Report from MediaPost
In Brief – A panel of the Third Circuit Court of Appeals has upheld the January dismissal of a class-action complaint alleging that Quest Diagnostics violated California’s wiretap law by sharing users’ web browsing information with Meta through the digital giant’s tracking pixel that collected information used in online advertising. The plaintiffs claimed that when they accessed Quest’s website to view medical test results, their browsers transmitted information about their online activity to Meta without their knowledge, which amounted to unlawful “eavesdropping” under California’s 1967 wiretap statute. The claim was first rejected by a federal district court judge in New Jersey who held that the plaintiffs’ own browsers communicated directly with Meta, making Meta a party to the communication, not an illegal interceptor. On appeal, the Third Circuit emphasized that Meta received “direct communication” from the plaintiffs’ computers and further concluded that even if the plaintiffs were unaware of Meta’s data collection, Quest could not be said to have aided an unlawful interception.
Context – The Third Circuit ruling adds to a growing body of decisions rejecting wiretap claims involving common ad-targeting technologies. In the Ninth Circuit, District Judge Vince Chhabria recently threw out a claim, described California’s wiretap law as “a total mess,” and called for state lawmakers to rewrite it. However, class action lawyers are having more luck arguing that websites hosting video clips that also use Meta’s Pixel violate the Blockbuster Video-era federal Video Privacy Protection Act (VPPA). A 2024 decision by the Second Circuit Court of Appeals backing a VPPA lawsuit against the NBA gave life to a host of other VPPA lawsuits in that circuit. While several district judges have since rejected many of them, often arguing that an “ordinary person” could not interpret the data, a position later backed by the appeals court in a case targeting the NFL, a federal judge in California recently allowed a VPPA complaint against LinkedIn to proceed to trial. The NBA’s appeal to the Supreme Court to review the application of the VPPA to online ads is pending.