In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 122

***FILED IN ERROR - DISREGARD***Transcript of Proceedings held on 04/28/2016, before Judge Davila. Court Reporter Irene L. Rodriguez, telephone number [phone] [e-mail]. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re #120 Transcript Order, #121 Transcript Order ) Release of Transcript Restriction set for 8/1/2016. (Related documents(s) #120 , #121 ) (Rodriguez, Irene) (Filed on 5/3/2016) Modified on 5/5/2016 (sp, COURT STAFF).

1

1
2

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

3
4
5

IN RE FACEBOOK INTERNET
TRACKING LITIGATION.

APRIL 28, 2016

7

PAGES 1 - 118

8

10
11

TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE EDWARD J. DAVILA
UNITED STATES DISTRICT JUDGE
A-P-P-E-A-R-A-N-C-E-S

12
13
14
15
16
17
18
19
20
21
22
23
24
25

MD-12-02314-EJD

SAN JOSE, CALIFORNIA

6

9

CASE NO.

FOR THE PLAINTIFF:

SILVERMAN, THOMPSON, SLUTKIN & WHITE
BY:
STEPHEN G. GRYGIEL
201 NORTH CHARLES STREET, 26TH FLOOR
BALTIMORE, MARYLAND 21201
KAPLAN, FOX & KILSHEIMER LLP
BY:
DAVID A. STRAITE
850 THIRD AVENUE
NEW YORK, NEW YORK 10022
BARNES & ASSOCIATES
BY:
JASON BARNES
219 E. DUNKLIN STREET, SUITE A
JEFFERSON CITY, MONTANA 65101

(APPEARANCES CONTINUED ON THE NEXT PAGE.)
OFFICIAL COURT REPORTER:

IRENE L. RODRIGUEZ, CSR, RMR, CRR
CERTIFICATE NUMBER 8074

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY,
TRANSCRIPT PRODUCED WITH COMPUTER.

UNITED STATES COURT REPORTERS

2

1
2
3
4
5
6

A P P E A R A N C E S: (CONT'D)
FOR THE DEFENDANTS:

COOLEY
BY: MATTHEW D. BROWN
KYLE C. WONG
ADAM TRIGG
101 CALIFORNIA STREET, 5TH FLOOR
SAN FRANCISCO, CALIFORNIA 94111

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

UNITED STATES COURT REPORTERS

3

1

SAN JOSE, CALIFORNIA

2
3

P R O C E E D I N G S
(COURT CONVENED AT 9:07 A.M.)

4
5
6
7

APRIL 28, 2016

THE COURT:

OUR 9:00 O'CLOCK CALENDAR IS 12-2314,

FACEBOOK INTERNET TRACKING LITIGATION.
AND WHY DON'T I HAVE THE PARTIES MAKE THEIR APPEARANCES,
PLEASE.

8

MR. BROWN:

MATTHEW BROWN FOR FACEBOOK.

9

THE COURT:

THANK YOU.

10

MR. WONG:

11

MR. TRIGG:

ADAM TRIGG FOR FACEBOOK.

12

THE COURT:

THANK YOU.

13

MR. STRAITE:

14

KYLE WONG FOR FACEBOOK.

THE COURT:

16

MR. BARNES:

THANK YOU.
JAY BARNES FOR THE PLAINTIFF, YOUR

HONOR.

18

THE COURT:

19

MR. GRYGIEL:

20

GOOD MORNING, YOUR HONOR.

DAVID STRAITE FOR PLAINTIFF AND THE PUNITIVE CLASS.

15

17

GOOD MORNING.

LET ME -- GIVE ME JUST -- OH, YES.
GOOD MORNING, YOUR HONOR.

STEVE GRYGIEL FOR THE PLAINTIFF AND THE PUNITIVE CLASS.

21

THE COURT:

THANK YOU.

22

MR. GRYGIEL:

23

THE COURT:

GOOD MORNING.

GOOD MORNING.

THANK YOU ALL FOR BEING HERE.

THIS IS

24

THE DEFENDANTS' MOTION TO DISMISS.

AND LET ME INDICATE I'VE

25

BENEFITTED FROM YOUR PLEADINGS, AND I'VE READ THE PLEADINGS IN

UNITED STATES COURT REPORTERS

4

1

THIS CASE.

2

THAT OFFENSIVE, I THINK.

3

FASCINATING CASE, AS WE ALL KNOW, AND I'M EAGER TO HEAR YOUR

4

COMMENTS.

5
6

AND IF I USE THE WORD "INTERESTING," YOU WON'T FIND
THEY'VE BEEN VERY HELPFUL.

IT'S A

SO LET ME, WITH THAT, LET'S ASK THE DEFENSE TO COME
FORWARD.

7

AND, MR. BROWN, WHY SHOULD I GRANT YOUR MOTION.
MR. BROWN:

THANK YOU, YOUR HONOR.

AGAIN,

8

MATTHEW BROWN FOR FACEBOOK.

I THOUGHT WHAT I WOULD DO, UNLESS

9

YOUR HONOR HAS A DIFFERENT VIEW OF HOW TO PROCEED, WOULD BE TO

10

START WITH JUST IN A MINUTE OR SO OF SOME TABLE SETTING AND

11

KIND OF AN OVERVIEW OF HOW WE VIEW THE MOTION AND THEN MOVE ON

12

TO --

13

THE COURT:

OKAY.

MR. BROWN, I SHOULD TELL YOU THAT

14

THIS IS ABOUT INTERNET THINGS, AND THERE ARE SOME

15

INDIVIDUALS -- I DON'T WANT TO SOUND LIKE AN AGIST -- BUT

16

SOMETIMES PEOPLE OF A CERTAIN VINTAGE ARE NOT NATIVE, SHALL WE

17

SAY, TO THE INTERNET AND ALL OF THOSE COMMUNICATION TYPE

18

DEVICES.

19

I'M NOT SUGGESTING ANYONE IN THIS COURTROOM FALLS IN THAT

20

GENRE, BUT WE DO KNOW THIS AND WHEN WE TEACH, AND I TALK TO

21

OTHER STUDENTS AND THINGS, AND WHEN I TALK TO COLLEAGUES OF

22

MINE, IT IS AN INTERESTING JUXTAPOSITION BETWEEN PEOPLE WHO ARE

23

NATIVE AND OTHERS WHO ARE NOT TO THE INDUSTRY.

24
25

SO IT'S BEEN FASCINATING FOR ME TO LEARN THROUGH YOUR
PAPERS AND YOUR DISCUSSIONS, I'M CERTAIN I'LL LEARN A LITTLE

UNITED STATES COURT REPORTERS

5

1

MORE ABOUT IT, BUT PERHAPS THAT'S WHAT YOU WERE GOING TO TALK

2

ABOUT.

PARDON ME.

3

MR. BROWN:

AND I'D BE HAPPY TO ELABORATE ON

4

ANYTHING AS I'M GOING ALONG.

5

TO DISMISS, AND SO WE'RE LIMITED TO THE FACTS AS THEY'RE PLED

6

IN THE COMPLAINT OR THE ALLEGATIONS AT LEAST.

7

OBVIOUSLY WE'RE HERE FOR A MOTION

WHAT I THOUGHT I WOULD DO IS JUST SPEND A MINUTE OR TWO

8

KIND OF GIVING AN OVERVIEW OF HOW WE SEE THE MOTION, AND THEN

9

MOVE TO ARTICLE III STANDING, AND THEN TO WIRETAP ACTS, AND

10

THEN TO STORED COMMUNICATIONS ACT.

11

THE COURT:

THAT'S FINE.

12

MR. BROWN:

I'M OBVIOUSLY PREPARED TO GO FURTHER,

13

BUT I THOUGHT YOUR HONOR MAY WANT TO TAKE A BREAK AT SOME POINT

14

TO LET THE OTHER SIDE HAVE A SAY AS WELL.

15

OBVIOUSLY 11 DIFFERENT CAUSES OF ACTION.

16

THE COURT:

17

WANT ME TO ALLOW THE OTHER SIDE.

18

MR. BROWN:

SO THERE ARE

19
20

WELL, THAT'S VERY GENEROUS OF YOU TO

THAT DOES OCCASIONALLY HAPPEN AT THESE

HEARINGS.
SO TO SET THE STAGE A LITTLE BIT, OBVIOUSLY YOUR HONOR

21

KNOWS THERE WAS VERY EXTENSIVE BRIEFING ON THE FIRST AMENDED

22

COMPLAINT, AND YOUR HONOR ISSUED AN ORDER IN THE FALL

23

DISMISSING THAT COMPLAINT ON VARIOUS GROUNDS AND SOME ON

24

12(B)(1) STANDING GROUNDS AND SOME ON 12(B)(6) GROUNDS FOR

25

FAILURE TO STATE A CLAIM.

UNITED STATES COURT REPORTERS

6

1

THE PLAINTIFFS NOW HAVE FILED THEIR SECOND AMENDED

2

COMPLAINT.

3

THEIR PLEADINGS.

4

DISCOVERY THAT THEY FELT THEY NEEDED IN ORDER TO AMEND IN THE

5

EVENT THAT THE FIRST COMPLAINT WAS DISMISSED.

6

THEY'VE HAD SOME THREE AND A HALF YEARS TO CONSIDER
THEY'VE HAD THREE AND A HALF YEARS TO CONDUCT

AND ALTHOUGH WE HAVE A PLEADING NOW THAT IS CONSIDERABLY

7

LONGER, THERE ARE MORE ALLEGATIONS, THERE ARE DISCUSSIONS ABOUT

8

OTHER CASES IN OTHER JURISDICTIONS, AND THERE ARE LOTS OF

9

EXHIBITS ATTACHED TO THE COMPLAINT, NOT THAT MUCH AT THE CORE

10

HAS REALLY CHANGED.

11

THE SECOND AMENDED COMPLAINT THAT MEANINGFULLY ADDRESSES THE

12

DEFICIENCIES THAT THE COURT IDENTIFIED IN THE EARLIER ORDER.

13

AND THEY HAVEN'T REALLY DONE ANYTHING IN

TO TAKE SORT OF ONE EXAMPLE, THEY HAVEN'T COME FORWARD

14

WITH ANY SORT OF CONCRETE AND PARTICULARIZED INJURY TO THESE

15

FOUR NAMED PLAINTIFFS.

16

ONLY ARTICLE III STANDING BUT ALSO REVERBERATES THROUGH SEVERAL

17

DIFFERENT CAUSES OF ACTION THAT HAVE ELEMENTS OF INJURY OR LOSS

18

OR DAMAGES.

19

AND THAT, OF COURSE, IS RELEVANT TO NOT

AND THEY HAVE FORWARDED AN ARGUMENT, I THINK, TO TRY AND

20

SOLVE THEIR PROBLEM SAYING THAT, WELL, WE'RE HERE ON DIVERSITY

21

JURISDICTION IN THIS COURT AND BECAUSE OF ERIE ANY SORT OF

22

STATE LAW CLAIM THAT WE'VE PLED, ALL OF A SUDDEN -- AS LONG AS

23

WE'VE PLED A STATE LAW CLAIM, THAT GIVES US STANDING IN THIS

24

COURT, AND THE NINTH CIRCUIT HAS SQUARELY REJECTED THAT.

25

THE ONE THING I WOULD SAY THAT THE SECOND AMENDED

UNITED STATES COURT REPORTERS

7

1

COMPLAINT DOES ALLEGE MORE CLEARLY THAN THE FIRST AMENDED

2

COMPLAINT IS, WAS THAT THE REFERRED URL THAT FACEBOOK ALLEGEDLY

3

RECEIVED FROM THE PLAINTIFFS WAS CONVEYED TO FACEBOOK IN A

4

SEPARATE AND A DISTINCT COMMUNICATION -- AND WE'LL CALL IT A

5

COMMUNICATION.

6

FROM THE COMMUNICATION THAT WENT FROM THE PLAINTIFFS' BROWSERS

7

TO THE WEB PAGE THAT THEY WERE ATTEMPTING TO VIEW.

I'M NOT CONCEDING THAT IT NECESSARILY IS --

8

AND THE SIGNIFICANCE OF THAT, THERE ARE A NUMBER OF

9

IMPORTANT ELEMENTS OF THAT AND BECAUSE FACEBOOK RECEIVED THIS

10

INFORMATION DIRECTLY FROM THE PLAINTIFFS' BROWSERS, THAT CAN'T

11

BE AN INTERCEPTION UNDER THE WIRETAP ACT.

12

THE COURT:

IT CANNOT.

13

MR. BROWN:

IT CANNOT BE AN INTERCEPTION UNDER THE

14

WIRETAP ACT AND IT IS NOT IMPROPER ACTS OF INFORMATION IN

15

ELECTRONIC -- THANK YOU.

16

A LITTLE MORE CLEARLY.

17

I WILL SLOW DOWN AND TRY TO ENUNCIATE

IT IS NOT IMPROPER ACCESS OF INFORMATION IN ELECTRONIC

18

STORAGE UNDER THE STORED COMMUNICATIONS ACT.

19

THE INFORMATION CANNOT BE, QUOTE, "WITHOUT PERMISSION," END

20

QUOTE, UNDER PENAL CODE SECTION 502.

21

ACCESS WHICH IS REQUIRED TO TRESPASS, AND IT CAN'T BE THEFT AS

22

REQUIRED FOR LARCENY.

23

THE RECEIPT OF

IT CANNOT BE UNLAWFUL

IT ALSO HAS SOME OTHER IMPLICATIONS AS WELL BECAUSE WE NOW

24

HAVE CLEAR ALLEGATIONS OF HOW THIS ALL WORKS.

25

USER CANNOT HAVE A REASONABLE EXPECTATION OF PRIVACY IN THIS

UNITED STATES COURT REPORTERS

WE KNOW THAT A

8

1

SORT OF INFORMATION AS NUMEROUS COURTS HAVE HELD.

2

AND, MOREOVER, FACEBOOK IS ACTUALLY A PARTY TO THE

3

COMMUNICATION UNDER BOTH THE WIRETAP ACT AND THE CALIFORNIA

4

INVASION OF PRIVACY ACT, OR CIPA.

5

FINALLY, THE -- SORRY.

THE SECOND AMENDED COMPLAINT

6

REALLY DOES NOTHING TO GRAPPLE WITH THE NINTH CIRCUIT PRECEDENT

7

THAT HOLDS THAT REFERRED URL'S ARE NOT CONTENTS OF A

8

COMMUNICATION.

9

THE COURT:

THAT'S THE ZYNGA CASE.

10

MR. BROWN:

THAT'S THE ZYNGA CASE WHICH YOUR HONOR

11

CITED IN THE ORDER DISMISSING THE FIRST AMENDED COMPLAINT.

12

SO THAT'S JUST SORT OF AN OVERVIEW OF HOW WE VIEW THE

13

MOTION.

14

MADE, AND WE THINK MANY OTHER DEFICIENCIES, BUT THAT'S SORT OF

15

AN OVERVIEW.

16

THERE ARE OBVIOUSLY MANY OTHER ARGUMENTS THAT WE HAVE

NOW, TURNING IN MORE DETAIL TO ARTICLE III STANDING.

AS

17

YOUR HONOR KNOWS, YOU RULED IN THE PRIOR COMPLAINT THAT THEY

18

HAD NOT ALLEGED CONCRETE AND PARTICULARIZED HARM.

19

REALLY NO ATTEMPT, AND THERE STILL ISN'T ANY ATTEMPT, TO SORT

20

OF TIE THESE ALLEGATIONS THAT THIS INFORMATION HAS VALUE TO ANY

21

PARTICULAR HARM TO THESE NAMED PLAINTIFFS.

22

THERE WAS

THERE'S NO ALLEGATIONS THAT THEY'VE TRIED TO TAKE THEIR

23

BROWSING HISTORY AND MARKET IT IN ANY WAY.

THERE'S NO

24

ALLEGATIONS THAT THE FACT THAT FACEBOOK RECEIVED, ALLEGEDLY,

25

THIS BROWSING HISTORY AND HAS SORT OF LESSENED THE VALUE OF

UNITED STATES COURT REPORTERS

9

1
2

THAT IN ANY WAY.
AND BEYOND THAT, THE COMPLAINT JUST HAS THE VAGUEST OF

3

ALLEGATIONS ABOUT WHAT EXACTLY IT IS THAT FACEBOOK SUPPOSEDLY

4

RECEIVED.

5

FACEBOOK PLUGINS ON THEM AND THAT THERE WERE THESE DETAILED

6

URL'S SUPPOSEDLY THAT FACEBOOK RECEIVED, BUT THEY HAVEN'T

7

PROVIDED A SINGLE URL TO THE COURT IN THE COMPLAINT.

8
9

THEY SAY THAT THEY VISITED WEBSITES THAT HAD

AND THEY'VE SAID IN THEIR PAPERS THAT THEY COULD PROVIDE
THEM IN CAMERA BUT THE FACT IS THAT THEY ARE NOT IN THE

10

COMPLAINT, AND WE'VE HAD NO ABILITY TO SEE WHAT THEY ARE AS

11

WELL.

12

AND THAT'S THE SORT OF GENERALIZED AND VAGUE PLEADINGS

13

THAT DOESN'T RISE TO THE LEVEL OF ARTICLE III STANDING, AND,

14

FRANKLY, IT CREATES AN IQBAL PROBLEM AS WELL.

15

AND I WOULD JUST NOTE THAT TWO OF THE CASES THAT THE COURT

16

RELIED ON IN ITS PREVIOUS ORDER CONTINUE TO APPLY HERE AND THAT

17

ONE OF THOSE IS LOW VERSUS LINKEDIN, AND THIS IS THE 2011

18

DECISION.

19

PLACED COOKIES ON THE USER'S COMPUTERS AND PERMITTED THIRD

20

PARTIES TO DO BROWSING HISTORY AND THAT WAS LINKED TO USER I.D.

21

AND HELD THAT WAS TOO ABSTRACT AND HYPOTHETICAL TO SUPPORT THE

22

ARTICLE III STANDING.

23

THAT'S A CASE WHERE LINKEDIN WAS ALLEGED TO HAVE

AND THERE'S THE LA COURT V. SPECIFIC MEDIA CASE, WHICH I

24

THINK WE'RE ALL FAMILIAR WITH AT THIS POINT, THE CENTRAL

25

DISTRICT OF CALIFORNIA 2011 DECISION.

UNITED STATES COURT REPORTERS

10

1

AND WE'VE ALSO CITED THE ZAPPOS.COM DECISION WHICH IS MORE

2

RECENT, AND THAT'S FROM 2015, HOLDING THERE'S NO INJURY IN FACT

3

WHERE THE PLAINTIFFS DID NOT ALLEGE ANY FACTS EXPLAINING HOW

4

THEIR PERSONAL INFORMATION BECAME LESS VALUABLE OR THAT THEY

5

ATTEMPTED TO SALE THEIR INFORMATION AND THE LIKE SIMILAR IN

6

SOME WAYS TO THE OTHER CASES.

7

TURNING NOW TO SOME OF THE RELATED ISSUES UNDER

8

ARTICLE III.

I'VE ALLUDED TO THIS A MOMENT AGO.

THERE'S BEEN

9

AN ARGUMENT ADVANCED THAT BECAUSE THEY'VE SIMPLY ALLEGED

10

CERTAIN STATE LAW CLAIMS, THAT UNDER PRINCIPLES OF DIVERSITY

11

JURISDICTION AND THE ERIE DOCTRINE THAT THAT SOMEHOW GIVES RISE

12

TO STANDING.

13

CASE LAW, INCLUDING CANTRELL AND LEE, THAT CLEARLY HOLDS THAT

14

THAT'S NOT THE CASE.

15

THAT'S NOT THE CASE.

WE HAVE CITED NINTH CIRCUIT

THE FEDERAL COURT IS TO LOOK TO WHETHER IT HAS

16

JURISDICTION UNDER ARTICLE III FIRST AND THEN ONLY GETS TO THE

17

ERIE DOCTRINE NEXT IF IT DOES HAVE JURISDICTION.

18

AS TO THE FEDERAL STATUTORY CLAIMS, AS WE SAID IN PRIOR

19

BRIEFING AND WE'VE SAID AGAIN, OUR VIEW IS THAT EDWARDS AND THE

20

CASES FOLLOWING EDWARDS ARE NOT CORRECTLY DECIDED LIKE CASES

21

LIKE JEWEL, BUT WE ACKNOWLEDGE THAT THAT IS THE PRECEDENT FOR

22

THE TIME BEING AND IN THIS CIRCUIT AT LEAST AND WE KNOW THAT

23

THE SPOKEO CASE FROM THE NINTH CIRCUIT IS NOW PENDING BEFORE

24

THE U.S. SUPREME COURT, AND WE EXPECT A DECISION IN THAT CASE

25

PROBABLY IN THE NEXT TWO MONTHS OR SO.

UNITED STATES COURT REPORTERS

11

1

BUT EVEN UNDER EDWARDS AND IT'S PROGENY, YOU CAN'T SIMPLY

2

ALLEGE A FEDERAL STATUTORY VIOLATION.

3

THAT THE PLAINTIFFS ARE WITHIN THE GROUP OF PEOPLE THAT THE

4

STATUTE WAS INTENDED TO PROTECT.

5

YOU STILL HAVE TO SHOW

AND HERE EVEN THOUGH WE HAVE THAT DOCTRINE FACING US, I

6

THINK THE PLAINTIFFS HAVE STILL A PROBLEM UNDER THAT DOCTRINE

7

BECAUSE THEY HAVEN'T EVEN COME FORWARD WITH ANY URL'S, ANY SORT

8

OF DETAIL.

9

VISITED OTHER WEB PAGES AND THAT FACEBOOK HAS RECEIVED SOME

THERE'S JUST GENERALIZED ALLEGATIONS THAT THEY

10

SORT OF URL'S, BUT I WOULD CONTEND THAT THAT'S NOT ENOUGH TO

11

REALLY SHOW HOW THEIR PERSONAL COMPLAINT BEFORE THE COURT FALLS

12

UNDER THESE FEDERAL STATUTORY VIOLATIONS.

13

WITH RESPECT TO -- THEY'VE ALSO PUT BEFORE YOUR HONOR A

14

CASE FROM THE THIRD CIRCUIT, A GOOGLE COOKIE PLACEMENT CASE,

15

WHICH ADDRESSED A NUMBER OF ISSUES ACTUALLY WHICH ARE ADDRESSED

16

IN THIS CASE INCLUDING ARTICLE III STANDING, AND THEY'RE URGING

17

YOUR HONOR TO FOLLOW THAT DECISION WHICH HELD THAT THERE WAS

18

STANDING, AND SO I FIGURED I OUGHT TO JUST ADDRESS THAT HEAD

19

ON.

20

THE COURT:

IT WOULD BE A GOOD TIME TO DO THAT.

21

MR. BROWN:

IT SEEMED LIKE IT.

AND SO THE THIRD

22

CIRCUIT DECISION, WHAT I WOULD SAY ABOUT THAT IS THAT IT'S,

23

FRANKLY, THINLY REASONED ON ARTICLE III STANDING.

24
25

IT FIRST REFERS TO THE CONCEPT UNDER WARTH VERSUS SELDIN
THAT THERE CAN BE STANDING FOR THE INVASION OF STATUTORY

UNITED STATES COURT REPORTERS

12

1

RIGHTS, BUT THEN IT DOESN'T PROCEED TO ANALYZE STANDING ON A

2

CLAIM-BY-CLAIM BASIS AND THERE WERE BOTH STATUTORY CLAIMS,

3

FEDERAL STATUTORY CLAIMS, STATE STATUTORY CLAIMS, AND COMMON

4

LAW CLAIMS.

5

BRUSH WHICH I DON'T THINK IS THE PROPER WAY TO ANALYZE THE

6

MATTER.

7

AND IT DIDN'T -- IT JUST PAINTED WITH A BROAD

FURTHERMORE, THE ANALYSIS SUCH AS IT IS REALLY COMES DOWN

8

TO ABOUT A SENTENCE OR TWO IN THAT SHORT SECTION IN WHICH THE

9

COURT SAYS, WELL, THE COMPLAINT HERE HAS SHOWN THAT THERE ARE

10

EVENTS ALLEGED THAT ARE CONCRETE AND PARTICULAR AS TO THE

11

PLAINTIFFS.

12

AND I FOUND THAT QUITE STRIKING BECAUSE THAT'S NOT THE

13

STANDARD.

14

PARTICULARIZED EVENTS ALLEGED.

15

IS CONCRETE AND PARTICULARIZED INJURY.

16

STANDING TEST.

17

USED THERE.

18

THE STANDARD IS NOT WHETHER THERE ARE CONCRETE AND
YOU HAVE TO ALLEGE THAT THERE
THAT IS THE ARTICLE III

SO I ACTUALLY THINK THAT THE WRONG TEST WAS

AND IN THIS CIRCUIT THERE ARE A NUMBER OF CASES, ONES THAT

19

WE HAVE TALKED ABOUT LIKE LOW VERSUS LINKEDIN, AND THE LACOURT

20

VERSUS SPECIFIC MEDIA, AND ZAPPOS.COM WHICH ALTHOUGH THERE WERE

21

CONCRETE EVENTS ALLEGED IN THOSE COMPLAINTS, THERE WAS NO

22

COMPLETE AND PARTICULARIZED INJURY ALLEGED AS TO THOSE

23

PLAINTIFFS.

24
25

THE COURT:

WAS THE THIRD CIRCUIT SUGGESTING THAT

THE INFERENCE COULD BE DRAWN THAT AN INJURY WOULD RESULT FROM

UNITED STATES COURT REPORTERS

13

1

THAT CONDUCT?

2

MR. BROWN:

IT'S POSSIBLE THAT THEY HAD THAT IN

3

MIND.

4

THEY HAD THAT IN MIND.

5

FACE OF THE OPINION AND THAT'S WHAT I HAVE TO LOOK AT.

6

I THINK, QUITE FRANKLY, IN ALL CANDOR IT'S POSSIBLE THAT
I DON'T THINK IT'S EVIDENT FROM THE

SO I UNDERSTAND YOU MIGHT BE ABLE TO INFER THAT, BUT I

7

DON'T THINK IT'S THAT CLEAR.

AND, FURTHERMORE, I THINK THAT

8

THE FACT THAT THEY HAVE PARTICIPATED WITH SUCH A BROAD BRUSH IN

9

THAT OPINION AND HAVEN'T GRAPPLED WITH THE DIFFERENCE BETWEEN

10

FEDERAL STATUTES OR STATE STATUTES OR COMMON LAW CAUSES OF

11

ACTION IS PROBLEMATIC.

12

AND I WOULD URGE THE COURT NOT TO FOLLOW THE CONCLUSION IN

13

THAT CASE THAT THERE IS STANDING IN THIS CASE BUT RATHER TO

14

FOLLOW THESE OTHER DECISIONS THAT I HAVE ALREADY MENTIONED.

15
16

SO I THOUGHT I WOULD THEN -- I GUESS I WOULD ASK THE COURT
IF YOU HAVE ANY QUESTIONS.

17
18
19

THE COURT:

WELL, I DID HAVE A COUPLE QUESTIONS

EARLIER, BUT I DIDN'T WANT TO INTERRUPT YOU EARLIER.
BUT IN TALKING ABOUT THE PARTICULAR HARM, I THINK THERE'S

20

AN ISSUE ABOUT DO WE NEED TO SHOW THAT SOMEHOW THIS INFORMATION

21

WAS MONETIZED TO SHOW AN INJURY?

IS THAT SOMETHING THAT YOU

22

THINK THE PLAINTIFFS NEED TO DO?

IS THAT A DEFICIT IN THEIR

23

COMPLAINT?

24
25

MR. BROWN:

YES, I DO.

SO, I MEAN, THEY'VE CLAIMED

IN TRYING TO SHOW THAT THEY HAVE ARTICLE III STANDING THAT

UNITED STATES COURT REPORTERS

14

1

BROWSING HISTORY HAS VALUE, AND IT'S SORT OF ALWAYS FRAMED THAT

2

WAY THAT IT HAS VALUE.

3

AND SO THE POINT IS THAT IF THAT IS YOUR ARGUMENT THAT YOU

4

HAVE STANDING BECAUSE BROWSING HISTORY HAS VALUE, YOU NEED TO

5

SHOW THAT THE CONDUCT THAT IS ALLEGED HERE, AND IT'S ALLEGED

6

THAT FACEBOOK RECEIVED URL'S, YOUR BROWSING HISTORY, YOU HAVE

7

TO SHOW THAT THAT RECEIPT OF INFORMATION SOMEHOW HAD ECONOMIC

8

IMPACT ON YOU AS A NAMED PLAINTIFF.

9

SO, IN OTHER WORDS, CAN YOU SHOW AS A NAMED PLAINTIFF THAT

10

YOU TRIED TO TAKE YOUR OWN BROWSING HISTORY AND SELL IT TO

11

SOMEONE BECAUSE IT HAS VALUE?

12

NO ALLEGATION OF THAT HERE.

DID YOU EVER EVEN TRY TO DO THAT?

IF YOU TRIED TO DO

13

THAT, HAVE YOU ALLEGED THAT THE FACT THAT FACEBOOK ALSO HAS A

14

COPY OF SOME OF THESE URL'S HAS DONE ANYTHING TO AFFECT THE

15

PRICE THAT SOMEONE HAD PAID FOR THAT?

16

THAT.

17
18

THE COURT:
THAT?

NOTHING EVEN APPROACHING

DID THE THIRD CIRCUIT CASE TALK ABOUT

DIDN'T THEY SAY THAT IT IS NOT NECESSARILY REQUIRED?

19

MR. BROWN:

YEAH, WELL --

20

THE COURT:

I GUESS I'M JUST ASKING HOW TO RECONCILE

MR. BROWN:

THAT'S RIGHT.

21
22

THOSE TWO.
THEY DID SAY THAT

23

ARTICLE III STANDING DOESN'T HAVE TO BE ECONOMIC IN NATURE.

24

THINK YOU'VE GOT TO LOOK AT WHAT THE GRAVAMEN OF A PARTICULAR

25

CLAIM IS AND PART OF THE PROBLEM AGAIN COMES BACK TO THEY

UNITED STATES COURT REPORTERS

I

15

1

DIDN'T TRY TO ANALYZE STANDING ON THE CLAIM-BY-CLAIM BASIS.

2

THEY SAID, WELL, ECONOMIC INJURY ISN'T REQUIRED.

3

UNDERSTAND THAT IN A VACUUM, BUT I DON'T THINK THAT THAT IS

4

REALLY -- THAT DOESN'T REALLY TRY TO GRAPPLE WITH OR ACCOUNT

5

FOR THE SUBTLETIES, FRANKLY, THAT EXIST IN A MULTI-COUNT

6

COMPLAINT THAT HAS DIFFERENT CATEGORIES OF COUNTS.

7

AND I

SO GIVEN THE NATURE OF THE ALLEGATIONS IN THIS CASE, I

8

WOULD SAY THAT THAT'S WHAT PLAINTIFF NEEDS TO COME FORWARD AND

9

DO AND THEN ALSO, FRANKLY, IT TRACKS WHAT THEY'RE SAYING THE

10

HARM IS AS I UNDERSTAND IT.

11

THE COURT:

OKAY.

12

MR. BROWN:

SO WITH RESPECT TO THE WIRETAP ACT, I

13

THINK THERE ARE OBVIOUSLY -- I THINK WE FORWARDED FIVE OR FOUR

14

DIFFERENT ARGUMENTS HERE, AND I DON'T KNOW IF WE NEED TO HIT

15

EVERY SINGLE ONE ARGUMENT, ALTHOUGH I'M PREPARED TO.

16

ON THE CONTENTS POINT, AGAIN, THERE'S REALLY NOTHING IN

17

THE SECOND AMENDED COMPLAINT THAT ADDRESSES THIS FUNDAMENTAL

18

PROBLEM WHICH IS THAT IN THE NINTH CIRCUIT THE ZYNGA HOLDING

19

SAYS THAT REFERRED URL'S ARE NOT CONTENTS OF THE

20

COMMUNICATIONS.

21
22
23

THE COURT:

WELL, DON'T THEY SAY -- DIDN'T ZYNGA SAY

THAT THERE MIGHT BE CIRCUMSTANCES WHERE IT COULD BE?
MR. BROWN:

YES, IN DICTA THERE WAS SOME SPECULATION

24

THAT THERE COULD BE OTHER FACT PATTERNS, BUT REALLY IT WAS JUST

25

THAT, IT WAS DICTA.

AND THE HOLDING WAS THAT THE REFERRED

UNITED STATES COURT REPORTERS

16

1
2

URL'S THAT WERE AT ISSUE THERE WERE NOT CONTENT.
AND THE INTERESTING THING ABOUT ZYNGA, YOU KNOW, THERE'S

3

ALL OF THIS TALK IN THE COMPLAINT AND IN THE PAPERS THAT FOR

4

SOME REASON IT SEEMS THAT HERPES WEBSITES HAVE BECOME SORT OF

5

THAT POSTER CHILD HERE.

6

BUT, YOU KNOW, IT WAS INTERESTING IN THE ZYNGA CASE ONE OF

7

THE VERY SPECIFIC FACTUAL SCENARIOS THAT THE NINTH CIRCUIT

8

ANALYZED AND TOOK ACCOUNT OF WAS THE IDEA THAT -- REMEMBER,

9

THAT CASE DEALT WITH PEOPLE BEING ON THE FACEBOOK DOMAIN AND

10

CLICKING ON THIRD PARTY ADVERTISEMENTS THAT APPEARED THERE AND

11

THE IDEA WAS THAT THE REFERRER WOULD THEN GET SENT TO THE THIRD

12

PARTY ADVERTISER, AND THE ALLEGATION WAS THAT THE REFERRER

13

HEADER CONTAINED BOTH THE REFERRED URL AND AN INDICATION OF THE

14

PAGE THAT THE PERSON WAS ON AND THE USER I.D. OF THE USER,

15

RIGHT?

16

THE COURT:

IT WAS VERY SPECIFIC.

17

MR. BROWN:

IT WAS A VERY SPECIFIC CASE.

ALTHOUGH

18

THE REFERRED URL PORTION OF IT IS INDISTINGUISHABLE FROM THE

19

FACTS HERE.

20

BUT THE IMPORTANT THING THERE WAS ONE OF THE FACT PATTERNS

21

WAS THAT AN ADVERTISER MIGHT BE ABLE TO TELL FROM THE REFERRER

22

HEADER THAT THE USER WAS ON THE FACEBOOK BOOK PAGE FOR A GAY

23

SUPPORT GROUP, AND THE NINTH CIRCUIT ACKNOWLEDGED THAT.

24

ANALYZED IT AND IT DEALT WITH IT, AND IT CONCLUDED THAT

25

NEVERTHELESS IT WAS A URL AND A URL IS AKIN TO A RECORD, IF

UNITED STATES COURT REPORTERS

IT

17

1

ANYTHING.

2

IS A RECORD UNDER THE WIRETAP ACT OR THE ELECTRONIC

3

COMMUNICATION PRIVACY ACT.

4

I'M NOT EVEN SURE THAT IT WENT SO FAR TO SAY THAT IT

BUT IT WOULD, IF ANYTHING, BE A RECORD, NOT CONTENTS OF A

5

COMMUNICATION, AND IT'S SOMETHING AKIN TO AN ADDRESS ON AN

6

ENVELOPE.

7

INTERNET THAT SOMETHING EXISTS SO IT'S ACTUALLY A VERY DIRECT

8

PARALLEL.

9

RESIDES ON THE INTERNET AS OPPOSED TO AN ADDRESS THAT YOU MIGHT

10
11

IN FACT, IT'S AN INDICATION OF THE LOCATION ON THE

IT'S ESSENTIALLY AN ADDRESS OF WHERE SOMETHING

PUT IN AN ENVELOPE OF WHERE SOMEONE RESIDES PHYSICALLY.
THE COURT:

WHAT IS INTERESTING IS, I THINK TO ME,

12

AND I'M CERTAIN TO ALL OF YOU, IS THAT THIS IS AN AREA OF LAW

13

THAT SEEMS TO BE DEVELOPING.

14

THE THIRD CIRCUIT HAS, AND I THINK YOU WOULD AGREE WITH

15

THIS, THEY DID A VERY THOROUGH ANALYSIS OF THIS TYPE OF

16

COMMUNICATION, I'LL USE THAT WORD, INCLUDING LOOKING AT THE

17

SURVEILLANCE COURT AND FOURTH AMENDMENT ISSUES THAT MIGHT RUN

18

CONCURRENT WITH THIS ANALYSIS, AND IT'S A VERY IMPRESSIVE

19

ANALYSIS AND VERY THOUGHTFUL.

20

AND IT DOES -- ONE OF THE POINTS IT LEFT ME WITH IS THAT

21

THIS IS A DEVELOPING AREA AND SUCH THAT OUR NINTH CIRCUIT COURT

22

AND WHAT THEY SAID IN ZYNGA, OF COURSE, IT'S THE LAW OF THE

23

DISTRICT BUT IT ALSO, AS I SAID, THEY SUGGEST IT IN THEIR

24

OPINION PERHAPS IT'S DICTA THAT, WELL, THERE MAY BE

25

CIRCUMSTANCES BECAUSE WE'RE LOOKING AT THIS VERY SPECIFIC URL

UNITED STATES COURT REPORTERS

18

1
2

AND THE ALLEGATIONS IN THAT PARTICULAR CASE.
BUT WHAT THE GOOGLE CASE FROM THE THIRD CIRCUIT TELLS US

3

IS THAT THERE ARE OTHER CIRCUMSTANCES WHEN YOU DRILL DOWN, NOT

4

NECESSARILY THAT DEEP, THAT YOU CAN FIND THAT THE URL'S HAVE

5

ACTUALLY CONTENT AND OURS COULD BE OFFENSIVE IN SOME MANNER.

6
7

MR. BROWN:

YEAH, THERE WAS SOME DISCUSSION, AND I'D

LIKE TO ADDRESS THAT FOR A MINUTE.

8

THE COURT:

SURE.

9

MR. BROWN:

WE CERTAINLY DON'T BELIEVE THAT'S THE

10

RIGHT RESULT, BUT I THINK IT'S IMPORTANT TO LOOK AT EXACTLY

11

WHAT THE THIRD CIRCUIT SAID THERE.

12

SO THE COURT SAID THAT, QUOTE, "POST DOMAIN NAMES PORTIONS

13

OF THE URL ARE DESIGNED TO COMMUNICATE TO THE VISITED WEBSITE

14

WHICH WEB PAGE CONTENT TO SEND TO THE USER."

15

BUT THE COURT ULTIMATELY CONCLUDED THAT IT DID NOT NEED TO

16

DECIDE WHETHER ALL SUCH INFORMATION CONTENT WAS UNDER THE

17

WIRETAP ACT AND STOPPED WELL SHORT OF THAT.

18

AND, IN ADDITION, THE DEFENDANTS IN THAT CASE ACTUALLY

19

CONCEDED THAT SOME URL'S CONTAINING SEARCH QUERY TERMS MAY

20

QUALIFY AS CONTENT.

21

THAT MAY BE CONTENT, AND THERE'S NO CONCESSION IN THIS CASE TO

22

BE CLEAR.

23

SO YOU HAD IN THAT CASE A CONCESSION THAT

AND THE COURT DID CONCLUDE THAT SOME QUERIED URL'S

24

QUALIFIED AS CONTENT BUT REALLY THAT WAS, IF YOU REALLY LOOK AT

25

IT, AND I AGREE, IT WAS A VERY, VERY LONG INVOLVED DISCUSSION,

UNITED STATES COURT REPORTERS

19

1

BUT IF YOU BOIL IT DOWN, I THINK THAT'S ABOUT THE EXTENT OF THE

2

HOLDING IS THAT THERE ARE SOME URL'S CONTAINING CERTAIN TYPES

3

OF SEARCH QUERIES THAT COULD BE CONTENT UNDER THE WIRETAP ACT.

4

THE COURT:

5

INDIVIDUALIZED CASE?

6

THEY USE AND IT REALLY REQUIRES SOME SPECIFIC CONTEXT ANALYSIS.

7

MR. BROWN:

SO DOES THAT REQUIRE US TO LOOK AT EACH
I THINK THAT'S ALSO SOME LANGUAGE THAT

THAT'S CORRECT.

IF YOU WERE GOING TO

8

FOLLOW THE THIRD CIRCUIT'S ANALYSIS, THEN I THINK YOU WOULD

9

NEED TO DO THAT.

10

IN THE POSTURE THAT WE'RE IN HERE, THIS IS ON A MOTION TO

11

DISMISS, AND WE'RE LOOKING AT THE FOUR CORNERS OF A COMPLAINT.

12

AND THE PROBLEM FOR THE PLAINTIFFS IS THAT THERE IS NO

13

ALLEGATION WHAT ANY OF THESE URL'S WERE.

14

CLAIMS THAT SOME OTHER URL'S MAY CONTAIN SEARCH QUERIES, BUT

15

THAT'S NOT ENOUGH IN FEDERAL COURT UNDER APPLICABLE LAW AND

16

INCLUDING TWOMBLY AND IQBAL AND THE LIKE.

THEY HAVE GENERALIZED

17

SO EVEN IF YOU WERE GOING TO FOLLOW THE RATHER LIMITED

18

CONCLUSION OF THE THIRD CIRCUIT THAT SOME URL'S CONTAINING SOME

19

SEARCH QUERIES COULD BE CONTENT, THAT STILL WOULDN'T LEAD TO

20

THE RESULT HERE NOW THAT YOU SHOULD LET THE CASE GO THROUGH.

21

THINK WE WOULD STILL BE ON SOLID GROUND IN SAYING THAT THE

22

COMPLAINT SHOULD BE -- OR THIS CAUSE OF ACTION, RATHER, SHOULD

23

BE DISMISSED FOR FAILURE TO ALLEGE CONTENTS.

24
25

I WANTED TO THEN JUST MOVE TO THE RELATED ISSUES OF NO
INTERCEPTION, AND FACEBOOK WAS A PARTY TO THE COMMUNICATION.

UNITED STATES COURT REPORTERS

I

20

1

AND LIKE I SAID EARLIER, IF THERE IS ONE THING THAT THE

2

SECOND AMENDED COMPLAINT HAS DONE IS CLARIFIED THIS MORE.

3

FELT THAT IN THE PREVIOUS COMPLAINT THERE WAS SOME FUZZINESS

4

AROUND THIS.

5

NOT NECESSARILY THE REAL WORLD, BUT IT IS CLEAR.

6

I

AND, AGAIN, WE'RE DEALING WITH THEIR ALLEGATIONS,

SO THE SECOND AMENDED COMPLAINT MAKES CLEAR THAT WHAT

7

HAPPENED IS THAT YOU HAVE A USER WHO WANTS TO GO TO THE FIRST

8

PARTY WEB PAGE.

9

REQUEST --

10
11

WHEN THEY DO THAT, THEIR BROWSER SENDS A GET

THE COURT:

I THINK IT'S PAGE 15 OF THE COMPLAINT

THEY HAVE A NICE PARAGRAPH.

12

MR. BROWN:

I THINK IT'S PARAGRAPH 60 THAT IS WHAT I

13

WAS THINKING INSTEAD OF PAGE 15.

14

HAVE IN MIND AS WELL.

15

THE COURT:

IT'S PARAGRAPH 60.

16

MR. BROWN:

SOMEHOW LODGED BACK INTO MY MIND HERE.

17

THE COURT:

YOUR PERSONAL URL MEMORY STORAGE.

18

MR. BROWN:

THAT'S RIGHT.

BUT, YEAH, THAT IS WHAT I

19

REQUEST TO THE FIRST PARTY WEB PAGE.

20

SO YOU HAVE THE FIRST GET

WAL-MART.COM OR CNN.COM.

21

SO LET'S SAY IT'S

AND THEN CNN.COM SENDS A SECOND SET OF INSTRUCTIONS BACK

22

TO THE USER'S BROWSER.

SO IF YOU WANT TO THINK ABOUT THIS AS A

23

SERIES OF COMMUNICATIONS, WELL, WE'LL JUST SAY FOR THE SAKE OF

24

ARGUMENT THAT THESE ARE COMMUNICATIONS, YOU'VE GOT

25

COMMUNICATION 1 FROM THE INDIVIDUAL'S BROWSERS TO THE FIRST

UNITED STATES COURT REPORTERS

21

1

PARTY WEB PAGE, AND YOU HAVE COMMUNICATION 2 FROM THAT WEB PAGE

2

BACK TO THE USER'S BROWSER, AND THEN COMMUNICATION NUMBER 3 IS

3

THE USER'S BROWSER SENDING THE GET REQUEST TO FACEBOOK AS THE

4

THIRD PARTY HERE BECAUSE THAT FIRST PARTY WEB PAGE HAD A

5

FACEBOOK PLUGIN, A LIKE BUTTON, LET'S SAY, OR A SHARE BUTTON.

6

AND THE ONLY WAY FOR THAT LITTLE PLUGIN TO SHOW UP ON THE

7

WEB PAGE THAT THE USER IS TRYING TO VIEW IS FOR FACEBOOK, THE

8

THIRD PARTY, TO GET A GET REQUEST AND THEN TO KNOW TO POPULATE

9

THAT PAGE.

10

AND TO BE CLEAR, THE ONLY REASON THAT HAPPENS, REALLY, IS

11

BECAUSE THE FIRST PARTY WEB PAGE HAS DECIDED THAT IT WANTS

12

CERTAIN THIRD PARTY CONTENT IN IT ON ITS PAGE.

13
14
15

AND THIS PROCESS THAT THEY DESCRIBE ISN'T FACEBOOK
SPECIFIC IN ANY WAY.

THIS IS JUST THE WAY THE INTERNET WORKS.

AND SO THE SAME THING WOULD HAPPEN FOR ANY OTHER THIRD

16

PARTY WHO WAS GOING TO DISPLAY CONTENT.

17

AN ADVERTISEMENT THAT WAS GOING TO APPEAR ON THAT PAGE, IF IT

18

WAS TWITTER THAT MIGHT -- MAYBE HAD A SOCIAL PLUGIN ON THAT

19

PAGE.

20

CONTENT.

21

IT COULD BE ANYTHING.

SO WHETHER IT WAS FOR

IT COULD BE ANY THIRD PARTY

SO IN THAT RESPECT, WHEN YOU KIND OF PULL AWAY A LOT OF

22

THE WINDOW DRESSING HERE, ALL THEY'RE DOING IS DESCRIBING HOW

23

THE INTERNET WORKS.

24

KNOW THAT THAT CAN'T BE AN INTERCEPTION UNDER THE WIRETAP ACT.

25

THE COURT:

AND NOW THAT THAT HAS BECOME CLEAR, WE

WELL, WHERE WAS THE -- I GUESS I HAD TWO

UNITED STATES COURT REPORTERS

22

1

QUESTIONS ABOUT THAT, AND I'M GRATEFUL THAT WE HAVE THE DIAGRAM

2

IN PARAGRAPH 60.

3

WHITE BOARD IN MY CHAMBERS AS WE TRACED AND TRACKED FOR THOSE

4

INDIVIDUALS WHO MIGHT BE IMMIGRANTS TO THE INTERNET.

I SHOULD TELL YOU THE DIAGRAM APPEARS ON A

5

SO WHERE -- I GUESS I HAVE TWO QUESTIONS ABOUT THAT.

6

MANY COMMUNICATIONS ARE THERE, HOW MANY SEPARATE INTERNET

7

COMMUNICATIONS ARE THERE?

8
9

HOW

AND, SECONDARILY, WHERE WAS THE INTERCEPT IN ALL OF THAT?
MR. BROWN:

WELL, I'VE IDENTIFIED THREE ALREADY.

10

THERE'S THE FIRST COMMUNICATION, WE'LL CALL IT, FROM THE USER'S

11

BROWSER TO THE FIRST PARTY WEB PAGE.

12

THE COURT:

EXCUSE ME.

13

MR. BROWN:

AND THERE'S THE COMMUNICATION BACK FROM

14
15
16
17
18
19

THE FIRST PARTY WEB PAGE BACK TO THE USER'S BROWSER.
THE COURT:

AND THAT'S BETWEEN THOSE TWO?

THAT'S

INITIATED BY THE INDIVIDUAL?
MR. BROWN:

YEAH, THE WHOLE SEQUENCE IS, IS

INITIATED BY THE INDIVIDUAL WHO WANTS TO SEE THE PAGE.
THE SECOND COMMUNICATION FROM THE FIRST PARTY WEB PAGE

20

BACK TO THE USER'S BROWSER IS IN A SENSE INITIATED BY THAT

21

FIRST PARTY WEB PAGE BECAUSE THAT WEB PAGE KNOWS THAT IT HAS

22

THIRD PARTY CONTENT THAT NEEDS TO BE POPULATED AND SO IT HAS TO

23

GIVE SOME INSTRUCTIONS BACK TO THE BROWSER.

24

THE COURT:

AND IT ONLY RESPONDS TO THE REQUEST?

25

MR. BROWN:

THAT'S RIGHT.

THAT'S RIGHT.

UNITED STATES COURT REPORTERS

AND THEN

23

1

THERE'S THE THIRD COMMUNICATION, IF YOU WILL, BETWEEN THE

2

USER'S BROWSER AND FACEBOOK OR WITH ANY OTHER THIRD PARTY THAT

3

WAS NEEDED TO POPULATE --

4

THE COURT:

IS THAT A SEPARATE COMMUNICATION?

5

MR. BROWN:

THAT'S A SEPARATE COMMUNICATION,

6

COMPLETELY SEPARATE AND DISTINCT.

7

INTERCEPTION.

8
9

AND SO THERE IS NO

WHAT THEY'RE TRYING TO SAY IS THAT THE VERY FIRST
COMMUNICATION, COMMUNICATION NUMBER 1 BETWEEN THE USER'S

10

BROWSER AND THE FIRST PARTY WEB PAGE, HAS BEEN INTERCEPTED.

11

AND THIS IS JUST A STATUTE --

12
13

THE COURT:

LET'S PARSE THAT OUT FOR JUST A MOMENT,

IF YOU DON'T MIND, JUST GETTING GRANULAR WITH THAT.

14

MR. BROWN:

SURE.

15

THE COURT:

THAT TOO, YOU KNOW, LOOK AT IT AS A

16

TENNIS BALL GOING OVER THE NET, IF YOU WILL, IS THAT

17

INTERCEPTED IN ANY WAY?

18

FIRST COMMUNICATION?

19

MR. BROWN:

IS THERE ANY INTERCEPTION IN THAT

NO, NO, NOT AT ALL.

THE PROBLEM HERE IS

20

THAT THE STATUTE REALLY DOESN'T FIT THE SITUATION.

21

WIRETAP ACT.

22

A COMMUNICATION AND IT OUTLAWED SOMEONE TAKING THAT DEVICE AND

23

INTERCEPTING THAT COMMUNICATION, RIGHT?

24
25

IT'S THE

THE WHOLE POINT OF THE STATUTE WAS THAT YOU HAVE

AND HERE WHAT WE'VE GOT IS A WHOLE SERIES OF
COMMUNICATIONS AND FACEBOOK ALLEGEDLY RECEIVES A URL BUT IT'S

UNITED STATES COURT REPORTERS

24

1

THROUGH A THIRD COMMUNICATION IN THE STRING, AND THEY'RE ALL

2

SEPARATE AND THEY'RE SEQUENTIAL.

3

AND UNDER THE LAW OF THE WIRETAP ACT IN THIS CIRCUIT UNDER

4

KONOP, K-O-N-O-P -- I MAY BE MISPRONOUNCING THAT -- THE

5

INTERCEPTION HAS TO BE ACCOMPLISHED DURING THE TRANSMISSION OF

6

THE COMMUNICATION, IN FLIGHT, IF YOU WILL.

7

DISTINCT COMMUNICATIONS, SEPARATE COMMUNICATIONS, AND THEY'RE

8

EVEN SEPARATE IN TIME.

9

AND HERE WE HAVE

AND, AGAIN, UNDER KONOP, YOU CAN'T HAVE A SEPARATE

10

COMMUNICATION, AND IT DOESN'T MATTER THAT IT MIGHT BE IN FAIRLY

11

QUICK SUCCESSION.

12

BE INTERCEPTED IN TRANSIT.

13

THAT HAS NOTHING TO DO WITH IT.

THE COURT:

IT HAS TO

SO THERE'S THE FIRST LEVEL

14

COMMUNICATION, AGAIN, LOOKING AT PARAGRAPH 60, IT'S THE TOP

15

LEVEL, THE HORIZONTAL ARROWS GOING BACK AND FORTH.

16

AND THEN PARAGRAPH 60 OF THE DIAGRAM INFORMS US THERE'S

17

ANOTHER COMMUNICATION GOING ON BELOW THE LINE, IF YOU WILL, AND

18

THAT'S THE FACEBOOK BACK TO THE COMPUTER, IF YOU WILL, AND

19

THAT'S A SEPARATE COMMUNICATION IN YOUR VIEW?

20

MR. BROWN:

YES, YES.

21

THE COURT:

AND IS THERE ANY INTERCEPTION OF THAT

22
23

COMMUNICATION?
MR. BROWN:

NO.

THERE REALLY AREN'T ANY

24

INTERCEPTIONS HERE.

THERE'S A SERIES OF SEPARATE DISTINCT

25

COMMUNICATIONS THAT ARE SEQUENTIAL IN TIME, AND THERE'S NO

UNITED STATES COURT REPORTERS

25

1
2

INTERCEPTION.
THE COURT:

AND SO IN YOUR VIEW THESE ARE SEQUENTIAL

3

COMMUNICATIONS, AND THERE'S NO INTERCEPTION OF EITHER OF THESE

4

COMMUNICATIONS SUCH THAT THIS CONDUCT WOULD FALL UNDER THE

5

WIRETAP ACT.

6

MR. BROWN:

THAT'S CORRECT.

AND TO BE CLEAR, I

7

THINK IT'S ALMOST BECOMING OBVIOUS FROM OUR DISCUSSION HERE,

8

THE COOKIE ALLEGATIONS HERE THAT, YOU KNOW, THE ALLEGATIONS

9

BEING THAT THE URL'S WERE SORT OF AGGREGATED OVER TIME, HAS

10
11

NOTHING TO DO WITH THE WIRETAP ACT OR CIPA.
THOSE ARE COMPLETELY IRRELEVANT, AND I KNOW THAT THAT IS

12

SORT OF THE THRUST OF THE COMPLAINT BUT YOU HAVE TO LOOK AT

13

EACH CLAIM SEPARATELY AND WHAT THAT CLAIM CALLS FOR AND REALLY

14

THE COOKIE ALLEGATIONS DON'T EVEN COME INTO PLAY HERE.

15

THE COURT:

I'VE LOOKED AT THAT, AND I'M SURE I'LL

16

HEAR FROM YOUR COLLEAGUES OPPOSITE ABOUT THEIR OPINIONS ABOUT

17

WHAT THE COOKIE DOES TO ANY OF THIS, WHETHER IT'S A DEVICE OR

18

WHATEVER IT DOES, BUT YOUR POINT IS THAT IT HAS NOTHING TO DO

19

WITH THESE TWO SEPARATE COMMUNICATIONS.

20

MR. BROWN:

TO MAKE OUT A WIRETAP ACT CLAIM, AND

21

THERE ARE A BUNCH OF OTHER CLAIMS HERE, BUT THE ONE WE'RE

22

TALKING ABOUT NOW IS THE WIRETAP ACT AND THAT REQUIRES AN

23

INTERCEPTION OF A COMMUNICATION WHILE IT'S IN FLIGHT AND THE

24

COOKIE HAS NOTHING TO DO WITH THAT AND YOU DON'T HAVE AN

25

INTERCEPTION WHILE IT'S IN FLIGHT.

YOU HAVE REALLY A NUMBER OF

UNITED STATES COURT REPORTERS

26

1

DISTINCT SEPARATE SEQUENTIAL COMMUNICATIONS.

2

THE COURT:

HOW IS IT THAT THESE COULD BE

3

INTERPRETED AS ONE COMMUNICATION SUCH THAT YOU WOULD ALLOW FOR

4

AN INTERCEPTION?

5

TELL ME ABOUT THAT.

6

AND, AGAIN, YOUR COLLEAGUE OPPOSITES WILL

MR. BROWN:

THEY CAN TRY TO PROFFER AN EXPLANATION.

7

I CANNOT BECAUSE I DON'T THINK THAT IT CORRESPONDS WITH REALITY

8

OR MAYBE EVEN MORE TO THE POINT SINCE WE'RE HERE ON A MOTION TO

9

DISMISS, I DON'T THINK IT CORRESPONDS TO THEIR COMPLAINT.

10

I

DON'T SEE HOW YOU GET THERE.

11

AND THE OTHER POINT THAT I WANTED TO MAKE UNDER THE

12

WIRETAP ACT WHICH IS SORT OF A COUSIN AT THIS POINT, I'LL CALL

13

IT, IS THAT UNDER SECTION 2511(2)(D) THERE'S AN EXPRESS

14

EXEMPTION FROM LIABILITY FOR ONE WHO WAS A PARTY TO THE

15

COMMUNICATION.

16
17
18

THE COURT:

WELL, WE SHOULD TALK ABOUT THAT, TOO,

MR. BROWN:

YEAH.

RIGHT?
SO BECAUSE WE HAVE SEPARATE

19

COMMUNICATIONS AND NOW THE SAC HAS MADE THIS VERY CLEAR IN

20

PARAGRAPH 60 AND OTHER PLACES, THE COMMUNICATION HERE WAS

21

BETWEEN -- THAT CONVEYED THE REFERRED URL TO FACEBOOK WAS

22

BETWEEN THE INDIVIDUAL AND FACEBOOK.

23
24
25

THE COURT:

AND YOUR CLIENT WAS ALWAYS A PARTY TO

THE COMMUNICATIONS, YOUR POSITION IS?
MR. BROWN:

WITH RESPECT TO THE CONDUCT THAT IS

UNITED STATES COURT REPORTERS

27

1

ALLEGED, WHICH IS THAT FACEBOOK RECEIVED URL'S ABOUT THE

2

WEBSITES THAT THESE PLAINTIFFS VISITED.

3

WERE A PARTY TO THAT COMMUNICATION, THEY FALL UNDER THE

4

EXEMPTION IN 2511(2)(D).

5

AND SO BECAUSE THEY

SO REALLY, ASIDE FROM WHETHER YOU FIND CONTENTS OR WHETHER

6

YOU FIND INTERCEPTION, THERE'S REALLY A DISTINCT AND THIRD

7

REASON WHY THIS CLAIM SHOULD FAIL, AND THAT IS THAT FACEBOOK

8

WAS A PARTY.

9

AND THERE'S PLENTY OF AUTHORITY WHICH -- SOME OF WHICH WE

10

CITE IN OUR BRIEFING THAT STANDS FOR THE PROPOSITION THAT IT

11

DOESN'T MATTER WHETHER YOU WERE THE INTENDED RECIPIENT, AND, IN

12

OTHER WORDS, IT DOESN'T MATTER THAT THE PERSON INITIATING THE

13

COMMUNICATION KNEW THAT IT WAS YOU WHO WAS RECEIVING IT.

14

THAT'S IRRELEVANT FOR THIS SECTION AND THIS EXEMPTION.

15

AND IF YOU THINK ABOUT IT, IT KIND OF MAKES SENSE BECAUSE

16

REMEMBER, AGAIN, THIS IS A WIRETAP ACT STATUTE, AND IT'S PART

17

OF THE CRIMINAL CODE.

18

NUMBER OF YEARS AGO, IT WAS COGNIZANT OF THE CLASSIC SORT OF

19

STING OPERATION WHERE YOU WOULD HAVE A POLICE OFFICER ON ONE

20

END OF THE LINE POSING AS SOMEONE ELSE AND THE PERSON MAKING

21

THE CALL DIDN'T KNOW THAT, RIGHT?

22

PUT IT SO FORMALLY BUT YOU KNOW ALL OF THAT STUFF ALL OF THE

23

TIME.

AND WHEN CONGRESS AMENDED THIS LAW A

IT ALMOST SOUNDS FUNNY TO

24

AND THERE WAS CASE LAW THAT DEVELOPED AROUND THAT, AND

25

CONGRESS WAS COGNIZANT OF THAT AND WANTED TO MAKE SURE THAT THE

UNITED STATES COURT REPORTERS

28

1
2

WIRETAP ACT DIDN'T PROHIBIT THAT SORT OF CONDUCT.
AND SO IF YOU LOOK AT THE WIRETAP ACT, THERE ARE ACTUALLY

3

TWO SEPARATE PROVISIONS, ONE THAT APPLIES TO LAW ENFORCEMENT

4

AND ONE THAT IS VIRTUALLY IDENTICAL THAT APPLIES TO CIVIL

5

PARTIES.

6

SAME CONCEPT TO CIVIL PARTIES AS WELL.

7

SO IT EXTENDED IT NOT ONLY TO LAW ENFORCEMENT BUT THE

SO WHETHER THEY UNDERSTOOD THAT FACEBOOK WAS A PARTY TO

8

THE COMMUNICATION OR NOT, NEVERTHELESS FACEBOOK FALLS UNDER THE

9

EXEMPTION.

10

AND NOT TO JUMP TOO FAR AHEAD BUT UNDER CIPA THERE'S THE

11

SIMILAR CONCEPT THERE.

SORT OF CIPA IS ESSENTIALLY PARALLEL TO

12

THE FEDERAL WIRETAP ACT.

13

THE COURT:

C-I-P-A.

14

MR. BROWN:

THANK YOU.

15

C-I-P-A.

AND, YOU KNOW, ONE THING THAT I WANTED TO RAISE WITH THE

16

COURT IS IN THE PREVIOUS ORDER ON THE FIRST AMENDED COMPLAINT,

17

YOUR HONOR RULED AGAINST US ON THE IDEA OF FACEBOOK BEING A

18

PARTY UNDER CIPA.

19

YOU DIDN'T REACH THAT QUESTION UNDER THE WIRETAP ACT.

20

THINK THAT WE'RE IN A DIFFERENT POSTURE HERE GIVEN THE SORT OF

21

NEW AND CHANGED ALLEGATIONS OF THE SECOND AMENDED COMPLAINT

22

THAT NOW MAKES IT CLEAR WHAT THEY'RE ACTUALLY ALLEGING GOES ON

23

WITH RESPECT TO THE COMMUNICATIONS.

24
25

I

AND SO WHILE, WITH ALL DUE RESPECT TO THE COURT, I WOULD
ENCOURAGE THE COURT TO LOOK AT THAT CIPA ISSUE AGAIN BECAUSE IT

UNITED STATES COURT REPORTERS

29

1
2

REALLY IS THE PARALLEL TO THE WIRETAP ACT ISSUE.
AND BECAUSE FACEBOOK WAS A PARTY TO THAT COMMUNICATION AND

3

RECEIVED THE REFERRED URL DIRECTLY FROM THE INDIVIDUAL AND

4

BECAUSE IT DOESN'T MATTER WHETHER OR NOT THE PLAINTIFFS KNEW

5

THAT IT WAS FACEBOOK ON THE OTHER END OF THE LINE, I WOULD SAY,

6

I THINK WE ALSO FALL UNDER THAT EXCEPTION UNDER CIPA JUST AS WE

7

DO UNDER THE WIRETAP ACT.

8
9

THE COURT:

BEFORE WE MOVE ALONG, AND MAYBE THIS IS

ANTICIPATORY ALSO, BUT I WOULD ASK YOU TO ALSO COMMENT, IF YOU

10

WOULD, ABOUT THE ALLEGATION IS THAT HERE WHEN THE USER SIGNED

11

OFF, THERE WAS CONTINUED COMMUNICATION, I'LL CALL IT, BETWEEN

12

FACEBOOK AND THE COMPUTER AND DOES THAT MAKE A DIFFERENCE AS TO

13

ANYTHING THAT WE'VE TALKED ABOUT SO FAR?

14

MR. BROWN:

NO, IT REALLY DOESN'T AND THAT'S KIND OF

15

PART AND PARCEL OF THE COMMENTS THAT I MADE EARLIER THAT THE

16

COOKIE ALLEGATIONS ARE REALLY IRRELEVANT HERE.

17

BECAUSE WHETHER FACEBOOK USERS WERE LOGGED IN OR LOGGED

18

OUT OR WHETHER IT WAS A NON-FACEBOOK USER WHO WAS TRYING TO GO

19

TO CNN OR WAL-MART.COM, FACEBOOK WOULD BE RECEIVING THAT GET

20

REQUEST IN ANY OF THOSE EVENTS, IN ANY OF THOSE CIRCUMSTANCES.

21

WHY?

BECAUSE THAT'S THE WAY THE INTERNET IS SET UP TO

22

WORK.

AND THAT'S REALLY DRIVEN BY THE FACT THAT THERE IS --

23

THAT THE FIRST PARTY WEB PAGES MADE A CHOICE TO INCLUDE CERTAIN

24

THIRD PARTY CONTENT BECAUSE I THINK THAT'S WHAT IS BEST FOR

25

THEIR SITE AND THE WAY THAT THE INTERNET PROTOCOLS ARE

UNITED STATES COURT REPORTERS

30

1

STRUCTURED MEANS THAT THERE HAS TO BE A SERIES OF SEPARATE AND

2

SEQUENTIAL COMMUNICATIONS IN ORDER TO POPULATE THAT PAGE.

3

SO REGARDLESS OF WHETHER FACEBOOK USERS WERE LOGGED IN OR

4

LOGGED OUT, THAT SERIES OF COMMUNICATIONS AND THE GET REQUESTS

5

AND THE LIKE WERE GOING TO HAPPEN REGARDLESS.

6

DOESN'T MATTER FOR PURPOSES OF WIRETAP ACT OR CIPA, C-I-P-A.

7

THE COURT:

SO IT REALLY

IT SOUNDS LIKE YOU'RE PROPOUNDING A

8

UNIVERSAL DEFENSE WHICH IS THAT'S THE WAY THE INTERNET WORKS,

9

FOLKS, AND GET OVER IT.

10

MR. BROWN:

YEAH.

I MEAN, I WOULDN'T WANT TO BE

11

FLIPPANT ABOUT IT BY ANY MEANS.

12

THE COURT:

RIGHT.

13

MR. BROWN:

BUT, YOU KNOW, YOU CAN THINK OF THE

14

POLICY CONSEQUENCES OF THE POSITIONS THAT PLAINTIFFS ARE TAKING

15

ARE RATHER PROFOUND.

16

I MEAN, WE CAN'T HAVE -- I MEAN, I DON'T THINK THAT THE

17

WIRETAP ACT, LET'S PUT IT THIS WAY, OR CIPA, WERE SET UP TO

18

CRIMINALIZE THIRD PARTY WEBSITES FROM PROVIDING CONTENT TO

19

FIRST PARTY WEB PAGES THAT WANTED TO DISPLAY THEIR CONTENT.

20

AND ONCE YOU UNDERSTAND HOW THIS WORKS, THAT IS THE

21

CONSEQUENCE OF THEIR POSITION BECAUSE IT HAS NOTHING TO DO WITH

22

FACEBOOK.

23

ADVERTISER WHO THE FIRST PARTY WEB PAGE DECIDED THAT THEY

24

WANTED TO ADVERTISE ON THEIR SITE.

25

PARTY.

LIKE I SAID, IT COULD BE TWITTER.

IT COULD BE AN

IT COULD BE ANY THIRD

UNITED STATES COURT REPORTERS

31

1

SO IF THE ALLEGATIONS HERE MAKE OUT A WIRETAP ACT CLAIM,

2

IT REALLY FUNDAMENTALLY MEANS THAT ANY TIME YOU HAVE A THIRD

3

PARTY WEB PAGE THAT IS PROVIDING CONTENT TO ANOTHER WEB PAGE,

4

THEY SHOULD BE LIABLE FOR INTERCEPTING COMMUNICATION, AND,

5

THEREFORE, CRIMINALLY LIABLE UNDER THE WIRETAP ACT OR CIPA.

6

I DON'T THINK THAT'S A REASONABLE WAY TO INTERPRET THE

7

STATUTE, AND I DON'T THINK THAT'S THE WAY IT WAS DRAFTED

8

EITHER.

9

SO THERE WERE A FEW OTHER ARGUMENTS MADE, BUT I THINK I

10

WOULD JUST TRANSITION TO THE STORED COMMUNICATIONS ACT AT THIS

11

TIME, UNLESS YOUR HONOR HAD ANY OTHER QUESTIONS.

12

THE COURT:

THAT'S FINE.

I'D LIKE YOU TO TOUCH ON

13

IT, WHENEVER YOU'RE READY TO, A LITTLE BIT ABOUT SOME OF THE

14

STATE ALLEGATIONS, AND I HAVE JUST A FEW QUESTIONS ABOUT THAT.

15
16

BUT LET'S TALK ABOUT THE SCA.
MR. BROWN:

SO REALLY OUR ARGUMENT IS NOT BASED ON

17

TWO DIFFERENT GROUNDS HERE.

18

COMMUNICATIONS ACT PROVIDES THAT A CLAIM AGAINST ANYONE WHO

19

INTENTIONALLY ACCESSES WITHOUT AUTHORIZATION A FACILITY THROUGH

20

WHICH AN ELECTRONIC COMMUNICATION SERVICE IS PROVIDED AND

21

THEREBY OBTAINS, ALTERS OR PREVENTS AUTHORIZED ACCESS THROUGH A

22

WIRE OR COMMUNICATION WHILE IT IS IN ELECTRONIC STORAGE.

23

AND REMEMBER THAT THE STORED

AND WE HAVE CONTENDED THAT THE SECOND AMENDED COMPLAINT

24

DOES NOT ADEQUATELY PLEAD ELECTRONIC STORAGE OR THAT THERE WAS

25

A FACILITY THAT WAS ACCESSED AND THAT WOULD BE A FACILITY

UNITED STATES COURT REPORTERS

32

1
2

THROUGH WHICH AN ELECTRONIC COMMUNICATIONS SERVICE PROVIDER.
WITH RESPECT TO ELECTRONIC STORAGE, AS THE COURT RULED

3

PREVIOUSLY IN ITS ORDER ON THE FIRST AMENDED COMPLAINT,

4

PLAINTIFFS INCLUDED ALLEGATIONS THAT THERE WERE PERSISTENT

5

COOKIES PLACED ON THEIR COMPUTERS BY FACEBOOK, AND THE COURT

6

HELD THAT THE PERSISTENT NATURE OF THE COOKIES, AT LEAST AS

7

ALLEGED BY THE COMPLAINT, COULDN'T BE RECONCILED WITH THE

8

TEMPORARY NATURE OF THE STORAGE CONTEMPLATED BY THE STORED

9

COMMUNICATION ACT.

10

AND THAT'S -- THAT WAS YOUR ORDER AT PAGE 17.

11

THE STORED -- I'M SORRY, SCA AND SAC ARE QUITE SIMILAR.

12

THE SECOND AMENDED COMPLAINT STILL ACKNOWLEDGES THAT THERE

13

ARE -- THE COOKIES ARE PERSISTENT.

14

COOKIES LAST FOR MONTHS OR YEARS.

15

IN PARAGRAPH 55 OF THE SECOND AMENDED COMPLAINT, AND,

16

THEREFORE, THEY HAVEN'T CURED THAT DEFECT, AND SO THE SCA CLAIM

17

SHOULD BE DISMISSED AGAIN ON THE SAME GROUND.

18

THEY ALLEGE THAT THE
THAT'S -- YOU CAN SEE THAT

THEY'VE TRIED TO NOW COME BACK AND ADD A FEW ALLEGATIONS

19

WHICH ARE REAL STRETCHES.

THEY NOW SAY THAT SOMEHOW THE

20

TOOLBAR THAT -- WHERE SOME PEOPLE WILL REACH A WEB PAGE BY

21

INPUTTING THE URL, THAT THAT SOMEHOW CONSTITUTES ELECTRONIC

22

STORAGE.

23

THEY ALLEGE THAT THE BROWSING HISTORY THAT IS STORED, AT

24

LEAST DEPENDING ON HOW THE USER HAS THEIR BROWSER CONFIGURED,

25

THAT THE BROWSING HISTORY IS ELECTRONIC STORAGE.

UNITED STATES COURT REPORTERS

33

1

WE'VE BRIEFED THIS EXTENSIVELY, AND SO I'M NOT GOING TO

2

TRY TO HIT EVERY SINGLE POINT HERE, BUT WE THINK THOSE SIMPLY

3

DON'T FLY.

4

THERE'S NO ATTEMPT IN THE SAC TO EXPLAIN HOW THE URL THAT

5

MIGHT BE IN THE TOOLBAR IS HANDLING A COMMUNICATION WHILE IT'S

6

IN TRANSMISSION, IN THE MIDDLE OF TRANSMISSION AND THAT'S THE

7

STANDARD.

8
9

REMEMBER THE IDEA HERE IS THAT THIS WOULD BE ACCESSING
STORAGE OF A COMMUNICATION THAT IS INCIDENTAL TO THE

10

TRANSMISSION ITSELF, A TEMPORARY STORAGE THAT IS INCIDENTAL TO

11

THE TRANSMISSION.

12

THERE'S NOTHING ABOUT THE PUTTING A URL INTO THE TOOLBAR.

13

THAT'S JUST SIMPLY A COMMAND THAT SOMEONE PUTS IN.

EVEN ON

14

THEIR ALLEGATIONS, THE COMMUNICATIONS ITSELF AND THE TOOLBAR IS

15

NOT SORT OF HOLDING THAT IN STORAGE IN THE COURSE OF

16

TRANSMITTING THE COMMUNICATION.

17

AND WE'VE CITED, BY THE WAY, THE TOYS R US CASE, THE

18

NORTHERN DISTRICT COURT, STANDING FOR THE PROPOSITION THAT THE

19

SCA -- PARDON ME -- ONLY PROTECTS ELECTRONIC COMMUNICATIONS

20

STORED FOR A LIMITED TIME IN THE MIDDLE OF A TRANSMISSION,

21

I.E., WHEN AN ELECTRONIC COMMUNICATIONS SERVICE TEMPORARILY

22

STORES A COMMUNICATION WHILE WAITING TO DELIVER IT.

23
24
25

SO I THINK THAT WAS PROBABLY PUT MORE ARTFULLY THAN HOW I
JUST TRIED TO EXPLAIN IT.
WITH RESPECT TO THIS NOTION THAT SOMEHOW THE PLAINTIFFS'

UNITED STATES COURT REPORTERS

34

1

COMPUTERS OR THEIR WEB BROWSERS ON THEIR COMPUTERS ARE A

2

FACILITY THROUGH WHICH AN ELECTRONIC COMMUNICATION SERVICE IS

3

PROVIDED SIMPLY DOESN'T FLY, PARDON ME, UNDER THE CASE LAW.

4

THE NICKELODEON CASE THAT WE CITE MAKES CLEAR THAT THERE'S THE

5

VAST MAJORITY OF PUBLISHED AND NONPUBLISHED DECISIONS THAT HAVE

6

CONSIDERED THIS ISSUE HAVE HELD THAT PEOPLE'S COMPUTERS CAN'T

7

BE THE SORT OF FACILITY THROUGH WHICH AN ELECTRONIC

8

COMMUNICATIONS SERVICE IS PROVIDED.

9

YOU KNOW, THE QUINTESSENTIAL EXAMPLE HERE WOULD BE THAT

10

LET'S SAY THAT MICROSOFT, WHICH PROVIDES THE HOT MAIL E-MAIL

11

SERVICE, AND THEY MAY HAVE REBRANDED THAT THESE DAYS BUT AT

12

LEAST THEY USED TO, AND THEY HAVE A BUNCH OF E-MAIL ON THEIR

13

SERVERS AND THAT'S THE FACILITY.

THEY'RE THE ELECTRONIC

14

COMMUNICATIONS SERVICE PROVIDER.

THEY PROVIDE THIS SOFTWARE

15

THAT HELPS YOU SEND COMMUNICATIONS TO ONE ANOTHER.

16

TO THE EXTENT THAT THEY'RE -- PARDON ME, THAT THEY'RE

17

HOLDING TEMPORARY COPIES OF COMMUNICATIONS IN TEMPORARY STORAGE

18

INCIDENTAL TO THE TRANSMISSION, THAT WOULD BE SORT OF THE

19

QUINTESSENTIAL EXAMPLE.

20

WHERE THE COURTS HAVE HELD THAT PLAINTIFFS' OWN COMPUTERS CAN'T

21

BE THE SORT OF FACILITY THAT WERE CONTEMPLATED BY THE --

22

THE COURT:

BUT WE HAVE CITED CASE AFTER CASE

WAS THE THEORY ABOUT THIS, WHEN CONGRESS

23

LOOKED AT THIS, I GET THE SENSE THAT IT WAS SOME OFFSITE

24

SERVERS, OR WHATEVER THEY ARE, IN SOME BUILDING SOMEWHERE AND

25

HOLDING ALL OF THIS INFORMATION AND THAT'S REALLY WHAT THEY HAD

UNITED STATES COURT REPORTERS

35

1

IN MIND, AT LEAST THAT'S THE HISTORY OF THE STATUTE.

2

MR. BROWN:

ABSOLUTELY.

I MEAN, THIS WAS LAST

3

AMENDED I THINK IN 1986 AND SO, YEAH, THE IDEA THAT THIS WOULD

4

APPLY TO PEOPLE'S LAPTOPS AND THE BROWSING HISTORY STORED IN

5

THEIR BROWSER ON THEIR LAPTOP WAS NOT SOMETHING THAT CONGRESS

6

WAS CONTEMPLATING.

7

AND I THINK IF YOU REALLY LOOK CAREFULLY AT THE LANGUAGE

8

OF THE STATUTE, IT'S ABUNDANTLY CLEAR THAT WHEN YOU SAY A

9

FACILITY THROUGH WHICH THE ELECTRONIC COMMUNICATIONS SERVICES

10

PROVIDED, THAT THEY DON'T HAVE IN MIND PEOPLE'S INDIVIDUAL

11

COMPUTERS.

12

THE COURT:

AND IT, AGAIN, PRESENTS THAT ISSUE THAT

13

WE ALL STRUGGLE WITH THAT TECHNOLOGY IS OFTENTIMES SWIFTER THAN

14

CONGRESSIONAL ACTION IN LAW THAT IS SUPPOSED TO REGULATE IT.

15

MR. BROWN:

ABSOLUTELY.

AND THERE HAVE BEEN CALLS

16

FOR YEARS WHERE THE WIRETAP ACT AND THE STORED COMMUNICATIONS

17

ACT TO BE UPDATED, BUT THEY HAVEN'T BEEN.

18

THE STATUTES AS WORDED, BUT THEY CAN'T BE STRETCHED TO REACH

19

CONDUCT THAT THE STATUTORY LANGUAGE DOESN'T APPLY TO OR THAT

20

WAS NEVER INTENDED.

21
22

AND WE'RE STUCK WITH

WERE THERE PARTICULAR STATE LAW CLAIMS THAT YOU -THE COURT:

I WAS JUST CURIOUS ABOUT PERHAPS THE

23

INVASION OF PRIVACY ISSUES AND WHETHER OR NOT YOU THOUGHT THAT

24

THERE WAS ANY 502 ACTION HERE, CALIFORNIA 502 ACTION, AND ALSO

25

THE LARCENY.

UNITED STATES COURT REPORTERS

36

1

MR. BROWN:

OKAY.

SO WITH RESPECT TO THE INVASION

2

OF PRIVACY CLAIM, AND OBVIOUSLY THE INTRUSION UPON SECLUSION

3

CLAIM IS CLOSELY RELATED TO IT.

4

THEY'RE OFTEN ANALYZED VERY CLOSELY TOGETHER.

5

IT'S, I SUPPOSE, DISTINCT BUT

THERE ARE A NUMBER OF CASES THAT WE HAVE CITED THAT STAND

6

FOR THE PROPOSITION THAT VOLUNTARY DISCLOSURE OF INFORMATION TO

7

THIRD PARTIES DOES NOT IMPLICATE A REASONABLE EXPECTATION OF

8

PRIVACY NOR DOES IT CONSTITUTE A HIGHLY OFFENSIVE SORT OF

9

INVASION OR AN EGREGIOUS BREACH OF SOCIAL NORM DEPENDING ON

10

EXACTLY WHAT CLAIM YOU'RE TALKING ABOUT AND WHICH STANDARD

11

APPLIES.

12

AND SOME OF THOSE CASES ARE PEOPLE VERSUS STIPO,

13

S-T-I-P-O, WHICH WAS A CALIFORNIA APPELLATE CASE; THERE'S,

14

AGAIN, LOW VERSUS LINKEDIN.

15

THIS ISSUE, NOT JUST THE STANDING ISSUE.

16

EARLIER, BUT IN LOW VERSUS LINKEDIN, AND THIS IS 900 F. SUPP.

17

2D 1010, THE COURT THERE HELD THAT THERE WAS NO HIGHLY

18

OFFENSIVE INVASION OF PRIVACY, EVEN IN CIRCUMSTANCES WHERE THE

19

DEFENDANT HAD DISCLOSED USER BROWSING HISTORY.

20

BACK TO BROWSING HISTORY IN THAT CASE COUPLED WITH THE DIGITAL

21

IDENTIFICATION PREDICTION OF THE USER AND DISCLOSED THOSE TO

22

THIRD PARTIES IN VIOLATION OF LINKEDIN'S OWN POLICIES.

23

THAT WAS A CASE THAT ADDRESSED
I REFERRED TO THIS

AGAIN, WE'RE

AND I THINK ONE THING THAT IS BROUGHT OUT BY DESCRIBING

24

THAT FACT PATTERN, IT'S ILLUSTRATIVE OF WHAT A HIGH BAR IT IS

25

TO CLEAR.

I MEAN, THIS IS A PARTICULAR CLAIM WITH A PARTICULAR

UNITED STATES COURT REPORTERS

37

1

SET OF STANDARDS AND THE STANDARD OF, YOU KNOW, EGREGIOUS

2

BREACH OF SOCIAL NORMS IS EXTRAORDINARILY HIGH.

3

AND SO WE HAVE LOW VERSUS LINKEDIN AND IN ADDITION TO

4

PEOPLE VERSUS STIPO, AND YOU ALSO HAVE THE IN RE IPHONE

5

APPLICATION LITIGATION, AND IT'S 844 F. SUPP. 2D 1040.

6

THAT WAS A CASE THAT DEALT WITH DISCLOSURE OF THIRD PARTIES OF

7

PEOPLE'S UNIQUE DEVICE IDENTIFICATION INFORMATION, THEIR

8

PERSONAL DATA, GEO LOCATION INFORMATION.

9

AND

AND, AGAIN, EVEN IN THAT FACT PATTERN, WHATEVER THE COURT

10

MAY HAVE THOUGHT ABOUT THE ALLEGATIONS, WHEN LOOKING AT THIS

11

PARTICULAR CLAIM AND THIS PARTICULAR STANDARD, JUDGE KOH HELD

12

THAT THAT WAS NOT AN EGREGIOUS BREACH OF SOCIAL NORMS.

13

WE'VE ALSO CITED THE GOOGLE PRIVACY POLICY LITIGATION.

14

AND THIS IS ONE OF SEVERAL GOOGLE CASES THAT HAVE MADE THEIR

15

WAY INTO THE BRIEFING.

16

WAS A CASE THAT ALLEGED THAT GOOGLE HAD COMMINGLED INFORMATION

17

THAT IT COLLECTED DURING THE PLAINTIFFS' USE OF A WHOLE VARIETY

18

OF GOOGLE PRODUCTS.

19

LOOKUP, YOUTUBE HISTORY.

20

THIS INFORMATION TO THE GMAIL ACCOUNT.

21

AGGREGATION OF PREVIOUSLY DISPARATE DATA.

22

COURT HELD THAT THIS CONDUCT DID NOT CONSTITUTE A HIGHLY

23

OFFENSIVE INVASION.

24
25

THIS IS 58 F. SUPP. 3D 968.

AND THAT

SO, FOR INSTANCE, SEARCH QUERIES, ADDRESS
YOUTUBE IS OWNED BY GOOGLE.

TIED

SO A FAIRLY LARGE
AND, AGAIN, THE

AND NOTING THAT, QUOTE, "COURTS IN THIS DISTRICT HAVE
CONSISTENTLY REFUSED TO CHARACTERIZE A DISCLOSURE OF COMMON

UNITED STATES COURT REPORTERS

38

1

BASIC DIGITAL INFORMATION TO THIRD PARTIES AS SERIOUS OR

2

EGREGIOUS VIOLATIONS OF SOCIAL NORMS."

3

AND WE'VE CITED OTHER CASES, AND I'LL STOP MAYBE THERE

4

WITH A PARTICULAR DISCUSSION OF CASES, BUT ONE, I THINK,

5

IMPORTANT THING TO NOTE, JUST TO PUT A MAYBE FINER POINT ON

6

THIS, THE LAST THREE CASES THAT I DISCUSSED LOW AND THE IPHONE

7

CASE AND THE GOOGLE CASE ALL DEALT WITH AGGREGATION OF DATA.

8
9

THERE'S BEEN SOME SUGGESTION HERE THAT, WELL, WE
UNDERSTAND THAT IF INFORMATION WAS DISCLOSED TO A THIRD PARTY

10

VOLUNTARILY ONE TIME, THAT THAT MAY NOT BE A PROBLEMATIC CAUSE

11

OF ACTION BUT IF YOU DO IT SEVERAL TIMES AND IT GETS

12

AGGREGATED, THEN THAT'S WHAT CAUSES THE PROBLEM.

13

SO I THINK THIS IS A PRETTY SIGNIFICANT POINT THAT AT

14

LEAST THESE THREE CASES, THERE COULD BE OTHERS, BUT AS I WAS

15

LOOKING BACK ON THE CASE LAW IN PREPARATION FOR THE ARGUMENT IT

16

REALLY JUMPED OUT AT ME THAT THOSE THREE CASES DEAL DIRECTLY

17

WITH THIS FACT PATTERN OF AGGREGATION OF INFORMATION.

18

SO I WOULD RESPECTFULLY SUGGEST THAT, YOU KNOW, THAT THEY

19

HAVEN'T MET THE STANDARD HERE IN THIS CASE, AND I MIGHT JUST

20

ADDRESS THE UNG DECISION IN THE SANTA CLARA SUPERIOR COURT

21

WHICH THE PLAINTIFFS HAVE POINTED TO.

22

DENIED THE DEMURRER ON THIS CLAIM IN A CASE THAT PRESENTED A

23

SOMEWHAT SIMILAR FACT BECAUSE THE COMPLAINT WAS ITS OWN

24

COMPLAINT AND HAD TO BE VIEWED THAT WAY.

25

AND THERE THE COURT

BUT WHAT I WOULD SORT OF POINT OUT ABOUT THE UNG DECISION

UNITED STATES COURT REPORTERS

39

1

AND WHY WE THINK IT NOT ONLY WAS WRONGLY DECIDED BUT REALLY

2

SHOULDN'T BE CONSIDERED PERSUASIVE AUTHORITY TO YOUR HONOR, IS

3

IT DIDN'T EVEN ATTEMPT TO DISCUSS THIS ENTIRE BODY OF CASE LAW

4

THAT I'VE JUST BEEN DISCUSSING.

5

THIS ENTIRE BODY OF CASE LAW HOLDING AT A HIGH LEVEL THAT

6

YOUR DISCLOSURE OF INFORMATION VOLUNTARILY TO THIRD PARTIES

7

NEGATES A REASONABLE EXPECTATION OF PRIVACY OR MEANS THAT THERE

8

ISN'T AN EGREGIOUS BREACH OF SOCIAL NORMS.

9

LAW WAS DEALT WITH IN THE OPINION AND THE COURT THERE REALLY

NONE OF THAT CASE

10

RELIED SOLELY, I WOULD SAY, ON A CASE CALLED UNITED STATES

11

VERSUS MAYNARD, M-A-Y-N-A-R-D, AND ULTIMATELY THAT CASE WAS

12

AFFIRMED UNDER A DIFFERENT NAME, U.S. VERSUS JONES, BY THE U.S.

13

SUPREME COURT.

14

BUT THAT CASE BASICALLY DEALT WITH POLICE SURVEILLANCE.

15

SO THE POLICE WERE SURVEILLING A SUSPECT WITHOUT A WARRANT AND

16

THEY PLACED A GPS DEVICE ON THIS PERSON'S JEEP FOR, LIKE, A

17

MONTH, AND THEY GATHERED DATA 24 HOURS A DAY FOR A MONTH.

18

AND IT WAS THAT CASE THAT THE COURT, THE SUPERIOR COURT IN

19

UNG SORT OF RELIED ON, BUT I FIND THAT TO BE QUITE A DIFFERENT

20

SET OF CIRCUMSTANCES.

21

WITH SORT OF LOCATION TRACKING AND GEO LOCATION ISSUES IN A

22

SIGNIFICANTLY DIFFERENT WAY.

23

THAT WAS A CASE INVOLVING POLICE SURVEILLANCE AND WARRANTS IS

24

SIGNIFICANT.

25

I THINK COURTS HISTORICALLY HAVE DEALT

I ALSO THINK THAT THE FACT THAT

YOU KNOW, COURTS HAVE OBVIOUSLY FOR UNDERSTANDABLE REASONS

UNITED STATES COURT REPORTERS

40

1

IN THE DEMOCRACY THAT WE LIVE IN HAVE TAKEN A CERTAIN VIEW AND

2

WANTED TO MAKE SURE THAT THEY WERE REIGNING IN GOVERNMENT

3

SURVEILLANCE CONDUCT.

4

SO I WOULD JUST SAY THAT I DON'T THINK IT WAS APPROPRIATE

5

TO REST THE DECISION ON MAYNARD, AND I ALSO DON'T THINK THE

6

COURT HAS GRAPPLED WITH THIS OTHER BODY OF CASE LAW WHICH I DO

7

THINK IS PERSUASIVE AND IN SOME CASES BINDING SUCH AS THE

8

FORRESTER CASE BY THE NINTH CIRCUIT ON THIS COURT.

9

DON'T THINK IT IS PERSUASIVE EITHER.

AND SO I

10

THE COURT:

OKAY.

GREAT.

11

MR. BROWN:

LET ME JUST MAKE SURE THAT THERE'S

12

NOTHING ELSE TO HIT ON THOSE CLAIMS.

AND THERE ARE OBVIOUSLY A

13

NUMBER OF ARGUMENTS, BUT I'M ALSO COGNIZANT OF NEEDING TO KEEP

14

THIS MOVING ALONG HERE.

15

ON THE LARCENY CLAIMS, BECAUSE YOUR HONOR HAD MENTIONED

16

THAT ONE, OR THE CLAIM, IT'S A SINGLE CLAIM, THEY CITED BOTH

17

PENAL CODE SECTION 484 AS WELL AS PENAL CODE SECTION 496.

18

JUST FOR CLARITY, WE ADDRESS THIS IN OUR BRIEFS, BUT

19

THERE'S NO PRIVATE RIGHT OF ACTION UNDER PENAL CODE SECTION

20

484, AND WE'VE CITED AUTHORITIES IN OUR MOTION AT PAGE 38.

21

THAT'S OUT.

22

IN TERMS OF PENAL CODE 496, BASICALLY WHAT YOU HAVE TO

23

ALLEGE HERE IS THAT YOU BOUGHT OR RECEIVED PROPERTY KNOWING

24

THAT IT HAD BEEN OBTAINED BY THEFT OR EXTORTION OR YOU

25

CONCEALED IT OR WITHHELD IT FROM THE OWNER IN SOME WAY.

UNITED STATES COURT REPORTERS

SO

41

1

BASICALLY WHAT THIS STATUTE WAS, IT'S A STATUTE DESIGNED

2

TO CRIMINALIZE FENCING OF STOLEN GOODS, RIGHT, AND RESELLING IT

3

ON THE BLACK MARKET.

4

SO WHETHER YOU'RE BUYING THOSE GOODS IN ORDER TO RESALE

5

THEM OR WHETHER YOU'RE TAKING POSSESSION OF THEM TO HOLD THEM

6

FOR A WHILE FOR THE PERSON WHO STOLE THEM OR WHAT HAVE YOU,

7

THIS IS, TOO, A CRIMINALIZED OFFENSE.

8
9
10
11

THE COURT:

I GUESS I WAS INTRIGUED BY THIS, AND

I'LL HEAR AGAIN FROM YOUR COLLEAGUES, BUT WHERE IS THE THEFT
HERE?

WHAT IS THE THEFT?
MR. BROWN:

YEAH.

WELL, THERE'S NOT ONLY NO

12

PROPERTY IN THE FIRST PLACE SO THAT'S SORT OF THE THRESHOLD

13

ISSUE, AND THERE'S NO THEFT BECAUSE, WELL, FIRST OF ALL, I

14

MEAN, TO EVEN TALK IN TERMS OF THEFT IN A FACT PATTERN LIKE

15

THIS IS ALMOST ABSURD, FRANKLY.

16

BUT THE FACT THAT THE, QUOTE-UNQUOTE, COMMUNICATION WAS

17

COMING DIRECTLY FROM THE PLAINTIFFS TO FACEBOOK SHOWS THAT

18

THERE'S NO THEFT THERE.

19

FACEBOOK WAS COMING RIGHT FROM THE INDIVIDUAL, RIGHT FROM THE

20

PLAINTIFFS' OWN BROWSER.

21

THE URL THAT WAS BEING TRANSMITTED TO

SO THERE'S NO THEFT THERE.

AND, YOU KNOW, EVEN IF YOU COULD SOMEHOW CONJURE UP SOME

22

SCENARIO IN WHICH YOU COULD SAY THAT THIS URL WAS STOLEN,

23

CERTAINLY THERE'S BEEN NO SHOWING THAT FACEBOOK HAD REASON TO

24

KNOW THAT THESE URL'S WERE SOMEHOW STOLEN.

25

AGAIN, IT ALMOST FEELS ABSURD TO BE TALKING LIKE THAT

UNITED STATES COURT REPORTERS

42

1

BECAUSE I THINK IT'S SUCH A POOR FIT BETWEEN THE CONDUCT THAT

2

IS ALLEGED AND THIS PARTICULAR CAUSE OF ACTION.

3

YOU KNOW, I MEAN, THERE ARE A NUMBER OF ARGUMENTS HERE BUT

4

I MIGHT JUST ALSO POINT OUT THAT FACEBOOK DIDN'T SELL ANY

5

REFERRED URL'S EITHER.

6

FACEBOOK CHARGED MORE TO ADVERTISERS BASED ON USE OF THIS

7

INFORMATION, AND THEY SUGGEST THAT IN THEIR BRIEFING, BUT

8

THERE'S NO ALLEGATIONS CITED TO IN THE SECOND AMENDED COMPLAINT

9

FOR THAT THEORY, SHALL WE CALL IT.

YOU KNOW, THE PLAINTIFFS SPECULATE THAT

10

AND THEY ALSO DON'T CITE ANY CASE LAW TO SUPPORT THIS

11

NOTION OR IDEA THAT THE SALE OF ADVERTISING SOMEHOW AMOUNTS TO

12

SALE OF SUPPOSED PROPERTY THAT THEY ALLEGE WAS STOLEN.

13

AGAIN, I JUST THINK THAT IT'S ALMOST DIFFICULT TO TALK

14

ABOUT THIS CAUSE OF ACTION BECAUSE IT'S SUCH A POOR FIT BETWEEN

15

WHAT THE STATUTE WAS DESIGNED TO COVER AND WHAT THEY'RE

16

ALLEGING HERE BUT IT CLEARLY, FOR A NUMBER OF REASONS, IN

17

SEVERAL ELEMENTS THEY HAVE FAILED IN THEIR PLEADING AND IT

18

SHOULD BE DISMISSED.

19

THE COURT:

20

ALL RIGHT.

THANK YOU VERY MUCH.

COUNSEL, DO YOU RISE TO CONCEDE THE MOTION, COUNSEL?

21

MR. STRAITE:

22

THE COURT:

23

MR. STRAITE:

I'M SORRY?

DO YOU RISE TO CONCEDE THE MOTION?
NO, YOUR HONOR.

I'M SURE MY OPPONENTS

24

WOULD APPRECIATE THAT, BUT I DO HAVE PARAGRAPH 60 OPEN HERE,

25

AND I APPRECIATE YOU DRAWING MY ATTENTION TO.

UNITED STATES COURT REPORTERS

43

1

AGAIN, YOUR HONOR, MY NAME IS DAVID STRAITE REPRESENTING

2

THE PLAINTIFFS AND THE PUNITIVE CLASS.

3

THIS EXTENSIVE ARGUMENT.

4

ADDRESS AND HIGHLIGHT SOME OF THE ISSUES THAT WE THINK ARE

5

IMPORTANT.

6

THANK YOU FOR HAVING

WE DO APPRECIATE THE OPPORTUNITY TO

IT'S BEEN A FEW YEARS SINCE WE'VE BEEN BEFORE YOUR HONOR

7

AND A NUMBER OF THINGS HAVE CHANGED.

8

HAIRS AND A FEW OTHER GOOD THINGS HAVE HAPPENED.

9

I HAVE A FEW MORE GREY

I SHARE YOUR LAMENT ABOUT PERHAPS BEING IN A CERTAIN

10

VINTAGE, AND SO WE BROUGHT IN A RINGER HERE, WITH YOUR

11

PERMISSION.

12

THE STEERING COMMITTEE AS OF YESTERDAY.

13

ORDER.

14

THIS IS JAY BARNES, AND MY COLLEAGUE AND HE'S ON
THANK YOU FOR THAT

MR. BARNES ARGUED MANY OF THESE ISSUES BEFORE THE FEDERAL

15

CIRCUIT ON BEHALF OF THE PLAINTIFFS.

HE WAS THE ONLY LAWYER

16

THAT DID SO, AND WE'VE ASKED HIM TO HELP US WITH SOME OF THE

17

TECHNICAL POINTS THAT MAY BE MORE NATIVE TO HIS UNDERSTANDING

18

GIVEN HIS YOUTH AND EXPERIENCE.

19

HERE.

AND SO WE APPRECIATE HIM BEING

20

WITH YOUR PERMISSION, YOUR HONOR, I'D LIKE TO BRIEFLY

21

HIGHLIGHT WHAT HAS CHANGED IN THE LAST COUPLE OF YEARS AND

22

ADDRESS SOME OF THE ISSUES THAT HAVE BEEN RAISED EARLIER AND

23

THEN FOR SOME OF THE TECHNICAL ARGUMENTS, TURN IT OVER TO

24

MR. BARNES FOR ANY QUESTIONS YOU MIGHT HAVE, AND HE MIGHT HAVE

25

SOME INTRODUCTIONS AS WELL.

UNITED STATES COURT REPORTERS

44

1

THE COURT:

THAT'S FINE.

2

MR. STRAITE:

THANK YOU.

IN THE LAST FEW YEARS WHAT HAS

3

HAPPENED?

4

OCTOBER 25, 2012, ON THE FIRST AMENDED COMPLAINT.

5

MR. GRYGIEL, WHO IS AT THE TABLE HERE, AND I ARGUED BEFORE YOU.

6

OBVIOUSLY WE HAVE HAD OUR ORAL ARGUMENTS ON
AND

AND SINCE THAT TIME OBVIOUSLY THERE HAS BEEN SOME LIMITED

7

DISCOVERY, LIMITED BY THE NUMBER OF DOCUMENTS BUT PRETTY

8

DAMNING IN TERMS OF CONTENT.

9

SEAL PLUS ADDITIONAL DOCUMENTS OF THE COMPLAINT.

WE APPENDED 11 DOCUMENTS UNDER
WE SAY THEY

10

SPEAK FOR THEMSELVES.

THIS IS OPEN COURT, AND WE CAN'T DISCUSS

11

THEM BECAUSE THEY'RE UNDER SEAL, BUT THEY'RE QUOTED LIBERALLY

12

THROUGHOUT THE COMPLAINT, AND WE THINK THEY STRENGTHEN THIS

13

CASE IN WAYS THAT ARE FAIRLY PROFOUND.

14

IN ADDITION, THEY ALSO PROVIDE AN ADDITIONAL BASIS FOR

15

THESE CLAIMS, AN ADDITIONAL FACTUAL BASIS THAT WE WEREN'T AWARE

16

OF.

17

IN THE RESPONSE TO THE SEALING MOTION, COUNSEL FOR

18

FACEBOOK CONFIRMED THAT THE INFORMATION IS STILL CONFIDENTIAL,

19

MEANING IT'S NOT IN THE PUBLIC REALM.

20

PLAINTIFFS DON'T KNOW THAT THERE IS NOT A SECOND BASIS FOR THE

21

COMPLAINT, AND WE FEEL THAT IS -- HOPE THAT IS SOMETHING THAT

22

WILL BE REMEDIED IN THE MOTION TO SEAL AND THE DOCUMENTS WILL

23

BE UNSEALED, BUT THEY CERTAINLY SUPPORT THESE CLAIMS WITH THAT

24

SECOND BASIS.

25

AND EVEN IN OUR VIEW

WE ALSO FILED A SECOND AMENDED COMPLAINT FOLLOWING THIS

UNITED STATES COURT REPORTERS

45

1

COURT'S ORDER, AND FOLLOWING THIS COURT'S ORDER THERE WAS ALSO

2

THE DECISION IN GOOGLE COOKIE PLACEMENT.

3

DEVELOPMENTS.

4

ALL OF THESE ARE

LET'S START FIRST WITH THE SECOND AMENDED COMPLAINT.

WHAT

5

CHANGED IN ADDITION TO PROVIDING THESE ADDITIONAL FACTS THAT

6

WE'VE COVERED IN DISCOVERY?

7

WE ALSO ARE MORE CLEARLY ASSERTING AN ADDITIONAL BASIS FOR

8

INJURY.

WE'VE FOCUSSED IN THE FIRST AMENDED COMPLAINT ON THE

9

STATUTORY STANDING AND THEN FOR COMMON LAW STANDING YOU CALLED

10

IT A CONSTITUTIONAL STANDING IN YOUR ORDER, WE FOCUSSED ON

11

ECONOMIC DAMAGE.

12

MORE CLOSER ON NONECONOMIC HARM, THAT WOULD BE THE LOSS OF

13

PRIVACY FROM THE TWO PRIVACY CLAIMS THAT WERE MUCH MORE

14

EXPLICIT.

15

SUPPORT THE CONCLUSION THAT THE THIRD CIRCUIT REACHED A FEW

16

MONTHS AGO THAT THIS BEHAVIOR, WHICH YOU REFERRED TO AS

17

FACTUALLY INDISTINGUISHABLE, AND IT'S CERTAINLY TRUE WITH

18

RESPECT TO OUR, I.E., SUBCLASS, IS AN EGREGIOUS BREACH OF

19

SOCIAL NORMS HERE.

20

AND I THINK WE WERE REMISS IN NOT FOCUSSING

WE PROVIDED PARAGRAPH AFTER PARAGRAPH OF FACTS TO

WE'RE NOT TALKING ABOUT A WAY THE ENGINE HEAD NORMALLY

21

WORKS.

WE'RE TALKING ABOUT UNAUTHORIZED TRACKING OF URL'S OF

22

THE PLAINTIFFS WHEN THEY THOUGHT THEY WERE LOGGED ON.

23

WHEN THEY WERE, IN FACT, LOGGED OUT.

IN FACT,

24

AND AFTER INDEPENDENT RESEARCH HAS UNCOVERED WHAT WAS

25

GOING ON, FACEBOOK ADMITTED THEY COULDN'T HAVE DONE IT WITHOUT

UNITED STATES COURT REPORTERS

46

1

CONSENT AND DISCLOSURE.

2

OCCURRED WERE IMPROPER AND THESE CAUSES OF ACTION.

3
4
5

SO THEY ADMITTED THAT THE ACTIONS THAT

SO THAT'S THE FIRST BIG CHANGE THAT WE FOCUSSED MUCH MORE
STRONGLY ON THE NONECONOMIC BASIS FOR STANDING.
WE ALSO ALLEGE AN ADDITIONAL BASIS FOR ECONOMIC INJURY.

6

OBVIOUSLY, YOU KNOW, THIS COURT WAS VERY GRACIOUS IN SAYING

7

THAT WE HAD PLED MONETARY VALUE OF THE BROWSING HISTORY.

8

KNOW IT DOES HAVE MONETARY VALUE BUT ABSENT THE SHOWING THAT

9

THE PLAINTIFFS LOST THE ABILITY TO MONETIZE THAT DATA

WE

10

THEMSELVES, THEN THERE WAS THE ECONOMIC INJURY WITH RESPECT TO

11

THAT THEORY.

12

TO BURDENING OF COMPUTER RESOURCES.

13

WE'VE NOW ALLEGED ALSO ADDITIONALLY WITH RESPECT

THESE COOKIES, WHICH ARE ACTUALLY DISCUSSED IN DETAIL ON

14

PARAGRAPH 58 OF THE CHART ON THE PREVIOUS PAGE OF THE

15

COMPLAINT, THESE ARE A NUMBER OF COOKIES THAT ARE PRESENT ON

16

THE BROWSER WHEN A FACEBOOK USER INTERACTS WITH THE USER

17

INTERNET.

18

ONE COOKIE IS MISSING FROM THIS CHART AND THAT IS THE URL

19

OF THE PREVIOUS WEB PAGE THAT THE USER WAS VISITING.

20

NOT JUST THE I.P. ADDRESS, BUT THE FULL URL IS CONVERTED INTO

21

AN ADDITIONAL COOKIE WHICH IS THEN TRANSMITTED WITH ALL OF THIS

22

OTHER DATA TO FACEBOOK EVERY TIME A USER INTERACTS WITH A WEB

23

PAGE, WITH FACEBOOK FUNCTIONALITY.

24
25

THAT URL,

OUR LAST COUNT WAS 7.5 MILLION WEBSITES HAVE FACEBOOK
FUNCTIONALITY, AND THAT'S THE BASIC BULK OF THE INTERNET AS

UNITED STATES COURT REPORTERS

47

1

NORMAL CONSUMERS USE IT.

2

WEB A LOT, SEVERAL HUNDRED TIMES A DAY THEIR COMPUTERS ARE

3

CALLING UP TO FACEBOOK AND PROVIDING THEM WITH THE WEB BROWSER

4

HISTORY EVERY DAY, EVERY WEEK.

5

BILLION COMMUNICATIONS EVERY DAY ACROSS THE COUNTRY.

6

HUGE NUMBER.

7

AND SO FOR THOSE PEOPLE WHO SURF THE

IT COMES OUT TO ABOUT 30
THAT'S A

THE THIRD CIRCUIT FACING SIMILAR TYPES OF FACTS FOUND THE

8

TRACKING OF THAT INFORMATION TO BE A SIMILAR EGREGIOUS BREACH

9

OF SOCIAL NORMS.

10

AN ADDITIONAL CHANGE WE MADE, YOUR HONOR, IN THE SECOND

11

AMENDED COMPLAINT WHICH I JUST ALLUDED TO IS THAT WE FOCUSSED

12

ON URL'S RATHER THAN I.P. ADDRESSES.

13

OCTOBER 23RD, EMPHASIZED THAT THERE MAY NOT BE REASONABLE

14

EXPECTATION OF PRIVACY IN THE I.P. ADDRESSES.

15

BE THE DOMAIN NAME, WWW.CNN.COM, THE I.P. ADDRESS, THERE MAY

16

NOT BE A REASONABLE EXPECTATION OF PRIVACY.

17

YOUR ORDER OF

THAT WOULD JUST

SO WE FIXED THAT IN THE SECOND AMENDED COMPLAINT AND

18

ALLEGED MORE CLEARLY THAT WE'RE TALKING ABOUT URL'S.

19

LONGER ARE FOCUSSING ON THE MERE I.P. ADDRESS.

20

URL WHICH HAS THE CONTENT OF THE COMMUNICATION WITH THE FIRST

21

PARTY WEBSITE.

22

I GUESS WE'RE TALKING ABOUT FOCUSSING ON HERPES AND ORIGINALLY

23

I THINK WE TALKED ABOUT MENTAL HEALTH WEBSITES BUT THAT MAY FIT

24

TOO CLOSE TO HOME TO MOST LAWYERS SO WE CHANGED IT TO SOMETHING

25

ELSE.

IT'S THE LONGER

IT COULD BE THE NAME OF THE ARTICLE.

UNITED STATES COURT REPORTERS

WE NO

WE'VE --

48

1

CERTAINLY WE WERE LOOKING FOR A CONTENT THAT WAS SOCIALLY

2

STIGMATIZING IN THE PURPOSE WHICH THE BELGIUM PRIVACY REPORT

3

CITED IN PARAGRAPH 58 OF THE COMPLAINT ALSO WANTED TO FOCUS ON

4

SOCIALLY STIGMATIZING CONTENT TO REALLY DRIVE HOME THE POINT

5

HOW PERNICIOUS THIS TRACKING IS.

6

AND THIS CONTENT, WHETHER OR NOT IT HAS QUERY SEARCH

7

RESULTS, WHETHER OR NOT IT HAS YOUR SEARCH TERM YOU TYPED IN OR

8

IF IT'S MERELY A SUMMARY OF THE CONTENT OF THE ARTICLE IS

9

CONTENT.

THIS IS RECOGNIZED IN WAYS THAT MR. BARNES WILL FOCUS

10

ON IN JUST A MINUTE.

11

ALMOST SUMMARY JUDGMENT DETAIL IN THE AMENDED COMPLAINT, AND WE

12

HOPE THAT IT HELPS.

13

BUT THAT IS SOMETHING THAT WE ADDED WITH

WE ALSO, AS COUNSEL FOR FACEBOOK POINTED OUT, MORE CLEARLY

14

IDENTIFIED THAT THERE ARE TWO COMMUNICATIONS HERE.

15

JUST ONE COMMUNICATION TO FACEBOOK.

16

MOST ABOUT IS THE COMMUNICATION BETWEEN THE PLAINTIFFS AND THE

17

FIRST PARTY WEBSITE.

18

IT COULD BE ANY FIRST PARTY WEBSITE THAT HAS FACEBOOK

19

FUNCTIONALITY, THE LIKE BUTTON.

20

IT'S NOT

THE COMMUNICATION WE CARE

HERE IT'S WAL-MART IN PARAGRAPH 60, BUT

THAT COMMUNICATION IS CONTAINED CONTENT BACK AND FORTH TO

21

GET POST REQUEST IS A PRIVATE COMMUNICATION BETWEEN THE

22

PLAINTIFF AND A FIRST PARTY TO THAT CONVERSATION.

23

SIMULTANEOUSLY, AND, OF COURSE, MR. BARNES WILL EXPLAIN THIS IN

24

MORE DETAIL, BUT SIMULTANEOUSLY WITH THAT COMMUNICATION, A COPY

25

OF THE COMMUNICATION IS THEN PACKAGED AND SENT OFF TO FACEBOOK

UNITED STATES COURT REPORTERS

49

1
2

IN A SECOND COMMUNICATION.
SO, YES, WHAT THEY SAID IN THE COMMUNICATION, BUT IT'S NOT

3

VOLUNTARY.

THESE COMPUTERS ARE SENDING THESE COMMUNICATIONS

4

WITHOUT THE KNOWLEDGE OR CONSENT OF THE USER BECAUSE THEY

5

CONTAIN FIRST IDENTIFYING INFORMATION WHICH FACEBOOK HAD

6

PROMISED THEY WOULDN'T GATHER IF YOU WERE LOGGED OUT.

7

THE COURT:

8

MR. STRAITE:

9
10

YES, YOUR HONOR.

COPY OF THE INTERCEPTED FIRST CONVERSATION IN REAL TIME.
THE COURT:

SAY THAT AGAIN.

YOU USED THE MAGIC WORD

"INTERCEPTED."

13

MR. STRAITE:

14

THE COURT:

15

YES, YOUR HONOR.

AND SO ALTHOUGH THERE IS A SECOND COMMUNICATION, IT CONTAINS A

11
12

THAT'S THE BOTTOM PART OF PARAGRAPH 60?

YES.

SO YOUR POSITION IS THAT THERE WASN'T --

THAT'S WHERE THE INTERCEPTION TAKES PLACE?

16

MR. STRAITE:

THE INTERCEPTION ON THAT FIRST

17

COMMUNICATION, PARAGRAPH 60, THE COMMUNICATION WITH WAL-MART IS

18

BEING INTERCEPTED IN REAL TIME PACKAGED INTO A COOKIE ALONG

19

WITH ALL OF THESE OTHER COOKIES FOR PARAGRAPH 58 AND THEN

20

COMMUNICATED TO FACEBOOK SIMULTANEOUSLY WITH THE COMMUNICATION

21

WITH WAL-MART.

22

THE COURT:

23

MR. STRAITE:

24

THAT.

25

WHO IS DOING THE INTERCEPTION?
MR. BARNES CAN SPEAK IN DETAIL TO

WOULD IT BE OKAY IF I TURN OVER THE TECHNICAL DISCUSSION

TO HIM?

UNITED STATES COURT REPORTERS

50

1
2

THE COURT:
PRESENTATION.

3
4

I DON'T WANT TO INTERRUPT YOUR

SO IF MR. BARNES IS GOING TO --

MR. STRAITE:

IT MIGHT BE A GOOD TIME FOR MR. BARNES

TO ADDRESS.

5

MR. BARNES:

OKAY.

ON INTERCEPTION, IF YOU LOOK AT

6

PARAGRAPH 60 IS A GOOD EXPLANATION OF IT THERE.

7

TO NUMBER THE SEQUENCE PERFECTLY BECAUSE IT'S NOT -- IT DOESN'T

8

HAPPEN LIKE CONVERSATIONS HAPPEN IN THE REAL WORLD.

9

IS --

10

THE COURT:

11

MR. BARNES:

12
13

AND IT'S HARD

EVERYTHING

YOU SAID MILLISECONDS, I THINK.
MILLISECONDS.

EVERYTHING IS

SIMULTANEOUS.
AND IF YOU LOOK AT PARAGRAPH 184, WHAT WE SAY IS, IN FACT,

14

FACEBOOK RECEIVED THE COMMUNICATION, THEY ACQUIRED THE

15

COMMUNICATION BETWEEN THE USER AND THE WEBSITE WITH WHICH

16

THEY'RE COMMUNICATING BEFORE THE COMMUNICATION BETWEEN THE

17

PLAINTIFFS AND THE VARIOUS WEBSITES WERE COMPLETED.

18

SO WHAT HAPPENS IS THE USER CLICKS THE ENTER BUTTON IT

19

SAYS GET WAL-MART.COM, SLASH, TOWELS FOR MY KID'S TOWELS ON

20

SALE, RIGHT?

21

WAL-MART SENDS BACK INSTRUCTIONS.

THEY START FILLING OUT

22

THE WEB PAGE.

IMMEDIATELY THE PLAINTIFFS' WEB BROWSER SENDS

23

ANOTHER GET REQUEST TO FACEBOOK.

THE PLAINTIFF DOESN'T KNOW

24

ANYTHING ABOUT THIS GET REQUEST.

FACEBOOK IN THIS CASE HAS

25

PROMISED THAT THEY'RE NOT GOING TO TRACK THIS IN A PERSONALLY

UNITED STATES COURT REPORTERS

51

1

IDENTIFIABLE WAY, BUT YET FACEBOOK DOES.

2

THAT SEPARATE BUT SIMULTANEOUS COMMUNICATION.

3

THE COURT:

4

MR. BARNES:

AND FACEBOOK RECEIVES

FROM THE USER'S COMPUTER?
FROM THE USER'S WEB BROWSER.

BUT THE

5

USER'S WEB BROWSER IS DIFFERENT THAN THE USER.

6

THAT THEY USER USES TO SEND AND RECEIVE COMMUNICATIONS, BUT THE

7

WEB BROWSER CAN DO THINGS AND CAN BASICALLY BE HIJACKED BY

8

SOMEONE ELSE, SOME OTHER COMPANY THAT INSTRUCTS IT ON WHAT TO

9

DO WITHOUT THE ACTUAL USER HAVING DONE ANYTHING, AND THAT'S

10

WHAT HAPPENED IN THIS CASE.

11

IT IS A TOOL

THE USER HAS NO IDEA THAT THE

INFORMATION IS BEING SENT TO FACEBOOK.

12

AND HERE'S WHAT IS INTERESTING ABOUT THIS ARGUMENT.

13

FIRST CIRCUIT HEARD THE IDENTICAL ARGUMENT IN THE PHARMATRAK

14

CASE.

15

ARGUMENT, "PHARMATRAK ARGUES THAT THERE IS NO INTERCEPTION

16

BECAUSE THERE WERE ALWAYS TWO SEPARATE COMMUNICATIONS, ONE

17

BETWEEN THE WEB USER AND THE PHARMACEUTICAL CLIENT," WHICH IN

18

THIS CASE WOULD BE WAL-MART, AND THE OTHER BETWEEN THE WEB USER

19

AND PHARMATRAK.

20

THE

WHAT THE FIRST CIRCUIT SAID, AND THEY SUMMARIZED THE

THIS ARGUMENT FAILS FOR TWO REASONS.

FIRST, AS A MATTER

21

OF LAW YOU CAN SEARCH ADOPTING A NARROW READING ONLY REQUIRES

22

THAT THE ACQUISITION OCCUR AT THE SAME TIME AS THE TRANSMISSION

23

AND SEPARATE BUT SIMULTANEOUS AND IDENTICAL COMMUNICATIONS

24

SATISFY EVEN THE STRICTEST REAL TIME REQUIREMENT.

25

PHARMATRAK WENT ON TO SAY, AND THIS WAS A COOKIE CASE,

UNITED STATES COURT REPORTERS

52

1

THEY WORK BASICALLY THE SAME WAY NOW THAT THEY DID WHEN THE

2

FIRST CIRCUIT TOOK THE PHARMATRAK CASE.

3

WERE EFFECTIVELY AN AUTOMATIC ROUTING PROGRAM, CODE

4

AUTOMATICALLY DUPLICATED THE PARTY COMMUNICATION BETWEEN THE

5

USER AND THE WEBSITE WHICH THEY WERE COMMUNICATING AND SENT IT

6

OFF TO THE THIRD PARTY.

THEY SAID THAT COOKIES

7

AND THE PHARMATRAK COURT FLATLY REJECTED THIS ARGUMENT

8

THAT THIS WAS NOT AN INTERCEPTION, AND, FRANKLY, I THINK IT'S A

9

DANGEROUS ARGUMENT FOR THE WIRETAP ACT AS A WHOLE BECAUSE IF

10

YOU THINK OF THE BRICK AND MORTAR EXAMPLE, AND IN ONE WAY YOU

11

COULD HAVE A WIRETAP VIOLATION IS A PERSON WHO PUT A BUG ON A

12

TELEPHONE, ON A PERSON'S TELEPHONE.

13

WHEN THEY PUT THAT BUG ON THE TELEPHONE, IT CAUSES THE

14

TELEPHONE TO DIRECTLY SEND THE COMMUNICATION THAT THE VICTIM IS

15

SENDING FROM THAT PHONE TO WHEREVER THE BUG IS DIRECTING THE

16

INFORMATION TO GO.

17

AND SO IF FACEBOOK IS CORRECT, THEN PLACING A BUG ON A

18

TELEPHONE, PERHAPS, IS NO LONGER AN INTERCEPTION BECAUSE THAT'S

19

COMMUNICATION THAT ORIGINATES WITH THE VICTIM'S TELEPHONE AND

20

ULTIMATELY ENDS UP WITH THE DEFENDANT.

21

SO I THINK THE INTERCEPTION SHOULD NOT BE WELL TAKEN AND

22

IF WE CAN -- DO YOU WANT TO GO ON TO THE FURTHER WIRETAP

23

CLAIMS?

24

MR. STRAITE ON STANDING.

25

I DON'T KNOW IF YOU WOULD LIKE TO HEAR MORE FROM

MR. STRAITE:

WELL, OBVIOUSLY, YOUR HONOR, YOU CAN

UNITED STATES COURT REPORTERS

53

1

SEE WHY WE BROUGHT IN THE RINGER HERE, BUT IF I MAY JUST FINISH

2

UP SOME OF THE DISCUSSION ON STANDING AND THE REST OF THE

3

TECHNICAL POINTS WILL BE BETTER ADDRESSED BY MR. BARNES.

4

THAT'S A GREAT INTRODUCTION TO WHAT YOU'LL BE HEARING IN JUST A

5

MOMENT HERE.

6

OTHER CHANGES THAT HAVE HAPPENED OBVIOUSLY SINCE YOUR

7

OCTOBER 23RD ORDER, THE DECISION IN THE GOOGLE COOKIE

8

PLACEMENT, THAT'S AN IMPORTANT CASE.

9

CASE.

I'VE CALLED IT A LANDMARK

A NUMBER OF OTHER COURTS ARE LOOKING AT THAT CASE, AND

10

THERE'S A CASE IN NEW YORK RIGHT NOW THAT IS CONSIDERING THE

11

IMPORT OF THAT CASE.

12

AND YOU ASKED COUNSEL FOR FACEBOOK WHETHER IT CAN BE --

13

THAT DECISION CAN BE RECONCILED WITH OUR ARGUMENTS HERE AND THE

14

ANSWER IS, NO, OF COURSE, IT CAN'T BE.

15

SO THIS COURT WILL HAVE TO UNFORTUNATELY ADDRESS WHETHER TO

16

DISAGREE WITH THE THIRD CIRCUIT AND ADOPT FACEBOOK'S ARGUMENTS

17

OR, NOT AND THERE IS NO WAY TO RECONCILE TO BE HELD THERE.

18

THEY'RE IRRECONCILABLE.

IMPORTANTLY ON STANDING THE THIRD CIRCUIT ESTABLISHED A

19

CLEAN LINE AND THAT'S AN IMPORTANT PART OF THAT HOLDING THAT NO

20

MATTER WHAT WE SAY WHETHER THERE'S A CLAIM ALLEGED, WHETHER OR

21

NOT ALL OF THE ELEMENTS ARE PROPERLY ALLEGED, THAT'S A 12(B)(6)

22

ARGUMENT.

23

BY FACEBOOK'S LOGIC THEY'RE SAYING THAT ANY TIME THEY HAVE

24

A 12(B)(6) ARGUMENT, THEY AUTOMATICALLY HAVE A 12(B)(1)

25

ARGUMENT, AND THAT'S OBVIOUSLY NOT THE CASE.

UNITED STATES COURT REPORTERS

54

1

BY US NOW FOCUSSING MORE STRONGLY ON THE NONECONOMIC

2

ARGUMENTS HERE, WE BELIEVE THAT UNDER THE ERIE DOCTRINE AND THE

3

OTHER DOCTRINE THAT WE TALKED ABOUT, IT'S A FAIRLY CLEAR AND

4

EASY ANSWER AND, OF COURSE, THERE IS STANDING.

5

INJURY IN FACT UNDER STATE LAW, THERE IS INJURY IN FACT UNDER

6

ARTICLE III.

7

IF THERE IS

IN THE REPLY BRIEF, OBVIOUSLY WE HAVEN'T HAD THE SURREPLY

8

BRIEF SO I'LL COMMENT ON WHAT WAS SAID IN THE REPLY, FACEBOOK

9

ARGUED THAT NINTH CIRCUIT LAW CLEARLY DISAGREES WITH OUR VIEW

10

OF ERIE.

11

FACEBOOK CONFUSED OUR ARGUMENT WHEN WE SAID THAT THERE WAS --

12

IF THERE'S INJURY UNDER STATE LAW, THEN THERE'S ARTICLE III.

13

AND, IN FACT, WHAT THESE NINTH CIRCUIT CASES SAY IS THAT JUST

14

BECAUSE THERE'S STANDING IN STATE COURT DOESN'T NECESSARILY

15

MEAN THERE'S STANDING IN FEDERAL COURT, AND WE WOULD AGREE WITH

16

ALL OF THOSE DECISIONS.

17

I DON'T THINK THAT'S THE CASE BECAUSE I THINK

SO, FOR EXAMPLE, JUST A QUICK RUN THROUGH OF THE CASES,

18

FACEBOOK CITED LEE VERSUS AMERICAN NATIONAL INSURANCE.

19

REASON WHY THE PLAINTIFFS WOULD HAVE STANDING IN STATE COURT IS

20

BECAUSE CALIFORNIA IS A VERY BROAD STANDING RULE FOR TAXPAYERS.

21

AND THAT'S NOT THE CASE IN THE FEDERAL COURT.

22

THE

THERE THE QUESTION IS CAN AN UNINJURED PLAINTIFF SUE FOR

23

INJURY TO OTHER PLAINTIFFS?

CALIFORNIA SAYS, YES.

THE FEDERAL

24

COURT, OF COURSE NOT.

25

THESE FOUR PLAINTIFFS HAVE ALLEGED INJURY TO THEMSELVES.

BUT THAT'S NOT THE FACTS HERE.

UNITED STATES COURT REPORTERS

HERE
OTHER

55

1

THAN THE CLASS ACTION CONTEXT, THEY'RE NOT LOOKING TO ASSERT

2

REMEDIES TO OTHER PEOPLE.

3

SAME EXACT SITUATION IN FIEDLER VERSUS CLARK.

THAT'S THE

4

CASE FROM HAWAII WITH THE PINEAPPLE GROWERS AND THERE WERE FOUR

5

STATUTES THAT WERE ALLEGEDLY VIOLATED AND NONE OF THEM HAD A

6

PRIVATE RIGHT OF ACTION, BUT THERE WAS A THEORY THAT THE HAWAII

7

CONSTITUTION ALLOWS FOR PRIVATE ATTORNEY GENERAL STANDING TO

8

ASSERT CLAIMS ON BEHALF OF OTHER PEOPLE EVEN IF YOU WEREN'T

9

INJURED.

AGAIN, THE NINTH CIRCUIT SAID, NO, THAT'S NOT THE

10

CASE, JUST BECAUSE YOU HAVE STANDING IN HAWAII DOESN'T MEAN YOU

11

HAVE STANDING IN FEDERAL COURT, AND WE AGREE WITH THAT BECAUSE

12

THAT'S A PRIVATE ATTORNEY GENERAL STANDING.

13

AND SAME THING WITH BEGAY VERSUS KERR-MCGEE CASE AND THE

14

ARIZONA COURTS MAY OR MAY NOT HAVE JURISDICTION.

THAT HAS NO

15

IMPACT ON WHETHER THERE IS DIVERSITY JURISDICTION AND THE

16

FEDERAL COURT -- IN ARIZONA THE JURISDICTIONAL ISSUE WAS

17

REVERSED WHERE THERE WAS FEDERAL JURISDICTION BUT NOT THE STATE

18

STANDING.

19

THERE WAS.

20

WALLACE VERSUS CONAGRA WHICH DISCUSSES THESE ISSUES IN THE

21

CAFA CONTEXT.

AGAIN, NONE OF THESE CASES APPLY HERE BECAUSE

22

THOSE WERE CASES WHERE THE PLAINTIFF WOULD HAVE STANDING TO

23

ASSERT CLAIMS ON BEHALF OF OTHER INJURED PARTIES EVEN IF THEY

24

WEREN'T INJURED.

25

BY FACEBOOK, AND WE COULD FIND NO CASE, THAT IF YOU'RE INJURED

HERE THEY'RE INJURED.

THERE'S NO CASE CITED

UNITED STATES COURT REPORTERS

56

1

AS DEFINED BY STATE LAW, YOU LACK A CASE OF CONTROVERSY WITHIN

2

THE MEANING OF ARTICLE III.

3

WE FOUND NONE.

4

ZERO CASES.

THEY CITE TO NONE.

CONTRARY WISE, IF THERE IS AN OPPORTUNITY TO PURSUE A

5

CLAIM EVEN WITHOUT OUT-OF-POCKET LOSS, WHICH, OF COURSE, MANY

6

CLAIMS EXIST LIKE THAT, NOT JUST PRIVACY, THERE'S ALSO

7

DEFAMATION CLAIMS, OBVIOUSLY THE SUPREME COURT AGREES THAT

8

THERE COULD BE PRIVACY CLAIMS WITH NO ECONOMIC DAMAGES THAT CAN

9

BE ASSERTED IN FEDERAL COURT.

DOE VERSUS CHAO IS A GREAT

10

EXAMPLE OF THAT, THAT FOOTNOTE 3 AND THE ACCOMPANYING TEXT.

11

I REGRET WE DID NOT CITE TO DOE VERSUS CHAO IN OUR

12

BRIEFING, BUT I APOLOGIZE FOR BRINGING IT UP NOW.

13

U.S. 614 WHERE THE SUPREME COURT SAID, OF COURSE, IF IT'S A

14

STATE PRIVACY TORT, EVEN WITH NO ECONOMIC DAMAGE, IF IT'S

15

COGNIZABLE IN STATE COURT, IT'S COGNIZABLE IN FEDERAL COURT.

16

OF COURSE IT IS.

17

CIRCUIT CASES THAT WERE CITED IN THE REPLY BRIEF.

18

THAT'S 540

THAT'S MY QUICK DISCUSSION OF THE NINTH

A COUPLE OF OTHER POINTS.

COUNSEL SAID AND ARGUED AND, OF

19

COURSE, IN THE BRIEFING THAT OUR SECOND AMENDED COMPLAINT LACKS

20

THE SPECIFICITY THAT THEY WOULD LIKE TO SEE WITH RESPECT TO THE

21

ACTUAL URL'S THAT WERE INTERCEPTED.

22
23
24
25

RESPECTFULLY, THAT SORT OF PROOF IS NOT REQUIRED IN THE
COMPLAINT.

WHAT IS IMPORTANT IS THAT THERE IS THE ALLEGATIONS.

THE FIRST AMENDED COMPLAINT ONLY ALLEGED, AND YOUR HONOR
POINTED THIS OUT IN THE ORDER OF OCTOBER 23RD, WE ONLY ALLEGED

UNITED STATES COURT REPORTERS

57

1

THE INTERCEPTION OF THESE I.P. ADDRESSES.

WE DIDN'T ALLEGE THE

2

FULL URL'S WERE ACCEPTED, AND WE DIDN'T ALLEGE THAT THE URL'S

3

CONTAINED CONTENT.

4

FIND AND ABSOLUTELY WE ALLEGED WITHIN THE RULE 11 CONSTRUCT

5

THAT THESE URL'S ARE LONG, THEY'RE DETAILED, THEY CONTAIN

6

CONTENT.

7

WHEN THESE PLAINTIFFS WERE NOT LOGGED INTO THEIR ACCOUNTS.

8

THAT'S ALL THAT IS NEEDED UNDER RULE 8.

9

CASE AND IF THIS WERE A SUMMARY JUDGMENT MOTION AND PERHAPS WE

WE WENT BACK TO THE URL'S THAT WE COULD

THEY WERE, IN FACT, INTERCEPTED BY FACEBOOK AT A TIME

10

WOULD BE HAVING A CONVERSATION.

11

WE HAVEN'T PROVEN OUR

ALLEGATIONS THAT ARE NEEDED.

12

BUT WE MADE ALL OF THE

TO THE EXTENT THAT MORE IS NEEDED, IT'S ALSO A LITTLE BIT

13

INEQUITABLE AT THIS POINT, YOUR HONOR.

AS YOU'VE SEEN IN OUR

14

BRIEFING ON THE DISCOVERY MOTIONS, WE'VE ASKED FOR COPIES OF

15

ALL OF THE INFORMATION THAT PLAINTIFF HAS ON FACEBOOK AND

16

INCLUDING ALL OF THE URL'S THAT WERE INTERCEPTED, ALL OF THE

17

INFORMATION THAT WAS GATHERED ON THESE PLAINTIFFS DURING THE

18

CLASS PERIOD, AND WE'VE RECEIVED NOTHING.

19

BRIEFING ON THAT POINT, AND I WON'T GO INTO IT RIGHT NOW BUT

20

IT'S A BIT INEQUITABLE TO SAY THAT WE ARE REQUIRED TO PLEAD

21

FACTS IN A COMPLAINT THAT HAD BEEN IMPROPERLY WITHHELD FROM US

22

IN DISCOVERY, AND THAT'S A BIT ODD.

YOU'VE SEEN THE

23

AND I ALSO BRING UP A CASE FROM TWO WEEKS AGO FROM

24

MAGISTRATE JUDGE COUSINS IN THE ANTHEM DATA BREACH CASE WHO

25

SAID IT WOULD BE A BIT OVERWHELMING TO FORCE THE PLAINTIFFS TO

UNITED STATES COURT REPORTERS

58

1
2

PROVIDE PERSONAL INFORMATION TO PROVE THE PRIVACY CLAIM.
HERE WE ALLEGE FACTS MUCH MORE SPECIFICALLY THAN WE DID IN

3

THE FIRST AMENDED COMPLAINT, AND IT WOULD BE UNFORTUNATE IF WE

4

MUST RISK DISCLOSURE OF VERY PRIVATE URL'S PUBLICLY IN A

5

COMPLAINT IN ORDER TO PROTECT PRIVACY.

6

IT SEEMS A BIT ODD.

WITH THAT I THINK AT THIS POINT MAYBE IT WOULD BE BEST TO

7

TURN OVER THE ARGUMENTS TO MR. BARNES FOR SOME OF THE TECHNICAL

8

POINTS RAISED BY FACEBOOK'S COUNSEL UNLESS YOUR HONOR HAS ANY

9

QUESTIONS.

10

THE COURT:

11

NO.

THIS WOULD BE A GOOD TIME.

MR. BARNES.

12

MR. BARNES:

THANK YOU, YOUR HONOR.

AND I WANT TO

13

START WITH SOMETHING THAT FACEBOOK DIDN'T TOUCH UPON.

14

MR. STRAITE TOUCHED UPON IT, AND THERE ARE A NUMBER OF

15

PARAGRAPHS IN THE COMPLAINT THAT ARE CLOSE RIGHT NOW, BUT

16

THERE'S ONE THAT IS NOT.

17

AND I THINK IT'S VERY IMPORTANT.

PARAGRAPH 27, THIS WAS A PUBLIC COMMENT OF A FACEBOOK

18

EMPLOYEE.

19

WITHOUT SOME FORM OF CONSENT AND DISCLOSURE.

20

WE'VE SAID THAT WE DON'T DO IT AND WE COULDN'T DO IT

SINCE THE DOUBLECLICK CASE, THE LEGALITY OF THE THIRD

21

PARTY COOKIE TRACKING BUSINESS MODEL HAS DEPENDED ON EITHER

22

IMPLICIT OR EXPRESS CONSENT.

23

AND WHEN FACEBOOK ARGUES THE WAY YOU PUT IT WAS THAT'S THE

24

WAY THAT THE INTERNET WORKS, FOLKS, GET OVER IT, THAT'S NOT

25

TRUE.

UNITED STATES COURT REPORTERS

59

1

OTHER COMPANIES HAVE EXPRESSED OR IMPLIED CONSENT TO DO

2

TRACKING LIKE THIS.

IN THIS CASE BY FACEBOOK'S OWN ADMISSIONS

3

IN PARAGRAPH 27 AND A NUMBER OF OTHER PARAGRAPHS IN THE

4

COMPLAINT THAT WE WON'T DISCUSS IN DETAIL RIGHT NOW, THEY SAID

5

THEY DIDN'T HAVE THE CONSENT NECESSARY TO DO THIS.

6

PUTS THIS IN A COMPLETELY DIFFERENT CATEGORY.

SO THAT

7

THE OTHER THING THAT WAS MENTIONED WAS THE POLICY

8

IMPLICATIONS OF A DECISION AND, YOUR HONOR, WE THINK THAT'S

9

ALSO IMPORTANT.

I THINK COUNSEL MENTIONED UNITED STATES VERSUS

10

JONES.

JUSTICE SOTOMAYOR SAID IN A CONCURRENCE THAT SHE DOUBTS

11

PEOPLE WILL ACCEPT WITHOUT COMPLAINT THE WARRANTLESS DISCLOSURE

12

TO THE GOVERNMENT OF A LIST OF EVERY WEBSITE THAT THEY HAVE

13

VISITED IN THE LAST WEEK OR MONTH OR YEAR.

14

IF THIS TYPE OF ACTIVITY IS NOT ACTIONABLE UNDER THE

15

WIRETAP ACT OR ECPA, OTHER ACTIONS, THEN SOTOMAYOR'S CONCERN IN

16

THAT CONCURRENCE IS REALITY.

17

POLICY IMPLICATIONS, AND WE THINK IT HAS POLICY IMPLICATIONS

18

THAT WOULD BE VERY BAD FOR THE FUTURE OF PRIVACY IN OUR COUNTRY

19

SHOULD THE PLAINTIFFS NOT PREVAIL ON THIS MOTION.

20

AND SO THIS DECISION DOES HAVE

AFTER A CONSENT, WHICH THEY DID NOT TALK ABOUT, I WANT TO

21

TALK ABOUT THE CONTENT FOR A MOMENT, AND I THINK IT'S IMPORTANT

22

FOR YOUR HONOR TO KNOW THAT WE'VE READ THE ORDER IN NOVEMBER

23

AND WE'VE REPLED ACCORDINGLY.

24

EXACTLY WHAT WE WERE TALKING ABOUT.

25

WE WERE FAR MORE SPECIFIC WITH

PARAGRAPH 185 WE'VE TALK ABOUT THE INTERCEPTION OF THE

UNITED STATES COURT REPORTERS

60

1

URL'S WHICH INCLUDED, AND I QUOTE, "DETAILED URL REQUESTS AND

2

SEARCH QUERIES."

3
4
5

PARAGRAPH 115, 118, 121, AND 124 WE TALK ABOUT DETAILED
FILE PATHS CONTAINING THE CONTENT OF GET POST COMMUNICATIONS.
AND THEN WE PROVIDE SOME EXAMPLES.

PARAGRAPH 34 IS HOW DO

6

I REDUCE HERPES BREAKOUTS EXAMPLE CHOSEN FOR A REASON BECAUSE

7

IT OBVIOUSLY -- THE INFORMATION IN THAT URL AFTER THE DOT COM

8

HAS A MEANING.

9

THE WIRETAP ACT IS A VERY BROAD DEFINITION OF CONTENT.

IT

10

IS ANY INFORMATION RELATING TO THE SUBSTANCE REPORT OR MEANING

11

OF A COMMUNICATION.

12

AND WHAT THAT MEANS, YOUR HONOR, IS THAT THE RELATING TO

13

MEANS THAT IT DOESN'T HAVE TO BE THE COMMUNICATION ITSELF.

14

HAS TO BE ANYTHING RELATING TO IT AND RELATING TO THAT MEANING.

15

IT

WE PROVIDE THIS EXAMPLE BECAUSE OBVIOUSLY THE PHRASE HOW

16

DO I REDUCE HERPES BREAKOUTS HAS A MEANING.

AND THE SAME IS

17

TRUE OF THE EXAMPLE THAT WE GAVE ON PARAGRAPH 35 WHICH IS "THE

18

NEW YORK TIMES" EXAMPLE, POST TRAUMATIC DISTRESS DISORDER FROM

19

9-11 STILL HAUNTS.

20

AND MEANING THAT GOES BEYOND THE PARTY TO THE COMMUNICATION.

21

YOUR ORDER SAID SOMETHING THAT WE THOUGHT WAS VERY

THAT PHRASE AFTER THE DOT COM HAS SUBSTANCE

22

IMPORTANT.

IT SAID THE INTERCEPTED INFORMATION DESCRIBED IN

23

THE CCAC IS SO SIMILAR TO THE REFERRER HEADERS ADDRESSED IN

24

ZYNGA PRIVACY THAT WE MAY NEVER BE ABLE TO STATE A WIRETAP

25

CLAIM.

UNITED STATES COURT REPORTERS

61

1

YOUR HONOR, WE WOULD ASK YOU TO LOOK VERY CLOSELY AT THE

2

URL'S THAT WERE AT ISSUE IN THE ZYNGA CASE.

3

PARAGRAPHS 43 AND 44 FACEBOOK EXPLAINS THAT THEY DON'T HAVE

4

REFERRER HEADERS ON THEIR WEBSITE LIKE OTHER WEBSITES DO

5

BECAUSE YOU COULD HAVE SENSITIVE INFORMATION CONTAINED WITHIN

6

THEM.

7

IN OUR PETITION IN

AND SO WHAT FACEBOOK HAS, THEIR REFERRER HEADERS SAY

8

FACEBOOK.COM/USER NAME OR FACE.COM/GROUP NAME.

THERE IS NO

9

FACEBOOK URL EQUIVALENT OF NEWYORKTIMES.COM/POST TRAUMATIC

10

STRESS DISORDER FROM 9-11 STILL HAUNTS.

11

URL EQUIVALENT OF HOW DO I REDUCE HERPES BREAKOUTS.

12
13

THERE'S NO FACEBOOK

"THE NEW YORK TIMES" EXAMPLE WOULD BE
FACEBOOK.COM/NEWYORKTIMES.

14

THE COURT:

15

MR. BARNES:

THAT IS SIMILAR TO --

WHAT IS THAT SIGNIFICANT OF?
THE SIGNIFICANCE IS THAT IT IDENTIFIES

16

THE OTHER PARTIES, "THE NEW YORK TIMES."

17

SPECIFIC THOUGHT CONVEYED, AND IT'S IMPORTANT TO KNOW HOW THESE

18

GET REQUESTS ARE SENT.

19

IT DOESN'T IDENTIFY A

SO REALLY THERE'S ONE OF TWO WAYS AND THIS IS, I THINK,

20

EVERY DAY EXPERIENCE PEOPLE USE THE INTERNET.

21

GO INTO THE TOOLBAR, AND YOU CAN TYPE IT INTO THE TOOLBAR.

22

CAN TYPE THIS FULL URL INTO THE TOOLBAR AND HIT ENTER.

23

EITHER YOU CAN
YOU

I DON'T THINK THERE'S ANY CIRCUMSTANCE IN WHICH SOMEONE

24

COULD ARGUE WITH A STRAIGHT FACE THAT THAT DOES NOT INCLUDE THE

25

CONTENT OF A COMMUNICATION.

YOU'VE TYPED IT INTO THE TOOLBAR

UNITED STATES COURT REPORTERS

62

1
2

YOURSELF.
THE OTHER WAY IT HAPPENS IS THAT THE USER LOOKS ON THE WEB

3

PAGE AND THEY SEE THE HYPERLINK.

4

SOMETHING LIKE POST TRAUMATIC STRESS DISORDER FROM 9-11 STILL

5

HAUNTS.

6

YOU LEFT CLICK ON YOUR MOUSE, IF YOU'RE A WINDOWS USER, AND IT

7

TAKES YOU -- THAT AUTOMATICALLY THEN SENDS A GET REQUEST FOR

8

THIS URL WHICH INCLUDES THE PTSD FROM 9-11 TO "THE NEW YORK

9

TIMES."

SO WHAT DO YOU DO?

AND THE HYPERLINK SAYS

YOU USE A TECHNOLOGICAL SHORTCUT.

IN RESPONSE, "THE NEW YORK TIMES" SENDS A 2,000 WORD

10

ESSAY BACK AND NOT SURPRISINGLY IT'S ON PRECISELY THE TOPIC OF

11

PTSD AFTER 9-11.

12

AND THE PLAINTIFFS' COMMUNICATION IS NOT JUST THE SENDING

13

OF THE COMMUNICATION BUT THE RECEIPT AND RETURN FROM "THE NEW

14

YORK TIMES" IS PROTECTED BY THE ECPA.

15

SO WE THINK, YOUR HONOR, BASED ON THE NEW FACTS THAT WE

16

HAVE ALLEGED, THERE'S NOTHING TO BE RETHOUGHT ABOUT YOUR

17

ORIGINAL OPINION.

18

FACT, THE ZYNGA COURT SAID SEARCH TERMS OR SIMILAR

19

COMMUNICATIONS.

20

BEING HAS THE THOUGHT OF GET ME THAT INFORMATION, THAT IS A

21

SIMILAR COMMUNICATION.

22

THIS CASE FITS VERY EASILY WITHIN ZYNGA.

IN

WHEN YOU HAVE A HOOK -- WHEN A SENSITIVE HUMAN

AND NOT ONLY THAT, I THINK YOU BROUGHT UP THE CASE, YOUR

23

HONOR, THE FISA COURT CASE.

AND THE FISA COURT CASE INVOLVED A

24

NATIONAL SECURITY AGENCY MAKING PRETTY CLOSE TO THE ARGUMENT

25

THAT FACEBOOK IS MAKING HERE TODAY.

THE NSA SAID -- TOLD THE

UNITED STATES COURT REPORTERS

63

1

FISA COURT THAT CONTENT AND DIALLING ROUTING ADDRESS AND

2

SIGNALLING INFORMATION WERE TWO MUTUALLY EXCLUSIVE CATEGORIES.

3

THAT IF SOMETHING WAS AN ADDRESS, IT COULD NOT BE CONTENT.

4

AND THE FISA COURT IN THE NATIONAL SECURITY CONTEXT FLATLY

5

SAID, NO, THEY'RE NOT MUTUALLY EXCLUSIVE CATEGORIES.

6

SOME

THINGS CAN BE BOTH.

7

AND SO IF YOU HAVE THE POST CUT-THROUGH DIAL DIGITAL CASES

8

THAT THESE COMPORT WITH, YOU'VE GOT THE PATRIOT ACT LEGISLATIVE

9

HISTORY THAT WE'VE CITED, AND BASED ON THESE NEW FACTS I THINK

10
11

CLEARLY WE WIN ON THE CONTENTS ISSUE.
THE SECOND MAJOR ISSUE RAISED WAS THE PARTY TO THE

12

COMMUNICATION ISSUE.

13

RIGHT ON YOUR FIRST ORDER ON THAT ONE AS WELL.

14

AND I BELIEVE, YOUR HONOR, YOU GOT IT

AND WHAT YOU SAID IS THAT WHILE IT'S TRUE A FACEBOOK

15

SERVER IS INVOLVED, THERE WERE NO ALLEGATIONS WHICH

16

DEMONSTRATED THAT THE PLAINTIFFS KNEW THAT THEIR BROWSER

17

ACTIVITY WAS BEING TRACKED AND COLLECTED.

18

AND, YOUR HONOR, THINK ABOUT WHAT THE THINGS THAT ARE AT

19

THE BASIS OF THIS ARE CALLED.

20

COOKIES.

21

COMPLAINT.

22

THAT IS WHAT THEY ARE.

23

THEY WORK.

24
25

THEY'RE CALLED THIRD PARTY

WE DIDN'T INVENT THAT TERM FOR PURPOSES OF THIS
IT'S A TERM THAT IS WIDELY USED IN THE INDUSTRY AND
WE EXPLAIN IN THE COMPLAINT EXACTLY HOW

PARAGRAPH 60 EXPLAINS IT, 57.

AND, YOUR HONOR, DESPITE THE GOOGLE CASE, OTHER COURTS
HAVE HELD TO THE CONTRARY.

THE PHARMATRAK CASE, THAT WAS A

UNITED STATES COURT REPORTERS

64

1

COOKIE CASE.

2

THIS CASE.

3

IT WORKED THE EXACT SAME WAY AS THE COOKIES IN

THERE'S A CASE FROM THE SEVENTH CIRCUIT INVOLVING E-MAIL

4

CALLED SZYMUSKIEWICZ, I THINK.

5

THE COURT:

6

MR. BARNES:

7

THE COURT:

8

11

IF I'VE GOT IT RIGHT.
YOU CAN GET THAT FOR THE REPORTER A

LITTLE LATER.

9
10

YOU'LL HAVE TO SPELL THAT, WON'T YOU.

MR. BARNES:

ALL RIGHT.

WE'LL GET THAT ONE A LITTLE

BIT LATER.
AND THAT WAS AN E-MAIL FORWARDING CASE WHERE THE VICTIM

12

HAD NO KNOWLEDGE THAT THEIR E-MAILS WERE BEING FORWARDED ALONG

13

TO THE DEFENDANT AND NEVERTHELESS THE DEFENDANT WAS NOT DEEMED

14

A PARTY TO THAT COMMUNICATION.

15

AND WHEN YOU SAID IN YOUR OPINION THAT THE FACEBOOK CASES

16

ARE INAPPOSITE BECAUSE THEY INVOLVE RECORDING BY A KNOWN

17

PARTICIPANT OR RECORDING CONVERSATION, WE THINK YOU WERE

18

EXACTLY RIGHT.

19

THE NEXT ISSUE WHICH HASN'T BEEN ADDRESSED HERE TODAY BUT

20

I THINK IT IS KEY TO ADDRESS IS THE ISSUE OF A DEVICE.

AND

21

LIKE THE CONTENTS ISSUE, WE'VE PLEADED THE DEVICE ISSUE WITH

22

FAR MORE SPECIFICITY THAN THE SAC.

23

IN PARTICULAR, WE PLED 7 DEVICES, AND WE'VE DEDICATED

24

20 PAGES TO EXPLAINING HOW THEY WORK TOGETHER TO ALLOW FACEBOOK

25

TO ACQUIRE THE CONTENTS OF COMMUNICATIONS.

UNITED STATES COURT REPORTERS

65

1

AND THOSE ARE COOKIES, THE PLAINTIFFS' BROWSERS, THE

2

PLAINTIFFS' COMPUTING DEVICES, FACEBOOK'S WEB SERVERS, THE

3

FIRST PARTY WEBSITE WEB SERVERS, THE COMPUTER CODE DEPLOYED BY

4

FACEBOOK, AND FINALLY THE ENTIRE PLAN THAT WAS CARRIED OUT.

5

NOW, THE ACT, THE FEDERAL WIRETAP ACT, DEFINES A DEVICE TO

6

MEAN -- TO BE ELECTRICAL, MECHANICAL OR OTHER DEVICE, AND IT

7

MEANS ANY DEVICE OR APPARATUS WHICH COULD BE USED TO INTERCEPT

8

AN ELECTRONIC COMMUNICATION.

9

THAT'S A BROAD DEFINITION THAT IS BEST CHARACTERIZED BY

10

ITS FUNCTION.

11

INTERCEPT AN ELECTRONIC COMMUNICATION.

12

A DEVICE IS SOMETHING WHICH CAN BE USED TO

IF YOU GO TO THE DICTIONARY, THE DICTIONARY DEFINITION IS

13

BROAD.

14

INVENTION OR CONTRIVANCE.

15

THE THINGS THAT WE HAVE CITED QUALIFIES AS DEVICES UNDER THE

16

WIRETAP ACT.

17

IT'S A THING MADE FOR A PARTICULAR PURPOSE, AN
AND THERE'S CASE LAW THAT SAYS THAT

SO IN THE IN RE CARRIER IQ CASE, JUDGE CHEN SAYS

18

POINT-BLANK THE CARRIER IQ SOFTWARE DEVICE.

19

S-Z-Y-M-U-S-K-I-E-W-I-C-Z, THE SEVENTH CIRCUIT SAID THE WEB

20

BROWSERS IN COMPUTERS OR DEVICES.

21

AND SZYMUSKIEWICZ,

IN THE PHARMATRAK CASE THEY DIDN'T ADDRESS THE ISSUE BUT

22

THEY FOUND LIABILITY FOR A THIRD PARTY COOKIE COMPANY IN THE

23

SAME SITUATION AS FACEBOOK HERE.

24

POINT TO WHETHER THESE THINGS ARE DEVICES OR NOT.

25

THESE CASES ARE DIRECTLY ON

FACEBOOK'S CASES, HOWEVER, ARE NOTHING LIKE THIS CASE.

UNITED STATES COURT REPORTERS

IN

66

1

CROWLEY VERSUS CYBER SOURCE, THE ISSUE WAS WHETHER AMAZON'S WEB

2

SERVERS WERE DEVICES UNDER THE ACT WHEN THE PLAINTIFF HAD

3

KNOWINGLY SENT INFORMATION NECESSARILY TO EFFECTUATE A PURCHASE

4

DIRECTLY TO AMAZON.

5

AMAZON WAS NOT A THIRD PARTY TO THAT COMMUNICATION.

6

WAS, IN THE WORDS OF THE COURT, A SECOND PARTY TO THE

7

COMMUNICATION.

8

IT

CENTRAL DISTRICT OF CALIFORNIA NOT BINDING ON THIS COURT.

9

I'LL ALSO ADD THAT THAT IS A DECISION FROM THE

POTTER VERSUS HAVLICEK THAT THEY CITED IS A CASE FROM

10

OHIO.

11

DIVORCE WHERE ONE OF THE PARTIES TO THE DIVORCE PURCHASED

12

COMPUTER SOFTWARE, PUT IT ON THEIR HOME COMPUTER, USED IT TO

13

TRACK THE COMMUNICATIONS OF THEIR SPOUSE.

14
15
16

IT IS A STRANGE CASE.

IT GREW OUT OF APPARENTLY A NASTY

THE PLAINTIFF WAS NOT ONE OF THE SPOUSES.

IT WAS ANOTHER

PERSON, AND THAT PLAINTIFF SUED THE SOFTWARE COMPANY.
WELL, THE SOFTWARE COMPANY, IT'S NOT CLEAR WHETHER THEY

17

EVER ACTUALLY RECEIVED COMMUNICATIONS TO BEGIN WITH AT ALL AND

18

SO OTHER PROBLEMS WITH THAT CLAIM.

19

I RAISE THAT HERE IN THE ECPA CONTEXT.

IT'S ALSO AN ISSUE

20

IN THE CIPA CLAIMS, C-I-P-A, AND WHAT IS INTERESTING ABOUT THE

21

CIPA STATUTE IS THAT IT DOESN'T SAY DEVICE ANYWHERE.

22

ANY OTHER MANNER.

23

DEVICE OR APPARATUS OR ANYTHING OF THE SORT IS ACTUALLY AN

24

ELEMENT TO CIPA CLAIM BASED ON THE PLAIN WORDING OF THE

25

STATUTE.

IT ALSO IS VERY BROAD.

IT SAYS

SO WE DON'T BELIEVE

UNITED STATES COURT REPORTERS

67

1

LET ME MAKE SURE I -- YOUR HONOR, IF I COULD SWITCH TO THE

2

STORED COMMUNICATIONS ACT, WHICH IS ALSO UNDER THE ELECTRONIC

3

COMMUNICATIONS PRIVACY ACT.

4

NOT ADEQUATELY ALLEGED ELECTRONIC STORAGE.

5

ISSUES WE'VE TALKED ABOUT, WE WERE FAR MORE SPECIFIC THIS TIME

6

AROUND.

7

THE COURT:

YOUR HONOR HAD FOUND THAT WE HAD
SO LIKE THE OTHER

SO TELL ME WHY YOUR HISTORY, YOUR

8

BROWSER HISTORY IS STORAGE AND TELL ME WHY THE URL, I GUESS

9

YOUR TOOLBAR, IS STORAGE.

10
11

MR. BARNES:

WELL, LET ME GO ONE AT A TIME.

I'LL DO

THE TOOLBAR FIRST.

12

THE COURT:

13

MR. BARNES:

OKAY.
OKAY.

SO THE ACT DEFINES ELECTRONICS

14

STORAGE IN TWO WAYS RELEVANT.

15

FIRST AND I BELIEVE ALSO FOR THE SECOND.

16
17
18

THE TOOLBAR IS RELEVANT FOR THE

BUT THE FIRST ONE IS TEMPORARY INTERMEDIATE STORAGE
INCIDENTAL TO THE ELECTRONIC TRANSMISSION THEREOF.
THAT ITEM, THE URL THENEWYORKTIMES.COM/PTSD, IT GOES INTO

19

YOUR TOOLBAR WHEN YOU FIRST SEND THE TRANSMISSION.

IT STAYS

20

THERE AS THE TRANSMISSION RETURNS.

21

NEW COMMUNICATION, YOU SEND A NEW COMMUNICATION TO SOMEONE

22

ELSE, IT DISAPPEARS FROM THE TOOLBAR.

23

YOUR NEXT COMMUNICATION IS IN THE TOOLBAR AND THAT IS A

24

COMMUNICATION THAT IS TAKING PLACE -- THAT IS, I'M SORRY,

25

STORAGE THAT IS IN THAT TOOLBAR WHILE THE COMMUNICATION BETWEEN

AND AS SOON AS YOU GO TO A

YOU THEN HAVE WHATEVER

UNITED STATES COURT REPORTERS

68

1

THE USER AND THE WEBSITE IS TAKING PLACE.

2

THE COURT:

OKAY.

YOU TYPE SOMETHING IN AND YOU GET

3

SIMULTANEOUSLY IT SHOWS UP IN THE TOOLBAR WHATEVER YOU'RE

4

PUTTING IN, WWW, HOW CAN I MAKE THE BEST ARGUMENT TO A FEDERAL

5

JUDGE?

6

GO TO SOMEPLACE ELSE, HOW CAN I MAKE THE SAME REQUEST TO A

7

SUPERIOR COURT JUDGE?

8

TOOLBAR AT THE STORAGE?

9

YOU CLICK THAT WEBSITE AND IT COMES UP.

MR. BARNES:

AND THEN YOU

THE FEDERAL JUDGE DISAPPEARS FROM THE

YES.

IN THAT INTERVENING PERIOD OF

10

TIME, IT WAS KEPT IN THAT LOCATION INCIDENTAL TO THE

11

TRANSMISSION OF THE COMMUNICATIONS BEING SENT BETWEEN THE USER

12

AND THE WEBSITE.

13

THE COURT:

THAT -- WHATEVER TIME THAT WAS, THAT

14

STORAGE, AS LONG AS IT APPEARS IN THAT TOOLBAR, WHATEVER YOU

15

PUT IN THERE, THAT IS STORAGE?

16

MR. BARNES:

17

TRANSMISSION THEREOF.

18

THE COURT:

19

STORAGE THEN.

20

MR. BARNES:

AND IT SOUNDS LIKE ANYTHING CAN BE

STORED IN SOME MANNER.

21

YES, IT IS THERE INCIDENTAL TO THE

ANY TIME YOU TYPE ANYTHING ON A COMPUTER, IT'S

WELL, THE BROWSER, THE ELECTRONIC

22

COMMUNICATIONS SERVICE IS WHAT PLACES THAT URL INTO THE TOOLBAR

23

OR -- AND WHAT KEEPS IT THERE DURING THE COMMUNICATION.

24
25

SO YOU COULD THINK OF THE OTHER WAY TO SEND -- TO SEND THE
COMMUNICATION, WHICH IS BY LEFT CLICKING THE MOUSE.

UNITED STATES COURT REPORTERS

YOU

69

1

HAVEN'T PLACED IT UP THERE, BUT IT'S PUT UP THERE BY THE

2

ELECTRONICS COMMUNICATION SERVICE WHICH IS THE WEB BROWSER.

3

THE COURT:

SO ISN'T THAT JUST A FUNCTION OF THE WEB

4

BROWSER, THAT'S A PLACE HOLDER SO THEY KEEP SO YOU KNOW WHAT

5

YOU'RE LOOKING AT AND YOU CAN SAY OH, NO, I WANTED SUPERIOR

6

COURT, NOT FEDERAL COURT, AND LET ME CHANGE THAT ADDRESS?

7

ISN'T THAT REALLY THE FUNCTION OF IT?

8
9

MR. BARNES:

IT IS THE FUNCTION OF THE WEB BROWSER,

BUT IN THE E-MAIL CASES WHILE YOU TALK ABOUT THE STORAGE AND

10

WHERE THE INFORMATION IS BEING SENT TO AND FRO, THAT

11

INFORMATION, TOO, IS A FUNCTION OF AN E-MAIL PROVIDER.

12

THE COURT:

13

MR. BARNES:

IS THERE A DISTINCTION.
I DON'T THINK THERE IS A DISTINCTION

14

BECAUSE THE E-MAIL CASE, THAT'S HOW THE E-MAIL FUNCTIONS, AND

15

THIS IS HOW THE BROWSER FUNCTIONS.

16
17
18

THE COURT:

THAT'S WHAT MR. BROWN TOLD US, THIS IS

HOW THE INTERNET FUNCTIONS.
MR. BARNES:

AND WE THINK THAT FITS INTO THAT

19

DEFINITION OF STORAGE BECAUSE IT'S THERE AND IN THAT SPOT WHILE

20

YOU'RE MAKING THAT COMMUNICATION.

21

THE SECOND DEFINITION OF STORAGE UNDER THE SCA IS FOR

22

PURPOSES OF BACKUP PROTECTION OF SUCH COMMUNICATION, SO IN

23

PARAGRAPH 207, WE FEEL THE BROWSER FITS THIS DEFINITION.

24

NOTE THAT THEOFEL VERSUS JERRY JONES IS A CASE IN THE NINTH

25

CIRCUIT AND IN THAT CASE THE COURT SAID THE BACKUP PROTECTION

UNITED STATES COURT REPORTERS

ALSO

70

1

DOESN'T HAVE TO BE FOR THE ELECTRONIC COMMUNICATIONS SERVICE

2

PROVIDER, IT CAN BE FOR THE END USER.

3

BROWSER HISTORY, THAT IS SO THE PERSON WHO USES THAT BROWSER

4

CAN GO BACK AND SAY, HEY, I REMEMBER I WAS ON THIS WEBSITE ON

5

THIS DATE, HOW CAN I -- I'VE GOT TO REMEMBER.

6

TO GET THE BACKUP OF THAT COMMUNICATION?

7

CAN GO IS TO YOUR BROWSER HISTORY.

8
9

AND WHEN YOU HAVE A

WHERE CAN I GO

WELL, THE PLACE YOU

TRANSITION BACK FOR A SECOND TO THE TOOLBAR.

THE SAME IS

TRUE, YOU CAN ACCESS YOUR BROWSING HISTORY BY CLICKING THE BACK

10

BUTTON BECAUSE YOU'VE GONE TO THE NEXT PAGE AND HOW TO MAKE IT

11

TO THE STATE COURT JUDGE AND YOU SAY, WELL, I WANT TO GO BACK

12

TO THE FEDERAL COURT JUDGE.

13

THE WAY YOU ACCESS THAT BROWSING HISTORY IS BY CLICKING ON

14

THE BACK BUTTON ON YOUR WEB BROWSER TO GET THERE, AND IT'S FOR

15

YOUR PURPOSES, IT'S FOR YOUR CONVENIENCE AND UNDER THE THEOFEL

16

VERSUS JERRY JONES THE NINTH CIRCUIT SAID THAT IS ENOUGH.

17

MR. STRAITE:

YOUR HONOR, I THINK IT'S IMPORTANT

18

THAT YOU POINT OUT THAT WE BOTH ARE DISAGREEING ON HOW THE

19

INTERNET WORKS.

20

WE'RE AT THE PLEADING STAGE, AND IF THERE'S A DISPUTE AS TO HOW

21

THE INTERNET WORKS AND IF THE QUESTION OF WHETHER OR NOT THE

22

CLAIM CAN PROCEED TURNS ON THAT FACTUAL QUESTION, THIS MAY NOT

23

BE THE RIGHT TIME TO RESOLVE IT.

24

THE COURT:

25

MR. STRAITE:

AND IT'S IMPORTANT AT THIS POINT TO REMEMBER

I UNDERSTAND.
JUDGE KOH, OF COURSE, IN RE YAHOO MAIL

UNITED STATES COURT REPORTERS

71

1

LITIGATION CASE SAID THE SAME THING.

2

THE CIPA CLAIM THERE BECAUSE SHE SAID IT'S A FACTUAL QUESTION

3

OF WHEN THE E-MAIL IS IN TRANSIT OR NOT AND WE NEED MORE

4

DISCOVERY TO FIGURE THAT OUT, AND THAT MAY BE THE APPROPRIATE

5

RESULT HERE.

6
7

THE COURT:

I UNDERSTAND THIS IS NOT A MERITS TYPE

OF ARGUMENT TODAY BUT THIS IS YOUR EXPERT.

8

MR. STRAITE:

9

MR. BARNES:

10
11

SHE DECLINED TO DISMISS

THE COURT:

I SAID RINGER.
YOU'RE FAR TOO KIND.

YOU TOLD ME HE'D BE WELL EDUCATED AND

THAT'S WHY I'M ASKING THESE QUESTIONS.

12

MR. BARNES:

WAY TOO KIND.

AND I WOULD NOTE THIS IS

13

OUTSIDE OF THE PLEADINGS.

14

CRASH RECOVERY SYSTEM IN PLACE FOR EVERY WEB BROWSER THAT IF

15

YOUR COMPUTER SHUTS DOWN UNEXPECTEDLY AND YOU START IT BACK UP

16

AND YOU OPEN UP YOUR BROWSER, IT WILL TAKE YOU BACK TO THE

17

EXACT URL'S YOU WERE ON, YOUR COMMUNICATIONS.

18

YOU BACK UP AUTOMATICALLY.

19

THE COURT:

AND THERE'S ANOTHER PLACE, THERE'S A

IT WILL BRING

TELL ME THE CASES THAT HAVE SUPPORTED

20

THE IDEA THAT STORAGE IS FOUND IN THE TOOLBAR AND IN THE WEB

21

BROWSER?

22

MR. BARNES:

WE THINK THIS IS A CASE OF FIRST

23

IMPRESSION FOR THE TOOLBAR.

THE BROWSER HISTORY IS THE SAME.

24

I DON'T THINK IT'S A CASE OF FIRST IMPRESSION FOR FACILITY,

25

BUT --

UNITED STATES COURT REPORTERS

72

1

THE COURT:

SO YOU SHOULD HELP ME WITH THAT AS THE

2

RINGER, SHOULDN'T YOU?

3

MR. BARNES:

I THINK -- AND WE'LL GET THERE, YOUR

4

HONOR, IF WE CAN TALK FACILITY, AND I WANT TO TALK ABOUT WHY.

5

SO FACILITY IS NOT SEPARATELY DEFINED IN THE STORED

6

COMMUNICATIONS ACT.

7

CONTENTS IN THE ACT AND THE STORED COMMUNICATIONS ACT PROHIBITS

8

UNAUTHORIZED ACCESS OR ACCESS WHICH EXCEEDS AUTHORIZATION TO,

9

AND I QUOTE, "A FACILITY THROUGH WHICH AN ELECTRONIC

10

SO YOU HAVE TO DEFINE IT AND LOOK AT ITS

COMMUNICATIONS SERVICE IS PROVIDED."

11

SO REALLY THERE'S A TWO-PART ANALYSIS.

12

IS THE RELEVANT ELECTRONIC COMMUNICATION SERVICE?

13

2510, PARAGRAPH 15 DESCRIBES IN ECS AS ANY SERVICE WHICH

14

PROVIDES THE USER THE ABILITY TO SEND OR RECEIVE WIRE OR

15

ELECTRONIC COMMUNICATIONS.

16

THE FIRST IS WHAT
18 U.S.C.

IF A WEB BROWSER IS IN THE ECS, YOUR HONOR, I DON'T KNOW

17

WHAT IS.

18

ONE, BUT IT CLEARLY FALLS WITHIN THAT DEFINITION.

19

THERE'S NO CASE THAT SAYS WEB BROWSER IS ONE OR ISN'T

SO THE SECOND QUESTION IS ONCE YOU'VE ESTABLISHED WHAT THE

20

RELEVANT ECS IS, WHAT ARE THE ITEMS THROUGH WHICH THE

21

ELECTRONIC COMMUNICATIONS SERVICE PROVIDES THE SERVICE.

22

AND WHAT WE HAVE ALLEGED IS THAT THE BROWSER IN ITS FILES

23

ARE THOSE -- SOME OF THOSE THINGS THROUGH WHICH THE SERVICE IS

24

PROVIDED.

25

NOW, THERE IS CASE LAW ON WHETHER COMPUTERS ARE

UNITED STATES COURT REPORTERS

73

1

FACILITIES.

2

ABOUT WHETHER THE BROWSER AND THE FILES WITHIN IT ARE

3

FACILITIES.

4

THIS CASE IS SLIGHTLY DIFFERENT.

AND HERE'S THE DISTINCTION.

THIS CASE IS

YOU THINK OF A COMPUTER AS A

5

STORAGE ROOM THAT HAS A BUNCH OF DIFFERENT BOXES IN IT.

YOUR

6

WEB BROWSING COMPANY HAS ACCESS TO ONE OF THOSE BOXES.

IT HAS

7

ACCESS TO ITS WEB BROWSER APPLICATION.

8
9

AND BECAUSE OF THAT I DON'T BELIEVE IT'S PROTECTED FULLY
BY THE THIRD PARTY DOCTRINE FROM FOURTH AMENDMENT SEARCH.

IF

10

YOU READ THE HISTORY, THE LEGISLATIVE HISTORY OF THE

11

ELECTRONICS COMMUNICATIONS PRIVACY ACT, WHAT THEY HAVE SAID IS

12

THAT THEY WERE CONCERNED TO MAKE SURE THAT FOURTH AMENDMENT

13

STYLE PROTECTION REACH THESE NEW TYPES OF COMPUTER SERVICES.

14

I THINK THE LEGISLATIVE HISTORY IS ALSO CLEAR THAT THEY

15

CHOSE BROAD LANGUAGE FOR A REASON BECAUSE CONGRESS AND

16

SENATOR LEAHY WAS AT LEAST SMART ENOUGH WHEN THEY PASSED THE

17

ECPA TO KNOW THAT THEY COULDN'T PREDICT THE FUTURE OF

18

TECHNOLOGY AND SO THEY HAD TO DEFINE TERMS IN BROAD WAYS TO

19

TALK ABOUT FUNCTIONS RATHER THAN THE VERY SPECIFICS OF EXACTLY

20

HOW A BUSINESS MODEL IS GOING TO WORK.

21

AND SO IF YOU THINK OF IT THAT WAY, THE MICROSOFT CASES

22

MAKE A LOT OF SENSE, AND I BELIEVE THAT THERE ARE AT LEAST

23

EIGHT MICROSOFT CASES, AND I DON'T HAVE THE FULL LIST IN FRONT

24

OF ME, BUT THE CASE IN THE EASTERN DISTRICT OF VIRGINIA, THE

25

COURT SAID, MICROSOFT'S WINDOWS OPERATING SYSTEM AND INTERNET

UNITED STATES COURT REPORTERS

74

1

EXPLORER SOFTWARE ARE FACILITIES THROUGH WHICH ELECTRONIC

2

COMMUNICATION SERVICES ARE PROVIDED.

3

COURTS IN NEW YORK, NORTH CAROLINA, AND WASHINGTON HAVE

4

FOUND THE SAME THING AND THAT IS BECAUSE IT'S ENTIRELY

5

CONSISTENT WITH THE ACTUAL LANGUAGE IN THE STORED

6

COMMUNICATIONS ACT AND THE INTENT OF CONGRESS.

7

THE OTHER CASES DON'T HIT ON THIS EXACT.

IN RE GOOGLE

8

DOESN'T TOUCH ON THE -- THE COURT DIDN'T ANSWER THE QUESTION OF

9

WEB BROWSERS.

THEY ONLY TALKED ABOUT COMPUTERS.

10

ANSWER THE WEB BROWSER QUESTION.

11

THEY DIDN'T

CAN BE FACILITIES.

12
13

THE COURT:

WELL, AREN'T THEY TWO SEPARATE THINGS?

A WEB BROWSER CAN'T EXIST STANDALONE, I GUESS?

14
15

THAT'S WHY THE WEB BROWSER

MR. BARNES:

YES, IT HAS TO BE -- THE SOFTWARE HAS

TO -- AT LEAST NOT YET IT CAN'T, RIGHT.

16

THE COURT:

RIGHT.

SO, AS YOU SAY, IT'S A CASE OF

17

FIRST IMPRESSION.

18

WEB BROWSER CAN BE A FACILITY, BUT IT CAN'T STAND ALONE, CAN

19

IT?

20

IF YOU SAY, THEN, IF A COURT SAYS, WELL, A

MR. BARNES:

WELL, I DON'T KNOW.

I WOULDN'T

21

CHARACTERIZE THE FACILITY ISSUE AS A CASE OF FIRST IMPRESSION.

22

I WOULD CHARACTERIZE THE ELECTRONIC STORAGE ISSUE THAT WAY.

23

THE FACILITY ISSUE IS THAT'S THE THING THROUGH WHICH THIS

24

IS PROVIDED.

YES, IT HAS TO BE ON SOME TYPE OF HARDWARE

25

SOMEWHERE, BUT THE KEY FACT IS THAT THE WEB BROWSING COMPANY

UNITED STATES COURT REPORTERS

75

1
2

MAINTAINS -- HAS ACCESS TO THE FILES WITHIN THE WEB BROWSER.
EVERY TERM OF SERVICE OF A MAJOR WEB BROWSING COMPANY IN

3

THE WORLD TO OUR KNOWLEDGE HAS TERMS OF SERVICE WHICH SAYS,

4

LOOK, WE CAN STILL ACCESS THESE FILES.

5

IS WHETHER THE ELECTRONIC COMMUNICATIONS SERVICE PROVIDER HAS

6

THE LEGAL RIGHT TO ACCESS THE FILES, TO ACCESS THE

7

COMMUNICATIONS NO MATTER WHERE THEY ARE.

8
9

AND THAT'S WHAT IS KEY

AND THE WEB BROWSING COMPANIES DO HAVE THAT RIGHT THROUGH
THEIR TERMS OF SERVICE.

10

THE COURT:

OKAY.

YOU'RE GOING TO RETURN TO THE

11

STORAGE ARGUMENT IN A MOMENT, ARE YOU?

12

STORAGE?

13

MR. BARNES:

THAT'S RIGHT.

ARE YOU FINISHED WITH

SO WE HAVE TWO FORMS OF

14

STORAGE, THE TOOLBAR, TEMPORARY, INCIDENTAL.

15

FITS INTO THE BACK-UP PROTECTION.

16

WHICH IS BACK-UP PROTECTION.

17

THERE'S CRASH/RECOVERY SYSTEM THAT I THINK ANYONE WHO HAS HAD

18

THEIR COMPUTER CRASH UNDERSTANDS HOW THAT WORKS.

19

WITHIN THE STORAGE DEFINITION OF THE SCA.

20
21
22
23
24
25

THE COURT:

WE ALSO THINK IT

WE HAVE THE BROWSER HISTORY

I ADMIT THIS IS OUR MISTAKE,

AND THOSE FIT

I GUESS I'LL GIVE YOU AN OPPORTUNITY TO

CONVINCE ME A LITTLE FURTHER ABOUT THAT.
MR. BARNES:

WELL, YOUR HONOR, I DON'T KNOW THAT

IT'S PRETTY -- IT IS THERE FOR THAT PURPOSE.
THE COURT:

YOU HEARD ME TELL MR. BROWN WHEN WE

TALKED ABOUT STORAGE WHEN THIS STATUTE WAS ENACTED WAS I THINK

UNITED STATES COURT REPORTERS

76

1

IN THE '80S, AND I THINK BACK THEN THE THOUGHT AS WE TALKED

2

ABOUT LEGISLATIVE HISTORY, THE THOUGHT WAS STORAGE, AND SOME

3

CONCRETE BUILDING SOMEWHERE OFFSITE SOME MILES AWAY AND IT'S

4

LOW RENT AND THEY CAN BUILD SOMETHING UP THERE AND COMMUNICATE

5

DOWN TO A METROPOLITAN AREA WHERE RENTS ARE SIGNIFICANTLY

6

HIGHER.

THAT IS YOUR CLASSIC IDEA OF STORAGE, ISN'T IT?

7
8
9

MR. BARNES:

THAT IS THE CLASSIC IDEA.

I THINK THE

IDEA THAT WAS COMING TO A REALITY THEN.
I ALSO THINK IF YOU ALSO LOOK AT THE DEFINITION AND HOW

10

BROAD THE DEFINITIONS ARE, THE COUNCILMAN CASE SAYS THE

11

DEFINITIONS OF STORAGE IN THE SCA ARE EXTRAORDINARY AND INDEED

12

ALMOST BREATHTAKINGLY BROAD, AND THAT'S CONSISTENT THROUGHOUT

13

THE ENTIRE COMMUNICATIONS PRIVACY ACT BECAUSE IT WAS AN ATTEMPT

14

TO UNDERSTAND THAT THE WORLD AS IT WAS WHEN IT WAS PASSED WOULD

15

NOT BE THE WORLD 20 YEARS INTO THE FUTURE.

16

THE COURT:

17

MR. BARNES:

SURE.
AND SO THEY USE THESE BROAD DEFINITIONS

18

AND THE LEGISLATIVE HISTORY WHICH I BELIEVE WE HAVE PROVIDED IS

19

VERY CLEAR THAT THEY'RE THINKING BROAD LAND AND THEY WANT TO

20

MAKE SURE THAT THIS APPLIES TO PROTECT ITEMS BASED ON NEW

21

TECHNOLOGY THAT OTHERWISE MIGHT NOT BE PROTECTED BY THE FOURTH

22

AMENDMENT.

23
24
25

THE COURT:

IS A ROUTER A STORAGE, THEN?

WHY

COULDN'T A ROUTER BE CONSIDERED STORAGE?
MR. BARNES:

THE QUESTION IS WHO -- IT COULD HAVE

UNITED STATES COURT REPORTERS

77

1
2

STORAGE IN IT, YES.
THE COURT:

WELL, IT DOES HAVE STORAGE, DOESN'T IT?

3

IT COMMUNICATES SOME INFORMATION, EVEN IF IT'S FOR A

4

MILLISECOND.

5

STORAGE CAPABILITIES.

6

STORAGE DEVICE ALSO?

7

AS WE'VE DESCRIBED, IT DOES HAVE SOME TYPE OF
SO SHOULDN'T THAT BE CONSIDERED A

MR. STRAITE:

IN FACT, YOUR HONOR, IT PROBABLY DOES.

8

THERE ARE TWO WAYS THAT ELECTRONIC COMMUNICATIONS PROCEED AND

9

ONE IS STORING FORWARD.

THE ENTIRE MESSAGE IS COMMUNICATED TO

10

AN INTERMEDIATE SERVER AND A INTERMEDIATE COMPUTER DEVICE AND

11

FORWARDED AGAIN.

12

COUNCILMAN II DECISION AND INCLUDING THE EXCELLENT AMICUS

13

BRIEFS THAT WERE FILED IN THAT CASE AND ONE BY THE TECHNICAL

14

EXPERTS AND THE ONE BY SENATOR LEAHY HIMSELF, THE AUTHOR OF THE

15

ECPA ABOUT AMICUS THERE.

16

AND THAT'S EXPLAINED IN ACTUALLY THE

AND THE SECOND TYPE OF COMMUNICATION WHICH IS MORE

17

RELEVANT HERE IS THE INTERNET STYLE WHERE INFORMATION GETS

18

BROKEN UP INTO PACKETS, ET CETERA, AND THE MESSAGE

19

RECONSTRUCTED.

20

IN EITHER OF THOSE MODES OF TRANSPORTATION, THE

21

COMMUNICATION CAN BE BOTH IN TRANSIT AND IN STORAGE AT THE SAME

22

TIME, AND THAT WAS AN IMPORTANT POINT THAT SENATOR LEAHY MADE

23

AND THAT THE TWO PARTS OF THE ECPA AT THE TIME, THE WIRETAP ACT

24

AND THE SCA, ARE NOT MUTUALLY EXCLUSIVE.

25

THE ELECTRONIC COMMUNICATIONS THAT COMMUNICATIONS ARE BOTH IN

IT IS THE NATURE OF

UNITED STATES COURT REPORTERS

78

1
2

TRANSIT AND IN STORAGE AT THE SAME TIME.
SO AS LONG AS THE STORAGE IS INCIDENTAL TO THE

3

COMMUNICATION, IT CAN BE EITHER BOTH OR JUST THE SCA.

4

IF A ROUTER DOES HAVE SOME LIMITED STORAGE IN IT, WHICH

5

FACILITATES THIS NEW FORM OF COMMUNICATION, THEN, YES, THEN THE

6

SCA MIGHT COVER THAT DEVICE.

7

THAT FOR THIS CASE, BUT, YES, I BELIEVE IT CAN BE COVERED BY

8

THE SCA.

9

MR. BARNES:

AND SO

I'M NOT SURE WE'VE RESEARCHED

AND, YOUR HONOR, I BELIEVE THE

10

LEGISLATIVE HISTORY ALSO SPEAKS TO RANDOM ACCESS MEMORY WHICH

11

IS SOMETHING THAT IS CONTAINED ON A COMPUTING DEVICE AS WELL AS

12

BEING A STORAGE ELEMENT AND IT SHOWS -- THEY'RE THINKING

13

BROADER THAN JUST THE REMOTE FACILITY.

14

THE COURT:

OKAY.

LET ME ASK YOU TO SPEAK, IF I

15

CAN, AND I DON'T MEAN TO INTERRUPT YOUR PRESENTATION, BUT COULD

16

YOU SPEAK A LITTLE BIT MORE TO THE INTERCEPT?

17

AND YOU'VE HEARD ME TALK TO MR. BROWN, AND MR. BROWN SAYS

18

THERE'S NO INTERCEPT AND THERE'S TWO SEPARATE COMMUNICATIONS

19

AND THERE'S NOTHING THAT WAS INTERCEPTED AT ALL HERE.

20

HAPPY TO HEAR YOUR THOUGHTS ABOUT THAT.

21

MR. BARNES:

YEAH.

AND I'M

AND I THINK -- A NUMBER OF

22

THOUGHTS.

FIRST, PHARMATRAK IS DIRECTLY ON POINT.

23

DEFENDANT THIRD PARTY COOKIE COMPANY AND PHARMATRAK MADE AN

24

ALMOST, IF NOT ENTIRELY, IDENTICAL ARGUMENT AND THE FIRST

25

CIRCUIT SAID, NO, THIS IS CONTEMPORANEOUS TO THE COMMUNICATION

UNITED STATES COURT REPORTERS

THE

79

1

BETWEEN THE USER AND THE WEBSITE.

2
3

THE COURT:

THE BOTTOM PART OF PARAGRAPH 60 OF YOUR

MR. BARNES:

THE BOTTOM PART OF PARAGRAPH 60 OF THE

DIAGRAM.

4
5

DIAGRAM.

6

OF IN CONJUNCTION WITH PARAGRAPH 184.

7

OKAY.

AND I THINK PARAGRAPH 60 NEEDS TO BE THOUGHT

SO PARAGRAPH 184 SAYS FACEBOOK RECEIVED THE COMMUNICATIONS

8

BEFORE THE COMMUNICATION BETWEEN THE CLIENTS IN THE VARIOUS

9

WEBSITES WERE COMPLETED.

10

AND SO IT'S VERY HARD TO SHOW THIS IN EXACTLY HOW IT WORKS

11

BECAUSE IT'S ALL HAPPENING AT THE SAME TIME.

12

CLICKS ON THEIR MOUSE, SENDS IT TO -- SENDS IT TO -- YOU'RE THE

13

WEBSITE AND SENDS IT TO YOU.

14

SO USER LEFT

IN RESPONSE YOU HAVE COMPUTER CODE WHICH SENDS BACK A

15

RESPONSE THAT HAS CONTENT IN IT AND ALSO IT INSTRUCTS NOT THE

16

USER BUT THE WEB BROWSER ON WHAT TO DO NEXT.

17

THE CODE ON THE WEBSITE, THE CODE FROM THE WEBSITE

18

INSTRUCTS THE BROWSER, HEY, SEND A SEPARATE GET REQUEST TO

19

FACEBOOK.

20

THE CONTENT THAT IS REQUIRED BY FACEBOOK IS NOT

21

NECESSARILY IN THE GET REQUEST THAT IS SENT BY FACEBOOK.

22

CONTAINED WITHIN THE REFERRER HEADER THAT IS ATTACHED TO THE

23

GET REQUEST TO FACEBOOK, AND IT'S AN IDENTICAL SIMULTANEOUS

24

COPY OF THE COMMUNICATION THAT WAS SENT TO THE WEBSITE.

25

IT'S

SO THE WEB BROWSER, UNBEKNOWNST TO THE PLAINTIFF, HAS

UNITED STATES COURT REPORTERS

80

1

SIMULTANEOUSLY SENT THE URL THROUGH THE REFERRER HEADER, WHICH

2

INCLUDES THE GET REQUEST, COOKIES, AND A GET REQUEST TO

3

FACEBOOK.

4
5
6

FACEBOOK PROMISED IN THIS CASE THAT THEY WOULD NOT TRACK
USERS IF THEY WERE LOGGED OFF OF FACEBOOK.
WHAT THAT MEANS IS THAT FACEBOOK IS SAYING THAT IF YOU GO

7

TO THENEWYORKTIMES.COM AND YOU'RE NOT LOGGED ON FACEBOOK, WE'RE

8

NOT GOING TO DO THIS INDIVIDUALLY IDENTIFIABLE COOKIE GAME WITH

9

YOU WHERE WE TRACK THE CONTENT OF YOUR COMMUNICATIONS CONNECTED

10
11
12

TO YOU.
FACEBOOK SAID THAT THEY COULDN'T DO IT AND WITHOUT CONSENT
PARAGRAPH 27 AND YET THEY DID IT ANYWAY.

13

AND FACEBOOK RECEIVES, THEY ACQUIRE THAT COMMUNICATION

14

BEFORE ALL OF THE CONTENT IS DOWNLOADED COMPLETELY ONTO THE

15

USER'S WEB BROWSER.

16

SO THEY'RE ALL GOING ON AT THE SAME TIME.

SZYMUSKIEWICZ,

17

AND THERE'S THAT WORD AGAIN, AND SZYMUSKIEWICZ AND PHARMATRAK

18

SEPARATE BUT SIMULTANEOUS AND IDENTICAL COMMUNICATION SATISFY

19

EVEN THE STRICTEST REAL TIME REQUIREMENT.

20

FACEBOOK MENTIONED KONOP.

I DON'T KNOW IF I'M PRONOUNCING

21

IT CORRECTLY EITHER.

KONOP IS INAPPOSITE AND HERE IS WHY,

22

KONOP WAS A CASE ABOUT AN INTERNET BULLETIN BOARD WHERE THE

23

PLAINTIFF HAD PLACED A COMMUNICATION ONTO THIS INTERNET

24

BULLETIN BOARD WHERE IT SAT FOR SOME UNSPECIFIED PERIOD OF

25

TIME.

UNITED STATES COURT REPORTERS

81

1

AND THEN THE DEFENDANT CAME IN, AND IT'S NOT EXACTLY CLEAR

2

WHETHER IT'S DAYS OR WEEKS OR MONTHS, LATER AND VIEWED THE

3

COMMUNICATION THAT WAS SITTING ON THE MESSAGE BOARD.

4

FAR DIFFERENT THAN THE INSTANTANEOUS ACQUISITION OF THE

5

INFORMATION THAT IS AT ISSUE IN THIS CASE.

6

THE SECOND CASE THEY CITE IS THE BUNNELL CASE.

THAT IS

NOT

7

BINDING.

8

CASE.

9

HAS BEEN RECEIVED AND THEN AGAIN IT'S -- WE'RE TALKING ABOUT AS

10
11

OF COURSE, THE OTHER THING IS THAT'S A DIFFERENT

IT'S AN E-MAIL FORWARDING CASE WHERE THE COMMUNICATION

QUICK AS YOU CAN BE, AUTOMATICALLY REROUTED SOMEWHERE ELSE.
IN THIS CASE, THE FULL COMMUNICATION BACK FROM THE WEBSITE

12

FACEBOOK ACQUIRES THE COMMUNICATIONS BEFORE THE FULL

13

COMMUNICATION BACK FROM THE WEBSITE IS COMPLETELY RECEIVED AND

14

THE WIRETAP ACT PROTECTS NOT JUST WHEN I SEND IT TO THE WEBSITE

15

AND THE USER SENDS IT TO THE WEBSITE, IT ALSO PROTECTS WHEN THE

16

USER RECEIVES A COMMUNICATION BACK FROM THE WEBSITE.

17

THE COURT:

SO MR. BROWN TALKED ABOUT 2511(2)(D).

18

AND HE SAYS, HE SUGGESTS THAT FACEBOOK WAS A PARTY HERE AND

19

IT'S AN ABSOLUTE DEFENSE.

20

MR. BARNES:

21

PARTY.

22

WELL, YOUR HONOR, THEY'RE A THIRD

COMMUNICATION.

23
24
25

THEY'RE NOT ONE OF THE FIRST PARTIES TO THE

THE COURT:

SO YOU SAY THAT THAT DOESN'T HELP THEM,

THEY'RE NOT -MR. BARNES:

NO -- YEAH, THAT DOES NOT HELP THEM AT

UNITED STATES COURT REPORTERS

82

1

ALL.

2

INDUSTRY DESCRIBES THESE COOKIES AS THIRD PARTY COOKIES.

3

THEY'RE A THIRD PARTY TO THE COMMUNICATION.

THEIR ENTIRE

IF -- WHEN YOU AND I ARE HAVING A CONVERSATION HERE, A

4

PERSON STANDING IN THE CORNER IS NOT A PARTY BETWEEN YOU AND I

5

AND PARTICULARLY IF WE DON'T KNOW THE PERSON WHO IS STANDING IN

6

THE CORNER OR, MORE IMPORTANTLY, IF THERE'S A BUG SITTING IN

7

THE CORNER TRANSMITTING MY COMMUNICATIONS OFF TO SOME OTHER

8

LOCATION WITHOUT MY KNOWLEDGE.

9

THE COURT:

WELL, HERE IT IS A LITTLE DIFFERENT

10

BECAUSE FACEBOOK IS KNOWN TO THE PARTIES.

11

WHO INITIATES THE CONVERSATION, YOU, IN THAT HYPOTHETICAL, HAVE

12

AGREED THAT THE PERSON IN THE CORNER CAN BE PART OF A

13

CONVERSATION BECAUSE THEY'RE CONNECTED WITH YOU SOMEHOW.

14

MR. BARNES:

I MEAN, THE PERSON

IN CERTAIN CIRCUMSTANCES.

THE

15

DIFFERENCE HERE IS THE PROMISE NOT TO TRACK WHILE THE USER WAS

16

LOGGED OFF.

17

SO IF -- IF I TELL MY SEVEN-YEAR OLD --

18
19

THE COURT:
THAT.

20

MR. BARNES:

21

THE COURT:

22

TOO MANY HYPOTHETICALS HERE, I REALIZE

OKAY.
BUT GO AHEAD.

GO AHEAD.

YOU WANT TO

TALK ABOUT YOUR --

23

MR. BARNES:

THEY'RE A THIRD PARTY.

AND, AGAIN, I

24

THINK IT'S IMPORTANT.

25

WHAT THESE HAVE BEEN CALLED SINCE THE DAWNING OF THE COOKIE

WE DIDN'T MAKE UP THAT TERM.

UNITED STATES COURT REPORTERS

THAT'S

83

1

AGE.

2
3
4

THE COURT:

SO IS THE GRAVAMEN OF YOUR CASE, THEN,

IT SOUNDS LIKE I HEARD -- YOU MENTIONED THIS SEVERAL TIMES.
IS THE REAL GRAVAMEN OF YOUR CASE THE FACT THAT WHILE YOUR

5

CLIENTS WERE LOGGED OFF, THIS TRACKING OCCURRED?

6

VIOLATION.

7
8
9
10
11

THAT'S THE

THAT'S THE SIN THAT BRINGS YOU TO THIS COURT.
MR. BARNES:

AND FACEBOOK PROMISED NOT TO TRACK THEM

WHILE THEY WERE LOGGED OFF.
THE COURT:

IT'S NOT WHILE THEY'RE LOGGED ON.

IT'S

WHILE THEY'RE LOGGED OFF THAT YOU'RE CONCERNED.
MR. BARNES:

THAT'S EXACTLY RIGHT.

WHILE THEY'RE

12

LOGGED OFF AFTER FACEBOOK PUBLICLY SAID -- I DON'T HAVE IT IN

13

FRONT OF ME -- WE'VE SAID WE DON'T TRACK YOU AND WE DON'T TRACK

14

AND WE COULDN'T DO IT WITHOUT SOME FORM OF CONSENT.

15
16
17
18
19

THE COURT:

THAT YOU DISCOVERED SUBSEQUENT TO THAT,

OH, THEY DID TRACK.
MR. BARNES:

THEY DID TRACK.

THEY DID KNOW.

THEY

HAD KNOWLEDGE OF THIS, AND THEY KEPT DOING IT ANYWAY.
THE COURT:

SO LET ME ALSO DRAW YOU BACK -- I'M

20

INTERRUPTING YOU FOR JUST A SECOND, BUT I WANT TO MAKE SURE

21

THAT WE CAPTURE THIS.

22

SINCE YOU WERE INTIMATE WITH THE GOOGLE PLACEMENT, I'M

23

CURIOUS, THERE WAS SOME DISCUSSION THERE ABOUT THE SUFFICIENCY

24

OF THE PERSONAL ALLEGATIONS OR THE ALLEGATIONS PERSONAL TO THE

25

PLAINTIFFS THERE.

AND I'M CURIOUS IF YOU COULD COMMENT AS TO

UNITED STATES COURT REPORTERS

84

1

WHETHER OR NOT THE ALLEGATIONS IN THIS -- IN THE SECOND AMENDED

2

COMPLAINT ARE ALSO SUFFICIENT TO ALLEGE THE PERSONAL, THE

3

PERSONAL DAMAGE.

4

MR. BARNES:

I THINK THEY ARE AND AT 115, 118, 121,

5

AND 124, IT TALKS ABOUT EACH INDIVIDUAL PLAINTIFF AND HOW

6

THEY'VE USED THEIR BROWSING DEVICE, THEY'VE REGULARLY LOGGED

7

OFF, THEY VISITED THESE WEBSITES.

8
9

THE COURT:

YOU SEE, BECAUSE WE DON'T HAVE THE

BENEFIT OF THE PLEADINGS IN GOOGLE.

10

MR. STRAITE:

11

MR. BARNES:

12

THE COURT:

NOT BEFORE US TODAY, OF COURSE.
NOT BEFORE US TODAY.

THAT'S RIGHT.

AND WHEN I LOOKED AT THIS

13

AND I LOOKED AT THAT ARGUMENT, I THOUGHT, WELL, I WONDER, HOW

14

DO THE TWO RECONCILE.

15

MR. BARNES:

16
17

AND I THINK THERE ARE TWO OTHER THINGS

OF NOTE THERE.
THE FIRST IS THAT I BELIEVE WE CITED A CASE KLAYMAN VERSUS

18

OBAMA WHICH WAS THE CASE AGAINST THE NSA, AND THE NSA REFUSED

19

TO TURN OVER RECORDS.

20

BUSINESS PRACTICE, IT WAS PUBLIC KNOWLEDGE, AND IT WAS A

21

BUSINESS PRACTICE.

22

TO PLEAD EVERY DETAIL OF EVERY COMMUNICATION THAT WAS CAPTURED

23

WHEN THE DEFENDANT HAS ADMITTED TO THE GENERAL CONDUCT AND

24

YOU'VE TAKEN ACTIONS WHICH FIT WITHIN THE CATEGORY OF PERSONS

25

AFFECTED.

BUT THE PLAINTIFF ALLEGED IT WAS A

AND THE FEDERAL CIRCUIT SAID YOU DON'T HAVE

UNITED STATES COURT REPORTERS

85

1

THIS CASE HAS SOME SIMILARITIES IN THAT REGARD.

2

MR. STRAITE TALKED ABOUT THE MOTION TO COMPEL WHICH HAS BEEN

3

OUT FOR A NUMBER OF TIMES.

4

AND MR. STRAITE CAN SPEAK MORE ABOUT THE DETAILS OF PARTICULAR

5

URL'S BUT OUR PLAINTIFFS, WE DO HAVE SOME PARTICULAR URL'S.

6

MR. STRAITE:

HE ALSO MENTIONED IN THE COMPLAINT,

YES.

AND IN FAIR DISCLOSURE, COUNSEL,

7

MR. GRYGIEL, HELPED WITH THE COMPLAINT IN THE GOOGLE CASE AND

8

SOME OF THE BRIEFING.

9

COMPLAINT.

10

AND WE ARE PRETTY FAMILIAR WITH THE

IT'S NOT MY RECOLLECTION, AND I DIDN'T PREPARE IT,

11

ALTHOUGH I DON'T THINK THE COMPLAINT CONTAINED THE FULL URL'S.

12

I BELIEVE IT WAS -- THE ALLEGATIONS WERE SIMILAR HERE, BUT WE

13

CAN GET THAT TO YOU IF IT'S IMPORTANT.

14

BUT, MORE IMPORTANTLY, AS MR. BARNES NOTED, THE KLAYMAN

15

VERSUS OBAMA CASE REALLY IS THE STARTING PLACE.

WHEN WE, AS WE

16

DID, WE WOULD LIKE TO SAY IN SUMMARY JUDGMENT LIKE DETAIL A

17

PERVASIVE BUSINESS PRACTICE WHERE FACEBOOK ADMITTED POST LOGOUT

18

WE TRACKED YOUR INTERNET USE, EVERYONE, WITHOUT EXCEPTION.

19

THE QUESTION IS WHETHER IT WAS DONE KNOWINGLY OR

20

ACCIDENTALLY.

21

AN ADMITTED PRACTICE AND IT AFFECTED EVERYONE IN THE COUNTRY.

22

FINE, WE'LL GET TO THAT IN DISCOVERY BUT IF IT'S

WE WENT BACK AND FOUND THESE URL'S THAT WERE VISITED,

23

SOME WERE TYPED AND SOME WERE SEARCH TERMS AND CLICKED ON AND

24

WERE THESE WEBSITES WERE VISITED WHILE THE PLAINTIFFS WERE

25

LOGGED OUT AND WE PLED THAT WITH SPECIFICITY.

UNITED STATES COURT REPORTERS

86

1

IT'S CONSISTENT WITH THE BUSINESS PRACTICE.

WE ACTUALLY

2

DID THEM AS WELL, AND WE DID NOT ACTUALLY PUT THE URL'S IN

3

THERE TO PROTECT THE PRIVACY OF PLAINTIFFS.

4

THE COMPLAINT IN GOOGLE ALSO PLED, AND HOPEFULLY WE CAN GET

5

THEM TO YOU BUT HOPEFULLY IT'S NOT NECESSARY.

6

THE COURT:

I DON'T BELIEVE

I GUESS IT'S A THRESHOLD QUESTION, AND I

7

COULD HAVE ASKED, AND I'LL ASK MR. BROWN THIS ALSO, SHOULD THIS

8

COURT JUST FOLLOW THE THIRD CIRCUIT GOOGLE CASE?

9

MR. STRAITE:

AS A THRESHOLD MATTER, YOUR HONOR, WE

10

WOULD BE VERY HAPPY IF YOUR HONOR WERE TO ADOPT MANY OF THE

11

RULINGS IN THE GOOGLE CASE, ALL OF THE RULINGS WE WOULD ALSO BE

12

HAPPY.

13

THERE ARE ONE OR TWO TECHNICAL AREAS WHERE WE DISAGREE

14

WITH WHAT THEY RULED, BUT WE ALSO PLED THE SECOND AMENDED

15

COMPLAINT WITH THE KNOWLEDGE OF WHAT THE THIRD CIRCUIT HELD.

16

SO WE NOT ONLY HAD THE BENEFIT OF YOUR RULING BUT THEN TWO

17

AND A HALF WEEKS LATER WE HAD THE BENEFIT OF THE THIRD

18

CIRCUIT'S RULING.

19

SO WE HAVE TO ADMIT, AS MUCH AS WE WOULD LOVE FOR YOU TO

20

REPEAT AND ECHO THE RULINGS FROM THE THIRD CIRCUIT, WE HAVE

21

TO -- STRICTLY SPEAKING, IT MAY NOT BE NECESSARY BECAUSE WE

22

PLED NEW FACTS IN THE SECOND AMENDED COMPLAINT.

23
24
25

THE COURT:

AND WHAT DID THE THIRD CIRCUIT DO WITH

THE FEDERAL CLAIMS?
MR. BARNES:

IT DISMISSED ON THE PARTY TO THE

UNITED STATES COURT REPORTERS

87

1

COMMUNICATION ISSUE, WHICH WE HAVE FASHIONED THIS COMPLAINT IN

2

A WAY WHICH WE BELIEVE MORE THOROUGHLY EXPLAINS THAT FACEBOOK

3

IS NOT A PARTY TO THESE COMMUNICATIONS.

4

GOOGLE WAS A PARTY TO THESE COMMUNICATIONS EITHER.

5

PHARMATRAK CASE SAYS AS MUCH.

WE DON'T BELIEVE
AND THE

6

IN A FOOTNOTE OF THE THIRD CIRCUIT'S OPINION, IT

7

DISTINGUISHES PHARMATRAK OR IT SAYS SEE IF PHARMATRAK, BUT

8

THERE'S NO FUNDAMENTAL DISTINCTION BETWEEN HOW PHARMATRAK

9

COOKIES OPERATED AND THE GOOGLE COOKIES OPERATED.

10

SO THE WIRETAP ACT CLAIM, EVERYTHING EXCEPT FOR THE

11

PARTY'S COMMUNICATION IS WHAT WE WOULD ASK YOU FOR AND WE THINK

12

WE'VE PLED THIS DIFFERENTLY AND EXPLAINED IT IN A BETTER WAY

13

AND YOU CAN FOLLOW THE PHARMATRAK DECISION.

14

MR. STRAITE:

15

THIRD CIRCUIT THAT WAS DISMISSED.

16

FACTS, AS YOU'VE SAID, WERE VIRTUALLY INDISTINGUISHABLE BUT

17

THERE WERE A FEW FACTS THAT WERE DIFFERENT IN THE GOOGLE CASE.

18

THERE WAS THE SURREPTITIOUS HACKING OF THE SAFARI COOKIE

19

BLOCKER HERE.

20

LOGOUT, AND THE FACTS ARE A LITTLE BIT DIFFERENT BASED ON THAT

21

AND A COUPLE OF OTHER REASONS WE OPTED TO DROP THE CFAA CLAIM

22

AND SO THE THIRD CIRCUIT RULING THERE IS NO LONGER PRECEDENT.

23

AND THERE WAS THE CFAA CLAIM IN THE
WE DROPPED THAT CLAIM.

THE

IT WAS THE FAILURE TO EXPIRE COOKIES UPON

MR. BARNES:

AND THE THIRD CIRCUIT NEVER DIRECTLY

24

ANSWERED THE QUESTION OF WHETHER THE WEB BROWSER ITSELF IS A

25

FACILITY OR NOT.

THEY TALKED ABOUT THE COMPUTER.

UNITED STATES COURT REPORTERS

WE PLED THAT

88

1
2

OUR WEB BROWSER WAS.
IF I COULD, YOUR HONOR, YOU ASKED COUNSEL FOR FACEBOOK

3

ABOUT CAL. PENAL CODE 496 STATUTE.

4

HERE.

5

THEFT OF PROPERTY MAY BE CONVICTED PURSUANT TO 496(A).

6

IN THE STATUTE.

7

AND PUT 484 TO THE SIDE

496(A), YOUR HONOR, SAYS THAT A PRINCIPAL AND ACTUAL
THAT'S

THERE'S A CASE THAT WE THINK IS PRETTY IMPORTANT HERE

8

CALLED CTC REAL ESTATE SERVICES VERSUS LEPE, L-E-P-E, AND TWO

9

THINGS THE COURT HELD THERE ARE CRITICALLY IMPORTANT, "A VICTIM

10

OF THEFT IS ENTITLED TO RECOVER THE ASSETS STOLEN OR ANYTHING

11

ACQUIRED WITH THE STOLEN ASSETS, EVEN IF THOSE ASSETS HAVE A

12

VALUE THAT EXCEEDS THE VALUE OF THAT WHICH IS STOLEN AND ONCE

13

PII CAN BE THE OBJECT OF THEFT.

14

YOU ASK FACEBOOK COUNSEL, WHERE IS THE THEFT HERE?

THE

15

NONCONSENSUAL TAKING OF ELECTRONIC INFORMATION IS THEFT.

16

YOU TAKE SOMETHING WITHOUT PERMISSION, YOUR HONOR, WE CONTEND

17

THAT IS THEFT.

18

THE COURT:

OKAY.

WHEN

SO AT TRIAL WE'LL HAVE TO --

19

YOU'LL HAVE TO PROVE, I GUESS, A QUASI CRIMINAL TYPE OF CAUSE

20

OF ACTION AS TO WHETHER OR NOT A SPECIFIC INTENT CRIME OR A

21

GENERAL INTENT CRIME.

22

MR. BARNES:

THEY KNEW THAT THEY HAD PROMISED NOT TO

23

TAKE THIS INFORMATION WHILE PEOPLE WERE LOGGED OFF, AND THEY

24

DID IT ANYWAY WITHOUT AUTHORIZATION.

25

THE COURT:

OKAY.

WHAT I'D LIKE TO DO IS TO TAKE

UNITED STATES COURT REPORTERS

89

1

ABOUT A FIVE MINUTE BREAK HERE AND GIVE OUR REPORTER A REST AND

2

EVERYONE ELSE A REST, AND WE'LL COME BACK AND GIVE YOU A COUPLE

3

OF MINUTES TO WRAP UP, AND THEN WE'LL HEAR FROM MR. BROWN.

4
5

MR. STRAITE:

THE COURT:
THAT THIS MORNING.

NO.

MR. STRAITE:

9

THE COURT:

11

NO.

I DON'T THINK WE'LL TALK ABOUT

I SHOULD HAVE SAID THAT AT THE OUTSET.

8

10

WOULD YOU ALSO LIKE US TO

ADDRESS ANY OF THE OUTSTANDING SEALING OR DISCOVERY MOTIONS?

6
7

OKAY.

THANK YOU, YOUR HONOR.

WE'LL BE IN RECESS FOR ABOUT

SEVEN MINUTES.
(RECESS FROM 11:14 A.M. UNTIL 11:25 A.M.)

12

THE COURT:

PLEASE BE SEATED.

13

COURTESY.

14

PRESENT ARE PRESENT ONCE AGAIN.

15

WE'RE BACK ON THE RECORD.

THANK YOU FOR YOUR

ALL PARTIES PREVIOUSLY

AND, LET'S SEE, LET ME JUST ASK, MR. BARNES, WHAT -- LET

16

ME ASK YOU, IS THERE ANYTHING ELSE YOU WANTED TO FINISH UP

17

WITH?

18

MR. BARNES:

THERE IS, YOUR HONOR.

WE DIDN'T TOUCH

19

UPON THE INVASION OF PRIVACY OR THE INTRUSION UPON SECLUSION

20

CLAIM.

21

SO IF MR. STRAITE WANTS TO SPEAK TO THAT.

22
23

THE COURT:

DO YOU WANT TO SPEAK TO THAT FOR A

MOMENT?

24

MR. STRAITE:

25

THE COURT:

IF YOU WOULD INDULGE.

SURE.

THAT'S FINE.

UNITED STATES COURT REPORTERS

90

1

MR. STRAITE:

THANK YOU, YOUR HONOR.

THIS SHOULD

2

PROBABLY TAKE TWO MINUTES.

3

OUR INTRODUCTION, WHAT HAS CHANGED IN THE SECOND AMENDED

4

COMPLAINT AND OUR DISCUSSION OF STANDING.

5

I THINK WE COVERED MOST OF THIS IN

AS YOUR HONOR, OF COURSE, STARTED TO SAY IS THAT THIS IS

6

AN EVOLVING AREA OF LAW, AND WE AGREE WITH YOUR HONOR.

7

WHAT HAS BEEN CONSISTENT OVER THE PAST THREE OR FOUR YEARS IS

8

THAT WHAT FACEBOOK ALLEGEDLY DID, WHAT WE ALLEGE IN THE

9

COMPLAINT, IS BY ANY MEASURE AN EGREGIOUS BREACH OF SOCIAL

10

NORMS.

11

BUT

SUPERIOR COURT.

12

SO SAID THE THIRD CIRCUIT AND SO SAID THE CALIFORNIA

NO COURT HAS SAID THE OPPOSITE.

THERE ARE SOME CASES

13

WHERE IT LOOKS LIKE THE AGGREGATION OF DATA WOULD NOT BE AN

14

EGREGIOUS BREACH OF SOCIAL NORMS, FOR EXAMPLE, GOOGLE PRIVACY

15

POLICY LITIGATION.

16

BECAUSE EVERY ITEM OF DATA THAT GOOGLE HAD, THEY HAD WITH

17

CONSENT.

18

USE THE DATA IN WAYS THAT MAYBE WEREN'T DISPOSED OF EARLIER.

19

THAT'S A DISTINGUISHABLE CASE.

HOWEVER,

THE ONLY QUESTION IS WHETHER IT WAS PERMISSIBLE TO

THAT'S A VERY DIFFERENT QUESTION THAN WHETHER FACEBOOK MAY

20

DO BOTH THE UNLAWFUL GATHERING OF INFORMATION AND THE UNLAWFUL

21

AGGREGATION.

22

DISTINGUISHABLE ON THAT BASIS ALONE.

23

SO GOOGLE PRIVACY POLICY LITIGATION IS

SO OUR CLAIM FOR INVASION OF PRIVACY AND ALSO INTRUSION

24

UPON SECLUSION IS DIFFERENT NOW IN THE SECOND AMENDED COMPLAINT

25

THAN IT WAS IN THE FIRST AMENDED COMPLAINT.

UNITED STATES COURT REPORTERS

91

1

THERE IS SIGNIFICANT DETAILS THAT OUTLINE WHY THERE IS A

2

BREACH OF REASONABLE EXPECTATION OF PRIVACY.

3

TO THE EXTENT OF THE URL.

4

POINT IN SOCIETY WHERE WE SAY WE NOW HAVE A REASONABLE

5

EXPECTATION OF PRIVACY BUT THIS COMPLAINT ALLEGES THAT IT'S THE

6

AGGREGATION OF YOUR ENTIRE WEB BROWSING HISTORIES, INCLUDING

7

NOT ONLY WHAT YOU VIEW BUT WHAT YOU SEARCH FOR.

8

THE EXPECTATION OF PRIVACY RESIDES.

9
10
11

NOT NECESSARILY

I WOULD LOVE IT IF WE GET TO THAT

THAT'S WHAT

AND IT'S DIFFICULT TO FIND ANY CASES IN THE LAST FEW YEARS
AND IT IS AN EVOLVING AREA OF LAW THAT GO THE OTHER WAY.
AND FINALLY, YOUR HONOR, WE TALKED ABOUT THE PLEADING

12

STANDARDS HERE.

13

CASE BECAUSE THERE ARE A COUPLE OF FRAUD CLAIMS BUT UNDER RULE

14

8 IT'S OBVIOUS THAT FACEBOOK KNOWS PRECISELY, THEY'RE ON NOTICE

15

WHAT CLAIMS ARE HERE, AND THEY KNOW WHAT TO EXPECT AND THE ONLY

16

QUESTION IS WHETHER IT IS SOME FORMALISTIC PROPOSITION OF HOW

17

DETAILED THE ALLEGED URL'S ARE ACTUALLY IN THE BODY OF THE

18

COMPLAINT, AND WE BELIEVE THE KLAYMAN CASE ADDRESSES THAT QUITE

19

WELL.

20

AND, OF COURSE, THIS IS PRIMARILY A RULE 8

WE'VE HAD A LOT OF REALLY INTERESTING CONVERSATION HERE,

21

AND I'M REALLY GRATEFUL THAT MR. BARNES IS ABLE TO JOIN US.

22

AND YOU CAN SAY HE'S AN EXPERT AND, OF COURSE, THAT IS

23

INAPPROPRIATE BECAUSE HE IS A LAWYER.

24
25

WE SAY A RINGER.

BUT THERE MAY COME A POINT FOR EXPERT TESTIMONY, AND WE'VE
PROBABLY REACHED IT NOW, WHERE THERE WILL BE TIME FOR EXPERTS

UNITED STATES COURT REPORTERS

92

1

TO OPINE ON THESE QUESTIONS AND NOT MERE LAWYERS, CERTAINLY

2

PEOPLE MUCH SMARTER THAN US SHOULD BE WEIGHING IN.

3

A QUESTION OF FACT DISCOVERY, AND WE SHOULD GET INTO THAT, AND

4

I DON'T BELIEVE THERE'S ANYTHING MORE THAT IS NEEDED UNDER RULE

5

8(A) FOR THE COMPLAINT.

6

BUT THAT'S

AND FINALLY AS TO STANDING I WOULD LIKE TO END WITH A

7

SHORT QUOTE TO LUJAN, L-U-J-A-N FOR OUR COURT REPORTER, 504

8

U.S. 578 IS THE PINPOINT CITE WHERE THE COURT SAYS, "NO MATTER

9

IF THE HARM COMES FROM A VIOLATION OF RIGHTS FROM A

10

CONSTITUTION, A STATUTE OR COMMON LAW, 'THERE IS ABSOLUTELY NO

11

BASIS FOR MAKING THE ARTICLE III INQUIRY TURN ON THE SOURCE OF

12

THE ASSERTED RIGHT.'"

13

AND SO HERE WE BELIEVE THERE'S STANDING FOR ALL OF THE

14

CLAIMS, AND THE ONLY QUESTION IS WHETHER THERE'S A CAUSE FOR

15

DISMISSAL UNDER 12(B)(6).

16

THE COURT:

ALL RIGHT.

THANK YOU.

I DO WANT TO

17

GIVE YOU ONE OPPORTUNITY TO COMMENT AGAIN ABOUT THE -- I GO

18

BACK TO YOUR PARAGRAPH 60 AND MY PHRASING OF MR. BROWN'S

19

ARGUMENT AND THAT THIS IS THE WAY THE INTERNET WORKS.

20
21
22

AND THE BOTTOM PORTION OF THE -- IT'S NUMBERS 3 AND 4 ON
YOUR DIAGRAM THERE.
DOESN'T THAT HAPPEN EVEN IF YOU'RE NOT A FACEBOOK MEMBER?

23

DOESN'T THAT HAPPEN WHEN YOU GO TO, YOU GO TO A WEB PAGE OR

24

WHATEVER AND YOU GET ADVERTISEMENTS?

25

COMMUNICATION, DOESN'T IT?

THIS HAPPENS IN EVERY

UNITED STATES COURT REPORTERS

93

1

MR. BARNES:

IT COULD, BUT THERE'S A BIG DISTINCTION

2

AND THAT IS FACEBOOK'S PROMISES AND THE LACK OF CONSENT TO DO

3

THIS IN THE EXACT WAY THAT THEY DID IT.

4

THE COURT:

5

MR. BARNES:

6

THE COURT:

7

MR. BARNES:

8
9

OFF LINE.
WHILE LOGGED OFF, YES.
RIGHT.
NON-FACEBOOK USERS WOULD ALSO HAVE SOME

INFORMATION SENT TO FACEBOOK, BUT IT WOULD BE DIFFERENT.
IT WOULD BE -- FACEBOOK WOULD PROBABLY CONTEND IT WAS

10

ANONYMOUS, AND WE WOULD DISPUTE THAT.

11

SAME TYPE OF INFORMATION THAT IS INCLUDED IN PARAGRAPH 58.

12

WOULD BE LESS IDENTIFIABLE INFORMATION THAT IS INCLUDED IN

13

PARAGRAPH 58.

14

WE'RE NOT GOING TO TRACK YOU LIKE YOU'RE LOGGED ON.

15

BUT IT WOULDN'T BE THE
IT

AND WHAT FACEBOOK SAID, IF YOU'RE LOGGED OFF,

THE COURT:

SO THE DISTINCTION HERE, AS WE USE THE

16

INTERNET, WE CLICK ON SOMETHING, WE GO TO THE WAL-MART, AND WE

17

GET BACK AN ADVERTISEMENT FOR WHATEVER IT MIGHT BE THAT, THAT

18

SOMEBODY THINKS WE'RE INTERESTED IN, THAT HAPPENS TO EVERYBODY.

19

THAT'S JUST THE NATURE OF IT.

20
21
22

MR. BARNES:

AND IT'S BASED ON EXPRESS OR IMPLIED

THE COURT:

AND ONE OF THE DISTINCTIONS, IF NOT THE

CONSENT.

23

MAJOR DISTINCTION HERE, IS THE FACT THAT THERE'S A FACEBOOK

24

COOKIE THAT DOES SOMETHING ELSE; IS THAT RIGHT?

25

MR. BARNES:

THAT IS CORRECT.

UNITED STATES COURT REPORTERS

94

1

MR. STRAITE:

MULTIPLE COOKIES, YOUR HONOR.

2

ACTUALLY, IN PARAGRAPH 58 IT LISTS I THINK 11 OR 12 COOKIES

3

MANY OF WHICH CONTAIN NOT ONLY YOUR USER IDENTIFICATION BUT

4

COULD HAVE CONTAINED THE IDENTIFICATION OF THE LAST USER TO USE

5

THAT BROWSER AND IT COULD ALSO BE CRYPTED I.D.

6

IDENTIFIABLE INFORMATION IS PACKAGED WITH THAT.

7
8
9

THE COURT:

A LOT OF USER

AND THAT'S YOUR ARGUMENT ABOUT

AGGREGATION, THEN, IT'S THIS INFORMATION THAT IS AGGREGATED?
MR. STRAITE:

YES, YOUR HONOR.

I THINK THE THIRD

10

CIRCUIT GOT IT RIGHT WHEN IT SAYS EVEN A SOPHISTICATED INTERNET

11

USER COULD REASONABLY EXPECT THAT HER URL QUERIES WILL NOT BE

12

ASSOCIATED WITH EACH OTHER.

13

SO, AGAIN, IT IS IMPLICITLY SAYING IF THERE'S NOT A

14

REASONABLE EXPECTATION OF PRIVACY IN THE SINGLE URL, ONE CAN

15

REASONABLY EXPECT, AND, IN FACT, EVEN A SOPHISTICATED INTERNET

16

USER CAN REASONABLY EXPECT THAT MULTIPLE URL'S WILL NOT BE

17

ASSOCIATED WITH THE SAME USER.

18

THE COURT:

THANK YOU.

AND THIS IS PERHAPS APROPOS

19

TO NOTHING, BUT IN TODAY'S WORLD IS THERE DE-SENSITIVITY AS TO

20

PRIVACY OR HAS IT INCREASED?

21

MR. STRAITE:

IN FACT, YOUR HONOR, AS WE PLEADED

22

IT'S INCREASED AS MORE INTERNET USERS UNDERSTAND EXACTLY WHAT

23

IS AT STAKE, THERE'S ACTUALLY AN INCREASE IN THE AMOUNT OF

24

AWARENESS AND INCREASING AMOUNT OF CONCERN MULTIPLE PLACES IN

25

THE COMPLAINT WHERE WE TALK ABOUT AND ALLEGE MULTIPLE STUDIES.

UNITED STATES COURT REPORTERS

95

1

PUGH HAS DONE STUDIES AND OTHERS THAT MR. BARNES WILL DISCUSS,

2

BUT THERE'S AN INCREASED SENSITIVITY AND EVEN CONGRESS HAS

3

INCREASING SENSITIVITY.

4

WE DON'T NEED ADDITIONAL CONGRESSIONAL ACTION TO MAKE THIS

5

CASE WORK, BUT IT DEMONSTRATES THAT THERE IS INCREASING

6

AWARENESS OF THE EROSION OF PRIVACY AND INCREASING

7

UNCOMFORTABLENESS WITH THE SURVEILLANCE THAT IS BEING BUILT

8

PRIMARILY IN THE CORPORATE SECTOR AND WITHOUT GOVERNMENT ACTION

9

AND HOW EASY IT IS FOR THE GOVERNMENT TO GET INFORMATION

10

THROUGH CORPORATE BEHAVIOR EVEN IF THEY, THEMSELVES, ARE NOT

11

THE ONE TRACKING AND SURVEILLING YOU.

12
13

THE COURT:

BUT THIS IS MORE CIVILIAN USE.

THIS IS

A BUSINESS USE.

14

MR. STRAITE:

RIGHT, BUT EVEN THE ACLU SAYS IT RIGHT

15

ON THE FRONT PAGE OF THEIR WEBSITE THAT PRIVACY IN THIS ECONOMY

16

STARTS WITH CORPORATE PRIVACY BECAUSE SO MUCH SURVEILLANCE THE

17

GOVERNMENT DOES IS BY GETTING INFORMATION FROM THE CORPORATIONS

18

THAT THEY EITHER WITH OR WITHOUT CONSENT OBTAINED FROM

19

CITIZENS.

20

MR. BARNES:

AND, YOUR HONOR, THE OPPERMAN DECISION

21

SPEAKS TO THIS POINT WHERE THERE WAS A DEFENSE IN ONE OF THE

22

CLAIMS THAT, LOOK, THIS IS THE SAME SORT OF THING.

23

JUST THE WAY THE INTERNET WORKS.

24
25

THIS IS

THIS IS THE WAY THE WORLD IS.

AND I BELIEVE THE COURT IN THAT CASE MADE CLEAR THAT THE
NONCONSENSUAL TAKING OF INFORMATION, WHETHER IT'S ELECTRONIC OR

UNITED STATES COURT REPORTERS

96

1

IN PAPER FORM, TAKING SOMEONE'S STUFF WITHOUT THEIR CONSENT HAS

2

NEVER BEEN AND SHOULD NEVER BE AN ORDINARY BUSINESS PRACTICE

3

THAT IS EXCUSED AND THE POLLING DATA IS ODD, QUOTE, "POLLING

4

DATA."

5
6

THE COURT:

I APPRECIATE THAT.

THE QUESTION HERE IS

WHETHER OR NOT THESE URL'S AND THESE OTHER THINGS ARE STUFFED.

7

MR. BARNES:

AND, YOUR HONOR, I THINK THEY CLEARLY

8

ARE, THAT THEY ARE STUFFED.

9

OPINION AND THE GOOGLE OPINION, THEY'RE THE EVERY DAY

10

IF YOU LOOK AT THE FISA COURT

COMMUNICATIONS OF AMERICANS.

11

THE COURT:

AND BEFORE YOU SIT DOWN, I JUST WANT TO

12

GIVE YOU YOUR -- GIVE YOU AN OPPORTUNITY TO GIVE ME YOUR BEST

13

CASE SCENARIO FOR WHY THE TOOLBAR IS A STORAGE DEVICE.

14

MR. BARNES:

15

THE COURT:

16

MR. BARNES:

THE TOOLBAR IS A STORAGE LOCATION.
STORAGE LOCATION.
IT IS A STORAGE LOCATION BECAUSE IT IS

17

A PLACE WHERE THE COMMUNICATIONS THAT ARE SENT IN THE PROCESS

18

OF BEING SENT TO THE WEBSITE AND RECEIVED BACK AND IN RESPONSE

19

FROM IS KEPT BY THE WEB BROWSER.

20

THE WEB BROWSER FUNCTIONS IN A WAY THAT THE WEB BROWSER

21

AUTOMATICALLY PUTS IT THERE WHILE THE COMMUNICATION IS

22

HAPPENING.

23

THE CORRESPONDING -- THE COMPARISON WOULD BE TO E-MAIL.

24

THE E-MAIL COMPANY STORES IT IN A CERTAIN LOCATION WHILE IT'S

25

BEING SENT TO SOME PLACE AND WHILE THAT COMMUNICATION IS

UNITED STATES COURT REPORTERS

97

1
2

HAPPENING.
YES, THIS IS IN A DIFFERENT CONTEXT, SLIGHTLY DIFFERENT

3

CONTEXT WITH E-MAIL, BUT IT'S THE SAME CONCEPT.

4

GENERAL FUNCTIONALITY.

5

THE COURT:

IT'S THE SAME

I'M JUST TRYING TO GRASP THAT, AND I

6

APPRECIATE YOUR ASSISTANCE.

I LOOK AT THAT AND I THINK, WELL,

7

IT'S JUST A PLACE HOLDER.

8

RADIO SCREEN, ON A DIGITAL RADIO IN YOUR CAR AND YOU PUNCH IN

9

THE RADIO NUMBER AND THE NUMBER SHOWS UP.

IT'S JUST A -- IT'S LIKE ON THE

I WANT TO GO HEAR

10

JAZZ, AND THEY'RE PLAYING SOMETHING YOU DON'T LIKE AND YOU

11

PREFER TO HEAR SOME SZYMUSKIEWICZ AND YOU PUSH A BUTTON AND GO

12

TO THE CLASSICAL RADIO STATION.

13

RADIO STATION?

14

MR. BARNES:

15

THE COURT:

16

MR. BARNES:

WAS THAT STORAGE, THE FIRST

I THINK THIS IS A DIFFERENT CONTEXT.
SURE.
AND A PLACEHOLDER CAN CERTAINLY BE A

17

STORAGE LOCATION.

18

YOU'RE DOING SOMETHING.

19

RIGHT NOW.

20

IT IS SOMEWHERE THAT YOU PUT SOMETHING WHILE
YOU WERE GOING TO KEEP IT THERE FOR

A PLACEHOLDER CAN BE STORAGE IN THAT HYPOTHETICAL, IN YOUR

21

PARTICULAR HYPOTHETICAL.

22

BELIEVE.

23

THE COURT:

YOU USED THE WORD PLACEHOLDER, I

I'M JUST TRYING TO GET ADDITIONAL

24

INFORMATION FOR YOU TO HELP ME AND UNDERSTAND THAT CONCEPT OF

25

THE TOOLBAR BEING THE ACTUAL STORAGE AND SINCE, AS YOU SUGGEST,

UNITED STATES COURT REPORTERS

98

1

IT'S A CASE OF FIRST IMPRESSION.

2

MR. BARNES:

AND I THINK YOU LOOK AT THE

3

FUNCTIONALITY OF IT.

4

THE COURT:

5

MR. STRAITE:

6

THE COURT:

7

THANK YOU VERY MUCH.

WE APPRECIATE YOU TAKING SO MUCH TIME.

THANK YOU.

THIS IS HELPFUL.

THANK YOU.

MR. BROWN, HAS ANY OF THIS CHANGED YOUR OPINION?

8
9

ALL RIGHT.

MR. BROWN:

WELL, THERE ARE CERTAINLY A NUMBER OF

THINGS TO BE ADDRESSED.

I HEARD A LOT OF FACTUAL STATEMENTS

10

THAT ARE NOT CONTAINED WITHIN THE COMPLAINT HERE TODAY.

11

HEARD A LOT OF DISCUSSION ABOUT OUT-OF-CIRCUIT CASE LAW, AND I

12

HEARD ABOUT SOME CASES THAT WERE NOT CITED IN THE BRIEFING AS

13

WELL.

14
15
16
17
18

I'VE

SO LET ME TRY TO HIT SOME OF THESE POINTS AND IN AS A
METHODICAL WAY AS I CAN STARTING WITH STANDING.
SO I THINK I HEARD A FEW DIFFERENT POSITIONS THAT ARE NOT
RECONCILABLE FROM THE PLAINTIFFS IN THEIR ARGUMENT.
THEY'VE MADE THE POINT THAT NONECONOMIC INJURY IS NOT

19

NECESSARY FOR ARTICLE III STANDING, AND THEN THEY QUICKLY

20

PIVOTED FROM THAT TO SAYING, WELL, WE'RE ALLEGING INVASION OF

21

PRIVACY.

22

BUT AS I UNDERSTAND IT, IT'S NOT JUST THAT WE'RE ALLEGING

23

INVASION OF PRIVACY.

THAT'S JUST ANOTHER WAY OF SAYING WE'RE

24

ALLEGING A WHOLE BUNCH OF CAUSES OF ACTION IN THIS CASE, SOME

25

OF WHICH ARE STATE LAW CLAIMS, LET'S SAY, COMMON LAW, OR

UNITED STATES COURT REPORTERS

99

1
2

STATUTORY CLAIMS.
AND I THINK REALLY THIS IS JUST, FRANKLY, A REPACKAGING OF

3

THIS ARGUMENT THAT IS MERELY ALLEGING A VIOLATION OF A STATE

4

LAW CLAIM IS ENOUGH IN FEDERAL COURT.

5

AND IT'S NOT ENOUGH.

IT'S MERELY ALLEGING A STATE LAW

6

CLAIM.

7

THE FEDERAL STATUTE CONTEXT, AND THAT'S WHAT IS GOING TO BE

8

DECIDED MAYBE BY THE U.S. SUPREME COURT IN SPOKEO BUT AT LEAST

9

THAT WAS THE ISSUE THAT WAS PRESENTED.

10

AND THAT'S WHAT EDWARDS AND IT'S PROGENY STAND FOR IN

IN THE STATE LAW CONTEXT, THAT'S NOT THE CASE.

IF YOU

11

HAVE A STATE LAW CLAIM, YOU STILL HAVE TO MAKE OUT THE

12

REQUIREMENTS OF ARTICLE III AND, AGAIN, WE CITED THE CASE LAW

13

THERE.

14

THEY THEN MENTION THE DOE VERSUS CHOU CASE AND, AGAIN, I

15

DON'T KNOW THAT CASE, AND THEY MAY HAVE ACKNOWLEDGED THIS, THAT

16

THAT CASE WAS CITED IN THE BRIEFING.

17

CHARACTERIZE DOE VERSUS CHOU AS THE U.S. SUPREME COURT HOLDING

18

THAT A MERE ASSERTION OR ALLEGATION OF A STATE LAW PRIVACY

19

VIOLATION WOULD BE SUFFICIENT UNDER ARTICLE III.

AND THEY TRIED TO

20

IT WAS INTERESTING, IN THE THIRD CIRCUIT'S GOOGLE COOKIE

21

PLACEMENT DECISION, THEY ACTUALLY MENTION DOE VERSUS CHOU BUT

22

THIS IS ALL THAT I HAVE IN FRONT OF ME RIGHT NOW.

23

BUT IN THE STANDING SECTION, THEY REFER TO IT, AND THERE'S

24

A FOOTNOTE WHICH REFERS TO JUSTICE GINSBERG'S DECISION, AND THE

25

QUOTE HERE IS THAT DOE HAS STANDING TO SUE, THE COURT AGREES,

UNITED STATES COURT REPORTERS

100

1

BASED ON ALLEGATIONS THAT HE WAS TORN ALL TO PIECES AND GREATLY

2

CONCERNED AND WORRIED BECAUSE OF THE DISCLOSURE OF HIS SOCIAL

3

SECURITY NUMBER AND ITS POTENTIALLY DEVASTATING CONSEQUENCES.

4

SO THERE THEY HAD, WHETHER IT WAS FACTUAL ALLEGATIONS IN

5

THAT CASE OR IT WAS SOME SORT OF FACTUAL RECORD BEFORE THE

6

COURT, THE BASIS THERE WAS ON APPARENTLY PERCEIVED EMOTIONAL

7

HARM OF SOME SORT THAT HAD BEEN EITHER ALLEGED OR PROVED.

8

IT WASN'T THE MERE ASSERTION THAT THERE WAS A STATUTORY

9

VIOLATION.

THERE WAS -- OR A STATE LAW VIOLATION.

SO

THERE WAS

10

SOMETHING MORE, AND SO I JUST WANTED TO CORRECT THE RECORD ON

11

THAT.

12

IN TERMS OF THE URL ISSUE AND THE LACK OF THE SPECIFICITY

13

IN THE COMPLAINT, I JUST WANTED TO NOTE THAT THE COURT HAS A

14

PROCESS FOR FILING THINGS UNDER SEAL AND THE IDEA THAT THERE

15

WAS SOMETHING PROHIBITING THEM FROM COMING FORWARD AND

16

DISCLOSING TO THE COURT AND THE DEFENDANT WHAT THE SUPPOSED

17

COMMUNICATIONS WERE, WHAT THE COMMUNICATIONS WERE THAT THEY ARE

18

COMPLAINING ABOUT.

19

RIGHT?

20

SUPPOSEDLY INTERCEPTED AND CAUSED THEM HARM.

21

WHAT THEY ARE.

I MEAN, THAT'S THE ESSENCE OF THIS CASE,

THAT THERE WERE CERTAIN COMMUNICATIONS THAT WERE
WE DON'T KNOW

22

BUT THEY DIDN'T TAKE ADVANTAGE OF THE COURT'S SEALING

23

PROCEDURES, AND WE CERTAINLY HAVEN'T AS TO OTHER PAPERS IN THE

24

CASE.

25

AND THERE'S A LOT OF TALK AGAIN ABOUT THE HERPES PAGES AND

UNITED STATES COURT REPORTERS

101

1

ALL OF THIS.

THOSE ARE ALL THEORETICAL.

THOSE ARE SORT OF

2

THEORETICAL EXERCISES, AND THERE'S BEEN NO TETHERING OF THOSE

3

TO ANY NAMED PLAINTIFF AT THIS POINT.

4

TURNING TO THE WIRETAP ACT.

SO ONE OF THE THINGS THAT

5

COUNSEL SAID IS THAT IN THEIR SECOND AMENDED COMPLAINT THEY

6

CLARIFIED THAT THE REAL PROBLEM HERE WAS THE COLLECTION OF

7

URL'S AS OPPOSED TO I.P. ADDRESSES.

8

SURPRISING AND VERY PUZZLING TO HEAR, AND I THINK I KNOW WHY.

9

BUT THE FACT IS, IS THAT IN THE FIRST AMENDED COMPLAINT,

I FIND THAT VERY

10

IT WAS ABSOLUTELY THE SAME.

11

AMENDED COMPLAINT, AGAIN, WAS THAT FACEBOOK CAME INTO

12

POSSESSION OF THE BROWSING HISTORY, OR THE URL.

13

TO DO WITH FACEBOOK COMING INTO POSSESSION OF I.P. ADDRESSES.

14

THE WHOLE POINT OF THE FIRST

IT HAD NOTHING

AND, OF COURSE, THE SECOND AMENDED COMPLAINT, BECAUSE IT'S

15

STILL ALLEGING RECEIPT OF URL'S, DOESN'T SOLVE THE SINGLE

16

PROBLEM THAT THEY HAVE.

17

SECONDLY, TALKING ABOUT THE FISA COURT OPINION, AGAIN, IT

18

PROBABLY GOES WITHOUT SAYING THAT THAT'S NOT BINDING AUTHORITY

19

ON THIS COURT WHEREAS ZYNGA IS, BUT IN THAT DECISION THE COURT

20

HELD THAT DIALING, ROUTING, ADDRESSING OR SIGNALLING

21

INFORMATION CAN BE CONTENT.

22

IF A USER RUNS A SEARCH USING AN INTERNET SEARCH ENGINE AND THE

23

SEARCH PHRASE, WHATEVER IT IS, APPEARS IN THE URL, THE URL

24

INCLUDES THE CONTENTS OF COMMUNICATIONS.

25

AND THEN THE COURT OBSERVED THAT

SO, AGAIN, WE'RE BACK TO THE IDEA OF THE SEARCH QUERIES

UNITED STATES COURT REPORTERS

102

1

BUT THE CASE DOESN'T STAND FOR THE PROPOSITION THAT I THINK

2

THEY'RE TRYING TO CITE IT FOR THAT SOMEHOW ALL REFERRED URL'S

3

ARE CONTENTS.

4

ANYWAY, BUT I DON'T THINK THIS POSITION EVEN EXTENDS THAT FAR.

5

BUT EVEN IF IT WERE THE CASE THAT THIS WAS THE LAW OF THE

AGAIN, IT'S COMPLETELY IN CONTRAST WITH ZYNGA

6

CIRCUIT, HERE WE DON'T HAVE ANY EVIDENCE OF WHAT THE URL'S WERE

7

FOR THESE PARTICULAR PLAINTIFFS.

8

SO WHETHER THEY INCLUDED SEARCH QUERIES IN THEM OR NOT, WE

9

DON'T KNOW, AND, THEREFORE, THIS FISA COURT OPINION WOULDN'T BE

10
11

ON POINT IN ANY EVENT.
I ALSO WOULD JUST NOTE THAT THERE'S, YOU KNOW, NOTHING IN

12

THE COMPLAINT TO SUGGEST THAT THERE ARE FACEBOOK PLUGINS SUCH

13

AS THE LIKE BUTTON ON THE MOST COMMON SEARCH ENGINE.

14

SO IF YOU GO TO GOOGLE OR BING TO DO SEARCH QUERIES, WHICH

15

IS WHAT ALL OF THESE CASES SEEM TO BE TALKING ABOUT, YOU WILL

16

NOT FIND FACEBOOK SOCIAL PLUGINS ON THOSE SITES.

17

SO, AGAIN, WE DON'T REALLY KNOW WHAT THE URL'S ARE FOR

18

THESE PLAINTIFFS.

19

FACEBOOK WOULD BE RECEIVING A REFERRED URL THAT HAD COME FROM

20

SEARCH ENGINES SUCH AS GOOGLE OR BING THAT WOULD CONTAIN SEARCH

21

QUERIES IN THEM.

22

BUT THERE'S A MAJOR QUESTION AS TO WHETHER

STILL ON CONTENT.

THEY WERE MAKING A POINT ABOUT THE PTSD

23

ARTICLE ON "THE NEW YORK TIMES" WEBSITE, AND THEY POINTED TO AN

24

EXAMPLE WHERE THE URL CONTAINED A TITLE OF THE ARTICLE ON

25

"THE NEW YORK TIMES."

AND THEY MADE THE COMMENT THAT THERE'S

UNITED STATES COURT REPORTERS

103

1

NO URL IN FACEBOOK THAT IS SIMILAR.

2

QUITE TO THE CONTRARY, AND THIS IS JUST REITERATING

3

SOMETHING THAT I SAID EARLIER, THE ZYNGA OPINION ITSELF TALKED

4

ABOUT A FACEBOOK PAGE FOR A GAY SUPPORT GROUP AND IN THAT CASE

5

THE ALLEGATION WAS THAT IF YOU CLICKED ON THAT ADVERTISEMENT

6

WHILE YOU WERE ON THAT PAGE, THE THIRD PARTY ADVERTISER WOULD

7

GET THE IDENTITY, THE USER I.D., THAT IS, OF THE INDIVIDUAL

8

CLICKING ON IT, WOULD GET THE URL AND WOULD KNOW THAT YOU, IN

9

FACT, WERE ON A FACEBOOK GAY SUPPORT PAGE.

10

SO THE IDEA THAT SOMEHOW THIS EXAMPLE ABOUT THE PTSD

11

ARTICLE IS SOMEHOW DISTINGUISHABLE AND THAT SHOULD BE HELD TO

12

BE CONTENTS IN THIS CIRCUIT IS COMPLETELY CONTRARY TO THE

13

HOLDING AND THE TEACHINGS OF ZYNGA.

14

MOVING THEN TO THE INTERCEPTION ISSUE UNDER THE WIRETAP

15

ACT, THE VERY FIRST THING THAT THEY SAID WHEN THEY STARTED

16

TALKING ABOUT THAT PRONG WAS THAT THEY CONFIRMED THAT THE SAC

17

ALLEGES TWO SEPARATE COMMUNICATIONS, AND YOU SPENT A LOT OF

18

TIME TALKING ABOUT PARAGRAPH 60.

19

THIS UP BECAUSE THERE WERE A LOT OF DIFFERENT THINGS BEING

20

SAID, SOME OF WHICH CAN'T BE RECONCILED.

21

AND I WANT TO TRY TO CLEAR

AT ONE POINT THEY SAID THAT THESE SEPARATE COMMUNICATIONS

22

ARE SIMULTANEOUS.

23

ACTUALLY WITHIN MILLISECONDS OF ONE ANOTHER.

24

CAN'T BE RECONCILED.

25

AND ANOTHER TIME THEY SAID THAT THEY WERE
THOSE TWO THINGS

IT'S GOT TO BE ONE OR THE OTHER.

I WOULD SUGGEST TO YOUR HONOR THAT IF YOU LOOK AT THE

UNITED STATES COURT REPORTERS

104

1

COMPLAINT, THE COMPLAINT DOESN'T ALLEGE THAT THEY ARE

2

SIMULTANEOUS.

3

BUT THAT THEY'RE CLOSE TOGETHER.

4

THE COMPLAINT ALLEGES THAT THEY'RE CONSEQUENTIAL

WHEN ASKED TO EXPLAIN HOW THEY WERE SIMULTANEOUS, EVEN

5

THOUGH SEPARATE, IT WAS VERY TELLING.

6

DISCUSSION ABOUT IT.

7

WHEN THE SECOND AND SEPARATE COMMUNICATION WAS SENT FROM THE

8

INDIVIDUAL'S BROWSER TO FACEBOOK, THE FIRST PARTY WEB PAGE WAS

9

STILL LOADING.

10
11

THERE WAS A LOT OF

AT ONE POINT THEY FINALLY SAID, WELL,

THAT'S WHAT THEY SAID.

THE FIRST PARTY WEB

PAGE WAS STILL LOADING.
AND ANOTHER TIME THEY SAID IT HASN'T DOWNLOADED

12

COMPLETELY.

WELL, THAT'S SOMETHING DIFFERENT.

THAT'S NOT THAT

13

THE COMMUNICATION HASN'T FINISHED YET.

14

COMMUNICATION FROM THE WEB BROWSER TO THE FIRST PARTY SAYING,

15

HEY, I WANT TO VIEW YOUR WEB PAGE.

16

JUST BECAUSE IT TAKES A WHILE FOR THE WEB PAGE TO ACTUALLY

17

RENDER ON YOUR SCREEN DOESN'T MEAN THAT THE COMMUNICATION IS

18

SOMEHOW IN TRANSIT.

19

THINK THERE'S SMOKE AND MIRRORS HERE ABOUT THE TIMING OF ALL OF

20

THIS IN ORDER TO MAKE IT SEEM AS THOUGH THE TWO SEPARATE

21

COMMUNICATIONS, WHICH THEY'VE CONCEDED NOW MANY TIMES, THAT

22

THEY ARE SEPARATE.

23

THEY'RE ALSO SIMULTANEOUS, AND THEY'RE CLEARLY NOT.

THERE WAS A

THAT COMMUNICATION IS DONE.

THOSE ARE TWO DIFFERENT THINGS, AND I

THEY'RE TRYING TO SUGGEST TO YOU THAT

24

AND I WOULD JUST POINT OUT THAT, AGAIN, THE -- UNDER KONOP

25

IN THE NINTH CIRCUIT, IT MUST BE, QUOTE, "DURING TRANSMISSION,"

UNITED STATES COURT REPORTERS

105

1

END QUOTE, AS THE COMMUNICATION BEGAN, QUOTE, "TRAVELED ACROSS

2

THE WIRES AT THE SPEED OF LIGHT," END QUOTE.

3

SO THE FACT THAT THERE MAY BE -- THAT THESE MIGHT BE

4

LOCATED CLOSELY IN TIME DOESN'T MATTER.

THE FACT THAT THEY'RE

5

SEPARATE COMMUNICATIONS WHICH HAS BEEN CONCEDED CLEARLY NOW

6

MEANS THAT THIS DOESN'T FLY UNDER THE INTERCEPTION PRONG UNDER

7

THE NINTH CIRCUIT DOCTRINE.

8

IN THE BUNNELL, B-U-N-N-E-L-L, VERSUS NPAA DECISION,

9

CENTRAL DISTRICT OF CALIFORNIA, THAT CASE CITED KONOP AND, IN

10

FACT, SAID -- AND THIS IS INTERESTING THAT THEY TALKED ABOUT

11

MILLISECONDS.

12

THAT COURT SAID WHETHER A DEFENDANT RECEIVED THE MESSAGES

13

IN MILLISECONDS OR DAYS MAKES NO DIFFERENCE UNDER KONOP.

14

KEY IS WHETHER THE INTERCEPTION OCCURS BEFORE THE COMMUNICATION

15

REACHES ITS DESTINATION.

16

OF THE E-MAILS SO THE DEFENDANT HAD RECEIVED E-MAILS THAT WERE

17

FORWARDED BY ANOTHER PERSON AND THE QUESTION IS, IS THAT AN

18

INTERCEPTION.

19

THE

THAT CASE HAD TO DO WITH FORWARDING

AND THE EVIDENCE THERE OR THE ALLEGATIONS THERE WERE THAT

20

THE INITIAL E-MAIL AND THEN THE SUBSEQUENTLY FORWARDED E-MAIL

21

WERE SENT IN REAL CLOSE PROXIMITY TO ONE ANOTHER, PERHAPS IN

22

MILLISECONDS, BUT THE POINT BEING THAT THERE WERE TWO SEPARATE

23

COMMUNICATIONS.

24

WAS THE FORWARDING OF THE E-MAIL.

25

DISTINCT COMMUNICATIONS, IF YOU WILL, MEANS THERE CAN'T BE AN

THERE WAS THE INITIAL E-MAIL AND THEN THERE
THE FACT THAT THERE WERE TWO

UNITED STATES COURT REPORTERS

106

1

INTERCEPTION UNDER THE NINTH CIRCUIT DOCTRINE.

2

IF YOU'LL BEAR WITH ME FOR A MOMENT.

3

WITH RESPECT TO THE PHARMATRAK CASE, I WILL SAY THIS, THE

4

PHARMATRAK CASE IS NOT BINDING HERE.

I THINK IT GOES WITHOUT

5

SAYING IT'S A FIRST CIRCUIT CASE, AND IT ACTUALLY ACKNOWLEDGED

6

THAT OTHER CIRCUITS TAKE A DIFFERENT APPROACH ON THE ISSUE.

7

AND SO IT MAY VERY WELL BE THAT THERE'S A CIRCUIT SPLIT

8

DEVELOPING HERE, BUT WE'RE NOT LITIGATING IN THE FIRST CIRCUIT.

9

I MIGHT ALSO JUST QUICKLY ADDRESS THIS IDEA THAT THERE'S A

10

TERM OF ART THAT HAS DEVELOPED IN THE INDUSTRY CALLED THIRD

11

PARTY COOKIES AND THAT SOMEHOW SUPPORTS THEIR ARGUMENT FOR AN

12

INTERCEPTION.

13

YOU CAN'T JUST SEIZE ON THESE TERMS.

THE REASON IT'S

14

CALLED A THIRD PARTY COOKIE IS BECAUSE IN THE CASE OF FACEBOOK

15

HERE, IT'S NOT THE WEB PAGE THAT THE USER IS ATTEMPTING TO VIEW

16

SO YOU CALL THAT WEBSITE THAT THEY'RE TRYING TO VIEW THE FIRST

17

PARTY WEB PAGE, AND YOU REFER TO THE OTHER COMPANY THAT IS

18

PROVIDING THE THIRD PARTY CONTENT AS A THIRD PARTY.

19

BUT FOR PURPOSES OF LOOKING AT WHETHER THERE'S AN

20

INTERCEPTION OF THE WIRETAP ACT, YOU HAVE TO LOOK AT THE FACTS

21

AS THEY EXIST THAT ARE RELEVANT, AND YOU HAVE TO LOOK AT IT

22

FROM A FUNCTIONAL PERSPECTIVE, AND YOU DON'T SEIZE ON THIS

23

THIRD PARTY TERM THAT HAS NOW COME INTO VOGUE IN THE INDUSTRY.

24

TURNING NOW TO THE STORED COMMUNICATIONS ACT AND THE

25

ELECTRONIC STORAGE ISSUE, THE URL THAT A USER MIGHT CHOOSE TO

UNITED STATES COURT REPORTERS

107

1

TYPE INTO THE TOOLBAR IS NOT COMMUNICATION.

THERE IS A LOT OF

2

TALK ABOUT HOW LONG THE -- THIS WILL STAY THERE BEFORE YOU

3

ACTUALLY GET TO THE WEBSITE AND ALL OF THIS, BUT THE POINT IS

4

THAT IT IS NOT THE COMMUNICATION.

5

WHAT THEY ALLEGE, AND LET'S COME BACK TO THE COMPLAINT AND

6

INSTEAD OF ALL OF THE EXTRANEOUS ASSERTIONS THAT HAVE BEEN MADE

7

HERE TODAY OUTSIDE OF THE COMPLAINT.

8

THE COMPLAINT DEEMS THE GET REQUEST THAT GOES FROM THE

9

PLAINTIFFS' BROWSER TO THE FIRST PARTY WEB PAGE, WAL-MART, CNN,

10

AS THE COMMUNICATION.

11

THEY DIDN'T ALLEGE THAT THE COMMUNICATION WAS THE URL THAT THEY

12

PUT IN A TOOLBAR.

13

THAT IS SUPPOSEDLY WHAT IS INTERCEPTED.

THOSE ARE TWO DIFFERENT THINGS.

SO YOU'VE GOT TO BRING IT BACK TO THE FACTS AS ALLEGED AND

14

WE'VE GOT TO LOOK AT, YOU KNOW, WHAT THE DEFINITION ACTUALLY

15

IS.

16

THE COMMUNICATION THAT IS IN THIS TEMPORARY STORAGE

17

INCIDENT TO THE TRANSMISSION ACTUALLY HAS TO GO SOMEWHERE.

18

WHOLE POINT HERE IS THAT YOU CAN'T ACCESS A COMMUNICATION WHILE

19

IT'S BEING TEMPORARILY STORED IN THE COURSE OF THE TRANSMISSION

20

PROTOCOL OR SEQUENCE.

21

THE

AND SO THE URL THAT APPEARS IN THE BROWSER NEVER GOES

22

ANYWHERE.

THAT'S NOT THE COMMUNICATION.

THAT'S JUST SOMETHING

23

THAT YOU'VE TYPED INTO YOUR TOOLBAR.

24

GOES SOMEWHERE IS ACTUALLY THIS GET REQUEST WHICH IS WHAT

25

PLAINTIFF ALLEGES IS THE COMMUNICATION.

THE COMMUNICATION THAT

UNITED STATES COURT REPORTERS

108

1

ONE OTHER POINT I WOULD JUST MAKE ON THIS IS IT'S EASY TO

2

TALK ABOUT BUT IT'S ACTUALLY NOT EASY BUT YOU CAN TRY TO TALK

3

ABOUT STORAGE IN A VACUUM UNDER THE STATURE BECAUSE THAT IS ONE

4

ELEMENT, BUT IF YOU THINK YOU STEP ONE LITTLE BABY STEP BACK

5

AND THINK ABOUT WHAT IS ACTUALLY GOING ON IN THIS STATUTE, IN

6

ORDER FOR THEM TO HAVE A CLAIM, FACEBOOK ACTUALLY HAS TO ACCESS

7

THE COMMUNICATION WHILE IT'S IN ELECTRONIC STORAGE, AND THAT'S

8

THE WHOLE POINT OF THIS SECTION OF THE STORED COMMUNICATIONS

9

ACT.

THERE'S NO ALLEGATION IN THE SECOND COMPLAINT THAT THIS

10

IS WHAT HAPPENED.

11

THE URL THAT SOMEONE TYPED INTO THE TOOLBAR.

12

THERE'S NO ALLEGATION THAT FACEBOOK ACCESSED

AND, IN FACT, WHAT IS ALLEGED AND WHAT I'VE SAID PROBABLY

13

20 TIMES NOW IS THAT FACEBOOK RECEIVED THE URL FROM THIS

14

SEPARATE DISTINCT GET REQUEST FROM THE USER'S BROWSER TO

15

FACEBOOK.

16

SO THE IDEA THAT SOMEHOW THE URL THAT HAS BEEN TYPED INTO

17

A BROWSER IS THE ELECTRONIC STORAGE DOESN'T FLY REALLY UNDER

18

THE DEFINITION OF THE STATUTE BUT ALSO MAKES NO SENSE IN TERMS

19

OF WHAT THEY ARE ALLEGING AND WOULDN'T BE ABLE TO MAKE OUT THE

20

CLAIM BECAUSE IT HASN'T ALLEGED THAT FACEBOOK ACCESSED THAT

21

SAME LOCATION THAT THEY ARE NOW CLAIMING IS THE ELECTRONIC

22

STORAGE.

23

TURNING NOW TO THE CONCEPT OF A FACILITY THROUGH WHICH AN

24

ELECTRONIC COMMUNICATIONS SERVICE IS PROVIDED.

25

COUNSEL CONCEDED THAT THIS IS NOT A CASE OF FIRST IMPRESSION,

UNITED STATES COURT REPORTERS

PLAINTIFFS'

109

1

AND THAT IS TRUE.

2

166 F. SUPP. 2D AT 1271, AND THE CROWLEY COURT EXPLAINED THAT

3

IF A PLAINTIFFS' PERSONAL COMPUTER COULD BE A FACILITY, THAT

4

WOULD LEAD TO THE NONSENSICAL RESULT THAT THE PROVIDER OF THE

5

COMMUNICATIONS SERVICE COULD GRANT ACCESS TO ONE'S HOME

6

COMPUTER TO THIRD PARTIES.

7

OF THE SCA.

8
9

AND, IN FACT, WE CITED THE CROWLEY CASE,

SO UNDER A DIFFERENT SECTION UNDER

SO IF THEIR THEORY IS CORRECT, THEN THE PROVIDER OF THE
COMMUNICATIONS SERVICE CAN ACTUALLY GRANT ACCESS TO THAT HOME

10

COMPUTER TO THIRD PARTIES UNDER ANOTHER SECTION OF THE SCA

11

WHICH IS CLEARLY WHAT WAS NOT INTENDED.

12

IN THE IPHONE APPLICATION LITIGATION, NUMBER 2,

13

844 F. SUPP. 2D AT 1063, JUDGE KOH RULED THAT IF A PLAINTIFFS'

14

PERSONAL COMPUTER WAS A FACILITY, WEBSITES WOULD BECOME USERS

15

OF THE ELECTRONIC COMMUNICATIONS SERVICE PROVIDED BY THE

16

PERSONAL COMPUTER, AND THEN THEY COULD, THEREFORE, AUTHORIZE

17

ACCESS TO ANY COMMUNICATION THAT WAS INTENDED FOR THAT WEBSITE

18

UNDER 2701(C)(2).

19

AND I REALIZE THAT'S A LITTLE BIT DIFFICULT TO FOLLOW

20

WITHOUT REALLY LOOKING AT THE STATUTE BUT THE POINT BEING THAT

21

ADVANCING OR FOLLOWING THE INTERPRETATION THAT THEY'RE

22

PROFFERING HERE WOULD LEAD TO ALL SORTS OF ABSURD RESULTS, AND

23

THIS IS NOT A CASE OF FIRST IMPRESSION.

24

ALREADY DEALT WITH THIS AND REALIZED THAT THAT'S NOT WHAT THE

25

STATUTE MEANS OR HOW IT SHOULD BE CONSTRUED.

MANY COURTS HAVE

UNITED STATES COURT REPORTERS

110

1

FINALLY, THEY CITED IN THEIR PAPERS THE CASE CALLED

2

CHANCE, C-H-A-N-C-E, AND INTERESTINGLY THAT COURT DIDN'T

3

HOLD -- DID NOT HOLD THAT PERSONAL COMPUTERS WERE FACILITIES.

4

THEY CONSIDERED THAT INTERPRETATION FOR THE SAKE OF ARGUMENT

5

AND THEN EXPLAINED WHY, QUOTE, THE SUBSEQUENT IMPLICATIONS OF

6

THIS RATHER STRAINED INTERPRETATION OF A FACILITY THROUGH WHICH

7

AN ELECTRONIC COMMUNICATION SERVICES PROVIDER ARE FATAL TO

8

THEIR CAUSE OF ACTION.

9

AND THAT'S AT 165 F. SUPP. 2D AT 1161.

IN CONTRAST TO THAT WHOLE BODY OF AUTHORITY, WELL

10

REASONED, I MIGHT ADD, THEY'VE CITED THESE MICROSOFT CASES, AND

11

THESE ARE A BUNCH OF DOE CASES WHERE THERE WERE NO DEFENDANTS

12

ON THE OTHER SIDE.

13

DOE CASES, I BELIEVE, AND I'M NOT 100 PERCENT CERTAIN ON THIS,

14

BUT I BELIEVE IT WAS FOR THE PURPOSE OF GETTING SUBPOENAS TO

15

ISSUE TO THIRD PARTIES.

16

ARGUE AGAINST THEIR INTERPRETATION.

17

YOU KNOW, MICROSOFT WAS INITIATING THESE

THERE WAS NOBODY ON THE OTHER SIDE TO

AND IT IS TRUE IN THE EASTERN DISTRICT OF VIRGINIA, WHICH

18

PLAINTIFFS' COUNSEL SAID, THAT THE COURT ACCEPTED BUT WITHOUT

19

QUESTION AND WITHOUT ANYONE ON THE OTHER SIDE THAT MICROSOFT

20

BROWSER WAS A FACILITY UNDER THE STORED COMMUNICATIONS ACT.

21

I WOULD CONTEND THAT'S NOT A WELL REASONED OPINION, AND

22

THE COURT SHOULD INSTEAD FOLLOW ALL OF THE OTHER REASONS THAT

23

INSTEAD THAT I HAVE GIVEN YOU.

24
25

ON THE LARCENY CAUSE OF ACTION, AS I MENTIONED EARLIER,
THE INFORMATION THAT WE'RE ALLEGED TO HAVE CORRECTED ISN'T

UNITED STATES COURT REPORTERS

111

1

PROPERTY UNDER 496, AND WE HAVE CITED THE ZYNGA CASE AT LEAST

2

BY WAY OF ANALOGY.

3

IDENTIFIABLE INFORMATION DOES NOT CONSTITUTE PROPERTY FOR

4

PURPOSES OF THE UCL CLAIM, AND I REALIZE WE'RE NOT DEALING WITH

5

THE UCL CLAIM HERE BUT I WOULD SUBMIT THAT PERSONALLY --

6

PERSONAL INFORMATION DOESN'T CONSTITUTE PROPERTY FOR LARCENY

7

PURPOSES EITHER.

8

CASE.

9

THERE THE COURT HELD THAT THE PERSONALLY

WE'VE ALSO CITED THE LOW VERSUS LINKEDIN

THE PLAINTIFF CITED HERE TODAY THE CTC REAL ESTATE

10

SERVICES CASE, A CALIFORNIA STATE CASE.

11

IS THAT THAT CASE DID NOT DEAL WITH PENAL CODE SECTION 496.

12

INSTEAD, IT DEALT WITH THE SEPARATE SECTION OF THE CALIFORNIA

13

PENAL CODE, SECTION 530.5, AND THAT SECTION DOES NOT DEFINE

14

PROPERTY AND INSTEAD IT'S A SECTION THAT PROSCRIBES OBTAINING

15

PERSONAL INFORMATION WITH THE INTENT TO DEFRAUD.

16

WHAT THEY DIDN'T SAY

SO IT'S A COMPLETELY DIFFERENT STATUTE, AND THE VERY

17

CONDUCT THAT IS BEING PROHIBITED THERE UNDER THAT PENAL CODE

18

SECTION RELATES TO PERSONAL INFORMATION.

19

AND THAT PARTICULAR STATUTE'S DEFINITION OF PERSONAL

20

INFORMATION INCLUDES ITEMS LIKE CREDIT CARD NUMBERS AND HEALTH

21

CARE RECORDS, AND THERE'S NO REFERENCE TO BROWSING HISTORY OR

22

ANYTHING ANALOGOUS.

23

SUBSECTION B.

AND THAT'S IN SECTION 530.55,

24

SO, AGAIN, THE CTC REAL ESTATE SERVICES CASE DOES NOT

25

STAND FOR THE PROPOSITION THAT THE TYPE OF INFORMATION AT ISSUE

UNITED STATES COURT REPORTERS

112

1
2

HERE IS PROPERTY FOR LARCENY PURPOSES.
AND THEN TURNING TO THE INVASION OF PRIVACY AND INTRUSION

3

UPON SECLUSION CLAIMS, AGAIN, PLAINTIFFS' COUNSEL SAID YET

4

AGAIN WHAT HAS CHANGED IN THIS CASE FROM A FIRST AMENDED

5

COMPLAINT TO A SECOND AMENDED COMPLAINT?

6

ACKNOWLEDGED THAT THERE WERE SOME CHANGES.

7

AND I HAVE

THEY SAY, WELL, WE'VE MADE IT CLEAR THAT URL'S ARE REALLY

8

WHAT WE'RE INTERESTED IN AND NOT I.P. ADDRESSES, AND WE'RE

9

GOING TO SEE WHY I THINK THEY'RE SAYING THIS.

AND THEY ALSO

10

SAID THAT, WELL, WE'RE NOW MAKING IT CLEAR THAT FACEBOOK

11

PROMISED ONE THING BUT DID ANOTHER.

12

WHAT THEY'RE TRYING TO DO, OF COURSE, IS TO MAKE YOU THINK

13

THAT THERE'S SOMETHING DIFFERENT IN THIS COMPLAINT THAT SHOULD

14

LEAD YOU TO RULE DIFFERENTLY THAN YOU DID IN YOUR ORDER LAST

15

TIME AROUND AT PAGE 12 AND AT 5 WHERE YOU HELD IN THE

16

ALTERNATIVE THAT THESE INVASION AND INTRUSION CLAIMS WOULD BE

17

SUBJECT TO DISMISSAL UNDER 12(B)(6) FOR FAILURE TO STATE A

18

CLAIM.

19

WHICH WAS -- THAT CASE DEALT WITH I.P. ADDRESSES AND MADE CLEAR

20

THAT PEOPLE'S I.P. ADDRESSES WERE NOT SOMETHING IN WHICH YOU

21

HAD A REASONABLE EXPECTATION OF PRIVACY.

22

THIS BODY OF CASE LAW THAT STANDS FOR THE BROADER PROPOSITION

23

THAT INFORMATION THAT YOU VOLUNTARY PROVIDE TO THIRD PARTIES ON

24

THE INTERNET ISN'T ACTIONABLE FOR INVASION OR INTRUSION

25

PURPOSES.

AND THERE YOU CITED AS ONE EXAMPLE THE FORRESTER CASE,

BUT THAT IS PART OF

UNITED STATES COURT REPORTERS

113

1

SO WHAT I WOULD SAY ON THIS IS, FIRST OF ALL, THE

2

COMPLAINT HASN'T CHANGED IN THOSE WAYS MATERIALLY.

3

LAST COMPLAINT IT WAS ALL ABOUT URL'S AND IT HAD NOTHING TO DO

4

WITH I.P. ADDRESSES.

5

COURSE, ARGUED OR ALLEGED THAT FACEBOOK PROMISED ONE THING AND

6

DID ANOTHER.

7

AND IN THE

AND IN THE LAST COMPLAINT THEY, OF

SO IN THAT RESPECT THE COMPLAINTS ARE NOT DIFFERENT AT ALL

8

FOR MATERIAL PURPOSES, AND THERE'S NO REASON THAT THE COURT

9

SHOULD CHANGE ITS VIEW EXPRESSED IN THE PREVIOUS ORDER.

10

IN TERMS OF THE GOOGLE COOKIE PLACEMENT CASE, WHICH THE

11

PLAINTIFFS RELY ON HERE, I MIGHT JUST TAKE A MOMENT TO TALK

12

ABOUT THAT.

13

FOLLOW THAT CASE BUT --

14
15

WE WOULD OBVIOUSLY ENCOURAGE THE COURT NOT TO

THE COURT:

THAT WAS GOING TO BE MY QUESTION

ULTIMATELY THAT I POSED TO YOUR COLLEAGUES.

16

MR. BROWN:

SURE.

I MEAN, WE DON'T CITE GOOGLE

17

COOKIE PLACEMENT IN OUR OPENING MOTION, AND WE THINK THAT OUR

18

POSITIONS ARE SOLID UNDER ALL OF THE OTHER LAW THAT WE'VE

19

PROVIDED.

20

THEY CAME BACK IN OPPOSITION AND GOT VERY EXCITED ABOUT

21

THIS THIRD CIRCUIT OPINION AT LEAST ON A FEW ISSUES AND KIND OF

22

IGNORED THE FACT THAT THE THIRD CIRCUIT ACTUALLY RULED IN

23

GOOGLE'S FAVOR ON A WHOLE HOST OF DIFFERENT ISSUES.

24

THINK YOU'VE NOW HEARD THEIR ACKNOWLEDGEMENT THAT THE CASE KIND

25

OF CUTS BOTH DIRECTIONS FOR BOTH PARTIES, RIGHT?

UNITED STATES COURT REPORTERS

AND I

114

1

BUT AS TO THE INVASION OF PRIVACY AND INTRUSION UPON

2

SECLUSION CLAIMS, THERE'S A LONG, LONG DISCUSSION IN THE

3

THIRD CIRCUIT'S DECISION ABOUT THE FACTS OF THAT CASE, AND I

4

THINK WHEN YOU LOOK AT IT YOU GET A CERTAIN TONE OF WHAT COMES

5

OUT OF THAT OPINION AND WHAT THE COURT VIEWED AS THE FACTS IN

6

THAT CASE.

7

IN THAT CASE, AND I DON'T KNOW WHETHER THIS IS TRUE IN THE

8

REAL WORLD, BUT THIS IS SIMPLY WHAT THE ALLEGATIONS WERE.

9

WAS ON A MOTION TO DISMISS AS WELL.

THIS

BUT THE COURT WENT OUT OF

10

ITS WAY TO DISTINGUISH THE FACTS AT ISSUE IN THAT CASE FROM

11

MERE TRACKING AND DISCLOSURE, WHICH IS ESSENTIALLY WHAT WE HAVE

12

IN THIS CASE THAT IS BEFORE THIS COURT.

13

AND WHAT THEY SAID IS THAT IT GOES WELL BEYOND MERE

14

TRACKING AND DISCLOSURE.

AND IN THAT CASE WHAT HAPPENED IS

15

THAT, YOU KNOW, GOOGLE BASICALLY ALLEGEDLY SAID TO ITS USERS,

16

LIKE THE SAFARI BROWSER HAS THIS COOKIE BLOCKING TECHNOLOGY,

17

AND THAT'S GREAT IF YOU WANT TO USE IT AND FEEL FREE TO USE IT.

18

BY THE WAY, WE ALSO HAVE OUR OWN PROPRIETARY PLUGIN, I

19

BELIEVE IT WAS, THAT WILL ALSO BLOCK COOKIES, BUT THERE'S NO

20

REASON TO USE THAT IF YOU'RE USING ONE OF THESE OTHER BROWSERS

21

LIKE SAFARI THAT HAS THE COOKIE BLOCKING TECHNOLOGY.

22

IT TURNS OUT THAT ALLEGEDLY GOOGLE DEVELOPED SOME CODE --

23

SO LET ME JUST BACK UP HERE.

SO THE CONTEXT IS PEOPLE GOING TO

24

WEB PAGES THAT ARE GOING TO HAVE GOOGLE SUPPLIED ADS RUN ON

25

THEM, RIGHT?

UNITED STATES COURT REPORTERS

115

1

GOOGLE DEVELOPED A CODE THAT WOULD BE SENT TO THE USER'S

2

BROWSER IN THOSE SITUATIONS THAT WOULD THEN TRIGGER THE BROWSER

3

TO SEND A FORM BACK TO GOOGLE AND WHEN THE BROWSER SENDS A FORM

4

LIKE THAT, IT BELIEVES THAT THE WEBSITE IT'S INTERACTING WITH

5

IS ACTUALLY THE FIRST PARTY WEBSITE, NOT THE THIRD PARTY

6

WEBSITE.

7

AND SO THE ALLEGATION WAS THAT GOOGLE DID A COUPLE OF

8

THINGS, ONE, REPRESENTED TO USERS THAT THIS COOKIE BLOCKING

9

TECHNOLOGY WAS EFFECTIVE AND ACTUALLY SO EFFECTIVE THAT THEY

10

DIDN'T NEED TO USE GOOGLE'S OWN PRODUCT, BUT THEN TOOK STEPS TO

11

SUBMIT CODE TO THE WEBSITES TO TRICK THE BROWSERS INTO

12

ESSENTIALLY CIRCUMVENTING THE COOKIE BLOCKING TECHNOLOGY.

13

SO IT WAS UPON THAT SET OF FACTS THAT THE COURT FOUND

14

THERE WAS AN EGREGIOUS BREACH OF SOCIAL NORMS AND INVASION OF

15

THEIR PRIVACY INTERESTS.

16

COURT REALLY DIDN'T GET INTO THIS WHOLE BODY OF CASE LAW THAT I

17

GAVE TO YOU EARLIER, AND I'M NOT GOING TO TRY TO MARCH THROUGH

18

IT ALL AGAIN, BUT IN THE DISCUSSION OF WHY I THOUGHT THAT THE

19

UNG DECISION WAS NOT PERSUASIVE AND SHOULDN'T BE FOLLOWED, AND

20

I MENTIONED MANY DIFFERENT CASES.

21

AND I MIGHT ALSO POINT OUT THAT THE

I'LL JUST GIVE THE NAMES AGAIN SO WE HAVE A CLEAR RECORD

22

BUT THAT WAS IN ADDITION TO FORRESTER.

ALSO THE STIPO,

23

S-T-I-P-O, LOW VERSUS LINKEDIN, IPHONE APPLICATION LITIGATION,

24

GOOGLE PRIVACY POLICY LITIGATION, AND ALSO THE FOLGELSTROM

25

VERSUS LAMPS PLUS CASE WHICH I DIDN'T GET TO.

UNITED STATES COURT REPORTERS

BUT THAT WAS A

116

1

CASE ABOUT DISCLOSURE OF CUSTOMER'S ADDRESS INFORMATION TO

2

MARKETING AGENCIES SO MARKETING AGENCIES COULD SEND ADS AND

3

FLYERS AND THE LIKE TO THE CUSTOMER'S HOME AND WHATEVER THE

4

COURT FELT ABOUT THE FACTUAL ALLEGATIONS, AGAIN, GIVEN THE

5

RATHER HIGH BAR THAT YOU HAVE TO VAULT TO PROCEED ON THIS SORT

6

OF CLAIM, FOUND THAT THAT WAS NOT HIGHLY OFFENSIVE BEHAVIOR BUT

7

RATHER ROUTINE COMMERCIAL BEHAVIOR.

8
9

SO I WOULD SUBMIT THAT RATHER THAN FOLLOWING THE GOOGLE
COOKIE PLACEMENT DECISION ON THESE CLAIMS, AND THE UNG DECISION

10

ON THESE CLAIMS, THE COURT SHOULD INSTEAD FOLLOW ITS PREVIOUS

11

RULING NOT FROM THE ALTERNATIVE FROM THE ORDER AT 1295 AND

12

SHOULD ALSO FOLLOW THIS OTHER BODY OF CASE LAW THAT I JUST

13

REFERRED TO.

14

AND I THINK THAT'S ALL I HAVE SUBJECT TO QUESTIONS FROM

15

THE COURT, OF COURSE.

16

THE COURT:

AGAIN -- WELL, THANK YOU.

AND I GO BACK

17

TO THE GOOGLE PLACEMENT AND YOU'RE SUGGESTING THAT I DON'T

18

FOLLOW THAT?

19

MR. BROWN:

YEAH.

I MEAN, AGAIN, IT'S A CASE THAT

20

CUTS BOTH WAYS ON DIFFERENT CLAIMS BUT LET'S BE HONEST ABOUT

21

IT, I DON'T THINK THAT YOU SHOULD FOLLOW IT ON THE INVASION OF

22

PRIVACY AND INTRUSION UPON SECLUSION.

23

CUTS IN OUR FAVOR ON OTHER ISSUES.

24

THE WIRETAP ACT AND THE CIPA, C-I-P-A, CLAIMS SHOULD NOT GO

25

FORWARD BECAUSE GOOGLE WAS A PARTY TO THE COMMUNICATION WHICH

IT RULED IN A WAY THAT

IT HELD THAT, FOR INSTANCE,

UNITED STATES COURT REPORTERS

117

1

IS EXACTLY WHAT I WAS ARGUING EARLIER.

2

THAT IN THE CONTEXT OF THE SECOND AMENDED COMPLAINT THAT IT

3

WOULD ACTUALLY BE APPROPRIATE TO RULE IN OUR FAVOR EVEN ON THE

4

CIPA PORTION OF IT.

5

ACT AND THE CIPA ELEMENTS ARE REALLY ALL THAT DIFFERENT.

6

AND, AGAIN, I BELIEVE

I ACTUALLY DON'T THINK THAT THE WIRETAP

AND THE THIRD CIRCUIT HELD THAT UNDER THE PENAL CODE 502

7

CLAIM THAT THERE WAS AN INSUFFICIENT ALLEGATION OF LOSS, RIGHT?

8

AND THAT ACTUALLY IF YOU'RE GOING TO LOOK AT THAT OPINION, IT'S

9

A LITTLE BIT CONFUSING BUT NEAR THE END OF THE OPINION THAT'S

10

WHERE THEIR HOLDING IS ON THE 502 CLAIM, THAT THERE'S NO LOSS

11

AND THEY BASICALLY ADOPT THEIR REASONING FROM THE CFAA

12

DISCUSSION IF THE COURT IS GOING TO LOOK AT THAT DECISION.

13

SO, LOOK, LIKE I SAID, I THINK THAT WE'RE ON SOLID GROUND

14

WITHOUT THE THIRD CIRCUIT OPINION AT ALL, AND WE'VE GOT AMPLE

15

CASE LAW THAT SUPPORTS OUR ARGUMENTS.

16

AND SO I'M NOT IN A POSITION TO SAY THAT YOU SHOULD SORT

17

OF FOLLOW IT ALTOGETHER OR NOT.

18

ON THESE INTRUSION AND INVASION CLAIMS, AND I HAPPEN TO THINK

19

THAT IT GOT IT RIGHT ON A FEW OTHER CLAIMS, AND I THINK THE

20

PLAINTIFFS PROBABLY FEEL THE SAME WAY.

21
22
23
24
25

THE COURT:
MR. BROWN.

ALL RIGHT.

I THINK THAT IT GOT IT WRONG

WELL, THANK YOU VERY MUCH,

I APPRECIATE IT.

MR. STRAITE, MR. BARNES, I APPRECIATE -MR. BARNES:

YOUR HONOR, MIGHT I HAVE TWO MINUTES TO

RESPOND TO SOME NEW ARGUMENTS HE MADE?

UNITED STATES COURT REPORTERS

118

1
2

THE COURT:
LAST WORD.

3
4

WELL, IT'S HIS MOTION SO HE GETS THE

MR. BARNES:

FAIR ENOUGH, YOUR HONOR.

I THOUGHT WE

WOULD ASK.

5

THE COURT:

YES, THAT'S THE WAY IT WORKS.

THANK YOU VERY MUCH.

ALL

6

RIGHT.

I APPRECIATE THE INFORMATION AND

7

ALL OF YOUR HELP AND GOOD PLEADINGS.

8

THE MATTER IS UNDER SUBMISSION.

9

I'LL GET SOMETHING OUT ALSO AS TO YOUR DISCOVERY QUESTIONS

10

AND THOSE ISSUES ALSO.

I'VE LOOKED AT THOSE, AND I'VE FOCUSSED

11

PRIMARILY ON ARGUMENTS THIS MORNING, AND YOU'LL GET SOMETHING

12

SHORTLY.

13

MR. GRYGIEL:

14

THE COURT:

15

THANK YOU, YOUR HONOR.

I APPRECIATE YOU BEING HERE.

(COURT CONCLUDED AT 12:11 P.M.)

16
17
18
19
20
21
22
23
24
25

UNITED STATES COURT REPORTERS

1
2
3

CERTIFICATE OF REPORTER

4
5
6
7

I, THE UNDERSIGNED OFFICIAL COURT REPORTER OF THE UNITED

8

STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA,

9

280 SOUTH FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

10
11

CERTIFY:
THAT THE FOREGOING TRANSCRIPT, CERTIFICATE INCLUSIVE, IS

12

A CORRECT TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE

13

ABOVE-ENTITLED MATTER.

14
15
16
17
18
19

______________________________
IRENE RODRIGUEZ, CSR, RMR, CRR
CERTIFICATE NUMBER 8074

DATED:

MAY 2, 2016

20
21
22
23
24
25

UNITED STATES COURT REPORTERS