559 F.Supp.3d 1318
S.D. Fla.2021Background:
- Plaintiff sued Costco under the Florida Security of Communications Act (FSCA), alleging Costco’s website used session-replay software to record mouse movements, clicks, keystrokes, search terms, and pages viewed.
- Plaintiff asserted these recordings intercepted the "contents" of electronic communications, giving rise to an FSCA claim.
- Costco moved to dismiss under Rule 12(b)(6); the court reviewed briefing and prior similar cases around session-replay technology.
- The court construed FSCA terms ("intercept," "contents") according to plain meaning and federal analogues, focusing on whether the recorded data conveyed the "substance, purport, or meaning" of communications.
- Court found the recorded website interactions akin to record/routing/tracking information (like security-camera footage or dialing/routing data) excluded or outside the FSCA’s definition of contents, and therefore held there was no interception.
- The FAC was dismissed with prejudice because Plaintiff failed to plausibly allege an essential element (contents); the court declined to reach alternative defenses (consent, pleading defects).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether session-replay recordings constitute "contents" under the FSCA | Session-replay captured Plaintiffs' communications (mouse clicks, keystrokes, pages viewed) and thus intercepted contents | Recordings are non-content record/routing/tracking information and do not convey the substance of any communication | Recordings lacked "substance," so not "contents," thus no interception under FSCA |
| Whether webpages viewed and "commands" to the server are substantive communications | Pages viewed and commands are communications conveying user intent/substance | Those are like addresses, routing, or signaling information and not contents | Webpage views/commands are non-contents (routing/addressing analogies apply) |
| Whether content can be resolved on a 12(b)(6) motion or is premature until discovery | Content determination is factual and premature; focus is whether contents were intercepted, not what they were | Plaintiff must plausibly allege the nature of the information intercepted; dismissal appropriate if complaint fails to plead contents | Court: Plaintiff must allege what was intercepted; failure to plausibly plead contents justifies dismissal at pleading stage |
| Whether dismissal should be with prejudice / leave to amend | Plaintiff implicitly sought to proceed (no viable amendment argued) | Amendment would be futile because contents cannot be plausibly alleged from these facts | Dismissal with prejudice; leave to amend denied as futile |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: courts need well-pleaded, plausible factual allegations)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading framework)
- Hunt v. Aimco Properties, L.P., 814 F.3d 1213 (11th Cir. 2016) (accept well-pleaded facts on motion to dismiss)
- Edison v. Douberly, 604 F.3d 1307 (11th Cir. 2010) (statutory interpretation follows plain meaning and context)
- In re Zynga Priv. Litig., 750 F.3d 1098 (9th Cir. 2014) (distinguishing record information from the "contents" of communications)
- Minotty v. Baudo, 42 So.3d 824 (Fla. 4th DCA 2010) (silent surveillance video did not convey the "substance" of communication under FSCA)
- In re Nickelodeon Consumer Priv. Litig., 827 F.3d 262 (3d Cir. 2016) (URLs and similar data may be non-contents; analogies to dialing/routing information)
- United States v. Forrester, 512 F.3d 500 (9th Cir. 2008) (routingsignaling and voluntarily provided instructions to servers are non-contents)