In Re FACEBOOK INTERNET TRACKING LITIGATION
Filing
93
REDACTED VERSION OF SECOND AMENDED CONSOLIDATED CLASS ACTION COMPLAINT CORRECTION OF DOCKET #91 against All Defendants. Filed by Perrin Aikens Davis. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G, #8 Exhibit H, #9 Exhibit I, #10 Exhibit J, #11 Exhibit K, #12 Exhibit L, #13 Exhibit M, #14 Exhibit N, #15 Exhibit O, #16 Exhibit P, #17 Exhibit Q, #18 Exhibit R, #19 Exhibit S, #20 Exhibit T, #21 Exhibit U, #22 Exhibit V, #23 Exhibit W, #24 Exhibit X, #25 Exhibit Y, #26 Exhibit Z, #27 Exhibit AA, #28 Exhibit BB, #29 Exhibit CC, #30 Exhibit DD, #31 Exhibit EE, #32 Exhibit FF, #33 Exhibit GG, #34 Exhibit HH)(Kiesel, Paul) (Filed on 12/1/2015) Modified on 6/3/2016 (cv, COURT STAFF).
Exhibit HH
1
2
3
J~lL ~ 2
4
DAVI1D` H. Yq~q~AKI
5
Sup rioCC~d o~
gGp~8a
~'°
J. A
6
DEPUTY
rez
'
7
8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SANTA CLARA
10
11
Case No. 1-12-CV-217244
12
13
14
RYAN LING, CHI CHENG,and ALICE ROSEN,
on Behalf of Themselves and All Others Similarly
Situated,
15
ORDER RE: DEMURRER
Plaintiffs,
IC
vs.
17
FACEBOOK,INC.,
18
1~
Defendant.
20
The demurrer to the Complaint filed by defendant Facebook, Inc. came on for hearing
21
22
before the Honorable 3oseph H. Huber on June 19, 2012, at 9:00 a.m. in Department 2. The
23
matter having been submitted, the Court orders as follows:
24
Defendant's rec{uest for judicial notice is DENIED.
25
26
Plaintiffs' request for judicial notice is DENIED.
27
2g
//
Casc No. 1- 12-CV-217244
Order Rc: Dcmurt•cr
l
The Co~n-t finds that Plai~ltiffs Ryan Ung, Chi Cheng, and Alice Rosen (collectively,
2
"Plaintiffs") are not required to separately establish "standing." Rather, Plaintiffs must simply
3
establish the elements of each of their causes of action. Therefore, Defendant's "standing"
4
argument has no merit.
5
6
Defendant argues that Plaintiffs have no privacy interest iii their browsing history. In
7
response, Plaintiffs argue that they have a legally protected privacy interest i►i the whole of their
8
browsing history. As explained in the case of United Stcrte.s v. May~zm~cl, 615 F.3d 544, 5(2
9 (D.C. Cir. 2010):
10
11
Prolonged surveillance reveals types of information not revealed by short-term
12
surveillance, such as what a person does repeatedly, what he does not do, and
13
what he does ensemble. These types of information can each reveal more about a
14
person than does any individual trip viewed in isolation. Repeated visits to a
IS
church, a gym, a bar, or a bookie tell a story not told by any single visit, as does
16
one's not visiting any of these places over the course of a month. The sequence of
17
a person's movements can reveal still more; a single trip to a gynecologist's office
18
tells little about a woman, but that trip followed a few weeks later by a visit to a
19
baby supply store tells a different story. A person who knows all of another's
20
travels can deduce whether he is a weekly church goer, a heavy drinker, a regular
21
at the gym, an unfaithful husband, an outpatient receiving medical treatment, an
22
associate of particular individuals or political groups -- and not just one such fact
23
about a person, but all such facts.
24
25
The t-easoning of this case is persuasive. Eve~l tracking a portion of a person's browsi~lg
26
history, which would include visits to a large number of sites given that Facebook's cookies exi
27
on millions of websites, can pai~lt a comprehensive picture of a person's life. For example,
28
repeated visits to certain websites could show a person has a particular disease, or religious
Case No. I -12-CV-21 7244
Order Re: Demiu•rer
2
1
affiliation, or is contemplating having an abortion, or any number of private facts about a person. ~
2
"Legally recognized privacy interests are generally of two classes:(1) interests in precludia~g the
3
dissemination or misuse of sensitive and confidential infor~~~ation (`informational privacy'); and
4 (2) interests i~l making intimate personal decisions or conducting personal activities without
5~1 observation, intrusion, or interference (`autonomy privacy')." (Hill v. Nntionul Colle~iute
6I Athletic A.s•si~. (1)94) 7 Cal. 4th 1, 35.) Compiling a comprehensive profile of a person through
7'' their web activities necessarily implicates both informational privacy and autonomy privacy.
8'' Accordingly, the Court finds that there is a legally protected privacy interest in a person's
identifiable browsing history.
10
11
However, there is no legally protected privacy interest in anonymous data. (See Loilclo~~
12
v. New Albei-tson's, Inc., 2008 U.S. Dist. LEXIS 76246, 24-25 (S.D. Cal. Sept. 30, 2008).)
13
Therefore, non-Facebook members do not have any privacy right in their browsing data that has
14
not been linked to their identities. Plaintiffs argue that the browsing data of non-Facebook
IS
members can be linked to them if the non-Facebook members ever join Facebook. While that
16
may be true, at this point the browsing history of non-Facebook members is anonymous and is
17
not subject to protection under the right to privacy.
18
19
Defendant contends that Plaintiffs have failed to allege that they lead a reasonable
20
expectation of privacy in their browsing 1listory because Facebook discloses its use of cookies in
21
its Privacy Policy, which is published on its website. The Privacy Policy states, in relevant part:
22
23
Cookie Information. We use "cookies" (small pieces of data we store for an
24
extended period of time on your computer-, mobile phone, or other device) to
25
make Facebook easier to use, to make our advertising better, and to protect both
2C
you and Facebook. For example, we use them to store your login ID (but never
27
your password) to make it easier foi- you to login whenever you come back to
28
Facebook. We also use them to confirm that you are logged into Facebook, 111a
Casc No. 1-12-CV-217244
Ordcr Rc: Dcmurrcr
3
and
1
to know when you are interacting with Facebook Platform
2
websites, our widgets and Share
3
remove or block cookies using the settings in yow~ browser, but in some cases that
4
may impact your ability to use Facebook.
~UttO11S,
1~)~I1C8t1011S
and our advertisements.
You can
5
h
(Declaration of Ana Yang Muller in Support of Defendant Facebook, Inc.'s Demtu•rer to
7
Plaintiffs' Class Action Complaint, Exhibit B.)
8
9
10
First, the Privacy Policy is not the proper subject ofjudicial notice, so it is not properly
before the Court on demu►-rer. Even if the Cow-t were to consider the language of the Privacy
Policy, however, it would not show that Facebook members have consented to having their
12
Internet activity tracked.
13
I4'
The above portion of the Privacy Policy states generally that Facebook uses cookies to
15
store information about users, but it does not make clear the extent of the information Facebook
16
allegedly gathers about each user. According to the allegations of the Complaint, more than 2.5
17
million websites have integrated tl~e Facebook "Like" bUtt011.
18
the "datr tracking cookie" to track members' visits to those websites even if the website visitor
19
does not click on the "Like" button" and even if the Facebook member is logged out of
20
Facebook. (Id., ¶¶ 14-15.) This type of widespread tracking is not apparent fi-om Facebook's
21
Privacy Policy. Although a person might not have any reasonable expectation of privacy from
22
Facebook while interacting with the Facebook website itself, that does not ~1~ean a person would
23
expect Facebook to track all or a large part of the person's Internet activity when not on the
24
actual Facebook website.
~C0111[~Ic1111t, ¶
12.) Facebook uses
25
2C
Defendant asserts that the use of cookies to provide Internet services is a longstanding
27
practice and courts have repeatedly rejected attempts to impose liability for such conduct. While
28
this may be true as to the use of cookies on a single website, Facebook's alleged conduct goes far
Case No. 1-12-CV-217244
Order Rc: Dcm~n-rcr
G~
1
beyond that. Facebook is alleged to have used cookies to track large portions of people's
2
browsing histories across nw»erous other websites so that a profile of each person can be put
3
together. Given the types of info►-mation that this can reveal about a person (as discussed above),
4
the Cou►-t finds that Facebook's alleged conduct constitutes a serious invasio~l of a privacy
5 (interest.
C
7
In sum, Plaintiffs have sufficiently alleged that Defendant's conduct constitutes a serious
8
invasio►~ of a legally protected privacy inte►-est in which there is a reasonable expectation of
9
privacy for Facebook members. Howeve►-, there is no legally protected privacy interest for non-
1~
Facebook members. Accordingly, Defe~ldant~S C~ellllll'I'21' YO the ~t'St C1L1Se Of 1Ct1011 ~V(0~3t1011 C
I1
Article 1, Section 1 of the California Constitution) is OVERRULED as to plaintiff Ryan Ung (a
12
Facebook member) a~ld SUSTAINED WITH 10 DAYS' LEAVE TO AMEND as to plaintiffs
13
Chi Cheng and Alice Rosen (non-Facebook members).
14
15
Plaintiffs' unjust enrichment cause of action is based on Facebook receiving money "as a
16
result of collecting and storing its users' personal information...." (Complaint, ~ 3(.) This
17
allegation shows that the cause of action is essentially a remedy being sought in connection 4vith
18
Facebook's alleged violation of Plaintiffs' right of privacy (i.e. the first cause of action). TIZe
19
proper method to attack an improper remedy is through a motion to strike, not a demw-rer. (See
20
Caliber' Bo~lvtivor•ks, Inc. v. Superior° Coarrt(2005) 134 Cal. App. 4th 365, 385[
"The appropriate
21
procedural device for challenging a portion of a cause of action seeking an improper remedy is a
22
I110t10I1 t0 Stl"I~C~.~~].)
23
Enrichment) is OVERRULED.
Accordingly, Defendant's demurrer to the second cause of action (Unjust
24
25
With regard to the third cause of action (Violatio~i of the California Invasion of Privacy
2C
Act/Unlawful Wiretaps - California Penal Code ~ 631, et sey.), Plaintiffs allege that "[t]he
27
communications of Plaintiffs with third-party websites were intentionally obtained by Facebook
28
while in transit over wires, lines, cables, or instruments through the State of California and while
Casc No. I-12-CV-217244
Ordcr Rc: Dcmurrcr
5
1
they were being sent from o~- received at a place within California. in violation of California Pena
2
Code ~~' 631." (Complaint, ¶ 43.) "Facebook willfully, intentionally, and without the consent of
3
Plaintiffs, or any party to the communications, and in an unauthorized manner using an
4
unauthorized connection, obtained, read, attempted to read and learned, and attempted to learn
5
the COIltelltS Of SUCH elECtl'OIl1C COIll111L1►11C1t1011S Of P~~1lIltlffS W1111e t11e~/ Wel'e 111 tCc111S1t 111 01'
through California in violation of California Penal Code § 631." (Icl., ¶ 44.) "Facebook used
7
COIlllllLll11Cc1teC~ SLICII l~~e~l~ly OUtallleC~ C'IeCtC0111C COIll111U111C1t10I1S Of P~111ltIffS 111 V10~1t1011 Of
8
California Penal Code S 631." (I~l., ¶ 45.)
c~
10
Defendant argues that these vague, ~u~supported, ZIICI COIIC~US01'y ~l~~ef`,71t1O11S 1Pe
11
111SL1fflClellt t0 St1te 1 011111. ~efellC~111t IS COI"1'eCt t~11t COIICIlIS01'y a~~e~at1011S 3T'e 111SL1fflClellt t0
12
survive demu►•rer. (C~n•cini v. Cou~~ty ofAlcu~ie~/u (2008) 164 Cal. App. 4th 629, 650.) Plaintiffs
13
have alleged only legal and factual conclusions and therefore have not sufficiently stated a claim
14
pursuant to Penal Code section 631.
15
16
Even if Plaintiffs included more detailed allegations, however, Plaintiffs would not be
17
able to maintain this cause of action. Section 631 "has been held to apply only to eavesdropping
18
by a third party and not to recording by a participant to a conversation." (Warde« v. Katz» (1979
19
99 Cal. App. 3d 805, 811.)
20
21
Plaintiffs' theory is as follows:
22
23
When a website includes Facebook Third-Party Content on one of its web pages,
24
the page does not actually contain the Facebook Content itself. [] Rather the page
25
contains
26
the Plaintiff's
27
Facebook Content to the browser, to be displayed as part of the page.
28
Accordingly, the Facebook Content is third-party content that is incorporated onto
ll1St1"L1Ct10T1S tI11t,
Case No. 1-12-CV-217244
Order Rc: Dcmurrcr
when a Plaintiff or Class member visits the page, cause
or Class member's browser to ask Facebook to deliver the
6
.
the (first-party) page as the page is loadi~lg, and Facebook is a third party to any
2
communications directly between the Plaintiff or Class member and the web
3
server that hosts the page.
5
(Plaintiffs' Memorandum of Points and Authorities in Opposition to Facebook's Demun-er, p.
C
1):1-9.)
7
Plaintiffs' CIeSCI"I~t10f1 SIIOWS tll~t F1Ce~00k
IS 1CtL11~~y cl ~)~I't1C1~111t ll1 t~le COIlli11L1111C1t10►1
between a plaintiff's or class member's browser and a ~vebsite because Facebook is t-equested to
10
and does deliver information to be displayed on the website. Moreover, Plaintiffs do not make
11
clear how Facebook learns the contents of any communications aside from the information that
12
Facebook itself sends upon request to be displayed as part of web page. Consequently, even if
13
Plaintiffs had included allegations explaining their theory (quoted above), the conduct Facebook
14
is accused of does not violate Penal Code section 631. Accordingly, Defendant's demurrer to the
IS
third cause of action (Violation of tale California Invasion of Privacy Act/U~llawfiil Wiretaps -
16
California Penal Code ~ 631, et sey.) is SUSTAINED WITH 10 DAYS' LEAVE TO AMEND.
17
18
Plaintiffs' fourth cause of action relies on allegations of a violation of Penal Code section
19
C31. (Complaint, ¶ 51.) As discussed above, Plaintiffs have not stated a claim for a violation of
20
Penal Code section 63 I . Therefore, Plaintiffs cannot maintain a cause of action for negligence
21
based on such a violation. Accordingly, Defendant's demurrer to the fourth cause of action
22
(Negligence Per Se) is SUSTAINED WITH 1Q DAYS' LEAVE "I'O AMEND.
23
24
25
Dated:
-!
Eton Jo ph H~Huber
Jude f the Superior Court
26
27
28
Casc No. 1- 12-CV-217244
Ordcr Rc: Dcmurrcr
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?