throbber
No. 20-____
`
`
`
`IN THE
`Supreme Court of the United States
`____________________
`FACEBOOK, INC.,
`Petitioner,
`
`
`
`v.
`PERRIN AIKENS DAVIS ET AL.,
`
`
`
`Respondents.
`____________________
`On Petition for a Writ of Certiorari
`to the United States Court of Appeals
`for the Ninth Circuit
`____________________
`PETITION FOR A WRIT OF CERTIORARI
`____________________
`
`Jeffrey L. Fisher
` Counsel of Record
`O’MELVENY & MYERS LLP
`2765 Sand Hill Road
`Menlo Park, CA 94025
`(650) 473-2633
`jlfisher@omm.com
`Yaira Dubin
`O’MELVENY & MYERS LLP
`Times Square Tower
`7 Times Square
`New York, N.Y. 10036
`(212) 326-2000
`
`
`Michael R. Dreeben
`Ephraim McDowell
`O’MELVENY & MYERS LLP
`1625 Eye Street, N.W.
`Washington, D.C. 20006
`(202) 383-5300
`
`
`
`
`
`
`
`
`
`

`

`i
`QUESTION PRESENTED
`The Wiretap Act prohibits the “intentional[] inter-
`cept[ion]” of an “electronic communication,” but pre-
`cludes liability for a “party to [a] communication” or
`when a party consents to the interception. 18 U.S.C.
`§ 2511(1), (2)(d). Internet webpages are frequently
`composed of content—images and text—sent from
`multiple providers according to instructions commu-
`nicated by a user’s web browser to obtain that con-
`tent. The question presented is:
`Whether an internet content provider violates the
`Wiretap Act where a computer user’s web browser in-
`structs the provider to display content on the webpage
`the user visits.
`
`
`
`
`

`

`ii
`PARTIES TO THE PROCEEDING
`Facebook, Inc. is Petitioner here and was Defend-
`ant-Appellee below.
`Perrin Aikens Davis, Brian K. Lentz, Cynthia D.
`Quinn, and Matthew J. Vickery are Respondents here
`and were Plaintiffs-Appellants below.
`
`
`
`

`

`iii
`CORPORATE DISCLOSURE STATEMENT
`Facebook, Inc. is a publicly traded company and
`has no parent corporation. No publicly held company
`owns 10% or more of its stock.
`
`
`
`

`

`iv
`STATEMENT OF RELATED PROCEEDINGS
`In re Facebook, Inc. Internet Tracking Litigation,
`No. 17-17486 (9th Cir.) (opinion issued and judgment
`entered on April 9, 2020; petition for rehearing denied
`June 23, 2020; mandate issued August 18, 2020).
`In re Facebook, Inc. Internet Tracking Litigation,
`No. 5:12-md-02314 (N.D. Cal.) (order granting Face-
`book’s motion to dismiss with leave to amend issued
`October 23, 2015; order granting in part Facebook’s
`motion to dismiss second amended complaint with
`prejudice issued June 30, 2017; order granting Face-
`book’s motion to dismiss third amended complaint
`with prejudice issued November 17, 2017).
`There are no additional proceedings in any court
`that are directly related to this case.
`
`
`
`

`

`v
`TABLE OF CONTENTS
`
`
`Page
`QUESTION PRESENTED ........................................ i
`PARTIES TO THE PROCEEDING .......................... ii
`CORPORATE DISCLOSURE STATEMENT ......... iii
`STATEMENT OF RELATED PROCEEDINGS ..... iv
`PETITION FOR A WRIT OF CERTIORARI ........... 1
`OPINIONS BELOW .................................................. 1
`JURISDICTION ........................................................ 1
`RELEVANT STATUTORY PROVISIONS ............... 1
`INTRODUCTION ..................................................... 1
`STATEMENT ............................................................ 5
`A.
`The Wiretap Act ........................................ 5
`B.
`Factual Background .................................. 6
`C.
`Proceedings Below .................................. 11
`REASONS FOR GRANTING THE PETITION ..... 15
`A.
`The Courts Of Appeals Are Divided
`Over The Question Presented ................ 16
`The Ninth Circuit’s Interpretation
`Of The Wiretap Act Is Incorrect ............. 21
`The Decision Below Raises Issues Of
`Exceptional Importance .......................... 27
`This Case Is An Ideal Vehicle To
`Resolve The Question Presented ............ 32
`CONCLUSION ........................................................ 33
`
`D.
`
`B.
`
`C.
`
`
`
`

`

`vi
`TABLE OF CONTENTS
`(continued)
`
`Page
`
`APPENDIX A
`Ninth Circuit Opinion
`(Apr. 9, 2020)...................................................... 1a
`APPENDIX B
`District Court Opinion
`(Nov. 17, 2017) ................................................. 41a
`APPENDIX C
`District Court Opinion
`(June 30, 2017) ................................................. 54a
`APPENDIX D
`District Court Opinion
`(Oct. 23, 2015) .................................................. 74a
`APPENDIX E
`Order Denying Rehearing
`(June 23, 2020) ............................................... 102a
`APPENDIX F
`Relevant Statutory Provisions ............................ 103a
`
`
`
`
`
`
`
`
`

`

`vii
`TABLE OF AUTHORITIES
`
`
`Page(s)
`
`CASES
`
`Apple Inc. v. Pepper,
`139 S. Ct. 1514 (2019) ........................................ 33
`Barnhart v. Sigmon Coal Co.,
`534 U.S. 438 (2002) ............................................ 23
`Bartnicki v. Vopper,
`532 U.S. 514 (2001) .............................................. 6
`BP Am. Prod. Co. v. Burton,
`549 U.S. 84 (2006) .............................................. 21
`Caro v. Weintraub,
`618 F.3d 94 (2d Cir. 2010) ...................... 17, 19, 20
`Clark v. Martinez,
`543 U.S. 371 (2005) ............................................ 26
`Clemons v. Waller,
`82 F. App’x 436 (6th Cir. 2003) ......................... 26
`Food Marketing Inst. v. Argus Leader Media,
`139 S. Ct. 2356 (2019) ...................................23, 24
`In re Google Inc. Cookie Placement Consumer
`Privacy Litig.,
`806 F.3d 125 (3d Cir. 2015) ........................ passim
`In re Nickelodeon Consumer Privacy Litig.,
`827 F.3d 262 (3d Cir. 2016) .................... 17, 23, 28
`In re Pharmatrak, Inc. Privacy Litig.,
`329 F.3d 9 (1st Cir. 2003) ................... 4, 15, 18, 31
`Intel Corp. Inv. Policy Comm. v. Sulyma,
`140 S. Ct. 768 (2020) .......................................... 33
`Kloeckner v. Solis,
`568 U.S. 41 (2012) .............................................. 24
`Konop v. Hawaiian Airlines, Inc.,
`302 F.3d 868 (9th Cir. 2002) .......................... 6, 31
`
`
`
`

`

`
`
`viii
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Leocal v. Aschroft,
`543 U.S. 1 (2004) ................................................ 26
`Lorillard v. Pons,
`434 U.S. 575 (1978) ............................................ 25
`Netscape Commc’ns Corp. v. ValueClick, Inc.,
`684 F. Supp. 2d 678 (E.D. Va. 2009) ................. 27
`Nguyen v. Barnes & Noble Inc.,
`763 F.3d 1171 (9th Cir. 2014) ............................ 30
`Sebelius v. Cloer,
`569 U.S. 369 (2013) ............................................ 21
`Shular v. United States,
`140 S. Ct. 779 (2020) .......................................... 27
`United States v. Campagnuolo,
`592 F.2d 852 (5th Cir. 1979) .........................19, 26
`United States v. Pasha,
`332 F.2d 193 (7th Cir. 1964) .............................. 25
`United States v. Passarella,
`788 F.2d 377 (6th Cir. 1986) .............................. 20
`United States v. Santos,
`553 U.S. 507 (2008) ............................................ 27
`United States v. Steiger,
`318 F.3d 1039 (11th Cir. 2003) .......................... 31
`United States v. Szymuszkiewicz,
`622 F.3d 701 (7th Cir. 2010) ..................... 4, 15, 19
`United States v. Thompson/Center Arms Co.,
`504 U.S. 505 (1992) ............................................ 26
`STATUTES
`18 U.S.C. § 2510 ...................................................... 24
`18 U.S.C. § 2511 ............................................... passim
`
`
`
`
`
`

`

`
`
`ix
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`18 U.S.C. § 2520 ............................................... 5, 6, 33
`18 U.S.C. § 2701 ...................................................... 11
`28 U.S.C. § 1254 ........................................................ 1
`Pub. L. 90-351, 82 Stat. 197 ..................................... 5
`OTHER AUTHORITIES
`2 Wayne R. LaFave et al., Criminal
`Procedure: Detection and Investigation of
`Crime .................................................................. 22
`Aaron Cahn et al., An Empirical Study of
`Web Cookies, International World Wide
`Web Conference Committee, Apr. 2016 ............ 28
`American Heritage Dictionary (2d ed. 1985) ......... 22
`Black’s Law Dictionary (11th ed. 2019) ................. 21
`Cookies & Other Storage Technologies,
`Facebook ............................................................. 30
`Daisuke Wakabayashi, Suit Claims Google’s
`Tracking Violates Federal Wiretap Law,
`N.Y. Times (June 2, 2020) ................................. 29
`Erik Manukyan, Summary: Ninth Circuit
`Permits Federal Wiretap Act Claim
`Against Facebook, LawFare (Apr. 24,
`2020) ................................................................... 28
`H. Rep. 99-647 (1986) .......................................... 6, 24
`Hannah Albarazi, Microsoft Accused of
`Giving Business User Data to Facebook,
`Law 360 (July 20, 2020) .................................... 29
`Merriam-Webster Online Dictionary ..................... 21
`
`
`
`
`
`

`

`
`
`x
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Orin Kerr, Websurfing and the Wiretap Act,
`Part 2: The Third Circuit’s Ruling, The
`Washington Post (Nov. 9, 2015) ........................ 31
`Orin Kerr, Websurfing and the Wiretap Act,
`The Washington Post (June 4, 2015) ................ 31
`S. Rep. 90-1097 (1968), reprinted in 1968
`U.S.C.C.A.N. 2112 .................................... 5, 14, 25
`S. Rep. No. 99-541 (1986), reprinted in 1986
`U.S.C.C.A.N. 3555 ............................................... 6
`Timothy Libert, Exposing the Hidden Web:
`An Analysis of Third-Party HTTP
`Requests on One Million Websites, Int’l
`Journal of Communication, Oct. 2015 .............. 27
`What Information Does Facebook Get When I
`Visit a Site With the Like Button?,
`Facebook ............................................................. 30
`
`
`
`
`
`
`
`
`

`

`
`
`PETITION FOR A WRIT OF CERTIORARI
`Petitioner Facebook, Inc. respectfully petitions for
`a writ of certiorari to review the judgment of the
`United States Court of Appeals for the Ninth Circuit.
`OPINIONS BELOW
`The decision of the court of appeals is reported at
`956 F.3d 589 and reprinted in the Appendix to the Pe-
`tition (“App.”) at 1a-40a. The decisions of the district
`court are reported at 290 F. Supp. 3d 916; 263 F.
`Supp. 3d 836; and 140 F. Supp. 3d 922, and are re-
`printed at App. 41a-53a; 54a-73a; and 74a-101a.
`JURISDICTION
`The court of appeals issued its decision on April 9,
`2020, App. 40a, and denied rehearing on June 23,
`2020, id. at 102a. This Court’s March 19, 2020 order
`extended the deadline for all petitions for writs of cer-
`tiorari due on or after March 19 to 150 days from the
`date of the lower court judgment or order denying a
`timely petition for rehearing. The jurisdiction of this
`Court is invoked under 28 U.S.C. § 1254(1).
`RELEVANT STATUTORY PROVISIONS
`Relevant statutory provisions are reprinted in the
`appendix to this petition. App. 103a-116a.
`INTRODUCTION
`This case presents a question of critical im-
`portance on which the circuits are openly divided: do
`certain ubiquitous practices in the technology indus-
`try involving computer-to-computer communications
`violate the federal Wiretap Act? The answer to this
`question has sweeping practical consequences. It will
`
`
`
`

`

`2
`determine whether content providers on the internet
`will face sizable damages actions and potential crimi-
`nal liability for routine business activity.
`The Wiretap Act prohibits the “intercept[ion]” of
`“electronic communication[s].” 18 U.S.C. § 2511(1).
`But it makes clear that a “party to [a] communication”
`does not act unlawfully by “intercept[ing]” the very
`communication
`in which
`it takes part.
` Id.
`§ 2511(2)(d). “Party to a communication” in the Wire-
`tap Act means exactly what one would expect: a des-
`ignated sender or recipient of information in an inter-
`action between multiple entities.
`This case arises from a putative nationwide class
`action asserted against Facebook, a social-media and
`internet company. Plaintiffs are Facebook users who
`allege that Facebook “intercepted” their communica-
`tions, in violation of the Wiretap Act. Plaintiffs seek
`$15 billion in class-wide damages.
`Plaintiffs’ allegations focus on a prevalent practice
`in the technology sector: computer-to-computer com-
`munications involving internet users’ web browsers,
`through which servers provide content to webpages
`users visit. Here, plaintiffs allege that, while logged
`out of Facebook, they visited webpages that had
`elected to integrate Facebook features, such as “Like”
`or “Share” buttons. Plaintiffs further allege that their
`browsers communicated with Facebook to allow Face-
`book to provide those features, without plaintiffs’
`knowledge or authorization. Through that communi-
`cation, plaintiffs maintain, Facebook received certain
`data about the websites and pages they visited.
`
`
`
`

`

`3
`In the decision below, the Ninth Circuit held that
`plaintiffs’ Wiretap Act claim could proceed, ruling
`that Facebook was not a “party to [a] communication”
`under the Act. App. 33a. While the court acknowl-
`edged that plaintiffs’ browsers sent the information
`that Facebook allegedly intercepted directly to Face-
`book, the court believed that Facebook was not a
`“party” because plaintiffs did not know about or au-
`thorize their browsers’ communication with Face-
`book. Id. at 30a-33a. The Ninth Circuit did not pur-
`port to base that holding on the Wiretap Act’s text,
`which uses the unmodified term “party” and says
`nothing about knowledge or authorization. Instead,
`the court relied on its view of the Act’s “paramount
`objective” and “legislative history.” Id. at 33a (inter-
`nal quotation marks omitted). The court’s analysis of
`those considerations was itself erroneous—but more
`fundamentally, the Ninth Circuit disregarded this
`Court’s repeated instructions to adhere to statutory
`language.
`In reaching its conclusion, the Ninth Circuit ex-
`pressly acknowledged that “the Third Circuit has held
`to the contrary.” Id. at 32a (citing In re Google Inc.
`Cookie Placement Consumer Privacy Litig., 806 F.3d
`125, 143 (3d Cir. 2015)). In In re Google, the Third
`Circuit considered the same type of computer-to-com-
`puter communications at issue here and ruled that
`the Wiretap Act’s “party” provision precluded liabil-
`ity. 806 F.3d at 143-44. Thus, if Facebook had been
`sued for a purported Wiretap Act violation in the
`Third Circuit, it could not be held liable. The same
`can almost certainly be said of the Fifth, Sixth, and
`Second Circuits, which have all rejected the Ninth
`
`
`
`

`

`4
`Circuit’s rule that “unknown” or “unauthorized” par-
`ticipants cannot be “parties” to a communication.
`Meanwhile, the Ninth Circuit “adopt[ed]” decisions of
`the First and Seventh Circuits holding that defend-
`ants engaging in computer-to-computer communica-
`tions that the Ninth Circuit perceived as similar to
`those here can face liability under the Act. App. 33a
`(citing In re Pharmatrak, Inc. Privacy Litig., 329 F.3d
`9, 22 (1st Cir. 2003); United States v. Szymuszkiewicz,
`622 F.3d 701, 706 (7th Cir. 2010)).
`This square circuit conflict over the meaning of a
`federal statute warrants review. And that review
`should occur now. Most leading internet companies
`are based in the Ninth Circuit, so future plaintiffs will
`bring their Wiretap Act claims there, preventing ad-
`ditional courts from addressing this issue. In fact,
`since the Ninth Circuit’s decision below, plaintiffs
`have already brought Wiretap Act class actions in-
`volving similar allegations in California federal court
`against Google and Microsoft. If this Court were to
`deny review, such suits would undoubtedly multiply.
`The risk of massive civil damages—and even possible
`criminal prosecution—will hang over the internet sec-
`tor and stifle future innovation.
`Facebook is deeply committed to user privacy. It
`has protected and will continue to protect users’ data.
`But the Wiretap Act does not prohibit Facebook’s par-
`ticipation in the routine computer communications at
`issue in this case. And if the Ninth Circuit’s errone-
`ous decision is left uncorrected, its error threatens to
`upend common internet practices and chill the crea-
`tivity that allows the internet to flourish. The peti-
`tion for certiorari should be granted.
`
`
`
`

`

`
`
`5
`
`STATEMENT
`A. The Wiretap Act
`In 1968, decades before Facebook and other inter-
`net companies came into existence, Congress enacted
`Title III of the Omnibus Crime Control and Safe
`Streets Act, known as the Wiretap Act. Pub. L. 90-
`351, 82 Stat. 197. The Wiretap Act’s core provision
`makes it unlawful for any person to “intentionally in-
`tercept[] … any wire, oral, or electronic communica-
`tion.” 18 U.S.C. § 2511(1)(a). But the Act also makes
`clear that it is not unlawful for a person—whether or
`not “acting under color of law”—“to intercept a … com-
`munication where such person is a party to the com-
`munication.” Id. § 2511(2)(d); see id. § 2511(2)(c) (cog-
`nate provision for “person[s] acting under color of
`law”). The exemption of a “party” “reflect[s] existing
`[pre-1968] law,” which provided that a “person actu-
`ally participating in [a] communication” could not face
`liability for intercepting that communication. S. Rep.
`90-1097, 1968 U.S.C.C.A.N. 2112, 2182 (1968).
`The Act’s substantive prohibitions carry both
`criminal and civil penalties. First, the Act subjects
`those who “intentionally intercept[]” communications
`to the possibility of five years’ imprisonment. 18
`U.S.C. § 2511(4)(a). Second, it allows those whose
`communications have been intercepted to sue the per-
`son or entity that committed the relevant violation.
`Id. § 2520(a). Plaintiffs may recover either “the sum
`of the actual damages suffered by the plaintiff and
`any profits made by the violator as a result of the vio-
`lation,” or “statutory damages of whichever is greater
`
`
`
`

`

`6
`of $100 a day for each day of violation or $10,000.” Id.
`§ 2520(c)(2). And courts may award “punitive dam-
`ages in appropriate cases,” as well as “a reasonable
`attorney’s fee.” Id. § 2520(b)(2)-(3).
`Congress’s last major amendment to the Act came
`in 1986, when it “enlarged [the Act’s] coverage … to
`prohibit the interception of ‘electronic’ as well as oral
`and wire communications.” Bartnicki v. Vopper, 532
`U.S. 514, 524 (2001). That amendment “update[d]
`and clarif[ied] Federal privacy protections and stand-
`ards in light of dramatic changes in new computer
`and telecommunications technologies.” S. Rep. No.
`99-541, at 1 (1986), reprinted in 1986 U.S.C.A.A.N.
`3555, 3555. Those new technologies included “elec-
`tronic mail operations, cellular and cordless tele-
`phones, [and] paging devices.” H. Rep. 99-647, at 18
`(1986).
`Since 1986, the world has witnessed a remarkable
`evolution in communication technologies—most im-
`portantly, “the advent of the Internet and the World
`Wide Web.” Konop v. Hawaiian Airlines, Inc., 302
`F.3d 868, 874 (9th Cir. 2002). But Congress has not
`altered the Wiretap Act or curtailed its exemption
`from liability for parties to communications.
`B. Factual Background
`1. This case involves a common form of computer-
`to-computer communication, called a “GET request.”
`7ER1201.1 GET requests take place whenever a per-
`son is browsing the internet using a web browser,
`
`1 “ER” refers to the Appellant’s Excerpts of Record in the
`Ninth Circuit. Facebook draws on the allegations in plaintiffs’
`
`
`
`

`

`7
`such as Apple Safari or Microsoft Internet Explorer.
`Id. When the user seeks to visit a particular webpage,
`she types that webpage’s address into the browser’s
`navigation bar or clicks on a hyperlink. At that time,
`the browser sends a message to the server that hosts
`the requested webpage, asking the server to display
`the webpage on the person’s computer. Id. That mes-
`sage from the browser to the webpage’s server is
`called a “GET request”—effectively a request to get
`the relevant content. 7ER1201-02.
`But the webpage’s contents are not delivered by
`the server to the user in a single piece; rather, they
`consist of an assemblage of independent parts.
`7ER1203. And many webpages include content that
`exists on different servers operated by third parties.
`Id. A common example of this third-party content is
`an advertisement. For instance, a NYTimes.com
`webpage may include content from not only the New
`York Times, but also from advertisers. These third-
`party advertisements are displayed in pre-arranged
`portions of the NYTimes.com webpage. See 7ER1203-
`04.
`Third-party content providers, like advertisers, re-
`ceive directions from users’ browsers to display their
`content on the webpage the user is visiting. That di-
`rection occurs through a “separate but simultaneous
`GET command,” also from the user’s browser, but this
`time sent to the third-party server. 7ER1204.
`
`
`second and third amended complaints and accompanying exhib-
`its to describe the practices at issue for purposes of this petition,
`but it does not admit the veracity of all of these allegations.
`
`
`
`

`

`8
`Suppose a person browsing the internet seeks to
`visit NYTimes.com, and suppose that the NY-
`Times.com webpage she visits is designed to contain
`a third-party advertisement. To display the full
`webpage including the advertisement, the person’s
`browser sends two separate GET requests. One is the
`GET request to the NYTimes.com server, asking the
`server to display the NYTimes.com webpage. The
`other, following a direction from the NYTimes.com
`webpage to seek third-party content, is a separate
`GET request to the third-party advertiser’s server,
`asking it to display the relevant advertisement. See,
`e.g., In re Google, 806 F.3d at 130 (describing this pro-
`cess for “internet advertising companies” that “serv[e]
`advertisements to the browsers of webpage visitors”).
`This entire process occurs in milliseconds. 7ER1204.
`Because the third-party advertiser’s server needs
`to know the webpage for which it is providing content,
`the GET request sent to the third party’s server will
`generally contain the Uniform Resource Locator
`(“URL”) of the webpage the internet user is visiting.
`Id. A URL is the familiar identifier that a person sees
`in her navigation bar when she visits a website—for
`instance,
`http://www.nytimes.com/business.
`7ER1202-03. When sent to a third-party server, the
`URL is called a “referer header” because it refers the
`third-party server to the webpage the internet user is
`visiting. 7ER1204. If the third-party server did not
`receive the referer header, the relevant portion of the
`host webpage would appear blank. See id.
`2. The other relevant technological concept in this
`case is “cookies.” Cookies are small pieces of text that
`browsers and websites use to store information.
`
`
`
`

`

`9
`7ER1207. For instance, cookies enable websites to
`recognize users, which in turn allows the websites to
`keep users logged in and prevent unauthorized access
`to their accounts. 4ER614.
`3. Facebook operates a social-media service with
`more than 2.4 billion users worldwide, including more
`than 200 million users in the United States. Face-
`book’s users create personal profiles and share mes-
`sages, photographs, videos, and content with the ser-
`vice’s other users.
` To enhance user experience, Facebook permits
`people or businesses to integrate “plug-ins,” such as
`the Facebook “Like” or “Share” buttons, on their
`webpages. 4ER628; 7ER1207. Plug-ins consist of
`computer code that people or businesses can choose to
`embed on their webpages. For instance, an internet
`user visiting a NYTimes.com webpage may see, in ad-
`dition to New York Times content and third-party ad-
`vertisements, a Facebook “Like” button. Clicking that
`“Like” button enables the reader to seamlessly share
`the relevant New York Times content with her Face-
`book social network (rather than manually copying
`the link and sharing it directly on Facebook). Many
`other companies,
`like Twitter, Pinterest, and
`LinkedIn, have similar plug-ins that webpages may
`integrate.
`When a person browsing the Internet visits a
`webpage with a Facebook plug-in, the person’s
`browser engages in the two separate communications
`discussed above. 7ER1209. It sends one GET request
`to the server of the webpage being visited, asking it to
`display that webpage. Id. And after that server di-
`
`
`
`

`

`10
`rects the user’s browser to seek information from Fa-
`cebook, the browser sends a “separate but simultane-
`ous” GET request to Facebook, 7ER1204, asking it to
`display the plug-in on the webpage, 7ER1209. To in-
`struct Facebook where to display the plug-in, the GET
`request sent to Facebook contains the referer header
`of the webpage being visited—i.e., the webpage’s
`URL. 7ER1210.
`The following diagram (drawn from plaintiffs’
`complaint, 7ER1209) illustrates the GET request pro-
`cess:
`
`
`This process occurs whether or not the internet
`user has a Facebook account, is logged in to Facebook,
`or has ever visited Facebook: it “is part of the normal
`operation of the Internet.” 4ER635. If it did not oc-
`cur, the portion of the webpage allocated to the plug-
`in would appear blank. 7ER1204.
`
`
`
`

`

`11
`As explained in its privacy policy, Facebook uses
`the information it receives from GET requests (such
`as the URLs a user visits) to show users “content from
`[their] friends that may interest [them]” and to “im-
`prove ads generally” on its service. 2ER140; see
`2ER117-19.
`C. Proceedings Below
`1. Plaintiffs, four Facebook users, brought this
`case as a multi-district litigation on behalf of them-
`selves and a putative nationwide class of people with
`active Facebook accounts between April 22, 2010 and
`September 26, 2011. 7ER1234. After the district
`court dismissed plaintiffs’ first complaint with leave
`to amend, see App. 100a-101a, they filed a second
`amended complaint asserting eleven claims, includ-
`ing a violation of the Wiretap Act, 7ER1235-37.2
`Plaintiffs’ Wiretap Act claim alleges that while
`logged out of Facebook, plaintiffs visited websites con-
`taining Facebook plug-ins. 7ER1196; 7ER1223.
`When they visited those websites, plaintiffs allege,
`their browsers sent Facebook GET requests that in-
`cluded the websites’ URLs. 7ER1237. According to
`plaintiffs, Facebook then employed “user-specific and
`user-identifying cookies” to “gather[]” these URLs.
`Id. Facebook’s actions, plaintiffs contend, amount to
`unlawful “interception” of their data under the Wire-
`tap Act. 7ER1235.
`
`
`2 Plaintiffs’ other causes of action include a Stored Commu-
`nications Act claim, 18 U.S.C. § 2701, as well as numerous state-
`law claims. See 7ER1237-1252.
`
`
`
`

`

`12
`Plaintiffs acknowledge that their browsers sent
`the URL data directly to Facebook, so that Facebook
`could display plug-ins on the webpages plaintiffs vis-
`ited. 7ER1209. They also admit that their browsers’
`communications with Facebook were “separate from”
`their browsers’ communications with the webpages
`they visited. 7ER1237. But plaintiffs maintain that
`Facebook was still not an “authorized party” to the
`communication through which it received URL data.
`7ER1236. That is so, plaintiffs say, because plaintiffs
`did not “know[]” about their browsers’ communication
`with Facebook and were logged out of Facebook when
`that communication occurred. Id.
`Plaintiffs do not allege that Facebook represented
`to them that it would refrain from receiving URL data
`generally. Nor do plaintiffs allege that Facebook
`failed to accurately disclose its data-receipt practices
`as to logged-in users. 7ER1246. Rather, plaintiffs
`claim solely that Facebook’s disclosures “implicitly
`promise[d]” that Facebook would not receive URL
`data about logged-out users. 7ER1089. And even as
`to that class of activity, plaintiffs assert only general-
`ized privacy harms. 7ER1223-24. They do not assert
`that they engaged in different browsing behavior
`while logged out of Facebook, or that Facebook sold or
`disclosed any URL information it received.
`Nevertheless, plaintiffs seek more than $15 billion
`in total damages. 5ER921.
`2. The district court granted Facebook’s motion to
`dismiss plaintiffs’ second amended complaint, holding
`that plaintiffs failed to state a Wiretap Act claim. Fa-
`cebook, the court concluded, was a “party to the [rele-
`
`
`
`

`

`13
`vant] communication,” so it “did not ‘intercept’ Plain-
`tiffs’ communications within the meaning of the Wire-
`tap Act.” App. 63a (quoting 18 U.S.C. § 2511(2)(d)).
`“[W]hen someone visits a page where a Facebook ‘like’
`button is embedded,” the court explained, “two sepa-
`rate communications occur”: “[f]irst, the user’s
`browser sends a GET request to the server where the
`page is hosted”; “[s]econd,” the “Facebook button trig-
`gers a second, independent GET request to Facebook’s
`servers.” Id. While “[t]he parties to the first transac-
`tion are the web user (e.g., one of the Plaintiffs) and
`the server where the page is located,” the “[p]arties to
`the second transaction are that same web user and a
`Facebook server.” Id. at 63a-64a. “As to the second
`transaction”—the only one in which URL data is sent
`to Facebook—“Facebook has not ‘intercepted’ the
`communication … because it is ‘a party to the commu-
`nication.’” Id. at 64a (quoting 18 U.S.C. § 2511(2)(d)).3
`3. The Ninth Circuit reversed. After concluding
`that plaintiffs had standing to pursue their Wiretap
`Act claim, App. 11a-13a, the Ninth Circuit held that
`the claim could proceed because the “party” provision
`did not apply. The Ninth Circuit agreed with the dis-
`trict court that the “GET request and its associated
`[URL] referer header” sent from the user’s browser to
`Facebook is the relevant communication through
`which Facebook receives a user’s URL information—
`
`
`3 The district court likewise dismissed plaintiffs’ other
`claims, though it granted leave to amend two of them. Id. at 72a-
`73a. After plaintiffs filed a third amended complaint asserting
`those two claims alone, the district court granted Facebook’s mo-
`tion to dismiss those claims without leave to amend. Id. at 53a.
`
`
`
`

`

`14
`i.e., the allegedly “intercepted” communication. Id. at
`31a. And it agreed that the browser-to-Facebook com-
`munication is “separate” from the GET request sent
`from the browser to “the third-party website.” Id.
`Nonetheless, the court held that Facebook was not a
`“party” to the supposedly “intercepted” communica-
`tion and could face Wiretap Act liability. Id. at 33a.
`The Ninth Circuit did not purport to base its con-
`clusion on the Wiretap Act’s text, which uses the un-
`modified term “party.” Rather, the court based its
`conclusion on its view of the Act’s purpose and legis-
`lative history. First, the court asserted that the Act’s
`“paramount objective” is “protect[ing] effectively the
`privacy of communications.” Id. (internal quotation
`marks omitted). Second, the court stated “that the
`Wiretap Act’s legislative history evidences Congress’s
`intent to prevent the acquisition of the contents of a
`message by an unauthorized third-party or ‘an un-
`seen auditor.’” Id. (quoting S. Rep. No. 90-1097, 1968
`U.S.C.C.A.N. at 2154, 2182). In light of those two con-
`siderations, the court concluded that allowing the
`“party” provision to apply to “unauthorized duplica-
`tion and forwarding of unknowing users’ information”
`would allow too many “common methods of intrusion.”
`Id.
`In reaching this conclusion, the Ninth Circuit rec-
`ognized that “the Third Circuit has held to the con-
`trary.” Id. at 32a. In In re Google, the court ex-
`plained, the Third Circuit held that “internet adver-
`tising companies were parties to a communication”
`when they received “duplicated GET requests” from a
`web user’s browser. Id. (citing In re Google, 806 F.3d
`at 143). But instead of following the Third Circuit,
`
`
`
`

`

`15
`the Ninth Circuit “adopt[ed] the First and Seventh
`Circuits’ understanding that simultaneous, unknown
`duplication and communication of GET requests do
`not exempt a defendant from liability under the party
`exception.” Id. at 33a (citing In re Pharmatrak, 329
`F.3d at 22; Szymuszkiewicz, 622 F.3d at 706).
`The Ninth Circuit denied Facebook’s petition for
`panel rehearing or rehearing en banc. Id. at 102a.
`This petition for certior

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket