## Facts

- Facebook users brought a putative class action alleging Facebook tracked their browsing on third-party websites after they logged out.
- Third-party sites embedded Facebook “Like” button code, which triggered users’ browsers to send background requests to Facebook’s servers.
- Plaintiffs alleged the requests transmitted the visited page URL and Facebook cookie data stored in the browser.
- Plaintiffs claimed Facebook’s cookies (including persistent identifiers) allowed Facebook to correlate users’ identities with browsing histories even while logged out.
- Plaintiffs alleged Facebook’s tracking conflicted with Facebook’s public representations and certain browser privacy settings.
- The operative pleading asserted federal statutory claims (Wiretap Act, Stored Communications Act, CFAA) and California common-law and constitutional privacy claims, plus related tort/economic theories.

## Issues

1. Whether plaintiffs adequately alleged Article III standing based on purported privacy, property, or economic harms from cookie-based web tracking.
2. Whether the alleged receipt of URLs and cookie data via background requests stated a Wiretap Act claim for interception of the contents of an electronic communication.
3. Whether plaintiffs stated an SCA claim by plausibly alleging unauthorized access to a facility and communications in “electronic storage.”
4. Whether plaintiffs stated a CFAA claim by plausibly alleging unauthorized access plus statutory “damage” or qualifying “loss.”
5. Whether alleged post-logout tracking plausibly stated California invasion of privacy and intrusion upon seclusion claims, including a “highly offensive” intrusion.
6. Whether cookie placement/reading and alleged monetization of browsing data supported trespass to chattels or other economic tort theories.

## Decision

- The court granted Facebook’s Rule 12(b)(1) and 12(b)(6) motion to dismiss the Second Amended Consolidated Class Action Complaint.
- The court dismissed most statutory and privacy claims for lack of standing and/or failure to state a claim, and dismissed related economic/trespass theories for insufficient interference or loss.
- The court allowed only limited further amendment primarily directed to certain contract-based theories (addressed later in subsequent proceedings).

## Legal Principles

- Article III standing requires a concrete, particularized injury in fact; conclusory or speculative assertions of economic loss or device impairment are insufficient.
- A Wiretap Act claim requires a plausible interception of the contents of an electronic communication in transit; where a defendant is treated as a direct recipient of the communication generated by embedded code, the “party” concept defeats an interception theory as pleaded.
- The SCA is limited by statutory definitions, including “electronic storage”; acquiring data sent to a defendant’s own servers via ordinary browser requests, without plausible allegations of access to communications in electronic storage, fails to state a claim.
- The CFAA requires plausible allegations of unauthorized access and cognizable “damage” or statutorily defined “loss” meeting the monetary threshold; cookie-related allegations without concrete impairment or quantified loss are inadequate.
- California intrusion upon seclusion and constitutional privacy claims require a serious invasion of privacy that would be highly offensive to a reasonable person; cookie-based tracking, as pleaded, did not meet that standard.
- Trespass to chattels requires meaningful interference with a possessory interest (such as impairment of computer functioning); mere placement or reading of cookies and generalized monetization allegations do not suffice.

## Conclusion

The court dismissed plaintiffs’ post-logout web-tracking claims against Facebook at the pleading stage, holding that plaintiffs did not adequately allege a concrete injury for standing and did not plausibly plead statutory violations under the Wiretap Act, SCA, or CFAA, nor a highly offensive intrusion or actionable device interference under California law.


In re Facebook Internet Tracking Litig., 263 F. Supp. 3d 836 (N.D. Cal. 2017)