In rе GOOGLE INC. COOKIE PLACEMENT CONSUMER PRIVACY LITIGATION.
No. 13-4300
United States Court of Appeals, Third Circuit
Nov. 10, 2015
Amended Nov. 12, 2015
FUENTES, FISHER, and KRAUSE, Circuit Judges.
Argued Dec. 11, 2014.
To be clear, this is not to opine on the objective reasonableness of Chrysler‘s decision to stand trial with Weygant or his trial counsel‘s advice regarding that decision—matters that are not before us. As we have explained, Chrysler faced a steep uphill battle in light of all the evidence against him, which established that he had a motive to kill Pendino, that his glasses had been found at the crime scene, that his car and a car he had borrowed were both stained with Pendino‘s blood, that he brought both cars to Warner for cleaning on the day of Pendino‘s disappearance, and that he lied about the source of the blood stains. Under these circumstances, it may well have been reasonable for Chrysler‘s trial attorneys to recommend a joint trial with Weygant, at which they could stress the exculpatory portions of Ferretti‘s testimony and then attack her credibility in an effort to distract the jury from the overwhelming evidence adduced from other sources.
Regardless, all of the foregoing demonstrates that Chrysler fell well short of the required showing that any fairminded jurist would conclude that his appellate counsel‘s omission of a challenge to the admission of Weygant‘s grand jury testimony—which Chrysler expressly acquiesced to at trial—“fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Accordingly, we conclude that the Second Department did not apply Strickland unreasonably in rejecting Chrysler‘s coram nobis petition, and therefore that the district court correctly denied Chrysler‘s federal habeas petition.
CONCLUSION
For the foregoing reasons, the district court‘s judgment is AFFIRMED.
Colleen Bal, Esq., Michael H. Rubin, Esq. [Argued], Wilson, Sonsini, Goodrich & Rosati, San Francisco, CA, Michael H. Rubin, Esq., Wilson, Sonsini, Goodrich & Rosati, San Francisco, CA, Anthony J. Weibell, Esq., Wilson, Sonsini, Goodrich & Rosati, Palo Alto, CA, for Defendant-Appellee Google Inc.
Edward P. Boyle, Esq., David N. Cinotti, Esq., Venable, New York, N.Y., Travis S. Hunter, Esq., Rudolf Koch, Esq., Richards, Layton & Finger, Wilmington, DE, for Defendant-Appellee Vibrant Media Inc.
Lisa M. Coyle, Esq., Ropes & Gray, New York, N.Y., Douglas H. Meal, Esq., Ropes & Gray, Boston, MA, for Defendant-Appellees Media Innovation Group LLC and WPP PLC.
Before: FUENTES, FISHER, and KRAUSE, Circuit Judges.
OPINION OF THE COURT
FUENTES, Circuit Judge:
This class action arises from allegations that the defendants, who run internet advertising businesses, placed tracking cookies on the plaintiffs’ web browsers in contravention of their browsers’ cookie blockers and defendant Google‘s own public statements. At issue in this appeal is the District Court‘s dismissal of each of the nine claims brought by the plaintiffs. As follows, we will affirm in part, vacate in part, and remand to the District Court for additional proceedings.1
I. Background
A. Internet Advertising and Cookie-Based Tracking
In most users’ experience, webpages appear on browsers as integrated collages of text and images. As a technical matter, this content is delivered and aggregated from multiple independent servers. This includes advertising content, which is typically drawn from “third-party” servers owned by the advertisers themselves. The defendants in this case are internet advertising companies, and this suit concerns their practices in serving advertisements to the browsers of webpage visitors.
The delivery of advertising content from third party servers to webpage visitors’ browsers is a highly technical process involving a series of communications between the visitor‘s browser, the server of the visited website, and the server of the advertising company. In its specifics:
The host website leaves part of its webpage blank where the third-party advertisements will appear. Upon receiving a “GET” request from a user seeking to display a particular webpage, the server for that webpage will subsequently respond to the browser, instructing the browser to send a “GET” request to the third-party company charged with serving the advertisements for that particular webpage.... The third-party server responds to the GET request by sending the advertisement to the user‘s browser, which then displays it on the user‘s device. The entire process occurs within milliseconds and the third-party content appears to arrive simultaneously with the first-party content so that the user does not discern any separate GET requests from the third-parties.1
As the defendants deliver their advertisements directly to users from their own
As pled in the complaint:
To inject the most targeted ads possible, and therefore charge higher rates to buyers of the ad space, these third-party companies ... compile the [i]nternet histories of users. The third-party advertising companies use “third-party cookies” to accomplish this goal. In the process of injecting the advertisements into the first-party websites, the third-party advertising companies also place third-party cookies on user‘s computing devices. Since the advertising companies place advertisements on multiple sites, these cookies allow these companies to keep track of and monitor an individual user‘s web activity over every website on which these companies inject ads.2
These third-party cookies are used by advertising companies to help create detailed profiles on individuals ... by recording every communication request by that browser to sites that are participating in the ad network, including all search terms the user has entered. The information is sent to the companies and associated with unique cookies—that is how the tracking takes place. The cookie lets the tracker associate the web activity with a unique person using a unique browser on a device. Once the third-party cookie is placed in the browser, the next time the user goes to a website with the same [d]efendant‘s advertisements, a copy of that request can be associated with the unique third-party cookie previously placed. Thus the tracker can track the behavior of the user....3
B. Cookie Blocking, Circumvention, Deceit, and Discovery
Individually tailored webpage advertisements are now ubiquitous. But, where cookie-based tracking is concerned, leading web browsers have designed built-in features to prevent the installation of cookies by third-party servers. The complaint calls them “cookie blockers.” The cookie blockers of two browsers are at issue in this case. One is Microsoft‘s Internet Explorer, which featured an “opt-in” cookie blocker that a user could elect to activate. The other is Apple‘s Safari browser, which featured an “opt-out” cookie blocker that was activated by default. The complaint notes that the main Apple website page dedicated to Safari advertised its opt-out cookie blocker as a unique feature, stating that, “to better protect[] your privacy[,] Safari accepts cookies only from the websites you visit.”4 Likewise, the Safari browser labeled its default cookie setting as “Block cookies: From third parties and advertisers.”5
In February 2012, Stanford graduate student Jonathan Mayer published an online report revealing that Google and the other defendants had discovered, and were surreptitiously exploiting, loopholes in both the Safari cookie blocker and the Internet Explorer cookie blocker.8 Safari‘s cookie blocker turns out to have had a few exceptions, one of which was that it permitted third-party cookies if the browser submitted a certain form to the third-party. Because advertisement delivery does not, in the ordinary course, involve such forms, the exception ought not have provided a pathway to installing advertiser tracking cookies. But according to Mayer‘s report, Google used code tо command users’ web browsers to automatically submit a hidden form to Google when users visited websites embedded with Google advertisements. This covert form triggered the exception to the cookie blocker, and, used widely, enabled the broad placement of cookies on Safari browsers notwithstanding that the blocker—as Google publicly acknowledged—was designed to prevent just that. The other defendants, meanwhile, accomplished similar circumventions. As a result, the defendants could—and did—place third-party cookies on browsers with activated blockers.
Mayer‘s findings were concurrently published in the Wall Street Journal9 and drew the attention of the Federal Trade Commission and a consortium of state attorneys general. The Department of Justice filed suit under the Federal Trade Commission‘s authorizing statute in the Northern District of California, and the action resolved by way of a stipulated order providing for a $22.5 million civil penalty.10 Google further agreed to certain forward-looking conditions related to internet privacy, but admitted no past acts or
C. The Instant Suit
Following Mayer‘s report, a series of lawsuits were filed in federal district courts around the country. Those lawsuits were consolidated by the Multi-District Litigation panel and assigned to Judge Sue Robinson of the District of Delaware. This appeal is from the District Court‘s dismissal of that consolidated case.
The consolidated case was presented to the District Court as a putative сlass action, and four named plaintiffs—our appellants here—filed a consolidated class action complaint. The putative class consists of:
all persons in the United States of America who used the Apple Safari or Microsoft Internet Explorer web browsers and who visited a website from which doubleclick.net (Google‘s advertising serving service), PointRoll, Vibrant Media, Media Innovation Group, or WPP cookies were deployed as part of a scheme to circumvent the users’ browsers’ settings to block such cookies and which were thereby used to enable tracking of the class members[‘] [i]nternet communications without consent.13
The complaint asserts three federal law claims against all defendants. Count I claims violation of the federal Wiretap Act,
The complaint also asserts six California state law claims against Google only. Count IV claims violation of the privacy right conferred by the California Constitution. Count V claims intrusion upon seclusion under California tort law. Count VI claims violation of the Unfair Competition Law,
The defendants moved to dismiss the entire complaint for lack of Article III
II. Injury in Fact
Before we reach the merits, we address the defendants’ argument that the plaintiffs lack standing. “[T]he question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.”15 A core requirement of standing is that the plaintiff have suffered an injury in fact. The defendants contend that the plaintiffs fail to demonstrate injury in fact because they make insufficient allegations of pecuniary harm.
For purposes of injury in fact, the defendants’ emphasis on economic loss is misplaced. In assessing injury in fact, we look for an “invasion ... which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.”16 Though the “injury must affect the plaintiff in a personal and individual way,”17 this standard does not demand that a plaintiff suffer any particular type of harm to have standing. Consequently, and contrary to the contentions of the defendants, a plaintiff need not show actual monetary loss for purposes of injury in fact. Rather, “the actual or threatened injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.”18 Sure enough, the Supreme Court itself has permitted a plaintiff to bring suit for violations of federal privacy law absent any indication of pecuniary harm.19
The plаintiffs here base their claims on highly specific allegations that the defendants, in the course of serving advertisements to their personal web browsers, implanted tracking cookies on their personal computers. Irrespective of whether these allegations state a claim, the
The plaintiffs show injury in fact, and we have jurisdiction to address the merits of their claims.20
III. Federal Claims Against All Defendants
We first address the three federal law claims brought against all defendants. For the following reasons, we will affirm the dismissal of the plaintiffs’ Wiretap Act claim as well as the dismissal of plaintiffs’ claims under the Stored Communications Act and Computer Fraud and Abuse Act.
A. The Federal Wiretap Act
The federal Wiretap Act is codified at
1. Acquisition of “Content”
The District Court dismissed the plaintiffs’ Wiretap Act claim on the basis that the defendants’ alleged conduct did not involve the acquisition of communications “content.” While the plaintiffs allege that the defendants acquired and tracked the URLs they visited, the Act defines “contents” as “any information concerning the substance, purport, or meaning of th[e] communication [at issue].”23 The District Court held that, “[a]s described by their name, ‘Universal Resource Locators,‘.... a URL is a location identifier and does not ‘concern [] the substance, purport, or meaning of an electronic communication.’ ”24
In Smith v. Maryland, the Supreme Court made clear the important difference between extrinsic information used to route a communication and the communicated content itself.25 In Smith, the Su-
Smith‘s differentiation between the “means of establishing communication” and the “purport of a[] communication”30 looms large in federal surveillance law. Whereas the Wiretaр Act governs the interception of communications “content[],”31 the separate federal Pen Register Act governs the acquisition of non-content “dialing, routing, addressing, [or] signaling information.”32 As the House of Representatives noted in its Report regarding the enactment of the PATRIOT Act, “the statutorily prescribed line between a communication‘s contents and non-content information[ ] [is] a line identical to the constitutional distinction drawn by the U.S. Supreme Court in Smith v. Maryland.”33
Since Smith, location identifiers have classically been associated with non-content “means of establishing communication.”34 Nevertheless, the District Court‘s categorical assessment that location identifiers never “concern[] the substance, purport, or meaning” of a communication misses the mark.35 Often, a location identifier serves no routing function, but instead comprises part of a communication‘s substance.36 As a leading treatise on criminal procedure explains:
[T]he line between content and non-content information is inherently relative. If A sends a letter to B, asking him to deliver a package to C at a particular address, the contents of that letter are contents from A to B but mere non-content addressing information with re-
spect to the delivery of the package to C. In the case of email, for example, a list of e-mail addresses sent as an attachment to an e-mail communication from one person to another are contents rather than addressing information. In short, whether an e-mail address is content or non-content information depends entirely on the circumstances.37
In essence, addresses, phone numbеrs, and URLs may be dialing, routing, addressing, or signaling information, but only when they are performing such a function. If an address, phone number, or URL is instead part of the substantive information conveyed to the recipient, then by definition it is “content.”
The different ways that an address can be used means, as Professor Orin Kerr puts it, that “the line between contents and metadata is not abstract but contextual with respect to each communication.”38 Thus, there is no general answer to the question of whether locational information is content. Rather, a “content” inquiry is a case-specific one turning on the role the location identifier played in the “intercepted” communication.
Here, the complaint does not make clear whether the tracked URLs were acquired by the defendants from communications in which those URLs played a routing function. This is not, however, fatal to the plaintiffs’ claim.
In a declassified opinion analyzing whether there was statutory authority for a National Security Agency surveillance program, the Foreign Intelligence Surveillance Court observed that the government possessed trap and trace authority over “dialing, routing, addressing, and signaling information ... provided, however, that such information shall not include the contents of any information.”39 The Surveillance Court read this to mean that, for purposes of federal surveillance law, information may well serve both a routing function and a content function. Noting the breadth of the statutory descriptions of routing information and “content,” the Surveillance Court concluded that routing information and “сontent” are not mutually exclusive categories, but rather ones that Congress expressly contemplated to be occasionally coextensive.40
Proceeding to identify exemplary areas where routing information and “content” overlap, the Surveillance Court pointed, “in particular,” to URL queries that involve reproduction of a search phrase entered by a user into a search engine.41 Quoting the District of Massachusetts, the Surveillance Court explained that, “if a user runs a search using an [i]nternet search engine, the ‘search phrase would appear in the URL after the first forward slash’ as part of the addressing information, but would also reveal contents, i.e., the “substance” and “meaning” of the communication ... that the user is conducting a search for information on a particular topic.”42 For an example from another context, the court pointed to post-cut-through digits in the phone context “as dialing information, some of which also constitutes contents.”43
The decision of the Surveillance Court is instructive in several ways relevant to our analysis here. The first of these is that, to the extent that the statutory definitions and conceptual categories of content and routing information overlap, Congress expressly contemplated the possibility of such an overlap. For the reasons stated by the Surveillance Court, we are persuaded that, under the surveillance laws, “dialing, routing, addressing, and signaling information” may also be “content.”
Second, the Surveillance Court takes the position that queried URLs can bе content as well as routing information, for instance in the case of URLs that reproduce search engine inquiries. Though some district courts have held that a URL is never content, the Surveillance Court decision is part of a growing chorus that some, if not most, queried URLs do contain content. In In re Zynga Privacy Litigation, the Ninth Circuit took the position that queried URLs are content if, but only if, they reproduce words from a search engine query.44 In United States v. Forrester, meanwhile, a different panel of the Ninth Circuit noted that warrantless capture of URLs generally “might be more constitutionally problematic” than warrantless capture of IP addresses.45 The Forrester court explained that “[a] URL, unlike an IP address, identifies the particular document within a website that a person views and thus reveals much more information about the person‘s [i]nternet activity.”46 Akin to Forrester is the stance taken by the House Judiciary Committee in its PATRIOT Act report, which stated that a pen register order “could not be used to collect information other than ‘dialing, routing, addressing, and signaling’ information, such as the portion of a URL (Uniform Resource Locator) specifying Web search terms or the name of a requested file or article.”47 Though none of these authorities offer detailed reasoning on why they draw the “content” line where they do, what they have in common is that they assess whether a URL involves “contents” based on how much information would be revealed by disclosure of the URL.
Third, the Surveillance Court‘s example of post-cut-through digits in the telephone context—i.e. numbers dialed from a telephone after a call is already setup or “cut-through“—hints at a different reason why queried URLs might be considered content. A number of courts apart from the Surveillance Court—most prominently the D.C. Circuit—have found such digits to comprise communications content beyond the permissible scope of a pen register.48 URL queries bear functional analogues to this process, in that different portions of a queried URL may serve to convey different messages to different audiences. For instance, the domain name portion of the URL—everything before the “.com“—instructs a centralized web server to direct the user to a particular website, but post-domain name portions of the URL are designed to communicate to the visited website which webpage content to send the user.49
According to the defendants, even if we find that the plaintiffs adequately plead the acquisition of “content,” we may affirm nevertheless under
a. How the Information at Issue Was Acquired
Before we can assess whether the defendants were “parties” to the electronic transmissions at issue, we must first identify what, exactly, are the transmissions at issue.
In the portion of the complaint devoted to the plaintiffs’ Wiretap Act claim, the complaint states that “the [d]efendants’ third-party web tracking permitted them to record information that [c]lass [m]embers exchanged with first-party websites ... which [the] defendants intercepted while not a party to those communications (hence third-party tracking)[.]”53 It continues to plead that “the defendants’ third-party tracking intercepted the class members’ communications while they were in transit from the class members’ computing devices to the web servers of the first-party websites the class members used their browsers to visit.”54
The highly specific allegations contained in the body of the complaint, however, give no credence to the complaint‘s later allegations that the defendants acquired their internet history information from transmissions between the plaintiffs’ browsers and first-party websites. With respect to the mechanics of the defendants’ acquisition of web browsing information, the interior of the complaint says that, “[u]pon receiving a []GET[] request from a user seeking to display a particular webpage, the server for that webpage will subsequently respond to the browser, instructing the browser to send a []GET[] request to the third-party company charged with serving the advertisements for that particular webpage.”55 As to Google specifically, the complaint likewise pleads that “the server hosting the publisher‘s web-page ... instructs the user‘s web browser to send a GET request to Google to display the relevant advertising information for the space on the page for which Google has agreed to sell display advertisements.”56
If users’ browsers directly communicate with the defendants about the webpages they are visiting—as the complaint pleads with particularity—then there is no need for the defendants to acquire that information from transmissions to which they are
The complaint‘s descriptions of how tracking is accomplished, mеanwhile, further supports that the information was captured from the plaintiffs’ GET requests to the defendants. According to the complaint:
The information is sent to the companies and associated with unique cookies—that is how the tracking takes place. The cookie lets the tracker associate the web activity with a unique person using a unique browser on a device. Once the third-party cookie is placed in the browser, the next time the user goes to a webpage with the same [d]efendant‘s advertisements, a copy of that request can be associated with the unique third-party cookie previously placed. Thus the tracker can track the behavior of the user[.]59
If the information at issue is sent to the defendants in the ordinary course, then this description of the cookies makes sense. This is because in such a scenario the defendants need only associate information to track it, which can be successfully accomplished by affixing an identifier to that information. This is precisely how the complaint describes the defendants’ cookies’ function. With respect to Google, the complaint pleads installation of Google‘s “id” cookie, “which is a unique and consistent identifier given to each user by Google for its use in tracking persons across the entire spectrum of websites on which Google places ... cookies.”60 Google allegedly uses this cookie to “identif[y] users,” such that “the placement of the third-party cookies, placed by circumventing Plaintiffs’ and Class Members’ privacy settings, allows this identification to take place.”61 Likewise, as to two of the other defendants, the complaint says that “[t]he spokesman [for Vibrant] admitted Vibrant used the trick ‘for unique user identification,’ ”62 and that “Media‘s ‘id’ cookie is just that—an ‘ID’ or ‘identification’ cookie.”63
Just as the operative allegations in the complaint tend to support the inference that the cookies enabled the defendants to identify, and thus associate, information that the plaintiffs sent directly to them in the ordinary course, the operative allegations tend to negate any inference to the contrary. This is because, if the information at issue was not sent to the defendants in the ordinary course, mere identification cookies would not be sufficient for the defendants’ scheme. To accomplish their tracking in that instance, the defendants would have needed not an associative device, but one capable of capturing communications sent by the plaintiffs and intended for first-party websites, and then transmitting them to the defendants.64
In view of our common sense reading of the operative allegations of the complaint, we note the factual position that the defendants advanced at argument: “The cookie doesn‘t acquire anything.... The cookie doesn‘t look for anything. It just sits on the browser and gets sent along with information that would otherwise be sent.”66 The information at issue would be sent anyway because “the user‘s web browser send[s] a GET request to Google to display the relevant advertising information for the space on the page for which Google has agreed to sell display advertisements.”67 We note also that, at argument, the plaintiffs’ counsel was directly asked on six separate occasions to clarify what transmissions they believed were improperly acquired and/or how the defendants’ cookies functioned.68 The plaintiffs’ counsel did not provide a direct response on any of these occasions.
At the Rule 12(b)(6) stage “we accept the pleader‘s description of what happened to him or her along with any conclusions that can reasonably be drawn therefrom.”69 This standard permits the dismissal of a complaint “when [the] defendant‘s plausible alternative explanation is so convincing that plaintiff‘s explanation is implausible.”70 Here, the operative allegations of the complaint support only the conclusion that the defendants acquired the plaintiffs’ internet history information by way of GET requests that the plaintiffs sent directly to the defendants, and that the defendants deployed identifier cookies to make the information received from GET requests associable and thus trackable. And though the portion of the complaint pertaining to the Wiretap Act contains statements to the contrary, we need not give legal effect to “conclusory allegations” that are contradicted by the pleader‘s actual description of what happened.71
In short, our understanding of the plaintiffs’ allegations is that the defendants acquired the plaintiffs’ internet history information when, in the course of requesting webpage advertising content at the direction of the visited website, the plaintiffs’ browsers sent that information directly to the defendants’ servers.
b. Application of § 2511(2)(d)
Because the defendants were the intended recipients of the transmissions at issue—i.e. GET requests that the plaintiffs’ browsers sent directly to the defendants’ servers—we agree that
In their reply brief, the plaintiffs raise three objections in response to the argument that their Wiretap Act claim must fail because the defendants were the intended recipients of the relevant communications. None are persuasive.
First, the plaintiffs argue that we should not consider the defendants’ argument because the issue was not addressed by the District Court and because the defendants failed to raise the issue in the form of a cross-appeal. This is inappositе, for even if the defendants had never raised the issue at all, whether the plaintiffs have stated a claim is a matter of law to be determined from the face of their complaint. As always, we may affirm a district court‘s judgment on grounds other than those considered by the district court itself.73
Second, the plaintiffs argue that the party exception should not apply for equitable reasons, in that the transmitted GET requests included cookie information that the communications included only because of the defendants’ surreptitious circumvention of the cookie blockers. The point here is that, though the plaintiffs sent the GET requests to the defendants voluntarily, they were induced to do so by deceit. Though we are no doubt troubled by the various deceits alleged in the complaint, we do not agree that a deceit upon the sender affects the presumptive non-liability of parties under
It is not unimaginable that the Wiretap Act would give legal effect to the fraudulent participation of a party to a conversation.75 It is, after all, a wiretapping statute.76 Indeed, it appears the absence of an equitable exception to
When amending the federal [W]iretap [A]ct in 1968 to its current state, Congress specifically mentioned Pasha in its discussions of the “party to the communication” provision. In discussing
§ 2511(2)(c) , which is in pari materia with§ 2511(2)(d) and differs from that provision only in that§ 2511(2)(c) applies to persons acting under color of law, the Senate Judiciary Committee stated:Paragraph 2(c) provides that it shall not be unlawful for a party to any wire or oral communication to intercept such communication. It largely reflects existing law. Where one of the parties consents, it is not unlawful.... “[P]arty” would mean the person actually participating in the communication. (United States v. Pasha, 332 F.2d 193 (7th Cir.1964)).78
We agree with the Sixth Circuit and the Fifth Circuit that, “[b]y citing Pasha, Congress strongly intimated that one who impersonates the intended recipient of a communication may still be a party to that communication for the purposes of the federal wiretap statute and that such conduct is not proscribed by the statute.”79 Likewise, we conclude it was by design that there is no statutory language by which the defendants’ various alleged deceits would vitiate their claims to be parties to the relevant communications. The Wiretap Act is a wiretapping statute, and just because a scenario sounds in fraud or deceit does not mean it sounds in wiretapping.80
Finally, the plaintiffs argue that
As the Second Circuit explained in Caro v. Weintraub, “to survive a motion to dismiss, a plaintiff must plead sufficient facts to support an inference that the offender intercepted the communication for the purpose of a tortious or criminal act that is independent of the intentional act of recording.”82 And though the plaintiffs may well plead facts that constitute violations of California laws related to intrusion upon seclusion, for purposes of the exception to
Based on the facts alleged in the pleadings, the defendants were parties to any communications that they acquired, such that their conduct is within the
B. The Stored Communications Act
We next address the plaintiffs’ claim for violation of the Stored Communications Act,
To state a claim under the Stored Communications Act, a plaintiff must show that the defendant “(1) intentionally accesses without authorization a facility through which an electronic communication service
The District Court dismissed this claim on the basis of the Act‘s requirement that the illicit access be with respect to “a facility through which an electronic communication service is provided.”87 As pled in the complaint, the illicit access at issue was to the plaintiffs’ personal web browsers. But according to the District Court, “an individual‘s personal computing device is not a ‘facility through which an electronic communications service is provided.’ ”88 We agree, and we find persuasive the analysis of the Fifth Circuit in Garcia v. City of Laredo, which held that “a home computer of an end user is not protected by the [Act].”89
As noted by the Garcia court, though the Act does not define the term “facility,” the Act does define the term “electronic communication service,” which it defines as “any service which provides to users thereof the ability to send or receive wire or electronic communications.”90 This most naturally describes network service providers, and, indeed, “[c]ourts have interpreted the statute to apply to providers of a communication service such as telephone companies, [i]nternet or e-mail service providers, and bulletin board services.”91 The Act also defines “electronic storage” as “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.”92 Temporary storage incidental to transmission and storage for purposes of backup protection are not how personal computing devices keep communications, but how third party network service providers do—or at least did, in 1986.93
There is then the language of
The origin of the Stored Communications Act confirms that Congress crafted the statute to specifically protect information held by centralized communication providers. “‘Sen. Rep. No. 99-541 (1986)‘s entire discussion of [the Stored Communications Act] deals only with facilities operated by electronic communications services such as “electronic bulletin boards” and “computer mail facilit[ies],” and the risk that communications temporarily stored in these facilities could be accessed by hackers. It makes no mention of individual users’ computers....‘”95
The plaintiffs take a different view, arguing that the plain language of the terms “facility” and “electronic communication service” are sufficiently flexible to encompass contemporary personal computing devices that are used to engage with telecommunications services. After all, when the Act was enacted, Black‘s Law Dictionary defined “facilities” as “that which promotes the ease of any action, operations, transaction, or course of conduct.”96 And the plaintiffs here use their web browsers to access network services such as email and websurfing.
In considering the plaintiffs’ argument that we should give “facility” a broad, plain language meaning, we are reminded that “[a] fair reading of legislation demands a fair understanding of the legislative plan.”97 And we agree with the Fifth Circuit that the Act clearly shows a specific congressional intent to deal with the particular problem of private communications in network service providers’ possession. The textual cues surrounding the term “facility,” bolstered by the legislative history and enactment context of the Act, support the conclusion that “the words of the statute were carefully chosen: ‘[T]he statute envisions a provider (the [Internet Service Provider] or other network service provider) and a user (the individual with an account with the provider), with the user‘s communication in the possession of the provider.’ ”98 And “[t]his is consistent with the [Act]‘s purpose: home computers are already protected by the Fourth Amendment, so statutory protections are not needed.”99 In this context, “facility” is a term of art denoting where network service providers store private communications.
Other Courts of Appeals have understood the Act in a similar manner. In In re: Zynga Privacy Litigation, the Ninth Circuit explained that the Act “covers access to electronic information stored in third party computers.”100 So, too, the Eleventh Circuit in United States v. Steiger, which held that “the [Stored Communi-
In sum, the defendants’ alleged conduct implicates no protected “facility.” The District Court‘s dismissal of the claim for violation of the Act will therefore be affirmed.
C. Computer Fraud and Abuse Act
The plaintiffs’ final federal claim is for violation of the Computer Fraud and Abuse Act,
The District Court dismissed this claim for failing to meet the statutory requirement of “damage or loss.”105 Under the Act, “the term ‘damage’ means any impairment to the integrity or availability of data, a program, a system, or information.”106 Meanwhile, “the term ‘loss’ means any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.”107
On appeal, the plaintiffs contend that they have properly pled “loss” under the statute because they have allеged that their “impermissibly seized [p]ersonally [i]dentifiable [i]nformation is both ‘currency’ and a marketable ‘commodity.’ ”108 By capturing and making economic use of such information, the plaintiffs say, the defendants have taken the value of such information for themselves, depriving the
The complaint plausibly alleges a market for internet history information such as that compiled by the defendants. Further, the defendants’ alleged practices make sense only if that information, tracked and associated, had value. However, when it comes to showing “loss,” the plaintiffs’ argument lacks traction. They allege no facts suggesting that they ever participated or intended to participate in the market they identify, or that the defendants prevented them from capturing the full value of their internet usage information for themselves. For example, they do not allege that they sought to monetize information about their internet usage, nor that they ever stored their information with a future sale in mind. Moreover, the plaintiffs do not allege that they incurred costs, lost opportunities to sell, or lost the value of their data as a result of their data having been collected by others. To connect their allegations to the statutory “loss” requirement, the plaintiffs’ briefing emphasizes that lost revenue may constitute “loss” as that term is defined in the Act.109 This is inapposite, however, in that the plaintiffs had no revenue.
We see no “damage” or “loss” in the pleadings. We will therefore affirm the District Court‘s dismissal of the claim for violation of the Computer Fraud and Abuse Act.
IV. State Law Claims Against Google
We now turn to the five California state law claims brought against Google only.
A. Freestanding Privacy Claims
We first consider, in tandem, the plaintiffs’ freestanding privacy claims under the California Constitution110 and California tort law.
“A privacy violation based on the common law tort of intrusion has two elements.”111 “First, the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy.”112 This means “the defendant must have ‘penetrated some zone of physical or sensory privacy .... or obtained unwanted access to data’ by electronic or other covert means, in violation of the law or social norms.”113 Second, “the intrusion must occur in a manner highly offensive to a reasonable person.”114
“The right to privacy in the California Constitution sets standards similar to the common law tort of intrusion.”115 “First, [the plaintiff] must possess a legally protected privacy interest.... Second,
When presented with parallel privacy claims under tort law and the California Constitution, the California Supreme Court has performed a dual inquiry “under the rubric of both ... tests.”117 This “consider[s] (1) the nature of any intrusion upon reasonable expеctations of privacy, and (2) the offensiveness or seriousness of the intrusion, including any justification and other relevant interests.”118 In evaluating the offensiveness of an invasion, the court is to consider “pragmatic policy concerns” such that “no cause of action will lie for accidental, misguided, or excusable acts of overstepping upon legitimate privacy rights.”119
In dismissing the freestanding privacy claims, the District Court concluded that Google‘s alleged practices “did not rise to the level of a serious invasion of privacy or an egregious breach of social norms.”120 Contending the District Court got it right, Google says the plaintiffs voluntarily sent Google all the internet usage information at issue.121 Moreover, Google argues, tracking cookies are routine.122 Pointing to cases describing cookies as, more or less, innocuous,123 Google offers that courts “routinely” find no actionable privacy invasion in cases involving tracking, collation, and disclosure of internet usage information.124 Google gives particular attention to Low v. LinkedIn, where the Northern District of California explained that “[e]ven disclosure of personal information, including social security numbers, does not constitute an ‘egregious breach of the social norms’ to establish an invasion of privacy claim.”125
For purposes of California privacy law, Google‘s emphasis on tracking and disclosure amounts to a smokescreen. What is notable about this case is how Google accomplished its tracking. Allegedly, this was by overriding the plaintiffs’ cookie blockers, while concurrently announcing in its Privacy Policy that internet users could “reset your browser to refuse all cookies.”126 Google further assured Safari users specifically that their cookie blockers meant that using Google‘s in-house prophylactic would be extraneous. Characterized by deceit and disregard, the alleged conduct raises different issues than tracking or disclosure alone.127
As for whether the alleged conduct is “so serious in nature[] [and] scope as to constitute an egregious breach of the social nоrms,”132 Google not only contravened the cookie blockers—it held itself out as respecting the cookie blockers. Whether or not data-based targeting is the internet‘s pole star, users are entitled to deny consent, and they are entitled to rely on the public promises of the companies they deal with. Furthermore, Google‘s alleged conduct was broad, touching untold millions of internet users; it was surreptitious, surfacing only because of the independent research of Mayer and the Wall Street Journal; and it was of indefinite duration, with Google‘s counsel conceding at argument that their tracking cookies have no natural lifespan. Particularly as concerns Google‘s public statements regarding the Safari cookie blocker, we see no justification. Neither, apparently, do the elected branches, as California and federal executive agencies have themselves sought to penalize Google for the events alleged in the complaint.133 Based on the pledged facts, a reasonable factfinder could indeed deem Google‘s conduct “highly offensive” or “an egregious breach of social norms.”134
A reasonable jury could conclude that Google‘s alleged practices constitute the serious invasion of privacy contemplated by California law. We will vacate the dismissal of the plaintiffs’ claims under the California Constitution and California tort law.
We next consider the plaintiffs’ claim against Google for violation of the California Invasion of Privacy Act,
The District Court dismissed the
C. Remaining State Law Claims
We will affirm the District Court‘s dismissals of the remaining state law claims against Google.
The District Court dismissed the plaintiffs’ claim under the California Unfair Competition Law,
The California Consumers Legal Remedies Act,
V. Conclusion
In light of the foregoing, we will dispose of the plaintiffs’ claims in the following manner.
We will affirm the dismissal of the three federal law claims brought against all defendants. Because the defendants were parties to all electronic transmissions at issue in this case, and plaintiffs state no Wiretap Act violation per
We will vacate the District Court‘s dismissal of the plaintiffs’ freestanding privacy claims against Google under the California Constitution and California tort law. A reasonable factfinder could conclude that the means by which defendants allegedly accomplished their tracking, i.e., by way of a deceitful override of the plaintiffs’ cookie blockers, marks the serious invasion of privacy contemplated by California law. But we will affirm the dismissal of the remainder of the plaintiffs’ state law claims. The plaintiffs fail to plead a violation of the California Invasion of Privacy Act for the same reason that they fail to plead a violation of the federal Wiretap Act. Likewise, because they do not show loss, the plaintiffs fail to show violations of the California Unfair Competition Law or the California Comprehensive Computer Data Access and Fraud Act. Finally, the plaintiffs do not plead a “sale” as required by the California Consumers Legal Remedies Act.
Sandra J. BABCOCK; James T. Kenaan, Jr.; Bradley J. Sarvey; Dale R. Lipan; Shawn J. Kelly; Samantha Pistorius; Anthony Blumling; Randal K. Cypher; Chad Neigh; Tory A. Coyle; Joseph Hanchosky; Darren M. Knox; Todd Walker; Michael Emery; Kevin Pollack; Ray Slater; Michael J. Shu-