Low v. Linkedin Corporation

Filing 38

REPLY (re 34 MOTION to Dismiss Amended Complaint ) filed byLinkedin Corporation. (Frankel, Simon) (Filed on 2/21/2012)

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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,

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Plaintiff,

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vs.

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

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Defendants.

Civil Case No.: 5:11-cv-01468 LHK
DEFENDANT LINKEDIN
CORPORATION’S REPLY IN
SUPPORT OF MOTION TO
DISMISS AMENDED COMPLAINT
Date:
Time:
Courtroom:

March 22, 2012
1:30 pm
4, 5th Floor

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DEFENDANT LINKEDIN CORPORATION’S REPLY IN
SUPPORT OF MOTION TO DISMISS AMENDED
COMPLAINT

Civil Case No.: 5:11-cv-01468 LHK

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TABLE OF CONTENTS

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I.

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

II.

ARGUMENT ..................................................................................................................... 2

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A.

The Amended Complaint Must Be Dismissed For Lack Of Article III
Standing Because Even If The SCA Claim Provides A “Concrete”
Injury, Plaintiffs Fail To Plead An Injury That is “Particularized” As
To Them................................................................................................................. 2

B.

The Stored Communication Act (“SCA”) Claim Fails On Multiple
Grounds.................................................................................................................. 4

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1.

The Complaint Does Not Properly Allege That LinkedIn Acts
As An RCS With Respect To The Conduct Alleged. ................................ 4

2.

LinkedIn’s Conduct Was Authorized Under The SCA Because
The Disclosures Alleged Were Made To Or By The Intended
Recipient Of The Communications Under The Plain Terms Of
The Statute. ................................................................................................ 6

3.

The SCA Claim Fails Because The Complaint Only Alleges
Disclosure Of Non-Content Information. .................................................. 8

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C.

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1.

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III.

Plaintiffs’ Conversion Claim Must Be Dismissed. .................................. 13

4.

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Plaintiffs Have Not Alleged Cognizable Contract Damages. .................. 13

3.

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The False Advertising Law (“FAL”) Claim Fails. .................................. 11

2.

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The California Privacy Claims Are Deficient As A Matter Of
Law. ......................................................................................................... 10

1.

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The State Law Claims All Fail As A Matter Of Law. ......................................... 10

Plaintiff’s Negligence Claim Fails As A Matter of Law. ........................ 14

CONCLUSION................................................................................................................ 15

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DEFENDANT LINKEDIN CORPORATION’S REPLY IN
SUPPORT OF MOTION TO DISMISS AMENDED
COMPLAINT

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TABLE OF AUTHORITIES

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PAGE(S)

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CASES

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Aas v. Super. Ct.,
24 Cal. 4th 627 (2000) ............................................................................................................. 15

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Allen v. City of Beverly Hills,
911 F.2d 367 (9th Cir. 1990) ................................................................................................... 15
Applied Equip. Corp. v. Litton Saudi Arabia, Ltd.,
7 Cal. 4th 503 (1994) ............................................................................................................... 15
Crispin v. Audigier,
717 F. Supp. 2d 965 (C.D. Cal. 2010) ....................................................................................... 6

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Durell v. Sharp Healthcare,
183 Cal. App. 4th 1350 (2010) ................................................................................................ 12
Dyer v. Nw. Airlines Corp.,
334 F. Supp. 2d 1196 (D.N.D. 2004)....................................................................................... 13
Edwards v. First Am. Corp.,
610 F.3d 514 (9th Cir. 2010), cert. granted, 131 S. Ct. 3022 (2011) ........................................ 2

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Egan v. Schmock,
93 F. Supp. 2d 1090 (N.D. Cal. 2000) ..................................................................................... 11
Evan F. v. Hughson United Methodist Church,
8 Cal. App. 4th 828 (1992) ...................................................................................................... 14
Fogelstrom v. Lamps Plus, Inc.,
195 Cal. App. 4th 986 (2011) ............................................................................................ 10, 11

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Fraley v. Facebook, Inc.,
--- F.Supp.2d ---, 2011 WL 6303898 (N.D. Cal. Dec. 16, 2011) .......................................... 2, 7
Hill v. MCI WorldCom Commcn’s, Inc.,
120 F. Supp. 2d 1194 (S.D. Iowa 2000) .................................................................................... 8
Hill v. Nat’l Collegiate Athletic Ass’n,
7 Cal. 4th 1 (1994) ....................................................................................................... 11, 14, 15

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In re Application of U.S. for an Order Authorizing use of A Pen Register,
396 F. Supp. 2d 45 (D. Mass. 2005) .................................................................................... 9, 10
In re Facebook Privacy Litig.,
2011 WL 6176208 (N.D. Cal. Nov. 22, 2011) ...................................................................... 7, 8
DEFENDANT LINKEDIN CORPORATION’S REPLY IN
SUPPORT OF MOTION TO DISMISS AMENDED
COMPLAINT

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In re Facebook Privacy Litig.,
791 F. Supp. 2d 705 (N.D. Cal. 2011) ................................................................................. 7, 14
In re Facebook Privacy Litig.,
No. C 10-02389 JW, Dkt. No. 92 .............................................................................................. 7
In re iPhone Application Litig.,
2011 WL 4403963 (N.D. Cal. Sept. 20, 2011) ............................................................ 12, 14, 15
In re JetBlue Airways Corp. Privacy Litig.,
379 F. Supp. 2d 299 (E.D.N.Y. 2005) ..................................................................................... 13
In re Tobacco II Cases,
46 Cal. 4th 298 (2009) ............................................................................................................. 12
In re U.S.,
665 F. Supp. 2d 1210 (D. Or. 2009) .......................................................................................... 4
Jessup-Morgan v. Am. Online, Inc.,
20 F. Supp. 2d 1105, 1108 (E.D. Mich. 1998) .......................................................................... 8

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Jewel v. Nat’l Sec. Agency,
--- F.3d ---, 2011 WL 6848406 (9th Cir. Dec. 29, 2011)........................................................... 2
Kwikset Corp. v Super. Ct.,
51 Cal. 4th 310 (2011) ............................................................................................................. 12
Laster v. T-Mobile USA, Inc.,
407 F. Supp. 2d 1181 (S.D. Cal. 2005).................................................................................... 13

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Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992)................................................................................................................... 3
O’Grady v. Super. Ct.,
139 Cal. App. 4th 1423, 1449 (2006) ........................................................................................ 9
Pioneer Electronics (USA), Inc. v. Super. Ct.,
40 Cal. 4th 360 (2007) ............................................................................................................. 10

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Quon v. Arch Wireless Operating Co., Inc.,
529 F.3d at 892, 900 (9th Cir. 2008) ..................................................................................... 5, 7
Rosen v. State Farm Gen. Ins. Co.,
30 Cal. 4th 1070 (2003) ........................................................................................................... 15
Ruiz v. Gap, Inc.,
540 F. Supp. 2d 1121 (N.D. Cal. 2008) ....................................................................... 10, 11, 14
Sams v. Yahoo!, Inc.,
2011 WL 1884633 (N.D. Cal. May 18, 2011) ........................................................................... 8
DEFENDANT LINKEDIN CORPORATION’S REPLY IN
SUPPORT OF MOTION TO DISMISS AMENDED
COMPLAINT

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U.S. v. Forrester,
512 F.3d 500 (9th Cir. 2008) ............................................................................................... 9, 10
United States v. Jones,
132 S. Ct. 945 (2012) (Opp. at 11) .......................................................................................... 11
STATUTES
18 U.S.C. §2510....................................................................................................................... 4, 5, 6

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18 U.S.C. §2702(a) .................................................................................................................. 4, 5, 6
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18 U.S.C. §2702(b) ...................................................................................................................... 6, 7
18 U.S.C. §2702(c) ...................................................................................................................... 8, 9

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18 U.S.C. §2703(b) ...................................................................................................................... 4, 5

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18 U.S.C. §2711........................................................................................................................... 5, 7

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18 USC §§2701 et. seq. ................................................................................................................... 4

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OTHER AUTHORITIES

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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, 1215-16 & n.48 (2004) ......................... 4

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S. Rep. 99-541, 1986 U.S.C.C.A.N. 3555 ....................................................................................... 5
William, Jeremy Robison, Free At What Cost?: Cloud Computing Privacy Under the
Stored Communications Act, 98 GEO. L.J. 1195, 1207 (2010) .................................................. 4

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DEFENDANT LINKEDIN CORPORATION’S REPLY IN
SUPPORT OF MOTION TO DISMISS AMENDED
COMPLAINT

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I.

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INTRODUCTION
At its core, the allegation of the Amended Complaint, like the original complaint, is that

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LinkedIn transmitted to third parties two types of data: (1) LinkedIn User IDs (a unique number

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generated by LinkedIn) and (2) URLs of pages on the LinkedIn website, which contained a

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component of the URL the LinkedIn User ID of the member whose page was being viewed.

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Plaintiffs’ primary concern appears to be that third parties somehow are using this data to “de-

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anonymize” Internet browsing histories that these same third parties previously collected

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independent of LinkedIn. Yet plaintiffs fail to allege that any third party actually has de-

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anonymized the browsing history of any LinkedIn user (or even attempted to do so)—let alone

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of one of the named plaintiffs. Even more significant, and contrary to this Court’s November

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11, 2011 Order dismissing the original complaint, plaintiffs still fail to offer a coherent theory of

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how LinkedIn plays a role in this hypothetical de-anonymization process or why LinkedIn

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should be responsible for this supposed third party conduct.

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Although misleading and unsubstantiated assertions in the Opposition attempt to

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sensationalize LinkedIn’s conduct (and suggest that LinkedIn itself has disclosed user’s

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“internet browsing histories”), the actual Amended Complaint is explicitly limited to the

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purported disclosure of User IDs and LinkedIn URLs and not the collection, disclosure, or de-

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anonymization of broader Internet browsing histories by LinkedIn. 1 To the extent plaintiffs take

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issue with third parties’ collection of Internet browsing histories, those third parties (and not

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LinkedIn) should be the proper target of plaintiffs’ complaint. As it is, the purported disclosure

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by LinkedIn of User IDs and the particular URLs at issue here, standing alone, is not alleged to

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See, e.g., Amended Complaint (“AC”) ¶3 (“Plaintiffs’ LinkedIn Browsing Histories and their
LinkedIn user identification numbers (‘LinkedIn IDs’)—sent in connection with third party
cookie identification numbers (‘cookie IDs’)—were transmitted to Third Parties by LinkedIn.”);
id. ¶5 (“LinkedIn provided Third Parties their LinkedIn IDs . . . and their LinkedIn Browsing
History.”); id. ¶¶16, 66-68; see also Opposition (“Opp.”) at 13 (acknowledging that “the broader
browsing histories are collected by third parties, not LinkedIn”); id. at 15 (“LinkedIn discloses
two types of ‘contents’ of communications: a) Linked-In related [sic] browsing histories, b)
LinkedIn IDs.”). “LinkedIn-related browsing history,” referred to as “browsing history among
LinkedIn profiles” (see AC at 1 & ¶66), appears to mean an aggregation of the Viewed Page
information, defined as “the URL of the profile page the user was viewing” (see AC ¶¶28, 67).

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DEFENDANT LINKEDIN CORPORATION’S REPLY IN
SUPPORT OF MOTION TO DISMISS AMENDED
COMPLAINT

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Civil Case No.: 5:11-cv-01468 LHK

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cause any particularized injury or harm to the named plaintiffs, so Article III standing still is

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lacking. In addition, plaintiffs still have not properly pled a single cause of action. The

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Amended Complaint must be dismissed, this time with prejudice.

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II.

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ARGUMENT
A.

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The Amended Complaint Must Be Dismissed For Lack Of Article III
Standing Because Even If The SCA Claim Provides A “Concrete” Injury,
Plaintiffs Fail To Plead An Injury That is “Particularized” As To Them.

LinkedIn’s Motion explained that under this Court’s recent analysis in Fraley v.

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Facebook, Inc., --- F.Supp.2d ---, 2011 WL 6303898, at *6 (N.D. Cal. Dec. 16, 2011), the

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Amended Complaint fails to establish standing even though it purports to allege a statutory

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claim, because there are insufficient allegations that the two named plaintiffs suffered

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particularized injury. See Motion to Dismiss (“Mot.”) at 6-7. The Opposition relies on this

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standard, set out in Jewel v. Nat’l Sec. Agency, --- F.3d ---, 2011 WL 6848406, at *3-6 (9th Cir.

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Dec. 29, 2011), and Edwards v. First Am. Corp., 610 F.3d 514 (9th Cir. 2010), cert. granted,

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131 S. Ct. 3022 (2011), arguing the amended pleading is sufficient. 2
While Jewel and Edwards, like the Fraley decision, hold that a plaintiff meets Article

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III’s “concrete” injury requirement by alleging violation of a statute, the recent Jewel decision is

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explicit that a plaintiff also must also allege a sufficiently “particularized” grievance. Jewel,

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2011 WL 6848406, at *4 (“Satisfied that [plaintiff] sufficiently alleged concrete injury, we turn

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now to the more difficult question, whether the rights asserted are sufficiently particularized.”);

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see Fraley, 2011 WL 6303898, at *7-9. Jewel found the allegations there sufficient because the

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plaintiff alleged in detail that the defendant telecommunications company had disclosed

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communications to the government in violation of the SCA and other statutes and that “her

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communications were part of the dragnet.” Jewel, 2011 WL 6848406, at *5.
That is what is missing here: plaintiffs still do not allege their communications actually

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passed into third party hands as a result of LinkedIn’s conduct so as to cause them particularized

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Implicit in plaintiffs’ argument is the concession that if the statutory claims do not meet Rule
12(b)(6)—and they do not—then plaintiffs have no standing to pursue any common law claims.

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DEFENDANT LINKEDIN CORPORATION’S REPLY IN
SUPPORT OF MOTION TO DISMISS AMENDED
COMPLAINT

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injury. They assert that they have alleged “what information was actually disclosed to third

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parties that would lead [them] to suffer emotional harm.” Opp. at 7 (quoting Low v. LinkedIn

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Corp., WL 5509848, at *3 (N.D. Cal. Nov. 11, 2011) (“Low”)). They then carelessly contend

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that LinkedIn “divulged Plaintiffs’ browsing histories to third parties . . . . Accordingly, the

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Amended Complaint does allege that LinkedIn did actually disclose ‘potentially sensitive

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information.’” Opp. at 7; see id. at 8. This is false. The Amended Complaint, like the original

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complaint, never alleges that LinkedIn possessed, let alone disclosed to anyone, plaintiffs’

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Internet browsing histories. There is only conjecture that LinkedIn’s alleged disclosure of

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anonymous User IDs, along with URLs containing the address of LinkedIn pages that were

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viewed (but not the identity of the viewers) purportedly allows third parties to de-anonymize the

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Internet browsing histories that the third parties allegedly already possessed. Contrary to this

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Court’s direction, the amended pleading still offers no coherent explanation of “how third party

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advertisers would be able to infer [a plaintiff’s] personal identity from LinkedIn’s anonymous

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user ID combined with [that plaintiff’s] browsing history.” Low at *5; see Mot. at 4 & n.1.

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And, of course, the Amended Complaint still does not allege that any third party actually linked

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either named plaintiff’s identity with an independently collected (and previously anonymous)

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Internet browsing history as a result of LinkedIn’s alleged conduct. See Low at *7.

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Accordingly, there is still no particularized injury here—no basis for emotional or

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economic harm when there is no allegation that third parties actually de-anonymized their

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Internet browsing histories. 3 Plaintiffs simply repeat their refrain, without authority, that they

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should be compensated because their personal information is “valuable personal property.” Id.

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at 8. They still do not allege that they have lost out on a single “value-for-value exchange” as a

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result of the conduct alleged. See Low at *5 (“Low has failed to allege how he was foreclosed

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The Opposition suggests that because plaintiff Masand is alleged to have paid for a LinkedIn
subscription, he “did not receive the full value in the ‘value-for-value exchange.’” Opp. at 9.
But there is no allegation in the pleading (or even suggestion in the Opposition) that Masand’s
agreement with LinkedIn required he be paid for his personal information. And, as explained in
the Motion (at 10 n.5), such alleged 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
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotations omitted).

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DEFENDANT LINKEDIN CORPORATION’S REPLY IN
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COMPLAINT

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from capitalizing on the value of his personal data or how he was ‘deprived of the economic

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value of [his] personal information simply because [his] unspecified personal information was

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purportedly collected by a third party.’”). The required “particularized” injury is still absent.

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B.

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Several independent grounds require dismissal of the SCA claim. See Mot. at 10-19.

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The Stored Communication Act (“SCA”) Claim Fails On Multiple Grounds.

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The Complaint Does Not Properly Allege That LinkedIn Acts As An
RCS With Respect To The Conduct Alleged.

The SCA only regulates the disclosure of stored electronic communications held by
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providers of electronic communication service (“ECS”) and providers of remote computing
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service (“RCS”). 4 See 18 USC §§2701 et. seq.; Mot. at 10. Whether an entity acts as an ECS or

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an RCS is entirely context dependent; a determination of whether the SCA’s ECS rules or RCS
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rules apply must occur based on the particular service or particular piece of an electronic
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communication at issue at a specific time. See In re U.S., 665 F. Supp. 2d 1210, 1214 (D. Or.
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2009); Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s
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Guide to Amending It, 72 GEO. WASH. L. REV. 1208, 1215-16 & n.48 (2004) (“Kerr”); Mot. at
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12. In other words, a provider such as LinkedIn can act as an ECS with respect to some
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communications, an RCS with respect to other communications, and neither an ECS nor an RCS
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with respect to other communications. Kerr at 1215-16 & n.48. Plaintiffs ignore this basic rule
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and simply argue that LinkedIn must be an RCS, because it “stores profiles and creates a
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network of users” or uses the words “storage” or “store” in its prospectus. See Opp. at 13-15. 5

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Although the Amended Complaint alleges that LinkedIn is both an ECS and an RCS (see AC
¶¶69, 70), the Opposition concedes that LinkedIn does not act as an ECS here. See Opp. at 1315 (only arguing LinkedIn is an RCS). In any event, LinkedIn does not act as an ECS with
respect to the communications at issue for the reasons set out in the Motion, including because
LinkedIn did not divulge information held in “electronic storage.” See Mot. at 12.
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In fact, a service provider must meet four strict requirements to act as an RCS. First, it must
offer “computer storage or processing services” to the public through an electronic
communications system. See William, Jeremy Robison, Free At What Cost?: Cloud Computing
Privacy Under the Stored Communications Act, 98 GEO. L.J. 1195, 1207 (2010) (citing 18
U.S.C. §§2510(14), 2711(2)). Second, the data must be received electronically from the
customer. Id. (citing 18 U.S.C. §§2702(a)(2)(A), 2703(b)(2)(A)). Third, the content must be
“carried or maintained” by the provider “solely for the purpose of providing storage or computer
processing services” to the customer. Id. (citing 18 U.S.C. §§2702(a)(2)(B), 2703(b)(2)(B))
(emphasis added). Fourth, the provider cannot be “authorized to access the [customer’s] content
(continued…)
DEFENDANT LINKEDIN CORPORATION’S REPLY IN
SUPPORT OF MOTION TO DISMISS AMENDED
COMPLAINT

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But the profile data purportedly collected during the LinkedIn sign-up process (see AC ¶24,

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Opp. at 13) is entirely unrelated to the conduct complained of in the Amended Complaint.

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Rather, it is only the LinkedIn User IDs and LinkedIn URLs—what plaintiffs allege were

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improperly disclosed (see AC ¶¶3, 16, 67-68; Opp at 13)—that must be examined in considering

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whether LinkedIn acted as an RCS here.

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An RCS is defined as “the provision to the public of computer storage or processing

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services by means of an electronic communications system.” 18 U.S.C. §2711(2) (emphasis

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added); see Mot. at 11-12. 6 As the SCA’s legislative history explains, the ECS and RCS

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dichotomy was intended to differentiate two services that third party providers performed in

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1986: (1) data communication and (2) data storage and processing. See Quon, 529 F.3d at 901

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(citing S. Rep. 99-541, 1986 U.S.C.C.A.N. 3555). The Senate report demonstrates what is

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meant by “computer storage and processing services,” given as an example of remote “storage”

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that “physicians and hospitals maintain medical files in offsite data banks.” S. Rep. 99-541, at

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2-3. As such, it appears that Congress viewed “storage” as a virtual filing cabinet for

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information. See Quon, 529 F.3d at 901. The Senate Report illustrates the “processing of

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information” with a statement that “businesses of all sizes transmit their records to remote

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computers to obtain sophisticated processing services.” S. Rep. 99-541, at 2-3. This was

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necessary because, as the Ninth Circuit noted in Quon, “before the advent of advanced computer

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processing programs such as Microsoft Excel, businesses had to farm out sophisticated

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processing to a service that would process the information.” Quon, 529 F.3d at 901 (citation

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omitted).

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for purposes of providing any services other than storage or computer processing.” Id. (citing
18 U.S.C. §§2702(a)(2)(B), 2703(b)(2)(B)). LinkedIn does not meet these requirements with
respect to the data at issue and so cannot act as an RCS.
Plaintiffs assert that LinkedIn “admits that it is an RCS.” See Opp. at 14, 21 n.17. This is
inaccurate. LinkedIn noted that it potentially acts as an ECS in some capacities and as an RCS
in other capacities but that the “allegations in the Amended Complaint do not concern conduct
of LinkedIn as either an ECS or RCS.” Mot. at 12.
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An “electronic communications system” is simply the mechanism by which an RCS provides
computer storage or processing services. See 18 U.S.C. §2510(14).

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DEFENDANT LINKEDIN CORPORATION’S REPLY IN
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COMPLAINT

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The Amended Complaint alleges that LinkedIn disclosed LinkedIn User IDs and

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LinkedIn URLs (see AC ¶¶3, 16, 67-68; Opp at 13), but there is no suggestion that either was

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sent to LinkedIn by plaintiffs for remote storage or processing services. LinkedIn IDs are

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numbers generated by LinkedIn and so they cannot have been sent to LinkedIn by plaintiffs for

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offsite storage or for processing. See 18 U.S.C. §§2702(a)(2)(A) (requiring that

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communications be sent electronically by the user); see also Mot. at 12-14. The URL addresses

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at issue in the Amended Complaint (i.e., the “Viewed Page” information or “LinkedIn-related

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browsing history”) similarly were not sent to LinkedIn by plaintiffs for storage or processing

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and such storage or processing is not even alleged. See AC ¶72 (alleging only that “Defendant

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holds their users’ personal identification number and personal information in electronic storage

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within the meaning of 18 U.S.C. §2510(17)” but not making any such allegation with respect to

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URLs). And certainly the URLs are not “carried or maintained . . . solely for the purpose of

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providing storage or computer processing services,” as is required to trigger protection under the

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statute’s RCS rules, because, by definition, the URLs are the functional mechanism by which

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pages on the LinkedIn website are viewed. See 18 U.S.C. §2702(a)(2)(B) (emphasis added).

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Because the User IDs and URLs at issue in the Amended Complaint were not sent to

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LinkedIn by plaintiffs for the provision of remote storage and processing services or carried or

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maintained solely for the purpose of providing these services, LinkedIn is not functioning as an

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RCS. As such, no liability can attach to LinkedIn’s purported conduct under the SCA.

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2.

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

As set out in LinkedIn’s Motion, the SCA claim also fails as a matter of law because a

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provider can divulge the contents of a communication to, or with the lawful consent of, “an

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addressee or intended recipient” of the communication. 18 U.S.C. §§2702(b)(1), (b)(3); Mot. at

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14-15. Plaintiffs contend that the intended recipient exception under Section 2702(b)(3) does

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not apply to an RCS by citing a footnote in one non-binding district court opinion. See Opp. at

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20 (citing Crispin v. Audigier, 717 F. Supp. 2d 965, 973 n.17 (C.D. Cal. 2010). However,

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plaintiffs’ position is contradicted by the plain language of the statute:
DEFENDANT LINKEDIN CORPORATION’S REPLY IN
SUPPORT OF MOTION TO DISMISS AMENDED
COMPLAINT

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A provider described in subsection (a) [that is, an ECS or RCS] may divulge the
contents of a communication—(1) to an addressee or intended recipient of such
communication or an agent of such addressee or intended recipient; . . . (3) with
the lawful consent of the originator or an addressee or intended recipient of such
communication, or the subscriber in the case of remote computing service.
18 U.S.C. §2702(b)(1), (3). Plaintiffs’ contention is that the first clause of Section 2702(b)(3)—
“with the lawful consent of the originator or an intended recipient of such communication”—
applies only to an ECS. But it is nonsensical that Congress would have drafted the statute in
this manner, with all of sub-section (b) pertaining to both ECS and RCS providers, if the first
clause of (b)(3) was not intended to apply to both providers. Indeed, it is precisely because the
first clause of Section 2702(b)(3), by the statute’s terms, applies to both an ECS and an RCS,
that the second clause of that provision must be qualified (“in the case of remote computing
service”) in order to apply only to an RCS. And, the Ninth Circuit has explicitly held that the
statute means what it says: “[B]oth an ECS and RCS can release private information to, or with
the lawful consent of, ‘an addressee or intended recipient of such communication,’ §2702(b)(1),
(b)(3), whereas only an RCS can release such information ‘with the lawful consent of . . . the
subscriber.’” Quon, 529 F.3d at 900.
As noted in the Motion, the court in In re Facebook Privacy Litigation relied on the
exception in Section 2702(b)(3) to dismiss an SCA claim predicated on the same underlying
facts—alleged transmittal of User IDs to third parties. See In re Facebook Privacy Litig., 791 F.
Supp. 2d 705, 714 (N.D. Cal. 2011); In re Facebook Privacy Litig., 2011 WL 6176208, at *2-4
(N.D. Cal. Nov. 22, 2011); Mot. at 14-15. Plaintiffs attempt to distinguish Judge Ware’s
holding in that case by claiming that the plaintiffs there “fail[ed] to allege that the defendant was
an RCS.” Opp. at 21. That assertion is contradicted by both the Opposition (which two
sentences earlier states that the Facebook plaintiffs asserted “that the defendant was an RCS”
(id.)) and by the pleadings in Facebook, of which this Court may take judicial notice. See In re
Facebook Privacy Litig., No. C 10-02389 JW, Dkt. No. 92 (First Amended Consolidated Class
Action Compliant) ¶91 (alleging Facebook is a “‘remote computing service’ provider pursuant
to 18 U.S.C. §2711(2)”). Here, just as in Facebook, either the third parties at issue are the

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COMPLAINT

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“addressee or intended recipient” of the purported communications sent by LinkedIn (see AC

2

¶¶3, 5, 17; Mot. at 15) or the transmitted URLs reflect a communication by plaintiffs to

3

LinkedIn (see Mot. at 15). In either case, any disclosure by LinkedIn was permissible under the

4

SCA’s intended recipient exception. See In re Facebook Privacy Litig., 2011 WL 6176208, at

5

*2-4 (dismissing SCA claim with prejudice based on intended recipient exception).

6

3.

7

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

As detailed in LinkedIn’s Motion, the SCA permits the disclosure of non-content records
8
to non-government entities without restriction. 18 U.S.C. §2702(c)(6); Mot at 15. Thus,
9
because neither the LinkedIn User IDs nor the URLs at issue constitute communication contents
10
and because the alleged disclosures were made to non-governmental entities (see AC at 1), the
11

SCA claim must be dismissed for this reason as well. 7

12
Ignoring both the SCA’s legislative history and clear judicial precedent, plaintiffs argue
13
that LinkedIn User IDs—a string of numbers generated by LinkedIn—are communication
14
contents. This is plainly incorrect. Congress made clear in amending ECPA in 1986 that even
15
revealing a person’s identity is not “communication contents” under the SCA. See Mot. at 16.
16
Accordingly, in Jessup-Morgan v. Am. Online, Inc., the disclosure of basic identity information
17
revealing an account holder’s name in connection with a published message was held not to
18
constitute the “contents of an electronic communication.” 20 F. Supp. 2d 1105, 1108 (E.D.
19

Mich. 1998). 8 Plaintiffs assert that Jessup-Morgan is inapplicable because of a “particularly

20
egregious set of facts” (see Opp. at 20 n.15), but they are incorrect that the SCA contemplates
21
any subjective evaluation of the circumstances surrounding a disclosure. If an identity or a
22
name does not constitute communications contents under the SCA, as in Jessup-Morgan, a User
23
24
25
26
27

7

The Opposition carelessly suggests for the first time that information could have been divulged
to the government. See Opp at 18 n.12. However, there is no such allegation in either the
Amended Complaint or original complaint, nor is there any factual basis for this suggestion.
8
See also Sams v. Yahoo!, Inc., 2011 WL 1884633, at *6-7 (N.D. Cal. May 18, 2011); Hill v.
MCI WorldCom Commcn’s, Inc., 120 F. Supp. 2d 1194, 1195 (S.D. Iowa 2000); Mot. at 15-18.

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ID assigned by LinkedIn cannot possibly qualify as contents. 9

2

The only other type of data purportedly disclosed by LinkedIn is URL addresses from

3

pages on the LinkedIn website, which contain as a parameter the LinkedIn User ID of the user

4

whose page is being viewed. See AC ¶¶ 5, 16. These URLs are precisely the type of

5

transactional, routing information that has been deemed non-content information under the

6

SCA. See Mot. at 17. In fact, as both complaints acknowledge (see Dkt. No. 1 ¶16; AC ¶15),

7

referrer URLs of this nature are a basis feature of Internet architecture, and a finding that these

8

supposed communications transmitted by a user’s web browser somehow constitutes contents

9

would undermine the basic functionality of the Internet. See Mot. at 17-18 & n.9.

10

Plaintiffs are incorrect that U.S. v. Forrester, 512 F.3d 500 (9th Cir. 2008), or In re

11

Application of U.S. for an Order Authorizing use of A Pen Register, 396 F. Supp. 2d 45 (D.

12

Mass. 2005), suggest that LinkedIn User IDs or the URLs at issue here are communication

13

contents. See Opp. at 16-17. The Pen Register court considered circumstances under which

14

application of a pen register or trap and trace device in an Internet context could capture

15

communication contents. See Pen Register, 396 F. Supp. 2d at 48 (recognizing that information

16

revealing the email addresses to whom an email is sent, from whom the email is sent, and any

17

persons who are “cc’d” on the email is not communication contents but that the “subject” line of

18

an email would reveal contents). Both the Pen Register and Forrester courts consider in dicta

19

the idea that certain types of URLs—for example those that contain a search phrase entered by a

20
9

21
22
23
24
25
26
27

Plaintiffs contend that even if LinkedIn User IDs are records, their disclosure violated the SCA
by revealing them with contents. See Opp at 18-20. This argument is misplaced, because the
URLs at issue—the only other information LinkedIn is alleged to have disclosed—also do not
constitute communication contents, as discussed in the text. O’Grady v. Super. Ct. addressed a
different factual scenario in which a subpoena sought to “discover [] the contents of private
messages stored on [companies’] facilities” by seeking the authors of emails regarding a specific
subject matter. 139 Cal. App. 4th 1423, 1449 (2006) (emphasis omitted). Moreover, as the
O’Grady court noted, the subpoena issuer sought “much more” than the identity of the author(s)
of specified emails, including “all communications from or to any Disclosing Person(s) relating
to the Product.” Id. at 1448-49 (emphasis omitted).
Plaintiffs are also incorrect that Section 2702(c) is intended “to restrict record information from
being correlated or divulged with records.” See Opp. at 18 n.13. Section 2702(a) prohibits the
disclosure of communications contents; Section 2702(c) permits disclosure of customer records
under certain circumstances—for example, to a non-governmental entity without restriction.

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user following the forward slash in a URL address—may constitute contents by revealing that a

2

user conducted a search for information on a particular topic. The Amended Complaint does

3

not allege, however, that URLs of the nature contemplated in Pen Register or Forrester—i.e.,

4

indicating searches on a particular topic—were disclosed. 10 See Pen Register, 396 F. Supp. 2d

5

at 48-49; Forrester, 512 F.3d at 510 & n.6. Rather, the fact that one person viewed another

6

person’s LinkedIn page is no different from the fact that one person emailed with another

7

person—precisely the non-contents information the Pen Register court held would “certainly be

8

obtainable” under the SCA. Pen Register, 396 F. Supp. 2d at 48; see Forrester, 512 F.3d at 510

9

(“e-mail and Internet users have no expectation of privacy in the to/from addresses of their

10

messages or the IP addresses of the websites they visit”).

11

For all these reasons, plaintiffs’ SCA claim still fails.

12

C.

13

The State Law Claims All Fail As A Matter Of Law.
1.

The California Privacy Claims Are Deficient As A Matter Of Law.

The Amended Complaint does not even approach the standard required for an invasion

14
15

of privacy claim under the California Constitution or common law, because the conduct alleged

16

was not an “egregious breach of social norms.” See Mot. at 19-21 (discussing cases). Plaintiffs

17

appeal to the history of the constitutional privacy provision (Opp. at 9), but the California

18

Supreme Court has held that, “[n]otwithstanding the broad descriptions of the privacy right in

19

the ballot arguments and legislative findings . . . the right of privacy protects the individual’s

20

reasonable expectation of privacy against a serious invasion.” Pioneer Electronics (USA), Inc.

21

v. Super. Ct., 40 Cal. 4th 360, 370 (2007).

22

Plaintiffs attempt to distinguish cases such as Ruiz v. Gap, Inc., 540 F. Supp. 2d 1121

23

(N.D. Cal. 2008), and Fogelstrom v. Lamps Plus, Inc., 195 Cal. App. 4th 986, 992 (2011), by

24

arguing that “[t]hose cases involved disclosure of a single piece of unlinked information (social

25
26
27

10

It cannot be that all URLs constitute communication contents because IP addresses of web
sites visited, which are universally recognized as non-content information, provide exactly the
same information as some website URLs (for example, www.google.com). See e.g., Pen
Register, 396 F. Supp. 2d at 48 (stating that disclosure of IP address showing the websites that a
user visited would be “no problem”).

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COMPLAINT

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security numbers or ZIP codes).” See Opp. at 12 n.7. But that is just what is alleged here, as

2

plaintiffs do not allege that any third party has linked their User IDs to a previously anonymous

3

browsing history or to any other information. 11 And, of course, the information LinkedIn is

4

alleged to have disclosed—User IDs and URLs of LinkedIn webpages viewed—is even less

5

sensitive than the social security numbers at issue in Ruiz. As the Fogelstrom court explained,

6

the use of information collected from consumers for purposes of delivering advertising, even

7

“without [consumers’] knowledge or permission,” “is not an egregious breach of social norms,

8

but routine commercial behavior.” 195 Cal. App. 4th at 992.
Here, plaintiffs only allege LinkedIn engaged in analogous routine commercial activity

9
10

when users’ web browsers supposedly transmitted referrer URLs—a standard feature of Internet

11

functionality. This is a far cry from the types of activities that have been held to constitute a

12

sufficiently egregious invasion or which could cause a reasonable person to be highly offended.

13

See Hill v. Nat’l Collegiate Athletic Ass’n, 7 Cal. 4th 1, 40-41 (1994) (direct observation of

14

urination by a monitor was sufficiently egregious invasion); Egan v. Schmock, 93 F. Supp. 2d

15

1090 (N.D. Cal. 2000); (stalking and filming of neighbors in their home sufficiently egregious

16

invasion). Accordingly, each of the privacy claims should be dismissed with prejudice.

17

1.

The False Advertising Law (“FAL”) Claim Fails.

LinkedIn’s Motion explained that the FAL claim both because Low’s allegations do not

18
19

meet Proposition 64’s threshold requirement (“lost money or property”) and because neither

20

plaintiff has pled that he relied on particular representations of LinkedIn. See Mot. at 19-20.
Plaintiff first responds, without citation to any decisions, that the loss of personal

21
22

information equates to “lost money or property,” as required by the FAL after Proposition 64.

23

Opp. at 22. This is whistling past the graveyard. “Numerous courts have held that a plaintiff’s

24
25
26
27

11

To the extent plaintiffs argue it is the de-anonymization of a third party browsing history that
constitutes violation of a privacy right (see Opp. at 10 n.5), the third parties who collect,
maintain, and, hypothetically de-anonymize such a browsing history would be the proper
defendants. Justice Sotomayor’s concurrence in United States v. Jones, 132 S. Ct. 945, 954-55
(2012) (Opp. at 11) is not relevant here, as LinkedIn is not alleged to have disclosed a list of
websites visited to the government or to anyone else. See n.7, supra.

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COMPLAINT

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‘personal information’ does not constitute money or property under” Proposition 64. See In re

2

iPhone Application Litig., 2011 WL 4403963, at *14 (N.D. Cal. Sept. 20, 2011) (citing cases);

3

Low at *4 (citing cases). So Low’s FAL claim fails.
Both named plaintiffs’ FAL claims fail because they have not pled reliance on particular

4
5

alleged misrepresentations, as required after Proposition 64. Mot. at 19-20; Kwikset Corp. v

6

Super. Ct., 51 Cal. 4th 310, 326 (2011) (plaintiff must allege “reliance on the alleged

7

misrepresentation”); In re Tobacco II Cases, 46 Cal. 4th 298, 326 (2009). Plaintiffs respond by

8

pointing to an allegation in the Amended Complaint that they “provid[ed]” their personal

9

information to LinkedIn “not only [in exchange] for [LinkedIn’s] services, but also in exchange

10

for Defendant’s promises that it would not make” such information available to third parties.

11

AC ¶57; see Opp. at 22. 12 This confirms that the only allegedly false representations are

12

portions of LinkedIn’s privacy policy. See Mot. at 20; AC ¶¶47-55. But as pointed out in the

13

Motion (at 20), there is no allegation in the pleading that either plaintiff read, let alone relied on,

14

any statement in the privacy policy. This dooms the FAL claim. See Durell v. Sharp

15

Healthcare, 183 Cal. App. 4th 1350, 1363 (2010) (“the [complaint] does not allege Durell ever

16

visited Sharp’s Web site or even that he ever read the Agreement for Services”).
Plaintiffs then contend that they need not plead reliance because they are “entitled to an

17
18

inference of reliance ‘wherever there is a showing that a misrepresentation was material.’” Opp.

19

at 23 (quoting Tobacco II, 46 Cal. 4th at 327). However, Tobacco II was explicit that the

20

plaintiff “must allege that the defendant’s misrepresentations were an immediate cause of the

21

injury-causing conduct”—that is, that the plaintiff was exposed to the alleged

22

misrepresentations. 46 Cal. 4th at 328. No authority supports the odd notion that a plaintiff is

23

entitled to an inference of reliance on a representation he is never alleged to have read or heard.

24
25
26
27

12

Plaintiffs also cite paragraph 117 of the Amended Complaint, alleging that “[i]f Plaintiffs had
known Defendant was not keeping their personal information from third parties, they would not
have consented.” AC ¶117; see Opp. at 22-23. This allegation (part of the unjust enrichment
claim plaintiffs agree must be dismissed (see Opp. at 2 n.2)) is not incorporated in the FAL
cause of action, so it cannot support that claim. See AC ¶87. In any event, paragraph 117 still
does not allege that plaintiffs read and relied on any statements by LinkedIn.

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COMPLAINT

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Plaintiffs next make the throwaway assertion that their “theory of harm is, in part,

2

premised on omissions” and suggest in passing that it is sufficient for an FAL claim if they

3

“believed[] that Defendant would not share their personally identifiable information.” Opp. at

4

23. But plaintiffs cite no authority to support the notion that a plaintiff’s mere belief obviates

5

the need for reliance, and such a rule would, of course, entirely eviscerate the reliance

6

requirement of Proposition 64. A claim under the False Advertising Law requires reliance on

7

false advertising. See Laster v. T-Mobile USA, Inc., 407 F. Supp. 2d 1181, 1194 (S.D. Cal.

8

2005) (plaintiffs asserting an FAL claim after Proposition 64 must “allege they actually relied

9

on false or misleading advertisements”); Mot. at 19-20 (citing cases).

10

LinkedIn’s Motion also explained that a FAL claim that, as here, is premised on

11

knowing deception must meet the specificity requirements of Rule 9(b), and that this pleading

12

did not. Mot. at 20 n.12. Plaintiffs’ Opposition does not address Rule 9(b) at all, thereby

13

conceding the issue and independently requiring dismissal of the FAL claim.

14
15
16

For all these reasons, the FAL claim fails as a matter of law and must be dismissed.
2.

Plaintiffs Have Not Alleged Cognizable Contract Damages.

The breach of contract claim requires—but lacks—cognizable contract damages. See

17

Mot. at 22-23. Plaintiffs do not address this defect except to assert in passing that “their

18

personal information is valuable property” that they “exchange[d] for LinkedIn’s services,” that

19

LinkedIn “breached the contract,” and that plaintiffs therefore are “entitled to contractual

20

damages.” Opp. at 23. But the only courts to have considered this argument have rejected it

21

because “[p]laintiffs . . . had no reason to expect that they would be compensated for the ‘value’

22

of their personal information.” In re JetBlue Airways Corp. Privacy Litig., 379 F. Supp. 2d 299,

23

326-27 (E.D.N.Y. 2005); see Dyer v. Nw. Airlines Corp., 334 F. Supp. 2d 1196, 1200 (D.N.D.

24

2004). This makes perfect sense, because the damages claimed by plaintiffs do not correspond

25

to any benefit of the bargain theory cognizable under contract law. See Mot. at 22-23.

26

3.

Plaintiffs’ Conversion Claim Must Be Dismissed.

27

As set out in LinkedIn’s Motion, the conversion claim fails because the “property” at

28

issue is not tangible, is not “merged with, or reflected in, something tangible,” and cannot be
DEFENDANT LINKEDIN CORPORATION’S REPLY IN
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COMPLAINT

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1

exclusively possessed. See Mot. at 23 (citing cases). The Opposition insists that the requisite

2

property interest for a conversion claim has been satisfied (see Opp. at 24-25), but ignores the

3

substantial body of authority from this Court and within this District holding that “a plaintiff’s

4

‘personal information’ does not constitute money or property.” In re iPhone Application Litig.,

5

2011 WL 4403963, at *14; see In re Facebook Privacy Litig., 791 F. Supp. 2d at 714-15; Ruiz,

6

540 F. Supp. 2d at 1127. Because personal information does not constitute money or property

7

or anything else tangible and, by extension, is not capable of exclusive possession, the purported

8

disclosure of this data cannot support a conversion claim. 13
Additionally, plaintiffs do not even attempt to contend that the resulting damages

9
10

required to state a conversion claim have been properly alleged. See Mot. at 24. Nor could

11

plaintiffs so contend, as the Amended Complaint does not remedy the fatal deficiencies the

12

Court previously identified. See Low at *7 (“Low has failed to allege how he was foreclosed

13

from capitalizing on the value of his personal data or how he was ‘deprived of the economic

14

value of [his] personal information simply because [his] unspecified personal information was

15

purportedly collected by a third party.’”) (citation omitted).

16

4.

Plaintiff’s Negligence Claim Fails As A Matter of Law.

17

The negligence claim must be dismissed because, as detailed in LinkedIn’s Motion,

18

plaintiffs’ have not alleged “(a) a legal duty to use due care; (b) a breach of such legal duty;

19

[and] (c) the breach as the proximate or legal cause of the resulting injury.” Evan F. v.

20

Hughson United Methodist Church, 8 Cal. App. 4th 828, 834 (1992) (emphasis original); Mot.

21

at 24-25. As to existence of a legal duty, plaintiffs contend that “the common law creates a duty

22
23
24
25
26
27

13

Inexplicably, plaintiffs repeatedly cite an invasion of privacy decision for the proposition that
their “informational privacy interest” somehow equates to a “property interest” that can be
exclusively possessed. See Opp. at 24-25 (citing Hill, 7 Cal. 4th at 35). This is nonsensical. A
privacy claim, where properly pled, asserts that the defendant’s distribution of information has
caused the plaintiff reputational harm and embarrassment because other people know that
information. This is not the same as a conversion claim, which is predicated on the notion that
the defendant’s possession of tangible property belonging to the plaintiff harms the plaintiff
because the plaintiff can no longer possess and use the property. There is, of course, no
allegation here that the plaintiffs have been prevented from doing anything with their personal
information as a result of LinkedIn’s alleged conduct. The essence of conversion is absent.

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DEFENDANT LINKEDIN CORPORATION’S REPLY IN
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COMPLAINT

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for private parties to protect others’ private information in an objectively reasonable manner.”

2

Opp. at 25 & n.21. But the only case cited to support this remarkable statement says nothing

3

about a negligence claim (that word does not even appear in the opinion); instead, it concerns a

4

common law invasion of privacy claim. See Hill v. NCAA, 7 Cal. 4th 1 (1994). This court has

5

already rejected plaintiffs’ implicit notion that every privacy claim gives rise to a negligence

6

claim. See iPhone Application Litig., 2011 WL 4403963, at *9. With no independent legal

7

duty, the negligence claim fails. 14
The Amended Complaint also does not allege breach, because there is no allegation that

8
9

any third party actually obtained, let alone used, either plaintiffs’ personal information. Nor

10

does the Amended Complaint establish causation of harm in the form of a “appreciable, non-

11

speculative, present injury.” Aas v. Super. Ct., 24 Cal. 4th 627, 646 (2000) (superseded by

12

statute on other grounds as stated in Rosen v. State Farm Gen. Ins. Co., 30 Cal. 4th 1070, 1079-

13

80 (2003)); see iPhone Application Litig., 2011 WL 4403963, at *9; see also pp. 2-5 supra. For

14

these reasons as well, the negligence claim must be dismissed. 15

15

III.

CONCLUSION
The Amended Complaint should be dismissed with prejudice. Because the Court

16
17

has already given an opportunity to amend, and also because the amended pleading did not

18

address the deficiencies identified in the Court’s November 11 Order, no further leave to amend

19

should be granted. See Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990).

20

DATED: February 17, 2012

COVINGTON & BURLING LLP

21
By:
22
23

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

24
25
26
27

14

The Opposition does not dispute that, as set out in the Motion, the privacy policy of LinkedIn
cannot support the negligence claim. See Mot. at 24; Applied Equip. Corp. v. Litton Saudi
Arabia, Ltd., 7 Cal. 4th 503, 514-15 (1994); In re iPhone App. Litig., 2011 WL 4403963, at *9.
15
The Opposition concedes that the Seventh Cause of Action, for “unjust enrichment,” cannot
survive as an independent cause of action. See Opp at 2 n.2. So that claim must be dismissed.

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COMPLAINT

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