Heeger v. Facebook, Inc.

Background

Brett Heeger brought a proposed class action against Facebook, Inc. He alleged that Facebook continued to track, collect, and store users’ private location information after they turned off the “Location History” feature, and that Facebook used the information for targeted advertising. Facebook moved to dismiss under Federal Rules of Civil Procedure 12(b)(1), which concerns federal-court jurisdiction, and 12(b)(6), which concerns whether a complaint states a legally sufficient claim.

The complaint originally asserted five claims. Heeger abandoned the fifth claim, under California’s Consumer Legal Remedies Act, to streamline the case. The remaining claims alleged violations of the California Invasion of Privacy Act, California’s constitutional privacy right, the common-law tort of intrusion upon seclusion, and the federal Stored Communications Act. The court granted Facebook’s unopposed request for judicial notice.

Federal-court jurisdiction

Facebook argued that Heeger lacked Article III standing because he had not alleged a concrete injury. The court rejected that argument. It held that the alleged covert collection and storage of private location information, including Facebook’s alleged use of that information for its own financial benefit, sufficiently alleged a concrete invasion of privacy. The court reached the same conclusion for the California constitutional privacy claim and held that the alleged injuries under the California Invasion of Privacy Act and Stored Communications Act were also concrete.

The court emphasized that whether those statutes ultimately applied to Heeger’s allegations was a merits question, not a jurisdictional one. It therefore denied Facebook’s motion under Rule 12(b)(1).

Claim deficiencies

For the California Invasion of Privacy Act claim, Heeger alleged that Facebook used an electronic tracking device to determine users’ locations. The court held that the statute’s definition, which refers to a device attached to a vehicle or other movable thing that transmits electronic signals, did not clearly cover a Facebook application on a digital device. The court said additional facts might address the problem, but the existing complaint did not sufficiently allege use of an electronic tracking device.

For the Stored Communications Act claim, Heeger alleged that Facebook disclosed users’ location data to third parties. The court held that the complaint alleged collection of location data, not disclosure of the “contents” of communications. Under the statute, contents concern the substance, meaning, or intended message of a communication, rather than information about a user’s communication. The allegations therefore fell short even assuming Facebook had disclosed the data to third parties.

The court considered the intrusion-upon-seclusion and California constitutional privacy claims together because they rested on the same facts and have largely parallel elements. The complaint did not provide enough information to evaluate whether Heeger had a reasonable expectation of privacy or whether the alleged intrusion was sufficiently offensive. In particular, it did not clearly state how precise the location information was. The court also identified uncertainty about whether Heeger used the Facebook application during the relevant period and how often Facebook allegedly tracked users.

The court acknowledged that Facebook’s potentially confusing location-feature names and disclosures might support an allegation that a reasonable consumer was misled. But it held that this possible deception alone did not supply enough facts for the core privacy claims. The allegations therefore failed to meet the short-and-plain-statement and plausibility requirements of Rules 8 and 12(b)(6).

Disposition

The court dismissed Heeger’s abandoned Consumer Legal Remedies Act claim. It denied Facebook’s motion under Rule 12(b)(1), but granted the motion under Rules 8 and 12(b)(6). The court dismissed the intrusion-upon-seclusion and California constitutional privacy claims and found the remaining pleaded claims insufficient as discussed above. Heeger was permitted to file an amended complaint by January 27, 2020. The order stated that failure to meet that deadline would result in dismissal with prejudice under Rule 41(b).