebook did so by means of Facebook "Like" buttons that website operators throughout the internet integrated into their digital properties. On Sept. 27, 2011, Facebook publicly committed not to use data from Like buttons and other widgets to track users or target advertising to them and to delete or anonymize the data within 90 days.

According to plaintiffs, during the class period, Facebook violated federal and California Wiretap Act law. Plaintiffs allege that Facebook had used the Like buttons to intercept communications between its users and the non-Facebook websites that they visited. Facebook long contended that it was a party to all relevant communications, not a third party, thereby making it impossible for the company to have intercepted or recorded an electronic communication without the website visitor's knowledge.

In a 2020 decision, the U.S. Court of Appeals for the Ninth Circuit held that "Facebook is not exempt from liability as a matter of law under the Wiretap Act or CIPA [California Invasion of Privacy Act] as a party to the communication." In re Facebook, Inc. Internet Tracking Litig., 956 F. 3d 589, 608 (9th Cir. 2020). Further, the Ninth Circuit's ruling found a number of named plaintiffs had sufficiently alleged economic harm to survive dismissal. The U.S. Supreme Court denied certiorari. When the parties submitted the class action settlement for court approval, the settling parties noted that the Ninth Circuit's ruling has already been cited more than 50 times in reported cases just in the past 18 months.

Proposed Settlement

As consideration for settlement, Meta...