234 F. Supp. 3d 996
N.D. Cal.2017Background
- Plaintiff LaTisha Satchell sued Yinzcam (app developer), Golden State Warriors (app owner), and Signal360 (beacon technology provider) under the Wiretap Act, alleging the Warriors’ app activated smartphone microphones and recorded private conversations via Signal360’s audio-beacon technology.
- Plaintiff downloaded and used the App from April to July 2016 and alleges the App continuously listened and temporarily recorded audio without adequate disclosure or consent.
- Claims: two Wiretap Act claims—one against Signal360 and one against all defendants—alleging interception (18 U.S.C. §2511) and use/dissemination (18 U.S.C. §2511(d)) of oral communications.
- Defendants moved to dismiss for lack of Article III standing and for failure to state Wiretap Act claims (failure to allege interception of an "oral communication" and failure to allege "use").
- The Court (Judge White) denied dismissal for lack of standing (plausible intangible privacy injury) but dismissed certain substantive Wiretap Act allegations: it found plaintiff plausibly alleged Signal360 intercepted communications but failed to adequately allege interception of "oral communications" as defined, and dismissed the §2511(d) "use" claims for all defendants. Plaintiff was granted leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing (injury-in-fact) | Plaintiff suffered concrete privacy invasion (unauthorized listening/recording) and device wear-and-tear | No concrete injury; at best a technical statutory violation or consent via app permissions | Denied motion to dismiss for lack of standing; pleaded intangible privacy injury is sufficiently concrete at pleading stage |
| Whether defendants "intercepted" communications (acquisition/possession) | App/microphone recordings constitute acquisition of oral communications | Interception requires that a defendant come into possession or control of captured communications; mere recording by phone may be insufficient for all defendants | Signal360: plausible allegation of interception (designed tech to turn on mic and record). Yinzcam and Warriors: complaint fails to allege how they acquired/controlled captured content; claims dismissed as to them |
| Whether captured audio qualifies as "oral communication" under the Wiretap Act | Conversations recorded by the phone while in private settings are oral communications | Allegations are conclusory about expectation of privacy and permissions might negate claim | Court GRANTED dismissal in part: plaintiff’s factual allegations do not plausibly plead the requisite expectation-of-privacy to establish interception of an "oral communication" against all defendants; leave to amend granted |
| Whether defendants "used" intercepted communications in violation of §2511(d) | Defendants used contents to deliver targeted ads | No factual allegations showing content of conversations was used to target ads; only conclusory assertions | Court GRANTED dismissal of all §2511(d) "use" claims for failure to plead nonconclusory facts showing content was used |
Key Cases Cited
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (concrete injury requirement for standing includes intangible harms; consider history and congressional judgment)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires concrete, particularized, and imminent injury)
- Van Patten v. Vertical Fitness Group, 847 F.3d 1037 (9th Cir. 2017) (TCPA privacy invasion can constitute concrete injury under Spokeo)
- Noel v. Hall, 568 F.3d 743 (9th Cir. 2009) ("acquisition" occurs when contents are captured or redirected)
- United States v. Smith, 155 F.3d 1051 (9th Cir. 1998) ("acquire" implies coming into possession or control of the contents)
- Siripongs v. Calderon, 35 F.3d 1308 (9th Cir. 1994) (distinguishing oral vs. wire communications and expectation of privacy analysis)
- Konop v. Hawaiian Airlines, 302 F.3d 868 (9th Cir. 2002) (interception requires acquisition contemporaneous with transmission)