• by Wendy Davis  @wendyndavis, April 22, 2024

A Washington state resident is asking a federal court to revive a claim that X Corp., formerly Twitter, violated a state law by asking users to provide contact information for security purposes, but then harnessing that information for ad targeting.

“Twitter obtained the cell numbers of Washington residents by deceptively claiming that they would be used only to authenticate users’ accounts,” attorneys for Glen Morgan said in papers filed late last week with the 9th Circuit Court of Appeals. “Instead, Twitter used those numbers to target advertising to those users,” they added.

Morgan's lawyers are seeking to reverse U.S. District Court Judge Mary Dimke's decision to throw out the case.

Dimke, who presides in the Eastern District of Washington, ruled last year that even if Morgan's allegations were proven true, they wouldn't show that X violated Washington's anti-pretxting law -- a 2006 statute that prohibits anyone from using “fraudulent, deceptive, or false means” to obtain telephone records of state residents.

Dimke said in a written opinion that the state law was meant to cover records that would reveal who residents spoke with on the telephone, not residents' own phone numbers.

The battle stems from X Corp.'s disclosure in 2019 that users' phone numbers and email addresses were mistakenly incorporated into an ad platform that enables companies to use their own marketing lists to target ads on Twitter. Separately from Morton's lawsuit, the revelations separately sparked a Federal Trade Commission complaint that resulted in a $150 million fine.

In April 2022, Morgan alleged in a class-action complaint brought in Spokane County Superior Court that the ad-targeting glitch violated Washington's anti-pretexting law.

The case was transferred to federal court at X Corp's request.

The company argued to Dimke that the complaint should be dismissed for several reasons -- including that obtaining a phone number wouldn't violate the anti-pretexting law, which refers to telephone “records.”

“If the legislature meant for 'telephone record' to include something as basic as the user’s own number, it surely would have said as much,” X argued in a motion filed with Dimke last year.

Dimke agreed, writing that the pretexting law “is plainly focused on protecting the consumer’s call history data.”

Morgan is now appealing that ruling to the 9th Circuit. His lawyers argue both that the case should have remained in state court, and that the Washington statute should have been interpreted to cover phone numbers.

The statute itself defines telephone record as information retained by a telecom that “relates to” numbers dialed, incoming calls, or other data that would appear on a phone bill, such as the length of calls.

Morgan's counsel argues that interpreting that language to exclude users' phone numbers is not “a plausible discernment of legislative intent.”

They add that the state legislature's final report on the bill specified that the phrase “telephone record” includes “telephone numbers and calling records.”

X Corp. is expected to respond to Morgan's argument by May 20.