US court rules Facebook widgets can be considered wiretaps

The social media firm has long defended its actions by quoting the part of the federal Wiretap Act that defines wiretapping as interception of communications. According to a Gizmodo report, in Facebook’s logic, gathering user data isn’t the same as wiretapping without that active interception.

However, a panel of judges on the 9th Circuit Court of Appeals in the US has dismissed this technicality as it was found that the Facebook widget was collecting information from people who didn’t click on it. Such actions, they ruled, count as interception. 

The court issued a short order earlier this week ignoring the company’s plea to reconsider whether it potentially violated multiple US federal and state privacy laws by stuffing widgets across the web.

This is the latest leg of a long-running legal battle that stretches all the way back to 2011 when a handful of Facebookers filed their own class-action suits against the company.

Such users claimed that the large group of plugins Facebook offers websites and apps looking to make money are hardwired to target and track any visitor that might be passing through – whether or not they might have a Facebook profile themselves.

The original case was dismissed in 2017 – which is what led to this latest appeal – when judge Edward Davila argued that privacy-conscious internet users could simply protect themselves by using incognito mode. 

At the time, the judge ruled that even if it could be proved that Facebook was illegally spying on users’ activities, their data could be protected by other means and its collection does not constitute economic harm to users.

In this latest appeal, Facebook denied that any of its trackers “intercepted” or got in the way of any web surfers and the sites where such surfing has happened. A new judge to the 9th Circuit responded to these claims. 

“The most Facebook does is to identify (and then exaggerate) a circuit split on a narrow issue of law, but never explains why any Justice [...] would [support] Facebook’s position,” the judge said. 

The judge added: “Facebook antiseptically frames the question as to whether a defendant can “wiretap” a communication that it receives directly from a plaintiff. But Facebook’s business practices (and the allegations in the complaint) present a very different question.

“Plaintiffs were not communicating with Facebook but instead communicating with other websites. Plaintiffs then alleged (and Facebook does not dispute) that Facebook code embedded on those sites secretly directed plaintiffs’ browsers to copy the communications in real-time (to 'intercept' them) and send the copies to Facebook.”