In general, “metadata” is data that describes other data and summarizes basic information about data, which can make finding and working with particular instances of data easier. But does that definition mean that metadata, such as URLs, are categorically non-content? For example, such a bright line distinction would mean that there is no substantive difference, for example, between the URL “www.webmd.com” and “www.webmd.com/alchoholabuse.” The former URL provides very little information about the visitor’s communications with WebMd, while the latter provides specific information other than simply the visitor was communication with WebMd. This is not an unimportant distinction since the federal Wiretap Act, which was enacted in 1968 to regulate telephone wiretapping prohibits the interception of the “contents” of a communication without the consent of a “party to the communication.” In 1986, Congress expanded the scope of the Wiretap Act to include computer networks. In an important privacy decision, on November 10, 2015, although the Third Circuit in In Re: Google Inc. Cookie Placement Privacy Litigation, dismissed the Wiretap Act claim under Rule 12(b)(6), it determined that obtaining URLs by Google did involve the collection of at least some content under the Wiretap Act.
Unbeknownst to many Internet users, a user’s visits to websites are recorded through the use of tracking cookies that have been previously placed on the user’s browser so when the user visits a Web site, the Web site can have a third-party site send to the user’s browser highly targeted advertisements. The litigation involved allegations that Google violated the Wiretap Act, the Stored Communications Act and the Computer Fraud and Abuse Act under federal law, and various California state laws include the right to privacy. With regard to the Wiretap Act, plaintiffs argued that the defendants violated the Wiretap Act on the grounds that the use of tracking cookies created a record of what websites users visited without their knowledge. Users could set their browsers to block these third party cookies, but he browser would not actually block them. In other words, advertising companies were able to gather this valuable information without the users’ knowledge. While the Third Circuit ultimately dismissed the Wiretap Act claims, the Third Circuit did find that Google’s actions amounted to “deceit and disregard” as it “not only contravened the cookie blockers—it held itself out as respecting ….” [Read more…]