Low v. Linkedin Corporation

Filing 34

MOTION to Dismiss Amended Complaint filed by Linkedin Corporation. Motion Hearing set for 3/22/2012 01:30 PM in Courtroom 4, 5th Floor, San Jose before Hon. Lucy H. Koh. Responses due by 2/2/2012. Replies due by 2/17/2012. (Frankel, Simon) (Filed on 1/9/2012)

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SIMON J. FRANKEL (State Bar No. 171552)
E-Mail: [e-mail]
MALI B. FRIEDMAN (State Bar No. 247514)
E-Mail: [e-mail]
COVINGTON & BURLING LLP
One Front Street, 35th Floor
San Francisco, California 94111
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
LINKEDIN CORPORATION

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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KEVIN LOW, individually and on behalf of
all others similarly situated, et al.,

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Plaintiffs,

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vs.

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LINKEDIN CORPORATION, a California
Corporation, and Does 1 to 50 inclusive,

Civil Case No.: 5:11-cv-01468 LHK
NOTICE OF MOTION AND
MOTION TO DISMISS THE
AMENDED COMPLAINT;
MEMORANDUM OF POINTS AND
AUTHORITIES
(Fed. R. Civ. P. 12(b)(1), (b)(6))

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Defendants.
Date: March 22, 2012
Time: 1:30 p.m.
Courtroom: 4, 5th Floor

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NOTICE OF MOTION AND MOTION TO DISMISS THE
AMENDED COMPLAINT; MEMORANDUM OF POINTS
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TABLE OF CONTENTS

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Page

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NOTICE OF MOTION AND MOTION ....................................................................................... 1

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STATEMENT OF ISSUES TO BE DECIDED ............................................................................ 1

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MEMORANDUM OF POINTS AND AUTHORITIES ............................................................... 1

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I.

INTRODUCTION ............................................................................................................. 1

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II.

FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY .................................... 3

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III.

ARGUMENT ..................................................................................................................... 5

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The Amended Complaint Must Be Dismissed Because It Still Does
Not Allege The Particularized And Concrete Injury-In-Fact Necessary
To Support Article III Standing. ............................................................................ 5

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1.

The Amended Complaint’s Fleeting References To Emotional
Harm Are Insufficient To Create Article III Standing............................... 7

2.

The Theoretical Claims Of Economic Harm Are Insufficient
As A Matter Of Law And Are Neither Concrete Nor
Particularized As To Either Named Plaintiff. ............................................ 8

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A.

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B.

Each Cause Of Action In The Amended Complaint Fails To State A
Claim.................................................................................................................... 10

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1.

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The Stored Communication Act Claim Fails On Multiple
Grounds.................................................................................................... 10
a)

The SCA Claim Fails Because LinkedIn Does Not Act As
Either An ECS Or An RCS With Respect To The Conduct
At Issue. ....................................................................................... 11

b)

The SCA Claim Fails Because The Amended Complaint
Does Not Allege That LinkedIn Disclosed
Communications Of Plaintiffs That Were Held In
Electronic Storage By LinkedIn. ................................................. 12

c)

LinkedIn’s Conduct Was Authorized Under The SCA
Because The Disclosures Alleged Were Made To Or By
The Intended Recipient Of The Communications. ...................... 14

d)

The SCA Claim Fails Because The Amended Complaint
Still Only Alleges Disclosure Of Non-Content
Information. ................................................................................. 15

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2.

Plaintiffs’ Claims Under California’s False Advertising Law
Fails As A Matter Of Law. ...................................................................... 19

3.

Plaintiff’s Privacy Claims Should Be Dismissed. ................................... 20

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AMENDED COMPLAINT; MEMORANDUM OF POINTS
AND AUTHORITIES

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4.

The Contract Claim Fails To Allege Recoverable Contract
Damages .................................................................................................. 22

5.

Plaintiff’s Conversion Claim Fails As A Matter of Law. ........................ 23

6.

The Newly-Minted “Negligence” Claim Fails As A Matter of
Law. ......................................................................................................... 24

7.

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Unjust Enrichment Is Not An Independent Cause Of Action.................. 25

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IV.

CONCLUSION................................................................................................................ 25

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TABLE OF AUTHORITIES

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Page(s)
CASES
Aas v. Super. Ct.,
24 Cal. 4th 627 (2000) ............................................................................................................. 24
Aguilera v. Pirelli Armstrong Tire Corp.,
223 F.3d 1010 (9th Cir. 2000) ................................................................................................. 22
Ajaxo Inc. v. E*Trade Group, Inc.,
135 Cal. App. 4th 21 (2005) .................................................................................................... 23
Allen v. City of Beverly Hills,
911 F.2d 367 (9th Cir. 1990) ................................................................................................... 25
Applied Equip. Corp. v. Litton Saudia Arabia Ltd.,
7 Cal. 4th 503 (1994) ......................................................................................................... 22, 24
Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009)............................................................................................................... 5
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)............................................................................................................. 5, 25
Birdsong v. Apple, Inc.,
590 F.3d 955 (9th Cir. 2009) ................................................................................................... 10
Boon Rawd Trading Int’l Co. v. Paleewong Trading Co.,
688 F. Supp. 2d 940 (N.D. Cal. 2010) ..................................................................................... 23

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Doe v. Texaco,
No. C 06-02820 WHA, 2006 WL 2053504 (N.D. Cal. July 21, 2006) ................................... 20
Duarte v. Zachariah,
22 Cal. App. 4th 1652 (1994) .................................................................................................. 24
Durell v. Sharp Healthcare,
183 Cal. App. 4th 1350 (2010) ................................................................................................ 25

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25
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Evan F. v. Hughson United Methodist Church,
8 Cal. App. 4th 828 (1992) ...................................................................................................... 24
Ferrington v. McAfee, Inc.,
No. 10-cv-01455-LHK, 2010 WL 3910169 (N.D. Cal. 2010) ................................................ 25
Folgelstrom v. Lamps Plus, Inc.,
195 Cal. App. 4th 986 (Cal. Ct. App. 2011) ...................................................................... 21, 22

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AMENDED COMPLAINT; MEMORANDUM OF POINTS
AND AUTHORITIES

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Fraley v. Facebook, Inc.,
--- F.Supp.2d---, No. 11-cv-01726-LHK ....................................................................... 6, 10, 25
Fraser v. Nationwide Mut. Ins. Co.,
135 F. Supp. 2d 623 (E.D. Pa. 2001) ....................................................................................... 13
Fraser v. Nationwide Mut. Ins. Co.,
352 F.3d 107 (3d Cir. 2004) .................................................................................................... 13
Freeman v. DirecTV, Inc.,
457 F.3d 1001 (9th Cir. 2006) ................................................................................................. 19
Fremont Indem. Co. v. Fremont Gen. Corp.,
148 Cal. App. 4th 97 (2007) .............................................................................................. 23, 24
G.S. Rasmussen & Assoc. Inc. v. Kalitta Flying Serv.
958 F.2d 896 (9th Cir. 1992) ................................................................................................... 23
Gibson v. Office of the Attorney Gen.,
561 F.3d 920 (9th Cir. 2009) ................................................................................................... 22

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Gratz v. Bollinger,
539 U.S. 244 (2003)................................................................................................................... 6
Hernandez v. Hillsides, Inc.,
47 Cal. 4th 272 (2009) ............................................................................................................. 21
Hill v. MCI WorldCom Commcn’s, Inc.,
120 F. Supp. 2d 1194 (S.D. Iowa 2000) .................................................................................. 17

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Hill v. Nat’l Collegiate Athletic Ass’n,
7 Cal. 4th 1 (1994) ................................................................................................................... 21
Hill v. Roll Int’l Corp.,
195 Cal. App. 4th 1295 (2011) ................................................................................................ 25
In re Am. Airlines, Inc. Privacy Litig.,
370 F. Supp. 2d 552 (N.D. Tex. 2005) .................................................................................... 15

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In re Doubleclick Inc. Privacy Litig.,
154 F. Supp. 2d 497 (S.D.N.Y. 2001) ................................................................................. 9, 13
In re Facebook Privacy Litig.,
791 F. Supp. 2d 705 (N.D. Cal. 2011) ......................................................................... 15, 22, 23
In re Facebook Privacy Litig.,
No. C 10-02389 JW, 2011 WL 6176208, .(N.D. Cal. Nov. 22, 2011) .................................... 15
In re iPhone Application Litig.,
No. 11-MD-02250-LHK, 2011 WL 4403963 (N.D. Cal. Sept. 20, 2011) .............. 9, 19, 24, 25
NOTICE OF MOTION AND MOTION TO DISMISS THE
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AMENDED COMPLAINT; MEMORANDUM OF POINTS
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In re JetBlue Airways Corp. Privacy Litig.,
379 F. Supp. 2d 299 (E.D.N.Y. 2005) ................................................................................. 9, 23
In re Michaels Stores Pin Pad Litigation,
No. 11 C 3350, --- F.Supp.2d ---, 2011 WL 5878373 (N.D. Ill. Nov. 23, 2011) .................... 11
In re Tobacco II Cases,
46 Cal. 4th 298 (2009) ............................................................................................................. 20
In re U.S.,
665 F. Supp. 2d 1210 (D.Or. 2009) ......................................................................................... 12
Jessup-Morgan v. Am. Online, Inc.,
20 F. Supp. 2d 1105 (E.D. Mich. 1998) ............................................................................ 17, 19
Kwikset Corp. v. Super. Ct.,
51 Cal. 4th 310 (2011) ............................................................................................................. 20
LaCourt, et al. v. Specific Media, Inc.,
No. SACV 10-1256-GW, 2011 WL 1661532 (C.D. Cal. Apr. 28, 2011) ............................. 8, 9

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Ladd v. County of San Mateo,
12 Cal. 4th 913 (1996) ............................................................................................................. 24
Laster v. T-Mobile USA, Inc.,
407 F. Supp. 2d 1181 (S.D. Cal. 2005).................................................................................... 19
Levine v. Blue Shield of Cal.,
189 Cal. App. 4th 1117 (2010) ................................................................................................ 25

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Lorenz v. Sauer,
807 F.2d 1509 (9th Cir. 1987) ................................................................................................. 20
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992)..................................................................................................... 5, 6, 8, 10
Melchior v. New Line Prods., Inc.,
106 Cal. App. 4th 779 (2003) .................................................................................................. 25

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Navarro v. Block,
250 F.3d 729 (9th Cir. 2001) ..................................................................................................... 5
Quon v. Arch Wireless Operating Co., Inc.,
529 F.3d 892 (9th Cir. 2008), reversed on other grounds by City of Ontario v. Quon,
130 S. Ct. 2619 (2010)....................................................................................................... 10, 14
Raines v. Byrd,
521 U.S. 811 (1997)................................................................................................................... 6

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Reilly v. Ceridian Corp.,
--- F.3d ---, 2011 WL 6144191 (3d Cir. Dec. 12, 2011) ............................................................ 9
Robins v. Spokeo, Inc.,
No. CV10-05306 ODW, 2011 WL 597867 (C.D. Cal. Jan. 27, 2011)...................................... 9
Rosen v. State Farm Gen. Ins. Co.,
30 Cal. 4th 1070 (2003) ........................................................................................................... 24
Ruiz v. Gap, Inc.,
540 F. Supp. 2d 1121 (N.D. Cal 2008) ........................................................................ 21, 22, 23
Ruiz v. Gap, Inc.,
622 F. Supp. 2d 908 (N.D. Cal. 2009) ..................................................................................... 22
Sams v. Yahoo!, Inc.,
No. CV-10-5897-JF (HRL), 2011 WL 1884633 (N.D. Cal. May 18, 2011) ........................... 16
Shulman v. Group W Prods, Inc.,
18 Cal. 4th 200 (1998) ............................................................................................................. 21

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Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83 (1998)..................................................................................................................... 5
Summers v. Earth Island Institute,
129 S. Ct. 1142 (2009)............................................................................................................... 6
Theofel v. Farey-Jones,
359 F.3d 1066 (9th Cir. 2004) ........................................................................................... 13, 14

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U.S. v. Forrester,
512 F.3d 500 (9th Cir. 2008) ............................................................................................. 17, 18
Vess v. Ciba-Geiby Corp. USA,
317 F.3d 1097 (9th Cir. 2003) ................................................................................................. 20
Warth v. Seldin,
422 U.S. 490 (1975)................................................................................................................... 6

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Whitmore v. Arkansas,
495 U.S. 149 (1990)................................................................................................................... 6

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STATUTES

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18 U.S.C. §2510......................................................................................................................passim

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18 U.S.C. §§2701(a) ................................................................................................................ 11, 12

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18 U.S.C. §§2701 et seq. ........................................................................................................... 5, 10

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18 U.S.C. §2702............................................................................................................................. 17

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18 U.S.C. §2702(a) ........................................................................................................................ 10

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18 U.S.C. §2702(b) .................................................................................................................. 14, 15

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18 U.S.C. §2702(c) ........................................................................................................................ 15

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Cal. Bus. & Prof. Code §17200 ..................................................................................................... 19
Cal. Bus. & Prof. Code §17500 ................................................................................................. 5, 19

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Cal. Bus. & Prof. Code §17535 ..................................................................................................... 19
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Cal. Civ. Code §3358..................................................................................................................... 23
Fed. R. Civ. Proc. 12(b)(1) ................................................................................................ 1, 3, 5, 10

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Fed. R. Civ. Proc. 12(b)(6) .................................................................................................... 1, 5, 10

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OTHER AUTHORITIES

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California Constitution, Article 1, Section 1 ............................................................................. 5, 20

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Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's
Guide to Amending It, 72 GEO WASH L. REV. 1208, 1212 (2004) .............................. 11, 12, 13

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Orin S. Kerr, Internet Surveillance Law After the USA Patriot Act: The Big Brother That
Isn’t, 97 NW. U. L. REV. 607, 611 (2003) ................................................................................ 16

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S. Rep. 99-541, 1986 U.S.C.C.A.N. 3555 ..................................................................................... 16

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U.S. Constitution, Article III ..................................................................................................passim

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NOTICE OF MOTION AND MOTION

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TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

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PLEASE TAKE NOTICE that on March 22, 2012, at 1:30 p.m., in the courtroom of the

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Honorable Lucy H. Koh, or at such date and time as the Court may otherwise direct, Defendant

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LinkedIn Corporation will, and hereby does, move to dismiss the Amended Complaint in Low et

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al. v. LinkedIn Corporation, 5:11-cv-01468 LHK, pursuant to Federal Rule of Civil Procedure

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12(b)(1), or in the alternative, pursuant to Federal Rule of Civil Procedure 12(b)(6).
This motion is made on the grounds that (1) plaintiffs lack Article III standing to bring

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the Amended Complaint; and (2) each of the causes of action in the Amended Complaint fails to
state a claim as a matter of law.
This motion is based on this Notice of Motion and Motion, the Memorandum of Points

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and Authorities below, and such other submissions presented before or at the Motion’s hearing.

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STATEMENT OF ISSUES TO BE DECIDED
1.

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and particularized harm required to establish standing under Article III of the U.S. Constitution.
2.

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Whether the Amended Complaint should be dismissed because plaintiffs fail to

state a claim upon which relief can be granted for each of the causes of action asserted.
MEMORANDUM OF POINTS AND AUTHORITIES

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Whether the Amended Complaint fails to allege “injury-in-fact” or a concrete

I.

INTRODUCTION

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Plaintiff Kevin Low’s original Complaint failed to allege facts establishing that

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LinkedIn had done anything to harm him (or really that LinkedIn had done anything wrong at

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all). As a result, this Court’s November 11, 2011 Order dismissed the Complaint for failure to

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allege Article III standing. Low v. LinkedIn Corp., No. 11-CV-01468-LHK, 2011 WL 5509848

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(N.D. Cal. Nov. 11, 2011) (“November 11 Order”). While the Amended Complaint makes

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minor tweaks to the original Complaint, it suffers from the same fatal flaws and so should be

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dismissed with prejudice.

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The central claim of the Amended Complaint remains that LinkedIn assigns

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unique user identification numbers (“User IDs”) to users of its website and then transmits

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certain User IDs and the URL addresses for LinkedIn profile pages to third parties in a way that

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somehow allows those third parties to match the actual identity of specific LinkedIn users with

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Internet browsing histories compiled by these third parties through cookies placed and

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controlled by these third parties (and not by LinkedIn). The net result, plaintiffs contend, is that

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these third parties could theoretically tie a previously anonymous Internet browsing history to a

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specific individual. But the Amended Complaint still fails to allege that anyone actually “de-

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anonymized” the browsing history of any LinkedIn user, let alone one of the named plaintiffs.

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Also absent from the Amended Complaint is any explanation of how this purported practice

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harmed plaintiffs or benefited LinkedIn. As a result, plaintiffs cannot have suffered the concrete

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or particularized injury necessary to establish Article III standing, and the Amended Complaint

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must be dismissed with prejudice.

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The Amended Complaint also fails to state a claim as to any of the causes of
action pled, requiring dismissal with prejudice:
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The Stored Communications Act claim fails for four independent reasons:

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(a) the Amended Complaint’s allegations do not establish that LinkedIn functions as either an

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electronic communication service or a remote computing service with respect to the alleged

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conduct; (b) the Amended Complaint does not allege the disclosure of communications of

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plaintiffs that were held by LinkedIn in electronic storage; (c) the alleged disclosures were made

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to the intended recipients of the communications; and (d) no communications content is alleged

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to have been disclosed to non-governmental entities.

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2.

The false advertising claim fails because plaintiffs do not adequately

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allege injury-in-fact, do not allege that any purported loss of money or property was in reliance

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on any false advertising by LinkedIn, and do not allege any misrepresentations with the

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specificity required by Rule 9(b).

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3.

The privacy claims under the California Constitution and common law

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invasion of privacy must be dismissed because the invasion of privacy alleged is not sufficiently

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invasive or offensive as a matter of law.
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4.

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Plaintiffs’ other common law claims must be dismissed because (a) the

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breach of contract claim does not allege any actual harm or cognizable damages; (b) the

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conversion claim fails because no tangible property is at issue and no damages are alleged; (c)

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the negligence claim does not allege that any independent duty is owed by LinkedIn; and (d) the

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unjust enrichment claim is not an independent cause of action.
The Amended Complaint must be dismissed in its entirety with prejudice.

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II.

FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY
On March 25, 2011, plaintiff Kevin Low filed his original Complaint against

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LinkedIn, alleging that LinkedIn transmitted its assigned User IDs as a portion of URL referrer

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headers to third parties in a way that somehow (never explained) allowed those third parties to

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correlate the identity of LinkedIn users with their Internet browsing histories through third party

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cookies placed and controlled by these third parties (and not by LinkedIn). Based on this

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alleged conduct, Low asserted a violation of the Stored Communications Act and numerous

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state statutory and common law claims. In its November 11 Order, the Court granted

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LinkedIn’s Motion to Dismiss, finding that the plaintiff failed to allege any concrete or

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particularized injury sufficient to establish Article III standing. November 11 Order. The Court

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did not reach the Rule 12(b)(6) issues raised by LinkedIn’s Motion. See id. at *6.

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On December 2, 2011, Low filed an Amended Complaint (“AC”), adding Alan

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Masand as an additional named plaintiff. Dkt. No. 31. While Low is simply alleged to be a

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“registered user of LinkedIn” (id. ¶1), Masand is alleged to be a “paid user” who purchased a

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“Job Seeker Premium” subscription to LinkedIn in November 2011 (id. ¶2).

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The central allegation in the Amended Complaint has not changed from that of

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the original Complaint—that LinkedIn wrongfully transmitted plaintiffs’ and the purported class

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members’ unique LinkedIn User IDs and the URLs of pages visited on the LinkedIn website to

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third parties. Id. pg. 1 & ¶¶16, 28. According to the Amended Complaint, by transmitting these

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User IDs and a “LinkedIn Browsing History” (the URL addresses of profile pages visited on the

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LinkedIn website) to third parties, this information “gave the Third Parties the ability to

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correlate Plaintiffs’ actual identities with their broader Internet browsing histories.” Id. ¶5; see
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also id. ¶¶20, 31. While the Amended Complaint speculates about ways in which transmission

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of a User ID in connection with the URL of a viewed LinkedIn page could render a browsing

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history collected by third parties (and entirely independent from LinkedIn) non-anonymous, see

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id. ¶¶27, 33-35, 1 it does not allege that any third party actually engaged in such conduct.
Also still notably absent from the Amended Complaint is any concrete

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articulation of how LinkedIn’s purported conduct harmed plaintiffs. The only assertions of

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harm are plaintiffs’ passing allegation of “embarrass[ment] and humiliat[ion] by the disclosure

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of their personally identifiable browsing history” and that as a result of this disclosure, plaintiffs

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have “relinquished [] valuable personal property without the compensation to which they were

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each due.” Id. ¶5. The only additional facts even remotely related to the loss of “valuable

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personal property” consists of unsubstantiated statements that the purported “market value” of

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plaintiffs’ browsing history increases when correlated with a personal identity (see id.), and that

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the value of this personal information to plaintiffs is “diminished [or] eliminated, if the

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information is publicly distributed or leaked.” See id. ¶48. The Amended Complaint again

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references one U.K.-based service, unconnected to plaintiffs, that purportedly enables users to

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sell their personal data to others (see id. ¶¶47-48) but does not suggest that plaintiffs ever

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attempted to sell their personal information to any such company, or, if they did, that LinkedIn’s

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conduct negatively impacted any ascertainable value. Although the Amended Complaint points

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out that LinkedIn earned revenues in 2010 (id. ¶47), it does not explain how LinkedIn allegedly

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benefited from the alleged conduct, other than a conclusory and unsupported statement that

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Many of these theories rely on factually incorrect premises. For example, it is false that
“[p]rior to the filing of the initial complaint, anyone could insert a LinkedIn ID into a URL and
visit the corresponding LinkedIn member’s public profile.” See id. ¶27. Additionally, when a
“stranger” visits the profile page associated with a User ID, the third party does not receive a
“working link to the ID’s corresponding profile” (see id. ¶33), because the “password-like
parameters” in place prevent exactly this. But even accepting such factually incorrect assertions
as true under the standards of a motion to dismiss, the Amended Complaint still must be
dismissed in its entirety given that, as discussed below, plaintiffs do not allege how third parties
reliably could connect plaintiffs’ identities to previously anonymous browsing histories, that any
third party actually has done so, or why LinkedIn should be responsible for that conduct, even if
it did occur.

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personal information has value to companies like LinkedIn “because it can be compiled and sold

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as demographic data and advertising analytics, or sold on a per-name basis.” Id. ¶48.
The Amended Complaint alleges a violation of the Stored Communications Act,

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18 U.S.C. §§2701 et seq. (First Cause of Action), Article 1, Section 1 of the California

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Constitution (Second Cause of Action), California Business and Professions Code Section

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17500 (Third Cause of Action), as well as common law claims for breach of contract (Fourth

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Cause of Action), invasion of privacy (Fifth Cause of Action), conversion (Sixth Cause of

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Action), unjust enrichment (Seventh Cause of Action), and negligence (Eighth Cause of

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Action). Id. ¶¶65-125.

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III.

ARGUMENT
Where the allegations of a complaint do not establish standing under Article III

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of the U.S. Constitution, a federal court does not have subject matter jurisdiction to hear the

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case, and the complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1).

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See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101-02 (1998).
A court may dismiss a claim under Rule 12(b)(6) when “there is no cognizable

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legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.”

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Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). On a Rule 12(b)(6) motion, “all material

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allegations of the complaint are accepted as true, as well as all reasonable inferences to be

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drawn from them.” Id. However, “labels and conclusions, and a formulaic recitation of the

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elements of a cause of action will not” survive a motion to dismiss. Bell Atl. Corp. v. Twombly,

21

550 U.S. 544, 555 (2007). A plaintiff therefore must plead “more than a sheer possibility that a

22

defendant has acted unlawfully.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

23

A.

24

The Amended Complaint Must Be Dismissed Because It Still Does Not
Allege The Particularized And Concrete Injury-In-Fact Necessary To
Support Article III Standing.

25

To have the requisite Article III standing to maintain an action in federal court, a

26

plaintiff must allege adequate “injury in fact”—meaning that the plaintiff has “suffered . . . an

27

invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or

28

imminent.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (quotations and
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citation omitted). The injury in fact must be “concrete in both a qualitative and temporal sense,”

2

and plaintiff must “allege an injury to himself that is ‘distinct and palpable’ as opposed to

3

merely ‘abstract.’” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (citations omitted). Article

4

III standing also requires that the plaintiff allege that the challenged conduct caused the injury

5

and that a favorable decision will redress the injury. See Lujan, 504 U.S. at 560-61. Notably,

6

named plaintiffs purporting to represent a class “must allege and show that they personally have

7

been injured, not that injury has been suffered by other, unidentified members of the class to

8

which they belong and which they purport to represent.” Gratz v. Bollinger, 539 U.S. 244, 289

9

(2003) (internal quotation marks and citations omitted).
While this Court recently explained that “a plaintiff may be able to establish

10
11

constitutional injury in fact by pleading violation of a right conferred by statute,” such a plaintiff

12

still must “allege that the injury she suffered was specific to her”—meaning that the injury was,

13

as the Supreme Court has repeatedly held, “‘concrete and particularized’” as to that plaintiff.

14

Fraley v. Facebook, Inc., --- F.Supp.2d---, No. 11-cv-01726-LHK, 2011 WL6303898, at *6

15

(N.D. Cal. Dec. 16, 2011) (quoting Lujan, 504 U.S. at 560-61). 2
This Court’s November 11 Order dismissed plaintiff Low’s Complaint because it

16
17

failed to allege harm specific to Low. Plaintiff Low contended that he was embarrassed and

18

humiliated by third parties being able to deanonymize his browsing history, but he did not

19

actually allege how any third party could do so, let alone that any third party actually connected

20

his identity to a browsing history. See November 11 Order, at *3. He also claimed that he was

21
22
23
24
25
26
27

2

As this Court’s recent Fraley decision made clear, even if Congress can create a category of
injury by statute, a plaintiff still must allege “concrete and particularized” injury specific to him
or her to satisfy Article III. See Fraley, 2011 WL 6303898, at *6. Indeed, Warth v. Seldin, 422
U.S. 490 (1975), specifically required the plaintiff there to “allege a distinct and palpable injury
to himself” in order to establish Article III standing. Id. at 500-01. Nor could it be otherwise, as
the Supreme Court repeatedly has held that “the requirement of injury in fact is a hard floor of
Article III jurisdiction that cannot be removed by statute.” Summers v. Earth Island Institute,
129 S. Ct. 1142, 1151 (2009); see Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997) (“Congress
cannot erase Article III’s standing requirements by statutorily granting the right to sue to a
plaintiff who would not otherwise have standing”); see generally Lujan, 504 U.S. at 578
(“[Statutory] broadening of the categories of injury that may be alleged in support of standing is
a different matter from abandoning a requirement that the party seeking review must himself
have suffered injury.”).

28
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somehow deprived of the economic value of his personal information, but failed to allege that

2

any of his personal information actually was obtained by any third party, let alone that he was

3

thereby deprived of cognizable economic value. See id. at *4-6.
The Amended Complaint added allegations about how LinkedIn purportedly

4
5

transmits certain information to third parties—specifically the URL addresses of the pages on

6

LinkedIn that a user viewed and the LinkedIn User ID associated with the viewed profile 3—and

7

how such information theoretically could allow third parties to deanonymize Internet users’

8

browsing histories. But although plaintiffs’ Amended Complaint replaces the concept of a

9

“‘HTTP Referrer’ header” from the original Complaint with the terms “LinkedIn-related

10

browsing history” and “information regarding the Viewed Page” (see AC ¶¶5, 16, 66-68), the

11

Amended Complaint fails to explain how any information purportedly was sent to third parties

12

other than the transmission by a user’s web browser of a LinkedIn User ID as a component of a

13

URL address. See id. In any event, there still is no allegation that any third party has in fact

14

associated the actual identity of a single LinkedIn user (let alone of a named plaintiff) with an

15

independently collected browsing history for that person. Moreover, the Amended Complaint

16

fails to remedy the fatal defects identified in the Court’s November 11 Order—the lack of

17

articulation of any actual injury that a named plaintiff has suffered.

18

1.

19

The Amended Complaint’s Fleeting References To Emotional Harm
Are Insufficient To Create Article III Standing.

Just as in the original Complaint, the Amended Complaint makes one fleeting
20
reference to alleged emotional distress experienced by plaintiffs, asserting that “Plaintiffs were
21
embarrassed and humiliated by the disclosure of their personally identifiable browsing history”
22
(AC ¶5), but still fails to provide any detail or basis for any kind of emotional harm plaintiffs
23
purportedly suffered. As before, nowhere does either plaintiff allege “what information was
24
actually disclosed to third parties that would lead Plaintiff to suffer emotional harm.”
25
26
27

3

Plaintiffs appear to acknowledge in the Amended Complaint that the User ID present in each
LinkedIn profile URL actually is that of the user whose page is viewed, not (as the original
Complaint asserted) that of the user who is doing the viewing. See AC ¶16.

28
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November 11 Order at *3. Indeed, the only allegations that LinkedIn actually transmitted

2

information concerning either named plaintiff make no reference at all to any potentially

3

embarrassing information, simply asserting that in “test transmissions” LinkedIn somehow

4

provided the “personal identity” of Mr. Low and Mr. Masand to third parties (as to Mr. Low,

5

Scorecard Research, Quantcast, and Nielsen Netratings; as to Mr. Masand, Doubleclick),

6

allowing those third parties to correlate plaintiffs’ identities with the browsing histories the third

7

parties already had collected. See AC ¶3 & Ex. A (Low); id. ¶36 (Masand).
There is no suggestion that LinkedIn actually passed any potentially sensitive

8
9

information to anyone, no indication that any sensitive or embarrassing information related to

10

either plaintiff actually came into any third party hands as a result of conduct of LinkedIn, and

11

nothing more about any embarrassment or humiliation either plaintiff actually suffered. In

12

short, it is all still too hypothetical to support Article III standing. See Lujan, 504 U.S. at 561

13

n.1 (“By particularized, we mean that the injury must affect the plaintiff in a personal and

14

individual way.”); November 11 Order, at *4 (suggestion that sensitive information concerning

15

plaintiff may fall into third party hands as a result of LinkedIn’s conduct “is too theoretical to

16

support injury-in-fact for the purposes of Article III standing”).

17

2.

18

The Theoretical Claims Of Economic Harm Are Insufficient As A
Matter Of Law And Are Neither Concrete Nor Particularized As To
Either Named Plaintiff.

19

As in the original Complaint, plaintiffs reference a second category of purported

20

injury under a theory that plaintiffs’ browsing history is “valuable personal property” and

21

plaintiffs “relinquished this valuable personal property without the compensation to which they

22

were each due.” AC ¶5. But as the Court’s November 11 Order observed, courts repeatedly

23

have held that “unauthorized collection of personal information does not create an economic

24

loss,” because the claim of lost value is “too abstract and hypothetical to support Article III

25

standing.” November 11 Order, at *4. 4 Hence, the original Complaint failed because it did not

26
4

27
28

See LaCourt, et al. v. Specific Media, Inc., No. SACV 10-1256-GW (JCGx), 2011 WL
1661532, at *3-6 (C.D. Cal. Apr. 28, 2011) (allegation that an online third party ad network had
installed cookies on plaintiffs’ computers and tracked their Internet use insufficient where no
(continued…)
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allege “how [Low] was foreclosed from capitalizing on the value of his personal data or how he

2

was ‘deprived of the economic value of [his] personal information simply because [his]

3

unspecified personal information was purportedly collected by a third party.’” Id. at *5.

4

The Amended Complaint does nothing to correct this defect. As noted, there is

5

still no allegation that any third party actually connected a previously anonymous browsing

6

history to a particular person (let alone to a named plaintiff) through use of a LinkedIn User ID

7

or cookie data. Cf. Reilly v. Ceridian Corp., --- F.3d ---, 2011 WL 6144191, at *5 (3d Cir. Dec.

8

12, 2011) (in data security breach case, “no identifiable taking occurred; all that is known is that

9

a firewall was penetrated. Appellants’ string of hypothetical injuries do not meet the

10

requirement of an ‘actual or imminent’ injury”). But even if plaintiffs could make this critical

11

factual claim, they still offer no basis for concluding they were actually deprived of economic

12

value, simply asserting that “[p]ersonal information is property” and that the “value of such

13

information is diminished, if not eliminated, if that information is publicly distributed or

14

leaked.” AC ¶48. But they do not and cannot allege that the asserted value of their personal

15

information has been diminished. There is no suggestion that either plaintiff sought to sell his

16

personal information but could not, or otherwise lost out on any kind of “value-for-value

17

exchange,” as a result of any of the conduct alleged in the Amended Complaint. See Specific

18

Media, 2011 WL 1661532, at *5. There is certainly no allegation of a “direct, linear

19

relationship” between any value plaintiffs purportedly lost and any commercial gain to

20
21
22
23
24
25
26
27

“particularized example” of harm and no allegation of “a single individual who was foreclosed
from entering into a ‘value-for-value exchange’ as a result of [defendant’s] alleged conduct”); In
re iPhone Application Litig., No. 11-MD-02250-LHK, 2011 WL 4403963, at *5-6 (N.D. Cal.
Sept. 20, 2011) (general allegations of “lost opportunity costs” and “value-for-value exchanges”
insufficient to establish concrete injury); Robins v. Spokeo, Inc., No. CV10-05306 ODW
(AGRx), 2011 WL 597867, at *1 (C.D. Cal. Jan. 27, 2011) (plaintiff’s concern that defendant’s
website would adversely affect him in future failed to confer Article III standing); see also In re
Doubleclick Inc. Privacy Litig., 154 F. Supp. 2d 497, 525 (S.D.N.Y. 2001) (court rejected web
consumers’ argument that because “companies pay DoubleClick for plaintiffs’ attention (to
advertisements) and demographic information,” the value of these services rightfully belonged
to plaintiffs: “although demographic information is valued highly . . . the value of its collection
has never been considered an economic loss to the subject”); In re JetBlue Airways Corp.
Privacy Litig., 379 F. Supp. 2d 299, 327 (E.D.N.Y. 2005) (“no support for the proposition that
an individual passenger’s personal information has or had any compensable value in the
economy at large”).

28
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LinkedIn. Cf. Fraley, 2011 WL 6303898, at *10. Plaintiffs allegations all are far too

2

hypothetical to support Article III standing, and so the entire Amended Complaint must be

3

dismissed pursuant to Rule 12(b)(1). 5

4

B.

Each Cause Of Action In The Amended Complaint Fails To State A Claim.
Even if plaintiffs could sufficiently allege Article III standing, the Amended

5
6

Complaint still must be dismissed with prejudice pursuant to Rule 12(b)(6) because each cause

7

of action is defective as a matter of law.

8

1.

9

The Stored Communications Act (“SCA”), 18 U.S.C. §§2701 et seq., Title II of

The Stored Communication Act Claim Fails On Multiple Grounds.

10

the Electronic Communications Privacy Act (“ECPA”), regulates the disclosure of stored

11

electronic communications held by two specific types of entities—providers of electronic

12

communication service (“ECS”) and providers of remote computing service (“RCS”). Subject

13

to certain exceptions, the SCA prohibits the person or entity providing an ECS or RCS to the

14

public from “knowingly divul[ging] to any person or entity the contents of a communication”

15

while in electronic storage by the ECS or which is carried or maintained on the RCS. Id.

16

§§2702(a)(1), (2). 6
The SCA was enacted because “the advent of the Internet presented a host of

17
18

potential privacy breaches that the Fourth Amendment [did] not address.” Quon v. Arch

19

Wireless Operating Co., Inc., 529 F.3d 892, 900 (9th Cir. 2008), reversed on other grounds by

20
5

21
22
23
24
25
26
27

While plaintiff Masand alleges that he is a “paid user” to LinkedIn since November 2011 (AC
¶2), whatever money he paid to LinkedIn (the Amended Complaint does not specify) cannot
constitute injury-in-fact for Article III purposes. This is because such payment is not injury
“fairly traceable to the challenged action of the defendant,” nor is it injury that “will be
redressed by a favorable decision.” Lujan, 504 U.S. at 560-61 (internal quotations omitted); see
Birdsong v. Apple, Inc., 590 F.3d 955, 960-61 (9th Cir. 2009) (purchasers of iPods lacked
standing to claim product posed unreasonable risk of hearing loss where they did not allege
“that they suffered or imminently will suffer hearing loss from their iPod use”).
6
The SCA also contains certain prohibitions on accessing (as opposed to disclosing) stored
communications. Although the original Complaint alleged both that LinkedIn improperly
accessed and improperly disclosed plaintiff’s stored data (see Dkt. No. 1 ¶¶46-52), the Amended
Complaint does not allege any improper access. To the extent any access was claimed, it would
be exempted under the SCA’s service provider exception. 18 U.S.C. §2701(c)(1); see Fraser,
352 F.3d at 114-15.

28
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City of Ontario v. Quon, 130 S. Ct. 2619 (2010). The SCA generally sought to address this gap

2

“by offering network account holders a range of statutory privacy rights against access to stored

3

account information held by network service providers,” creating “a set of Fourth Amendment-

4

like privacy protections by statute, regulating . . . service providers in possession of users’

5

private information.” Orin S. Kerr, A User's Guide to the Stored Communications Act, and a

6

Legislator's Guide to Amending It, 72 GEO WASH L. REV. 1208, 1212 (2004). The resulting

7

statute is complex, creating an intricate matrix of protections and non-protections for

8

information in “electronic storage” (as that term is defined by the SCA), depending on

9

distinctions such as the type of communication (content or non-content), to whom disclosure is

10

made (governmental or non-governmental entity), and whether disclosure is to or by an intended

11

recipient. See id. at 1223, 1231-1233. These technical distinctions are critical to assessing

12

plaintiffs’ failure to plead a proper SCA claim. See id. at 1214, 1224.

13

The Amended Complaint does not cure any of the fatal deficiencies with respect

14

to an SCA claim that existed in the original Complaint, and that claim must be dismissed with

15

prejudice for four independent reasons.

16
17
18

a)

The SCA Claim Fails Because LinkedIn Does Not Act As
Either An ECS Or An RCS With Respect To The Conduct At
Issue.

As an initial matter, as noted, the SCA’s disclosure prohibitions only apply to

19

communications held in storage by an ECS or an RCS. 18 U.S.C. §§2701(a); 2702(a); see In re

20

Michaels Stores Pin Pad Litigation, No. 11 C 3350, --- F.Supp.2d ---, 2011 WL 5878373, at *4

21

(N.D. Ill. Nov. 23, 2011) (dismissing SCA claim because complaint’s allegations did not

22

establish that defendant was either an ECS or an RCS). An ECS is defined as “any service

23

which provides to users thereof the ability to send or receive wire or electronic

24

communications.” 18 U.S.C. §2510(15). An RCS is defined as “the provision to the public of

25

computer storage or processing services by means of an electronic communications system,” id.

26

§ 2711(2), and an “electronic communications system” means “any wire, radio, electromagnetic,

27

photooptical or photoelectronic facilities for the transmission of wire or electronic

28
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communications, and any computer facilities or related electronic equipment for the electronic

2

storage of such communications.” Id. §2510(14).

3

Although LinkedIn potentially acts as an ECS in some capacities (for example

4

allowing one user to message another user through the LinkedIn website) and as an RCS in

5

other capacities (for example in storing the information users submit to the site for their own

6

personal profiles), the allegations in the Amended Complaint do not concern conduct of

7

LinkedIn as either an ECS or RCS. See In re U.S., 665 F. Supp. 2d 1210, 1214 (D.Or. 2009)

8

(“Today, most ISPs provide both ECS and RCS; thus, the distinction serves to define the service

9

that is being provided at a particular time (or as to a particular piece of electronic

10

communication at a particular time), rather than to define the service provider itself. The

11

distinction is still essential, however, because different services have different protections.”);

12

Kerr, 72 GEO. WASH. L. REV. at 1215-16 & n. 48 (“The classifications of ECS and RCS are

13

context sensitive: the key is the provider’s role with respect to a particular copy of a particular

14

communication, rather than the provider’s status in the abstract. A provider can act as an RCS

15

with respect to some communications, an ECS with respect to other communications, and

16

neither an RCS nor an ECS with respect to other communications.”).

17

Because plaintiffs’ Amended Complaint concerns the alleged viewing of

18

LinkedIn user profiles and the alleged transmission of URLs to third parties (see e.g., AC pg. 1

19

& ¶16), not the provision of an electronic communications system or provision of computer

20

storage or processing services, the SCA does not apply at all to LinkedIn’s alleged conduct. As

21

such, the SCA claim fails as a matter of law.

22
23
24

b)

The SCA Claim Fails Because The Amended Complaint Does
Not Allege That LinkedIn Disclosed Communications Of
Plaintiffs That Were Held In Electronic Storage By LinkedIn.

As its name suggests, the Stored Communication Act’s disclosure prohibitions

25

only apply where plaintiffs’ communications are held in “electronic storage” by an ECS or

26

RCS. 18 U.S.C. §§2701(a); 2702(a); 2711(2); 2510(14). As explained above, the Amended

27

Complaint alleges that LinkedIn improperly disclosed three specific types of information: (1)

28

LinkedIn User IDs (see AC ¶68); (2) plaintiffs’ “LinkedIn-related browsing history,” defined as
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“browsing history among LinkedIn profiles” (see AC pg. 1 & ¶66); and (3)“information

2

regarding the Viewed Page,” defined as “the URL of the profile page the user was viewing” (see

3

AC ¶¶28, 67). But there is no allegation in the Amended Complaint suggesting that any of these

4

categories are communications of plaintiffs that were held in electronic storage by LinkedIn.

5

First, as the Amended Complaint recognizes, LinkedIn User IDs are assigned and

6

controlled by LinkedIn, and so are not communications of plaintiffs. See AC ¶25 (“LinkedIn

7

assigned each Plaintiff a unique user identification number”). Accordingly, there cannot be any

8

improper disclosure of a LinkedIn User ID under the SCA. See Kerr, 72 GEO WASH L. REV. at

9

1214 & n.47 (SCA pertains only where a “user’s communications [are] in the possession of the

10

provider”) (emphasis added).

11

Furthermore, LinkedIn User IDs are not held in “electronic storage” by LinkedIn.

12

Congress defined “electronic storage” in the SCA precisely to include only “(A) any temporary,

13

intermediate storage of a wire or electronic communication incidental to the electronic

14

transmission thereof;” or “(B) any storage of such communication by an electronic

15

communication service for purposes of backup protection of such communication.” 18 U.S.C.

16

§2510(17); see id. § 2711(1). Hence, prong A of this definition means that the SCA “only

17

protects electronic communications stored ‘for a limited time’ in the ‘middle’ of a transmission,

18

i.e. when an electronic communication service temporarily stores a communication while

19

waiting to deliver it.” In re DoubleClick, 154 F. Supp. 2d at 512 (emphasis added); see Fraser

20

v. Nationwide Mut. Ins. Co., 135 F. Supp. 2d 623, 636 (E.D. Pa. 2001) (“the definition [of

21

electronic storage] . . . covers a message that is stored in intermediate storage temporarily, after

22

the message is sent by the sender, but before it is retrieved by the intended recipient.”)

23

(emphasis added), aff’d in part, vacated in part on other grounds, 352 F.3d 107 (3d Cir. 2004).

24

With respect to prong B of the definition, although some courts disagree about whether “backup

25

protection” includes only temporary backup storage pending delivery or also includes “post-

26

transmission storage” (compare Theofel v. Farey-Jones, 359 F.3d 1066, 1075 (9th Cir. 2004),

27

with Fraser, 135 F.Supp.2d at 633-34, 636), even the broadest interpretation of “backup

28

protection” limits the term to a temporary copy pending delivery of a message or a second copy
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in case a user needs to re-download. See Fraser, 135 F.Supp.2d at 633-34, 636; Theofel, 359

2

F.3d at 1070. LinkedIn User IDs could not come within even this broader interpretation, as

3

there is no allegation that such information is stored electronically by LinkedIn either

4

temporarily following transmittal of a message but pending delivery or for purposes of backup

5

protection. Hence, the SCA does not protect this data.
The other type of information plaintiffs allege that LinkedIn disclosed is the URL of the

6
7

profile page the user was viewing, (see AC ¶¶28, 67), and a user’s “browsing history among

8

LinkedIn profiles” (see id. pg. 1 & ¶66), which, although never explained, presumably is made

9

up of multiple disclosures of the URLs of the LinkedIn profile page a user was viewing.

10

However, the Amended Complaint does not allege (nor could it) that these URLs are held in

11

“electronic storage.” See id. ¶72 (alleging only that “Defendant holds their users’ personal

12

identification number and personal information in electronic storage within the meaning of 18

13

U.S.C. §2510(17)” but not making any such allegation with respect to URLs (i.e., the “Viewed

14

Page” information or “LinkedIn-related browsing history”).
Because plaintiffs do not allege that any supposedly disclosed communications were

15
16

held in “electronic storage” by LinkedIn, the SCA does not apply. 7

17

c)

18

LinkedIn’s Conduct Was Authorized Under The SCA Because
The Disclosures Alleged Were Made To Or By The Intended
Recipient Of The Communications.

Even if the SCA claim could overcome the two threshold defects just discussed,

19
20

it still would fail as a matter of law because a provider can divulge the contents of a

21

communication to “an addressee or intended recipient of such communication.” 18 U.S.C.

22

§2702(b)(1); Quon, 529 F.3d at 900 (“both an ECS and RCS can release private information to,

23

or with the lawful consent of, ‘an addressee or intended recipient of such communication’”).

24
25
26
27

7

Plaintiffs naturally do not allege that “third party cookie identification numbers (‘cookie IDs’)
(AC ¶3) or plaintiffs’ “broader Internet browsing histories,” (id. ¶5), which purportedly are held
in third party tracking cookies or otherwise compiled and retained by third parties, are stored on
LinkedIn’ servers or networks. Accordingly, such data cannot provide the basis for an SCA
claim against LinkedIn.

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Plaintiffs allege that LinkedIn violated the SCA by disclosing their “LinkedIn

2

Browsing Histories and their LinkedIn user identification numbers” to third parties. See AC ¶3;

3

see id. ¶¶5, 17. Accordingly, by plaintiffs’ own admission, these third parties are the “addressee

4

or intended recipient” of the purported communications sent by LinkedIn. As Judge Ware

5

recently held, such disclosure is permissible under the SCA. See In re Facebook Privacy Litig.,

6

791 F. Supp. 2d 705, 714 (N.D. Cal. 2011) (dismissing SCA claim based on similar allegations

7

of transmission of User IDs because “if the communications were sent to advertisers, then the

8

advertisers were their addressees or intended recipients, and Defendant was permitted to divulge

9

the communications to them” under section 2702(b)(1)); see In re Facebook Privacy Litig., No.

10
11

C 10-02389 JW, 2011 WL 6176208, at *2-4 (N.D. Cal. Nov. 22, 2011).
Furthermore, to the extent plaintiffs assert that the browsing history or Viewed

12

Page information (i.e. the transmitted URLs) reflects a communication by plaintiffs, it must be a

13

communication with someone—here presumably a communication to LinkedIn as to what page

14

plaintiffs had viewed (or wished to view). But if the communication allegedly disclosed was

15

one to LinkedIn, then LinkedIn, as the “intended recipient” of the communication, could

16

disclose it to third parties under the SCA. See 18 U.S.C. §2702(b)(3); In re Facebook Privacy

17

Litig., 791 F. Supp. 2d at 714 & n.8. This is true even if plaintiffs were to claim that LinkedIn

18

contractually agreed not to disclose such communications to third parties. See In re Am.

19

Airlines, Inc. Privacy Litig., 370 F. Supp. 2d 552, 560-61 (N.D. Tex. 2005).

20
21

d)

The SCA Claim Fails Because The Amended Complaint Still
Only Alleges Disclosure Of Non-Content Information.

Finally, the SCA claim fails because no communications content is at issue. The
22
statute specifically permits the disclosure of non-content records to non-government entities
23
without restriction. 18 U.S.C. §2702(c)(6) (ECS or RCS may “divulge a record or other
24
information pertaining to a subscriber to or customer of [the] service (not including the contents
25
of communications . . . ) . . . to any person other than a governmental entity”). Here, the alleged
26
recipients—“advertisers, Internet marketing companies, data brokers, web tracking companies,
27
28
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and other third parties” (AC pg. 1)—are non-governmental entities, so the SCA only applies if

2

the allegedly disclosures by LinkedIn include the “contents” of plaintiffs’ communications.
Although ECPA does not explicitly define the terms “record” or “other

3
4

information,” the statute’s legislative history explains that the term “contents” “distinguishes

5

between the substance, purport or meaning of the communication and the existence of the

6

communication or transactional records about it.” S. Rep. 99-541, 1986 U.S.C.C.A.N. 3555,

7

3567. 8 Notably, prior to the 1986 amendment to ECPA, “contents” was defined as “any

8

information concerning the identity of the parties to such communication or the existence,

9

substance, purport, or meaning of that communication.” 18 U.S.C. §2510(8) (1968) (emphasis

10

added). The removal of the italicized language in the 1986 amendment to ECPA demonstrates

11

that basic identification information no longer constitutes “contents” under the statute. See also

12

id. §2703(c)(2) (classifying name, address, and subscriber number or identity as non-content

13

information for purposes of required disclosures by an ECS or RCS in response to proper

14

process by governmental entities).
Courts also have interpreted “records” (as distinguished from contents) to include

15
16

transactional information such as a User ID or URL—i.e., information that only reveals that a

17

communication occurred (and between or among whom), without revealing what was said or

18

communicated. See Sams v. Yahoo!, Inc., No. CV-10-5897-JF (HRL), 2011 WL 1884633, at

19

*6-7 (N.D. Cal. May 18, 2011) (all records regarding “the Yahoo! ID ‘lynnsams’ or

20

‘[e-mail]’ . . . includ[ing] name and address, date account created, account status,

21

Yahoo! E-mail [sic] address, alternative e-mail address, registration from IP, date IP registered

22
23
24
25
26
27

8

The essential distinction between content and non-content transactional records (often referred
to as “envelope” information) remains constant across different technologies. See Orin S. Kerr,
Internet Surveillance Law After the USA Patriot Act: The Big Brother That Isn’t, 97 NW. U. L.
REV. 607, 611 (2003). With respect to postal mail, the non-content, envelope information is the
information derived from the outside of the envelope—mailing and return addresses, stamp and
postmark, size and weight, etc. See id. (citing 39 C.F.R. §233.3(c)(1)). For telephone calls, the
non-content, envelope information includes the number the caller dials, the number from which
the caller dials, and the time and duration of the call. See id. For emails, the non-content
information includes the “to” and “from” email addresses, the date and time sent, and how the
email was processed by the network from its origin to its destination. Id.

28
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1

and login IP addresses associated with session time and dates” were “user identification

2

information” not “content-based” data); Hill v. MCI WorldCom Commcn’s, Inc., 120 F. Supp.

3

2d 1194, 1195 (S.D. Iowa 2000) (invoice/billing information and names, addresses, and phone

4

numbers of parties called by a subscriber were not “contents” of the communication); see

5

generally U.S. v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008) (“e-mail and Internet users have

6

no expectation of privacy in the to/from addresses of their messages or the IP addresses of the

7

websites they visit because they should know that this information is provided to and used by

8

Internet service providers for the specific purpose of directing the routing of information.”).

9

The only types of information that the Amended Complaint alleges to have been

10

disclosed by LinkedIn are plaintiffs’ LinkedIn User IDs (as a portion of a URL), the URL of the

11

LinkedIn page a user is viewing, and a user’s “browsing history among LinkedIn profiles”

12

(presumably multiple URLs of viewed LinkedIn pages). See AC pg. 1 & ¶¶16, 66. None can

13

properly be considered communications “contents” for purposes of the SCA.
A LinkedIn User ID is a generic number assigned by LinkedIn and unrelated to any

14
15

communications by plaintiffs. AC ¶25. Courts have held that a person’s name, as party to a

16

communication, cannot constitute the contents of that communication for purposes of the SCA.

17

See, e.g., Jessup-Morgan v. Am. Online, Inc., 20 F. Supp. 2d 1105, 1108 (E.D. Mich. 1998)

18

(disclosure of basic identity information revealing account holder’s name in connection with

19

published message was not the “content of an electronic communication” under 18 U.S.C.

20

§2702). If a person’s name, which reveals his identity, is not content, then certainly a User ID

21

assigned by LinkedIn cannot be either.
The alleged disclosure of a LinkedIn URL address within a URL or multiple LinkedIn

22
23

URL addresses also does not constitute communications contents, as this is precisely the type of

24

transactional, routing information that has been deemed non-content information across all

25

technological mediums. 9

26
9

27
28

As both complaints have acknowledged, referrer URLs (the “Viewed Page” information or
“LinkedIn-related browsing history” at issue in the Amended Complaint) are “a standard piece
of information” routinely transmitted in connection with web page requests and simply identify
(continued…)

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Plaintiffs allege that the purported transmission of the URL of the profile page a user

1
2

was viewing and LinkedIn ID associated with that profile page “enabled Third Parties to

3

identify Plaintiff by name and determine which LinkedIn profiles Plaintiffs had viewed (the

4

‘LinkedIn Browsing History’).” AC ¶28. But a URL is simply an address where a particular

5

webpage can be found. This does not reveal anything more than the email to/from addresses, IP

6

addresses, or telephone numbers the Ninth Circuit deemed to be non-content information in

7

Forrester. See 512 F.3d at 503 (telephone numbers are not content, even though “when an

8

individual dials a pre-recorded information or subject-specific line, such as sports scores, lottery

9

results or phone sex lines, the phone number may even show that the caller had access to

10

specific content information”). 10
Without factual elaboration or support, the Amended Complaint asserts that

11
12

LinkedIn’s purported divulgence of “information about its users and their LinkedIn Browsing

13

Histories” allows third parties to “place a LinkedIn user’s actual identity with his/her personal,

14

Private Browsing History.” See AC ¶20 (emphasis omitted). As explained above, however, the

15

Amended Complaint actually alleges only that LinkedIn divulged User IDs within URLs of

16

pages on the LinkedIn website, none of which constitutes “contents.” While plaintiffs seeks to

17
18
19
20
21
22
23
24
25
26
27

the URL being viewed—much like a postal address or telephone number. Dkt. No. 1 ¶16; see
AC ¶15 (suggesting that referrer URLs are a basic feature of Internet architecture actually
transmitted by a user’s web browser (not the site visited)). Indeed, plaintiffs’ recognition that
any communications actually are between a user’s browser and third parties hints at the
problematic implications of the Amended Complaint: Plaintiffs’ contention that these purported
communications—transmitted by web browsers whenever a browser user views a particular
webpage—somehow constitute communications content of users under the SCA would mean
that web browsers would be violating the SCA billions of times a day, calling into question the
basic functionality of the Internet.
10

In Forrester, a Fourth Amendment decision considering government surveillance techniques,
the Ninth Circuit suggested in a footnote that while IP addresses of websites would not be
content information, the surveillance of URLs “of the pages visited might be more
constitutionally problematic” under the Fourth Amendment. 512 F.3d at 510 & n.6 (emphasis
added). But the Ninth Circuit’s suggestion that some URLs could constitute content certainly
does not mean that all URL transmissions would be content under the SCA. As alleged by
plaintiffs here, the transmitted URLs contained URL addresses of the profile pages on LinkedIn
that plaintiffs viewed. See AC ¶¶16, 28. The fact that one person viewed another person’s
LinkedIn page is no different from the fact that one person communicated with another specific
person—precisely the “envelope” information that does not constitute contents under the SCA.

28
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1

hold LinkedIn responsible for third parties’ alleged aggregation of anonymous browsing

2

histories (see e.g., AC ¶5), no case has suggested, let alone held, that a service provider could be

3

liable under the SCA for providing non-content information about a user to a third party that

4

already has other information about that user. See Jessup-Morgan, 20 F. Supp. 2d at 1108

5

(disclosure of name associated with message account not content under ECPA even where it

6

allowed third party to learn identity of author of otherwise anonymous postings). Indeed, the

7

suggestion that LinkedIn could be held responsible for third parties’ collection of web browsing

8

histories contravenes the prohibition on secondary liability under the SCA. See Freeman v.

9

DirecTV, Inc., 457 F.3d 1001, 1004-09 (9th Cir. 2006).

10

2.

11

Plaintiffs’ Claims Under California’s False Advertising Law Fails As
A Matter Of Law.

The Amended Complaint dropped the prior claim under California Business and
12
Professions Code Section 17200 (California’s Unfair Competition Law or “UCL”), but retained
13
(essentially unchanged) a claim under Section 17500 (California’s False Advertising Law or
14
“FAL”). Proposition 64, approved by California voters in 2004, amended provisions of both the
15
UCL and FAL to require that a person bringing an action under either statute has “suffered
16
injury in fact and has lost money or property as a result of the violation” of the FAL. Cal. Bus.
17
& Prof. Code §17535 (emphasis added) (FAL); see id. §17204 (UCL). Even if plaintiffs had
18
adequately alleged “injury in fact” (and, as discussed above, they have not), their FAL claim
19
still fails as a matter of law because there is no allegation that such loss was “as a result of” any
20

false advertising by LinkedIn. 11

21
Where a plaintiff asserting a UCL or FAL claim contends that the defendant’s
22
statements harmed him, courts have repeatedly interpreted Proposition 64’s “as a result of”
23
language to require an allegation of reliance on the alleged unfair competition or false
24
advertising. See Laster v. T-Mobile USA, Inc., 407 F. Supp. 2d 1181, 1194 (S.D. Cal. 2005)
25
26
27

11

Plaintiff Low, of course, does not allege that he paid any money to LinkedIn, so his FAL
claim must also be dismissed for failure to meet that threshold requirement of Section 17535.
See In re iPhone Application Litig., 2011 WL 4403963, at *14 (personal information does not
constitute property under Proposition 64).

28
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1

(“Because Plaintiffs fail to allege they actually relied on false or misleading advertisements,

2

they fail to adequately allege causation as required by Proposition 64. Thus, . . . Plaintiffs lack

3

standing to bring their UCL and FAL claims.”); Doe v. Texaco, No. C 06-02820 WHA, 2006

4

WL 2053504, at *3 (N.D. Cal. July 21, 2006) (similar); see generally Kwikset Corp. v. Super.

5

Ct., 51 Cal. 4th 310, 326 (2011) (“‘“as a result of” in its plain and ordinary sense means “caused

6

by” and requires a showing of a causal connection or reliance on the alleged

7

misrepresentation.’”) (citation omitted); In re Tobacco II Cases, 46 Cal. 4th 298, 326 (2009)

8

(outside of unusual circumstances, Proposition 64 requires that named plaintiffs in a class action

9

alleging deception plead reliance on particular misrepresentations of defendant).
Here, neither named plaintiff alleges that he actually relied on any representation

10
11

or advertising in registering for or using the LinkedIn website. In fact, the only LinkedIn

12

statements that the Amended Complaint identifies are excerpts of LinkedIn’s privacy policy.

13

See AC ¶¶49-55. But there is no allegation that either plaintiff read, much less relied on, the

14

privacy policy, or that any such reliance caused his injury. For this reason too, the FAL claim

15

must be dismissed. 12

16

3.

17

Plaintiffs allege that LinkedIn violated their privacy rights under Article 1,

Plaintiff’s Privacy Claims Should Be Dismissed.

18

Section 1 of the California Constitution and common law by disclosing “their LinkedIn-related

19

browsing history” and “their LinkedIn IDs.” See AC ¶¶80-81, 102-03. There is, of course, no

20
21
22
23
24
25
26
27

12

In addition, where a FAL claim is premised on knowing deception by the defendant, the
complaint must meet the requirements of Rule 9(b) (regardless of whether fraud is an essential
element of the underlying cause of action). Vess v. Ciba-Geiby Corp. USA, 317 F.3d 1097,
1103-05 (9th Cir. 2003). This means that the plaintiff must allege with the appropriate
specificity “‘the who, what, when, where and how’ of the misconduct charged” and “set forth
what is false or misleading about a statement, and why it is false.” Id. at 1106 (citation
omitted). Here, the gravamen of the FAL claim is knowing or negligent misrepresentation by
LinkedIn, as the cause of action vaguely alleges that LinkedIn engaged in a misleading
promotional scheme that “misrepresented the extent to which Defendant would share valuable
personal information with third parties.” AC ¶89; see also Lorenz v. Sauer, 807 F.2d 1509,
1511-12 (9th Cir. 1987) (“Under California law, negligent misrepresentation is a species of
actual fraud . . .”). But the plaintiffs here do not allege with particularity (or even at all) if and
when they were exposed to, let alone read and relied on, any specific false statements by
LinkedIn. So Rule 9(b) also requires dismissal of the FAL claim.

28
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allegation that their general Internet browsing histories were disclosed to anyone as a result of

2

conduct of LinkedIn. Nor is there any suggestion as to what specific information about

3

plaintiffs caused (or could cause) them embarrassment.

4

Under the Constitution, “[a]ctionable invasions of privacy must be sufficiently

5

serious in their nature, scope, and actual or potential impact to constitute an egregious breach of

6

the social norms underlying the privacy right.” Hill v. Nat’l Collegiate Athletic Ass’n, 7 Cal. 4th

7

1, 37, 39-40 (1994). Applying this standard, courts have found no violation of a constitutionally

8

protected privacy interest even where a plaintiff’s social security number was disclosed

9

(creating a risk of identity theft), where a plaintiff’s name and address were obtained without

10

knowledge or permission (to mail advertisements and coupons to him), or even where a plaintiff

11

was forced to urinate under observation for athletic drug testing purposes. See Ruiz v. Gap, Inc.,

12

540 F. Supp. 2d 1121, 1128 (N.D. Cal 2008) (social security number disclosure “d[id] not

13

approach th[e] standard”); Folgelstrom v. Lamps Plus, Inc., 195 Cal. App. 4th 986, 992 (Cal. Ct.

14

App. 2011) (obtaining plaintiff’s address without knowledge or permission “not an egregious

15

breach of social norms, but routine commercial behavior.”); Hill, 7 Cal. 4th at 40. If such

16

conduct does not implicate the constitutional privacy right, disclosure of plaintiffs’ LinkedIn

17

User IDs or even the pages on LinkedIn that they viewed from the LinkedIn website are

18

insufficient as a matter of law.

19

Plaintiff’s common law “invasion of privacy” claim appears to be an attempt to

20

plead the tort of either “intrusion into private places, conversations, or other matters” or “public

21

disclosure of private facts.” See AC ¶¶102-107. To state a claim under an “intrusion” theory, a

22

plaintiff must allege intrusion into a private place, conversation or matter in a manner highly

23

offensive to a reasonable person. Shulman v. Group W Prods, Inc., 18 Cal. 4th 200, 231 (1998).

24

A claim of “public disclosure of private facts” requires public disclosure of a private fact “which

25

would be offensive and objectionable to the reasonable person.” Id. at 214. To state a claim

26

under either tort, the invasion must be “highly offensive” to a reasonable person and

27

“sufficiently serious” and unwarranted as to constitute an “egregious breach of the social

28

norms.” Hernandez v. Hillsides, Inc., 47 Cal. 4th 272, 295 (2009) (internal citations omitted).
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1

Plaintiffs have not alleged any actual disclosure, let alone one that could be

2

sufficiently egregious. A LinkedIn User ID is not a “private matter” or “private fact” as this

3

was a number assigned by LinkedIn, and the alleged disclosure of user’s “LinkedIn-related

4

browsing history” would not rise to the level of “highly offensive” given the ubiquity of cookies

5

and targeted online advertising. See Ruiz, 540 F. Supp. 2d at 1128; Folgelstrom, 195 Cal. App.

6

4th at 993. And as the Fogelstrom court observed, no court has found potential liability based

7

on a defendant obtaining unwanted access to a plaintiff’s private information, in the absence of

8

an allegation that the use of plaintiff’s information was highly offensive. Id. at 993. There is no

9

allegation here that any User ID or LinkedIn browsing history was used at all, let alone in a

10
11

highly offensive way.
In addition, as with plaintiffs’ other claims, the privacy causes of action fail to

12

allege sufficient damages, merely asserting plaintiffs “suffered injury-in-fact and/or were

13

harmed and are entitled to damages.” AC ¶¶81, 102-03 (emphasis added); see id. ¶80.

14

4.

15

California law requires a showing of “appreciable and actual damage” to assert a

The Contract Claim Fails To Allege Recoverable Contract Damages.

16

breach of contract claim. Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1015 (9th

17

Cir. 2000); Ruiz v. Gap, Inc., 622 F. Supp. 2d 908, 917 (N.D. Cal. 2009). Here, the breach of

18

contract claim only alleges that plaintiffs and the class “have been damaged” (AC ¶100),

19

without any further explanation, which is a conclusory statement insufficient to state a claim for

20

breach of contract. In re Facebook Privacy Litig., 791 F. Supp. 2d at 717.

21

In addition, as discussed above, the only other vague references to harm in the

22

Amended Complaint are for “embarrass[ment] and humiliat[ion]” and the purported loss of the

23

value of plaintiff’s “personally identifiable browsing history.” See AC ¶5. However, emotional

24

distress damages generally are not recoverable on a contract claim. Gibson v. Office of the

25

Attorney Gen., 561 F.3d 920, 929 (9th Cir. 2009); Applied Equip. Corp. v. Litton Saudia Arabia

26

Ltd., 7 Cal. 4th 503, 516 (1994). And the purported loss of the value of personally identifiable

27

information is not a cognizable form of contract damages, as it does not correspond to any

28

benefit of the bargain theory—because the purpose of contract damages is to place a plaintiff in
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1

the position “he would have occupied had the contract been performed.” Ajaxo Inc. v. E*Trade

2

Group, Inc., 135 Cal. App. 4th 21, 56 (2005); see Cal. Civ. Code §3358. Here, plaintiffs had no

3

contractual expectation that they would be paid for their personal information if LinkedIn

4

performed its alleged obligations under the privacy policy, so they cannot recover the purported

5

value of that information as a measure of contract damages. See, e.g., In re JetBlue Airways

6

Corp. Privacy Litig., 379 F. Supp. 2d at 327 (“[p]laintiffs . . . had no reason to expect that they

7

would be compensated for the ‘value’ of their personal information”). Because plaintiffs have

8

not pled cognizable contract damages, the breach of contract claim necessarily fails as a matter

9

of law. See In re Facebook Privacy Litig., 791 F. Supp. 2d at 717.

10

5.

11

As in the original Complaint, the conversion claim is specifically premised on the

Plaintiffs’ Conversion Claim Fails As A Matter of Law.

12

assertion that their “personal browsing history and other personally identifiable information” is

13

“valuable property owned by Plaintiffs” and that LinkedIn converted such property “by

14

providing it to third parties.” AC ¶¶110-11. 13 But California requires that a party asserting

15

conversion allege “ownership or right to possession of personal property” (Fremont Indem. Co.

16

v. Fremont Gen. Corp., 148 Cal. App. 4th 97, 119 (2007) (emphasis added), and an intangible

17

interest can be the subject of a conversion claim only where that interest is “merged with, or

18

reflected in, something tangible.” Boon Rawd Trading Int’l Co. v. Paleewong Trading Co., 688

19

F. Supp. 2d 940, 954 (N.D. Cal. 2010) (citation and internal quotations omitted). In addition,

20

for an intangible item to be subject to a conversion claim, it must be capable of exclusive

21

possession or control, and the putative owner must have established a legitimate claim to

22

exclusivity. G.S. Rasmussen & Assoc. Inc. v. Kalitta Flying Serv., Inc., 958 F.2d 896, 903 (9th

23

Cir. 1992). Here, the “property” alleged is not tangible, is not “merged with, or reflected in,

24

something tangible,” and cannot be exclusively possessed, by plaintiff or anyone else. Cf. Ruiz,

25
26
27

13

Oddly, the Amended Complaint, like the original Complaint, refers to “other personally
identifiable information as “including . . . mailing address, zip code, telephone number, and
credit card number” (AC ¶110), even though neither complaint contains a single allegation
anywhere that any of these pieces of information (as to the named plaintiffs or anyone else)
were ever transmitted by LinkedIn or obtained by third parties.

28
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1

540 F. Supp. 2d at 1126 (social security number not personal property that could support

2

bailment claim). Accordingly, the purported disclosure of personal information cannot support

3

a conversion claim.

4

In addition, conversion requires resulting damages. See Fremont Indem. Co.,

5

148 Cal. App. 4th at 119. But there is no proper allegation as to how the alleged conversion

6

caused damage to plaintiffs. See AC ¶112 (“Plaintiff and the Class were damaged thereby”).

7

6.

8

The Amended Complaint adds a claim for “negligence,” but it fails as a matter of

9

law. The elements of negligence under California law are “(a) a legal duty to use due care; (b) a

The Newly-Minted “Negligence” Claim Fails As A Matter of Law.

10

breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting

11

injury.” Evan F. v. Hughson United Methodist Church, 8 Cal. App. 4th 828, 834 (1992)

12

(emphasis in original); accord, Ladd v. County of San Mateo, 12 Cal. 4th 913, 917 (1996).
Here, plaintiffs have not identified a legal duty on the part of LinkedIn to protect

13
14

users’ information from disclosure to third parties. Instead, the Amended Complaint only

15

alleges that LinkedIn owed plaintiffs “a duty . . . to comply with its stated privacy policy and

16

terms of service.” AC ¶123. But tort law may not be used to supplant private contractual

17

arrangements, and the failure to perform a contractual duty is not a tort, unless that failure

18

involves an independent legal duty. See Applied Equip. Corp., 7 Cal. 4th at 514-15; In re

19

iPhone Application Litig., 2011 WL 4403963, at *9. No independent legal duty is or could be

20

pled here.

21

Moreover, the Amended Complaint does not allege breach. As discussed above,

22

there is no allegation that any third party actually obtained, let alone used, either plaintiffs’

23

personal information. Nor does the Amended Complaint establish causation of harm. An

24

“appreciable, nonspeculative, present injury is an essential element of a tort cause of action.”

25

Aas v. Super. Ct., 24 Cal. 4th 627, 646 (2000), superseded by statute on other grounds as stated

26

in Rosen v. State Farm Gen. Ins. Co., 30 Cal. 4th 1070, 1079-80 (2003); see Duarte v.

27

Zachariah, 22 Cal. App. 4th 1652, 1661-62 (1994) (actual damage in “the sense of ‘harm’ is

28

necessary to a cause of action in negligence”). But the negligence claim merely asserts that
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1

“LinkedIn’s negligent actions directly and proximately caused Plaintiffs and Class members

2

harm” (AC ¶125), a formulaic recitation that is insufficient as a matter of law under Twombly,

3

see 550 U.S. at 555.

4

7.

5

Plaintiffs’ Seventh Cause of Action, for unjust enrichment, must be dismissed as

Unjust Enrichment Is Not An Independent Cause Of Action.

6

a matter of law. Although a few earlier cases had suggested that unjust enrichment could exist

7

as a separate cause of action, the California Court of Appeals has clarified that “[u]njust

8

enrichment is not a cause of action, just a restitution claim.” Hill v. Roll Int’l Corp., 195 Cal.

9

App. 4th 1295, 1307 (2011); accord Levine v. Blue Shield of Cal., 189 Cal. App. 4th 1117, 1138

10

(2010); Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350, 1370 (2010); Melchior v. New Line

11

Prods., Inc., 106 Cal. App. 4th 779, 793 (2003). Accordingly, this Court recently held “there is

12

no cause of action for unjust enrichment under California law.” In re iPhone Application

13

Litigation, 2011 WL 4403963, at *15 (internal quotation marks and citations omitted); accord

14

Fraley, 2011 WL6303898, at *23; Ferrington v. McAfee, Inc., No. 10-cv-01455-LHK, 2010 WL

15

3910169, at *17 (N.D. Cal. 2010). “Thus, Plaintiffs’ unjust enrichment claim does not properly

16

state an independent cause of action and must be dismissed.” Fraley, 2011 WL6303898, at *23

17

(slip op. at 37) (citation omitted).

18

IV.

19

CONCLUSION
For the foregoing reasons, the Amended Complaint should be dismissed in its

20

entirety. Because there has already been an opportunity to amend and because further

21

amendment would be futile, dismissal should be with prejudice. See Allen v. City of Beverly

22

Hills, 911 F.2d 367, 373-74 (9th Cir. 1990).

23

DATED: January 9, 2012

COVINGTON & BURLING LLP

24
By:
25
26

/s/
Simon J. Frankel
Attorneys for Defendant
LINKEDIN CORPORATION

27
28
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