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 (408)947-8160 Irene_Rodriguez@cand.uscourts.gov. 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).
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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
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IN RE FACEBOOK INTERNET
TRACKING LITIGATION.
APRIL 28, 2016
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PAGES 1 - 118
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TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE EDWARD J. DAVILA
UNITED STATES DISTRICT JUDGE
A-P-P-E-A-R-A-N-C-E-S
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MD-12-02314-EJD
SAN JOSE, CALIFORNIA
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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
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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
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UNITED STATES COURT REPORTERS
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SAN JOSE, CALIFORNIA
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P R O C E E D I N G S
(COURT CONVENED AT 9:07 A.M.)
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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.
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MR. BROWN:
MATTHEW BROWN FOR FACEBOOK.
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THE COURT:
THANK YOU.
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MR. WONG:
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MR. TRIGG:
ADAM TRIGG FOR FACEBOOK.
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THE COURT:
THANK YOU.
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MR. STRAITE:
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KYLE WONG FOR FACEBOOK.
THE COURT:
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MR. BARNES:
THANK YOU.
JAY BARNES FOR THE PLAINTIFF, YOUR
HONOR.
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THE COURT:
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MR. GRYGIEL:
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GOOD MORNING, YOUR HONOR.
DAVID STRAITE FOR PLAINTIFF AND THE PUNITIVE CLASS.
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GOOD MORNING.
LET ME -- GIVE ME JUST -- OH, YES.
GOOD MORNING, YOUR HONOR.
STEVE GRYGIEL FOR THE PLAINTIFF AND THE PUNITIVE CLASS.
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THE COURT:
THANK YOU.
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MR. GRYGIEL:
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THE COURT:
GOOD MORNING.
GOOD MORNING.
THANK YOU ALL FOR BEING HERE.
THIS IS
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THE DEFENDANTS' MOTION TO DISMISS.
AND LET ME INDICATE I'VE
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BENEFITTED FROM YOUR PLEADINGS, AND I'VE READ THE PLEADINGS IN
UNITED STATES COURT REPORTERS
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THIS CASE.
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THAT OFFENSIVE, I THINK.
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FASCINATING CASE, AS WE ALL KNOW, AND I'M EAGER TO HEAR YOUR
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COMMENTS.
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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.
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AND, MR. BROWN, WHY SHOULD I GRANT YOUR MOTION.
MR. BROWN:
THANK YOU, YOUR HONOR.
AGAIN,
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MATTHEW BROWN FOR FACEBOOK.
I THOUGHT WHAT I WOULD DO, UNLESS
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YOUR HONOR HAS A DIFFERENT VIEW OF HOW TO PROCEED, WOULD BE TO
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START WITH JUST IN A MINUTE OR SO OF SOME TABLE SETTING AND
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KIND OF AN OVERVIEW OF HOW WE VIEW THE MOTION AND THEN MOVE ON
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TO --
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THE COURT:
OKAY.
MR. BROWN, I SHOULD TELL YOU THAT
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THIS IS ABOUT INTERNET THINGS, AND THERE ARE SOME
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INDIVIDUALS -- I DON'T WANT TO SOUND LIKE AN AGIST -- BUT
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SOMETIMES PEOPLE OF A CERTAIN VINTAGE ARE NOT NATIVE, SHALL WE
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SAY, TO THE INTERNET AND ALL OF THOSE COMMUNICATION TYPE
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DEVICES.
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I'M NOT SUGGESTING ANYONE IN THIS COURTROOM FALLS IN THAT
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GENRE, BUT WE DO KNOW THIS AND WHEN WE TEACH, AND I TALK TO
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OTHER STUDENTS AND THINGS, AND WHEN I TALK TO COLLEAGUES OF
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MINE, IT IS AN INTERESTING JUXTAPOSITION BETWEEN PEOPLE WHO ARE
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NATIVE AND OTHERS WHO ARE NOT TO THE INDUSTRY.
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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
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MORE ABOUT IT, BUT PERHAPS THAT'S WHAT YOU WERE GOING TO TALK
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ABOUT.
PARDON ME.
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MR. BROWN:
AND I'D BE HAPPY TO ELABORATE ON
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ANYTHING AS I'M GOING ALONG.
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TO DISMISS, AND SO WE'RE LIMITED TO THE FACTS AS THEY'RE PLED
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IN THE COMPLAINT OR THE ALLEGATIONS AT LEAST.
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OBVIOUSLY WE'RE HERE FOR A MOTION
WHAT I THOUGHT I WOULD DO IS JUST SPEND A MINUTE OR TWO
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KIND OF GIVING AN OVERVIEW OF HOW WE SEE THE MOTION, AND THEN
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MOVE TO ARTICLE III STANDING, AND THEN TO WIRETAP ACTS, AND
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THEN TO STORED COMMUNICATIONS ACT.
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THE COURT:
THAT'S FINE.
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MR. BROWN:
I'M OBVIOUSLY PREPARED TO GO FURTHER,
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BUT I THOUGHT YOUR HONOR MAY WANT TO TAKE A BREAK AT SOME POINT
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TO LET THE OTHER SIDE HAVE A SAY AS WELL.
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OBVIOUSLY 11 DIFFERENT CAUSES OF ACTION.
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THE COURT:
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WANT ME TO ALLOW THE OTHER SIDE.
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MR. BROWN:
SO THERE ARE
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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
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KNOWS THERE WAS VERY EXTENSIVE BRIEFING ON THE FIRST AMENDED
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COMPLAINT, AND YOUR HONOR ISSUED AN ORDER IN THE FALL
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DISMISSING THAT COMPLAINT ON VARIOUS GROUNDS AND SOME ON
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12(B)(1) STANDING GROUNDS AND SOME ON 12(B)(6) GROUNDS FOR
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FAILURE TO STATE A CLAIM.
UNITED STATES COURT REPORTERS
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THE PLAINTIFFS NOW HAVE FILED THEIR SECOND AMENDED
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COMPLAINT.
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THEIR PLEADINGS.
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DISCOVERY THAT THEY FELT THEY NEEDED IN ORDER TO AMEND IN THE
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EVENT THAT THE FIRST COMPLAINT WAS DISMISSED.
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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
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LONGER, THERE ARE MORE ALLEGATIONS, THERE ARE DISCUSSIONS ABOUT
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OTHER CASES IN OTHER JURISDICTIONS, AND THERE ARE LOTS OF
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EXHIBITS ATTACHED TO THE COMPLAINT, NOT THAT MUCH AT THE CORE
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HAS REALLY CHANGED.
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THE SECOND AMENDED COMPLAINT THAT MEANINGFULLY ADDRESSES THE
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DEFICIENCIES THAT THE COURT IDENTIFIED IN THE EARLIER ORDER.
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AND THEY HAVEN'T REALLY DONE ANYTHING IN
TO TAKE SORT OF ONE EXAMPLE, THEY HAVEN'T COME FORWARD
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WITH ANY SORT OF CONCRETE AND PARTICULARIZED INJURY TO THESE
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FOUR NAMED PLAINTIFFS.
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ONLY ARTICLE III STANDING BUT ALSO REVERBERATES THROUGH SEVERAL
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DIFFERENT CAUSES OF ACTION THAT HAVE ELEMENTS OF INJURY OR LOSS
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OR DAMAGES.
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AND THAT, OF COURSE, IS RELEVANT TO NOT
AND THEY HAVE FORWARDED AN ARGUMENT, I THINK, TO TRY AND
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SOLVE THEIR PROBLEM SAYING THAT, WELL, WE'RE HERE ON DIVERSITY
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JURISDICTION IN THIS COURT AND BECAUSE OF ERIE ANY SORT OF
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STATE LAW CLAIM THAT WE'VE PLED, ALL OF A SUDDEN -- AS LONG AS
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WE'VE PLED A STATE LAW CLAIM, THAT GIVES US STANDING IN THIS
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COURT, AND THE NINTH CIRCUIT HAS SQUARELY REJECTED THAT.
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THE ONE THING I WOULD SAY THAT THE SECOND AMENDED
UNITED STATES COURT REPORTERS
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COMPLAINT DOES ALLEGE MORE CLEARLY THAN THE FIRST AMENDED
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COMPLAINT IS, WAS THAT THE REFERRED URL THAT FACEBOOK ALLEGEDLY
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RECEIVED FROM THE PLAINTIFFS WAS CONVEYED TO FACEBOOK IN A
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SEPARATE AND A DISTINCT COMMUNICATION -- AND WE'LL CALL IT A
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COMMUNICATION.
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FROM THE COMMUNICATION THAT WENT FROM THE PLAINTIFFS' BROWSERS
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TO THE WEB PAGE THAT THEY WERE ATTEMPTING TO VIEW.
I'M NOT CONCEDING THAT IT NECESSARILY IS --
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AND THE SIGNIFICANCE OF THAT, THERE ARE A NUMBER OF
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IMPORTANT ELEMENTS OF THAT AND BECAUSE FACEBOOK RECEIVED THIS
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INFORMATION DIRECTLY FROM THE PLAINTIFFS' BROWSERS, THAT CAN'T
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BE AN INTERCEPTION UNDER THE WIRETAP ACT.
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THE COURT:
IT CANNOT.
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MR. BROWN:
IT CANNOT BE AN INTERCEPTION UNDER THE
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WIRETAP ACT AND IT IS NOT IMPROPER ACTS OF INFORMATION IN
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ELECTRONIC -- THANK YOU.
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A LITTLE MORE CLEARLY.
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I WILL SLOW DOWN AND TRY TO ENUNCIATE
IT IS NOT IMPROPER ACCESS OF INFORMATION IN ELECTRONIC
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STORAGE UNDER THE STORED COMMUNICATIONS ACT.
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THE INFORMATION CANNOT BE, QUOTE, "WITHOUT PERMISSION," END
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QUOTE, UNDER PENAL CODE SECTION 502.
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ACCESS WHICH IS REQUIRED TO TRESPASS, AND IT CAN'T BE THEFT AS
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REQUIRED FOR LARCENY.
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THE RECEIPT OF
IT CANNOT BE UNLAWFUL
IT ALSO HAS SOME OTHER IMPLICATIONS AS WELL BECAUSE WE NOW
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HAVE CLEAR ALLEGATIONS OF HOW THIS ALL WORKS.
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USER CANNOT HAVE A REASONABLE EXPECTATION OF PRIVACY IN THIS
UNITED STATES COURT REPORTERS
WE KNOW THAT A
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SORT OF INFORMATION AS NUMEROUS COURTS HAVE HELD.
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AND, MOREOVER, FACEBOOK IS ACTUALLY A PARTY TO THE
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COMMUNICATION UNDER BOTH THE WIRETAP ACT AND THE CALIFORNIA
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INVASION OF PRIVACY ACT, OR CIPA.
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FINALLY, THE -- SORRY.
THE SECOND AMENDED COMPLAINT
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REALLY DOES NOTHING TO GRAPPLE WITH THE NINTH CIRCUIT PRECEDENT
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THAT HOLDS THAT REFERRED URL'S ARE NOT CONTENTS OF A
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COMMUNICATION.
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THE COURT:
THAT'S THE ZYNGA CASE.
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MR. BROWN:
THAT'S THE ZYNGA CASE WHICH YOUR HONOR
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CITED IN THE ORDER DISMISSING THE FIRST AMENDED COMPLAINT.
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SO THAT'S JUST SORT OF AN OVERVIEW OF HOW WE VIEW THE
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MOTION.
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MADE, AND WE THINK MANY OTHER DEFICIENCIES, BUT THAT'S SORT OF
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AN OVERVIEW.
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THERE ARE OBVIOUSLY MANY OTHER ARGUMENTS THAT WE HAVE
NOW, TURNING IN MORE DETAIL TO ARTICLE III STANDING.
AS
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YOUR HONOR KNOWS, YOU RULED IN THE PRIOR COMPLAINT THAT THEY
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HAD NOT ALLEGED CONCRETE AND PARTICULARIZED HARM.
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REALLY NO ATTEMPT, AND THERE STILL ISN'T ANY ATTEMPT, TO SORT
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OF TIE THESE ALLEGATIONS THAT THIS INFORMATION HAS VALUE TO ANY
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PARTICULAR HARM TO THESE NAMED PLAINTIFFS.
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THERE WAS
THERE'S NO ALLEGATIONS THAT THEY'VE TRIED TO TAKE THEIR
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BROWSING HISTORY AND MARKET IT IN ANY WAY.
THERE'S NO
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ALLEGATIONS THAT THE FACT THAT FACEBOOK RECEIVED, ALLEGEDLY,
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THIS BROWSING HISTORY AND HAS SORT OF LESSENED THE VALUE OF
UNITED STATES COURT REPORTERS
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THAT IN ANY WAY.
AND BEYOND THAT, THE COMPLAINT JUST HAS THE VAGUEST OF
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ALLEGATIONS ABOUT WHAT EXACTLY IT IS THAT FACEBOOK SUPPOSEDLY
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RECEIVED.
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FACEBOOK PLUGINS ON THEM AND THAT THERE WERE THESE DETAILED
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URL'S SUPPOSEDLY THAT FACEBOOK RECEIVED, BUT THEY HAVEN'T
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PROVIDED A SINGLE URL TO THE COURT IN THE COMPLAINT.
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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
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COMPLAINT, AND WE'VE HAD NO ABILITY TO SEE WHAT THEY ARE AS
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WELL.
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AND THAT'S THE SORT OF GENERALIZED AND VAGUE PLEADINGS
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THAT DOESN'T RISE TO THE LEVEL OF ARTICLE III STANDING, AND,
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FRANKLY, IT CREATES AN IQBAL PROBLEM AS WELL.
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AND I WOULD JUST NOTE THAT TWO OF THE CASES THAT THE COURT
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RELIED ON IN ITS PREVIOUS ORDER CONTINUE TO APPLY HERE AND THAT
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ONE OF THOSE IS LOW VERSUS LINKEDIN, AND THIS IS THE 2011
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DECISION.
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PLACED COOKIES ON THE USER'S COMPUTERS AND PERMITTED THIRD
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PARTIES TO DO BROWSING HISTORY AND THAT WAS LINKED TO USER I.D.
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AND HELD THAT WAS TOO ABSTRACT AND HYPOTHETICAL TO SUPPORT THE
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ARTICLE III STANDING.
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THAT'S A CASE WHERE LINKEDIN WAS ALLEGED TO HAVE
AND THERE'S THE LA COURT V. SPECIFIC MEDIA CASE, WHICH I
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THINK WE'RE ALL FAMILIAR WITH AT THIS POINT, THE CENTRAL
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DISTRICT OF CALIFORNIA 2011 DECISION.
UNITED STATES COURT REPORTERS
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AND WE'VE ALSO CITED THE ZAPPOS.COM DECISION WHICH IS MORE
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RECENT, AND THAT'S FROM 2015, HOLDING THERE'S NO INJURY IN FACT
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WHERE THE PLAINTIFFS DID NOT ALLEGE ANY FACTS EXPLAINING HOW
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THEIR PERSONAL INFORMATION BECAME LESS VALUABLE OR THAT THEY
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ATTEMPTED TO SALE THEIR INFORMATION AND THE LIKE SIMILAR IN
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SOME WAYS TO THE OTHER CASES.
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TURNING NOW TO SOME OF THE RELATED ISSUES UNDER
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ARTICLE III.
I'VE ALLUDED TO THIS A MOMENT AGO.
THERE'S BEEN
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AN ARGUMENT ADVANCED THAT BECAUSE THEY'VE SIMPLY ALLEGED
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CERTAIN STATE LAW CLAIMS, THAT UNDER PRINCIPLES OF DIVERSITY
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JURISDICTION AND THE ERIE DOCTRINE THAT THAT SOMEHOW GIVES RISE
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TO STANDING.
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CASE LAW, INCLUDING CANTRELL AND LEE, THAT CLEARLY HOLDS THAT
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THAT'S NOT THE CASE.
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THAT'S NOT THE CASE.
WE HAVE CITED NINTH CIRCUIT
THE FEDERAL COURT IS TO LOOK TO WHETHER IT HAS
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JURISDICTION UNDER ARTICLE III FIRST AND THEN ONLY GETS TO THE
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ERIE DOCTRINE NEXT IF IT DOES HAVE JURISDICTION.
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AS TO THE FEDERAL STATUTORY CLAIMS, AS WE SAID IN PRIOR
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BRIEFING AND WE'VE SAID AGAIN, OUR VIEW IS THAT EDWARDS AND THE
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CASES FOLLOWING EDWARDS ARE NOT CORRECTLY DECIDED LIKE CASES
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LIKE JEWEL, BUT WE ACKNOWLEDGE THAT THAT IS THE PRECEDENT FOR
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THE TIME BEING AND IN THIS CIRCUIT AT LEAST AND WE KNOW THAT
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THE SPOKEO CASE FROM THE NINTH CIRCUIT IS NOW PENDING BEFORE
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THE U.S. SUPREME COURT, AND WE EXPECT A DECISION IN THAT CASE
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PROBABLY IN THE NEXT TWO MONTHS OR SO.
UNITED STATES COURT REPORTERS
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BUT EVEN UNDER EDWARDS AND IT'S PROGENY, YOU CAN'T SIMPLY
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ALLEGE A FEDERAL STATUTORY VIOLATION.
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THAT THE PLAINTIFFS ARE WITHIN THE GROUP OF PEOPLE THAT THE
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STATUTE WAS INTENDED TO PROTECT.
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YOU STILL HAVE TO SHOW
AND HERE EVEN THOUGH WE HAVE THAT DOCTRINE FACING US, I
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THINK THE PLAINTIFFS HAVE STILL A PROBLEM UNDER THAT DOCTRINE
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BECAUSE THEY HAVEN'T EVEN COME FORWARD WITH ANY URL'S, ANY SORT
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OF DETAIL.
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VISITED OTHER WEB PAGES AND THAT FACEBOOK HAS RECEIVED SOME
THERE'S JUST GENERALIZED ALLEGATIONS THAT THEY
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SORT OF URL'S, BUT I WOULD CONTEND THAT THAT'S NOT ENOUGH TO
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REALLY SHOW HOW THEIR PERSONAL COMPLAINT BEFORE THE COURT FALLS
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UNDER THESE FEDERAL STATUTORY VIOLATIONS.
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WITH RESPECT TO -- THEY'VE ALSO PUT BEFORE YOUR HONOR A
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CASE FROM THE THIRD CIRCUIT, A GOOGLE COOKIE PLACEMENT CASE,
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WHICH ADDRESSED A NUMBER OF ISSUES ACTUALLY WHICH ARE ADDRESSED
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IN THIS CASE INCLUDING ARTICLE III STANDING, AND THEY'RE URGING
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YOUR HONOR TO FOLLOW THAT DECISION WHICH HELD THAT THERE WAS
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STANDING, AND SO I FIGURED I OUGHT TO JUST ADDRESS THAT HEAD
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ON.
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THE COURT:
IT WOULD BE A GOOD TIME TO DO THAT.
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MR. BROWN:
IT SEEMED LIKE IT.
AND SO THE THIRD
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CIRCUIT DECISION, WHAT I WOULD SAY ABOUT THAT IS THAT IT'S,
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FRANKLY, THINLY REASONED ON ARTICLE III STANDING.
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IT FIRST REFERS TO THE CONCEPT UNDER WARTH VERSUS SELDIN
THAT THERE CAN BE STANDING FOR THE INVASION OF STATUTORY
UNITED STATES COURT REPORTERS
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RIGHTS, BUT THEN IT DOESN'T PROCEED TO ANALYZE STANDING ON A
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CLAIM-BY-CLAIM BASIS AND THERE WERE BOTH STATUTORY CLAIMS,
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FEDERAL STATUTORY CLAIMS, STATE STATUTORY CLAIMS, AND COMMON
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LAW CLAIMS.
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BRUSH WHICH I DON'T THINK IS THE PROPER WAY TO ANALYZE THE
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MATTER.
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AND IT DIDN'T -- IT JUST PAINTED WITH A BROAD
FURTHERMORE, THE ANALYSIS SUCH AS IT IS REALLY COMES DOWN
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TO ABOUT A SENTENCE OR TWO IN THAT SHORT SECTION IN WHICH THE
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COURT SAYS, WELL, THE COMPLAINT HERE HAS SHOWN THAT THERE ARE
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EVENTS ALLEGED THAT ARE CONCRETE AND PARTICULAR AS TO THE
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PLAINTIFFS.
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AND I FOUND THAT QUITE STRIKING BECAUSE THAT'S NOT THE
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STANDARD.
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PARTICULARIZED EVENTS ALLEGED.
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IS CONCRETE AND PARTICULARIZED INJURY.
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STANDING TEST.
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USED THERE.
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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
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WE HAVE TALKED ABOUT LIKE LOW VERSUS LINKEDIN, AND THE LACOURT
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VERSUS SPECIFIC MEDIA, AND ZAPPOS.COM WHICH ALTHOUGH THERE WERE
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CONCRETE EVENTS ALLEGED IN THOSE COMPLAINTS, THERE WAS NO
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COMPLETE AND PARTICULARIZED INJURY ALLEGED AS TO THOSE
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PLAINTIFFS.
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THE COURT:
WAS THE THIRD CIRCUIT SUGGESTING THAT
THE INFERENCE COULD BE DRAWN THAT AN INJURY WOULD RESULT FROM
UNITED STATES COURT REPORTERS
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THAT CONDUCT?
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MR. BROWN:
IT'S POSSIBLE THAT THEY HAD THAT IN
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MIND.
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THEY HAD THAT IN MIND.
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FACE OF THE OPINION AND THAT'S WHAT I HAVE TO LOOK AT.
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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
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DON'T THINK IT'S THAT CLEAR.
AND, FURTHERMORE, I THINK THAT
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THE FACT THAT THEY HAVE PARTICIPATED WITH SUCH A BROAD BRUSH IN
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THAT OPINION AND HAVEN'T GRAPPLED WITH THE DIFFERENCE BETWEEN
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FEDERAL STATUTES OR STATE STATUTES OR COMMON LAW CAUSES OF
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ACTION IS PROBLEMATIC.
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AND I WOULD URGE THE COURT NOT TO FOLLOW THE CONCLUSION IN
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THAT CASE THAT THERE IS STANDING IN THIS CASE BUT RATHER TO
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FOLLOW THESE OTHER DECISIONS THAT I HAVE ALREADY MENTIONED.
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SO I THOUGHT I WOULD THEN -- I GUESS I WOULD ASK THE COURT
IF YOU HAVE ANY QUESTIONS.
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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
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AN ISSUE ABOUT DO WE NEED TO SHOW THAT SOMEHOW THIS INFORMATION
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WAS MONETIZED TO SHOW AN INJURY?
IS THAT SOMETHING THAT YOU
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THINK THE PLAINTIFFS NEED TO DO?
IS THAT A DEFICIT IN THEIR
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COMPLAINT?
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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
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BROWSING HISTORY HAS VALUE, AND IT'S SORT OF ALWAYS FRAMED THAT
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WAY THAT IT HAS VALUE.
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AND SO THE POINT IS THAT IF THAT IS YOUR ARGUMENT THAT YOU
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HAVE STANDING BECAUSE BROWSING HISTORY HAS VALUE, YOU NEED TO
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SHOW THAT THE CONDUCT THAT IS ALLEGED HERE, AND IT'S ALLEGED
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THAT FACEBOOK RECEIVED URL'S, YOUR BROWSING HISTORY, YOU HAVE
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TO SHOW THAT THAT RECEIPT OF INFORMATION SOMEHOW HAD ECONOMIC
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IMPACT ON YOU AS A NAMED PLAINTIFF.
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SO, IN OTHER WORDS, CAN YOU SHOW AS A NAMED PLAINTIFF THAT
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YOU TRIED TO TAKE YOUR OWN BROWSING HISTORY AND SELL IT TO
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SOMEONE BECAUSE IT HAS VALUE?
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NO ALLEGATION OF THAT HERE.
DID YOU EVER EVEN TRY TO DO THAT?
IF YOU TRIED TO DO
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THAT, HAVE YOU ALLEGED THAT THE FACT THAT FACEBOOK ALSO HAS A
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COPY OF SOME OF THESE URL'S HAS DONE ANYTHING TO AFFECT THE
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PRICE THAT SOMEONE HAD PAID FOR THAT?
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THAT.
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THE COURT:
THAT?
NOTHING EVEN APPROACHING
DID THE THIRD CIRCUIT CASE TALK ABOUT
DIDN'T THEY SAY THAT IT IS NOT NECESSARILY REQUIRED?
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MR. BROWN:
YEAH, WELL --
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THE COURT:
I GUESS I'M JUST ASKING HOW TO RECONCILE
MR. BROWN:
THAT'S RIGHT.
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THOSE TWO.
THEY DID SAY THAT
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ARTICLE III STANDING DOESN'T HAVE TO BE ECONOMIC IN NATURE.
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THINK YOU'VE GOT TO LOOK AT WHAT THE GRAVAMEN OF A PARTICULAR
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CLAIM IS AND PART OF THE PROBLEM AGAIN COMES BACK TO THEY
UNITED STATES COURT REPORTERS
I
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DIDN'T TRY TO ANALYZE STANDING ON THE CLAIM-BY-CLAIM BASIS.
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THEY SAID, WELL, ECONOMIC INJURY ISN'T REQUIRED.
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UNDERSTAND THAT IN A VACUUM, BUT I DON'T THINK THAT THAT IS
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REALLY -- THAT DOESN'T REALLY TRY TO GRAPPLE WITH OR ACCOUNT
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FOR THE SUBTLETIES, FRANKLY, THAT EXIST IN A MULTI-COUNT
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COMPLAINT THAT HAS DIFFERENT CATEGORIES OF COUNTS.
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AND I
SO GIVEN THE NATURE OF THE ALLEGATIONS IN THIS CASE, I
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WOULD SAY THAT THAT'S WHAT PLAINTIFF NEEDS TO COME FORWARD AND
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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
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GOING TO SEE WHY I THINK THEY'RE SAYING THIS.
AND THEY ALSO
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SAID THAT, WELL, WE'RE NOW MAKING IT CLEAR THAT FACEBOOK
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PROMISED ONE THING BUT DID ANOTHER.
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WHAT THEY'RE TRYING TO DO, OF COURSE, IS TO MAKE YOU THINK
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THAT THERE'S SOMETHING DIFFERENT IN THIS COMPLAINT THAT SHOULD
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LEAD YOU TO RULE DIFFERENTLY THAN YOU DID IN YOUR ORDER LAST
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TIME AROUND AT PAGE 12 AND AT 5 WHERE YOU HELD IN THE
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ALTERNATIVE THAT THESE INVASION AND INTRUSION CLAIMS WOULD BE
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SUBJECT TO DISMISSAL UNDER 12(B)(6) FOR FAILURE TO STATE A
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CLAIM.
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WHICH WAS -- THAT CASE DEALT WITH I.P. ADDRESSES AND MADE CLEAR
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THAT PEOPLE'S I.P. ADDRESSES WERE NOT SOMETHING IN WHICH YOU
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HAD A REASONABLE EXPECTATION OF PRIVACY.
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THIS BODY OF CASE LAW THAT STANDS FOR THE BROADER PROPOSITION
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THAT INFORMATION THAT YOU VOLUNTARY PROVIDE TO THIRD PARTIES ON
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THE INTERNET ISN'T ACTIONABLE FOR INVASION OR INTRUSION
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PURPOSES.
AND THERE YOU CITED AS ONE EXAMPLE THE FORRESTER CASE,
BUT THAT IS PART OF
UNITED STATES COURT REPORTERS
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1
SO WHAT I WOULD SAY ON THIS IS, FIRST OF ALL, THE
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COMPLAINT HASN'T CHANGED IN THOSE WAYS MATERIALLY.
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LAST COMPLAINT IT WAS ALL ABOUT URL'S AND IT HAD NOTHING TO DO
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WITH I.P. ADDRESSES.
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COURSE, ARGUED OR ALLEGED THAT FACEBOOK PROMISED ONE THING AND
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DID ANOTHER.
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AND IN THE
AND IN THE LAST COMPLAINT THEY, OF
SO IN THAT RESPECT THE COMPLAINTS ARE NOT DIFFERENT AT ALL
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FOR MATERIAL PURPOSES, AND THERE'S NO REASON THAT THE COURT
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SHOULD CHANGE ITS VIEW EXPRESSED IN THE PREVIOUS ORDER.
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IN TERMS OF THE GOOGLE COOKIE PLACEMENT CASE, WHICH THE
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PLAINTIFFS RELY ON HERE, I MIGHT JUST TAKE A MOMENT TO TALK
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ABOUT THAT.
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FOLLOW THAT CASE BUT --
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WE WOULD OBVIOUSLY ENCOURAGE THE COURT NOT TO
THE COURT:
THAT WAS GOING TO BE MY QUESTION
ULTIMATELY THAT I POSED TO YOUR COLLEAGUES.
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MR. BROWN:
SURE.
I MEAN, WE DON'T CITE GOOGLE
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COOKIE PLACEMENT IN OUR OPENING MOTION, AND WE THINK THAT OUR
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POSITIONS ARE SOLID UNDER ALL OF THE OTHER LAW THAT WE'VE
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PROVIDED.
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THEY CAME BACK IN OPPOSITION AND GOT VERY EXCITED ABOUT
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THIS THIRD CIRCUIT OPINION AT LEAST ON A FEW ISSUES AND KIND OF
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IGNORED THE FACT THAT THE THIRD CIRCUIT ACTUALLY RULED IN
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GOOGLE'S FAVOR ON A WHOLE HOST OF DIFFERENT ISSUES.
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THINK YOU'VE NOW HEARD THEIR ACKNOWLEDGEMENT THAT THE CASE KIND
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OF CUTS BOTH DIRECTIONS FOR BOTH PARTIES, RIGHT?
UNITED STATES COURT REPORTERS
AND I
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BUT AS TO THE INVASION OF PRIVACY AND INTRUSION UPON
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SECLUSION CLAIMS, THERE'S A LONG, LONG DISCUSSION IN THE
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THIRD CIRCUIT'S DECISION ABOUT THE FACTS OF THAT CASE, AND I
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THINK WHEN YOU LOOK AT IT YOU GET A CERTAIN TONE OF WHAT COMES
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OUT OF THAT OPINION AND WHAT THE COURT VIEWED AS THE FACTS IN
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THAT CASE.
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IN THAT CASE, AND I DON'T KNOW WHETHER THIS IS TRUE IN THE
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REAL WORLD, BUT THIS IS SIMPLY WHAT THE ALLEGATIONS WERE.
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WAS ON A MOTION TO DISMISS AS WELL.
THIS
BUT THE COURT WENT OUT OF
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ITS WAY TO DISTINGUISH THE FACTS AT ISSUE IN THAT CASE FROM
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MERE TRACKING AND DISCLOSURE, WHICH IS ESSENTIALLY WHAT WE HAVE
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IN THIS CASE THAT IS BEFORE THIS COURT.
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AND WHAT THEY SAID IS THAT IT GOES WELL BEYOND MERE
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TRACKING AND DISCLOSURE.
AND IN THAT CASE WHAT HAPPENED IS
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THAT, YOU KNOW, GOOGLE BASICALLY ALLEGEDLY SAID TO ITS USERS,
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LIKE THE SAFARI BROWSER HAS THIS COOKIE BLOCKING TECHNOLOGY,
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AND THAT'S GREAT IF YOU WANT TO USE IT AND FEEL FREE TO USE IT.
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BY THE WAY, WE ALSO HAVE OUR OWN PROPRIETARY PLUGIN, I
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BELIEVE IT WAS, THAT WILL ALSO BLOCK COOKIES, BUT THERE'S NO
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REASON TO USE THAT IF YOU'RE USING ONE OF THESE OTHER BROWSERS
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LIKE SAFARI THAT HAS THE COOKIE BLOCKING TECHNOLOGY.
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IT TURNS OUT THAT ALLEGEDLY GOOGLE DEVELOPED SOME CODE --
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SO LET ME JUST BACK UP HERE.
SO THE CONTEXT IS PEOPLE GOING TO
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WEB PAGES THAT ARE GOING TO HAVE GOOGLE SUPPLIED ADS RUN ON
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THEM, RIGHT?
UNITED STATES COURT REPORTERS
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GOOGLE DEVELOPED A CODE THAT WOULD BE SENT TO THE USER'S
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BROWSER IN THOSE SITUATIONS THAT WOULD THEN TRIGGER THE BROWSER
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TO SEND A FORM BACK TO GOOGLE AND WHEN THE BROWSER SENDS A FORM
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LIKE THAT, IT BELIEVES THAT THE WEBSITE IT'S INTERACTING WITH
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IS ACTUALLY THE FIRST PARTY WEBSITE, NOT THE THIRD PARTY
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WEBSITE.
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AND SO THE ALLEGATION WAS THAT GOOGLE DID A COUPLE OF
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THINGS, ONE, REPRESENTED TO USERS THAT THIS COOKIE BLOCKING
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TECHNOLOGY WAS EFFECTIVE AND ACTUALLY SO EFFECTIVE THAT THEY
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DIDN'T NEED TO USE GOOGLE'S OWN PRODUCT, BUT THEN TOOK STEPS TO
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SUBMIT CODE TO THE WEBSITES TO TRICK THE BROWSERS INTO
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ESSENTIALLY CIRCUMVENTING THE COOKIE BLOCKING TECHNOLOGY.
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SO IT WAS UPON THAT SET OF FACTS THAT THE COURT FOUND
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THERE WAS AN EGREGIOUS BREACH OF SOCIAL NORMS AND INVASION OF
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THEIR PRIVACY INTERESTS.
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COURT REALLY DIDN'T GET INTO THIS WHOLE BODY OF CASE LAW THAT I
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GAVE TO YOU EARLIER, AND I'M NOT GOING TO TRY TO MARCH THROUGH
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IT ALL AGAIN, BUT IN THE DISCUSSION OF WHY I THOUGHT THAT THE
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UNG DECISION WAS NOT PERSUASIVE AND SHOULDN'T BE FOLLOWED, AND
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I MENTIONED MANY DIFFERENT CASES.
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AND I MIGHT ALSO POINT OUT THAT THE
I'LL JUST GIVE THE NAMES AGAIN SO WE HAVE A CLEAR RECORD
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BUT THAT WAS IN ADDITION TO FORRESTER.
ALSO THE STIPO,
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S-T-I-P-O, LOW VERSUS LINKEDIN, IPHONE APPLICATION LITIGATION,
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GOOGLE PRIVACY POLICY LITIGATION, AND ALSO THE FOLGELSTROM
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VERSUS LAMPS PLUS CASE WHICH I DIDN'T GET TO.
UNITED STATES COURT REPORTERS
BUT THAT WAS A
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1
CASE ABOUT DISCLOSURE OF CUSTOMER'S ADDRESS INFORMATION TO
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MARKETING AGENCIES SO MARKETING AGENCIES COULD SEND ADS AND
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FLYERS AND THE LIKE TO THE CUSTOMER'S HOME AND WHATEVER THE
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COURT FELT ABOUT THE FACTUAL ALLEGATIONS, AGAIN, GIVEN THE
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RATHER HIGH BAR THAT YOU HAVE TO VAULT TO PROCEED ON THIS SORT
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OF CLAIM, FOUND THAT THAT WAS NOT HIGHLY OFFENSIVE BEHAVIOR BUT
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RATHER ROUTINE COMMERCIAL BEHAVIOR.
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SO I WOULD SUBMIT THAT RATHER THAN FOLLOWING THE GOOGLE
COOKIE PLACEMENT DECISION ON THESE CLAIMS, AND THE UNG DECISION
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ON THESE CLAIMS, THE COURT SHOULD INSTEAD FOLLOW ITS PREVIOUS
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RULING NOT FROM THE ALTERNATIVE FROM THE ORDER AT 1295 AND
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SHOULD ALSO FOLLOW THIS OTHER BODY OF CASE LAW THAT I JUST
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REFERRED TO.
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AND I THINK THAT'S ALL I HAVE SUBJECT TO QUESTIONS FROM
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THE COURT, OF COURSE.
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THE COURT:
AGAIN -- WELL, THANK YOU.
AND I GO BACK
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TO THE GOOGLE PLACEMENT AND YOU'RE SUGGESTING THAT I DON'T
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FOLLOW THAT?
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MR. BROWN:
YEAH.
I MEAN, AGAIN, IT'S A CASE THAT
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CUTS BOTH WAYS ON DIFFERENT CLAIMS BUT LET'S BE HONEST ABOUT
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IT, I DON'T THINK THAT YOU SHOULD FOLLOW IT ON THE INVASION OF
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PRIVACY AND INTRUSION UPON SECLUSION.
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CUTS IN OUR FAVOR ON OTHER ISSUES.
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THE WIRETAP ACT AND THE CIPA, C-I-P-A, CLAIMS SHOULD NOT GO
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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
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WOULD ACTUALLY BE APPROPRIATE TO RULE IN OUR FAVOR EVEN ON THE
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CIPA PORTION OF IT.
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ACT AND THE CIPA ELEMENTS ARE REALLY ALL THAT DIFFERENT.
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AND, AGAIN, I BELIEVE
I ACTUALLY DON'T THINK THAT THE WIRETAP
AND THE THIRD CIRCUIT HELD THAT UNDER THE PENAL CODE 502
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CLAIM THAT THERE WAS AN INSUFFICIENT ALLEGATION OF LOSS, RIGHT?
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AND THAT ACTUALLY IF YOU'RE GOING TO LOOK AT THAT OPINION, IT'S
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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
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PLAINTIFFS PROBABLY FEEL THE SAME WAY.
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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
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THE COURT:
LAST WORD.
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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
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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
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PRIMARILY ON ARGUMENTS THIS MORNING, AND YOU'LL GET SOMETHING
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SHORTLY.
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MR. GRYGIEL:
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THE COURT:
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THANK YOU, YOUR HONOR.
I APPRECIATE YOU BEING HERE.
(COURT CONCLUDED AT 12:11 P.M.)
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UNITED STATES COURT REPORTERS
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CERTIFICATE OF REPORTER
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I, THE UNDERSIGNED OFFICIAL COURT REPORTER OF THE UNITED
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STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA,
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280 SOUTH FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY
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CERTIFY:
THAT THE FOREGOING TRANSCRIPT, CERTIFICATE INCLUSIVE, IS
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A CORRECT TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE
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ABOVE-ENTITLED MATTER.
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______________________________
IRENE RODRIGUEZ, CSR, RMR, CRR
CERTIFICATE NUMBER 8074
DATED:
MAY 2, 2016
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UNITED STATES COURT REPORTERS
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