In re Meta Pixel Healthcare Litig.

647 F.Supp.3d 778

IN RE META PIXEL HEALTHCARE LITIGATION

Case No. 22-cv-03580-WHO

United States District Court, N.D. California

Signed December 22, 2022

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

Re: Dkt. No. 46

William H. Orrick, United States District Judge

INTRODUCTION

This case is about defendant Meta Platform, Inc.'s alleged use of proprietary computer code to obtain certain healthcare-related information of Facebook users. According to plaintiffs, the Meta Pixel allows Meta to intercept personally identifiable medical information and the content of patient communications for Facebook users, which Meta then monetizes for its own financial gain. Plaintiffs have brought several federal and state law claims to vindicate the harms that they have allegedly experienced. They ask me to enjoin Meta from intercepting and disseminating their patient information.

Our nation recognizes the importance of privacy in general and health information in particular: the safekeeping of this sensitive information is enshrined under state and federal law. The allegations against Meta are troubling: plaintiffs raise potentially strong claims on the merits and their alleged injury would be irreparable if proven. To secure a mandatory injunction, however, plaintiffs need to show "that the law and facts clearly favor [their] position, not simply that [they are] likely to succeed." Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (emphasis in original). Meta's core defense is that it has systems in place to address the receipt of the information at issue and that it would be unfairly burdensome and technologically infeasible for them to take further action. Without further factual development, it is unclear where the truth lies, and plaintiffs do not meet the high standard required for a mandatory injunction. At this early stage of the case, I DENY the motion for a preliminary injunction.

FACTUAL BACKGROUND

Plaintiffs are four Facebook users who are proceeding anonymously due to the sensitive nature of this litigation. First Amended Complaint ("FAC") [Dkt. 22] ¶¶ 32-35. They allege that Meta¹ improperly acquires their confidential health information in violation of state and federal law and in contravention of Meta's own policies regarding use and collection of Facebook users' data. Id. ¶¶ 1-2, 12. Each of plaintiffs' healthcare providers—MedStar Health System, Rush University System for Health, and UK Healthcare—allegedly installed the Meta Pixel on their patient portals.² See id. ¶¶ 3-9. Plaintiffs claim that when they logged into their patient portal on their medical provider's website, the Pixel transmitted certain information to Meta. Id. ¶¶ 4-9; see also e.g., id. ¶¶ 86, 122, 146 (describing types of data transmitted by the Pixel). They contend that this information, which is contemporaneously redirected to Meta, revealed their status as patients and was monetized by Meta for use in targeted advertising. Id. ¶¶ 2, 17-18, 71.

The issues raised in plaintiffs' motion for a preliminary injunction involve Meta's alleged receipt of certain health information through the Meta Pixel; the scope and meaning of certain terms in Meta's policies; the strength of plaintiffs' legal claims; and Meta's systems to prevent receipt of this information. I describe the relevant facts below.

A. The Meta Pixel's Technology

The Meta Pixel is a free and publicly available piece of code that Meta allows third-party website developers to install on their websites. See Declaration of Tobias Wooldridge ("Wooldridge Decl.") [Dkt. 77-4] ¶ 3.³ The Pixel is customizable: website developers choose which types of user action to measure, and program the Pixel accordingly. Id. ¶¶ 3-4. Website developers in a range of industries use the Pixel. Id. ¶ 3. In a nutshell, the Meta Pixel allows website developers to learn: (1) if and when website users take certain actions on a website, and (2) generalized information about website users, which can be used for targeting advertising. Id. ¶¶ 3-4.

To understand how the Meta Pixel typically works, imagine the following scenario. A shoe company wishes to gather certain information on customers and potential customers who visit its website. The shoe company first agrees to Meta's Business Tools Terms (discussed below), which govern the use of data from the Pixel. Wooldridge Decl. ¶ 6. The shoe company then customizes the Meta Pixel to track, say, every time a site visitor clicks on the "sale" button on its website, which is called an "Event." Id. ¶ 4. Every time a user accesses the website and clicks on the "sale" button (i.e., an "Event" occurs), it triggers the Meta Pixel, which then sends certain data to Meta. Id. Meta will attempt to match the customer data that it receives to Meta users—Meta cannot match non-Meta users. Id. The shoe company may then choose to create "Custom Audiences" (i.e., all of the customers and potential customers who clicked on the "sale" button) who will receive targeted ads on Facebook, Instagram, and publishers within Meta's Audience Network. Id. Meta may also provide the shoe company with de-identified, aggregated information so the shoe company understands the impact of its ads by measuring what happens when people see them. Id. Meta does not reveal the identity of the matched Meta users to the shoe company. Id.

Now, imagine that same process occurring but instead of a shoe company, substitute MedStar Health System, plaintiff John Doe's medical provider. Plaintiffs' expert, Richard Smith, who submitted a lengthy declaration in conjunction with the preliminary injunction motion, asserted that MedStar Health System has the Meta Pixel on various pages of its website, www.MedStarHealth.org. See Declaration of Richard M. Smith ("Smith Decl.") [Dkt. 49] ¶ 19; FAC ¶¶ 3-5; see also Supplemental Declaration of Tobias Wooldridge ("Supp. Wooldridge Decl.") [Dkt. 143-3] ¶ 4 (explaining that the Pixel is integrated into the MedStar page that allows users to navigate to the login page). Plaintiffs allege that when John Doe or any other patient of MedStar presses the login button to enter their MedStar patient portal using their username or email address and password, the Meta Pixel source code causes Doe's and all other patients' computing devices to re-direct the contents of their respective patient portal login communications to Meta and then to MedStar, rather than just to MedStar. See Smith Decl. ¶¶ 27-28. Meta allegedly redirects the patient portal login information to itself via a "SubscribedButtonClick" transmission that includes, among other things:

• The patient's identity in the form of cookies, IP address, and User-Agent identifiers;

• Content of the button ("Log in");

• Contents of the page from which the patient clicked to log in to the patient portal; and

• Content of the page the patient will land as a result of clicking "Log in" to the patient portal.

Id. ¶¶ 31-33. As a patient browses through the MedStar website, the Meta Pixel allegedly continues to transmit information to Meta, including information about doctors, medical conditions, and appointments associated with a patient's session. Motion for Preliminary Injunction ("Mot.") [Dkt. 46] at 4; Smith Decl. ¶¶ 97, 130-31.⁴

Plaintiffs assert that Meta monetizes the information that it receives through the Meta Pixel by using it to generate highly-profitable targeted advertising on-and off-Facebook. Notice of Motion ("Not. of Mot.") at 1; FAC ¶ 17. They claim that Meta can target ad campaigns to patients based on patients' browsing behavior on their medical providers' website. FAC ¶¶ 18-19; see also Wooldridge Decl. ¶ 4 (explaining that website developers can target ads on Facebook, Instagram, and other sites based on data transmitted by the Pixel). Meta may, for instance, target ads to a person who has (1) used the patient portal and (2) viewed a page about a specific condition, such as cancer. FAC ¶ 19. These allegations appear to be borne out by plaintiffs' expert's experiences: after Smith visited five hospital websites which employ the Meta Pixel, he allegedly received many new health-related advertisements. Smith Decl. ¶ 187; see also ¶ 188 (providing over a dozen examples of health-related advertisements). In particular, Smith noticed that within two hours of searching for information on ulcerative colitis on one of the hospitals' websites, he was shown an advertisement related to ulcerative colitis in his Facebook video feed. Id. ¶¶ 189-90.

According to plaintiffs, they have identified more than 660 entities covered under the Health Insurance Portability and Accountability Act ("HIPAA"), from which Meta is receiving information. Mot. at 2; FAC ¶ 15.

B. Meta's Data Policies

Meta has several policies governing how it collects and uses data, including through the Pixel. When individuals sign up for a Facebook account, they agree to Meta's Terms of Service, Data Policy, and Cookies Policy. FAC ¶ 49. These policies are contractually binding on both Meta and its users. Id. Because these policies bear on the important question of whether plaintiffs knew and consented to Meta's use of the Meta Pixel to receive health-related information, I describe each policy below.

1. Terms of Service

The Terms of Service govern the "use of Facebook, Messenger, and the other products, features, apps, services, technologies, and software" that Meta offers. See Declaration of Abigail Barrera ("Barrera Decl.") Ex. A (Terms of Service) [Dkt. 76-3] at 1. Meta informs users that it "use[s] data about the connections you make, the choices and settings you select, and what you share and do on and off our Products - to personalize your experience." Id. at 2. The Terms of Service explain that Meta shows users "personalized ads, offers, and other sponsored or commercial content to help [them] discover content, products, and services that are offered by the many businesses and organizations that use Facebook and other Meta Products." Id. To provide these...