In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 132

REPLY (re #101 MOTION to Dismiss Defendant Facebook, Inc.s Motion to Dismiss Plaintiffs Second Amended Consolidated Class Action Complaint (Fed. R. Civ. P. 12(b)(1) & 12(b)(6)) ) Plaintiffs' Response to Facebook's Supplemental Spokeo Brief filed byPerrin Aikens Davis, Brian K. Lentz, Cynthia D. Quinn, Matthew J. Vickery. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C)(Straite, David) (Filed on 6/10/2016)

Exhibit A

In re: Facebook Internet Tracking Litigation
5:12-md-2314-EJD-NC (N.D. Cal.)

Table 1 – Privacy Torts Recognized in 44 States and the District of Columbia
Alabama

Phillips v. Smalley Maintenance Services, 711 F.2d 1524 (11th Cir. 1983)
(applying Alabama law); Smith v. Doss, 37 So. 2d 118 (1948).

Alaska

Chizmar v. Mackie, 896 P.2d 196 (Alaska 1995).

Arizona

Reed v. Real Detective Pub. Co., 162 P.2d 133 (Ariz. 1945) (“In order to
recover for an invasion of the right of privacy, it is not necessary for the
plaintiff to allege or prove special damages”).

Arkansas

Olan Mills, Inc. v. Dodd, 353 Ark. 22 (1962).

California

CAL. CONST. Art. I, Sec. I; Hill v. NCAA, 7 Cal. 4th 1 (1994); Shulman v. Group
W. Productions, Inc., 18 Cal. 4th 200 (1998); Briscoe v. Reader’s Digest Ass’n,
4 Cal. 3d 529, 483 P. 2d 34, 93 Cal. Rptr. 866, (1971); Melvin v. Reid, 112 Cal.
App. 285 (1931).

Colorado

Doe v. High-Tech Institute, Inc., 972 P.2d 1060 (Colo. 1998) (recognizing
privacy tort for unauthorized testing of plaintiff’s blood for HIV even
without resulting pecuniary harm).

Connecticut

Goodrich v. Waterbury Republican-Am., Inc., 448 A.2d 1317, 1328-29 (Conn.
1982) (“In reviewing the body of privacy law today, we note that tort
actions for invasion of privacy have been judicially recognized, in one form
or another, in approximately three quarters of the states. . . . There is
substantive support today for the conclusion that privacy is a basic right
entitled to legal protection.”).

Delaware

Barbieri v. News-Journal, 189 A.2d 773 (Del. 1963) (“The existence of this
tort, though of recent origin, is now well recognized. . . . We see no reason
for not recognizing it as a part of our law.”).

District of Columbia

Afro-American Publishing Co. v. Jaffe, 366 F.2d 649 (D.C. Cir. 1966) (“A
common law action for invasion of privacy is maintainable in the District of
Columbia.”); Dresbach v. Doubleday & Co., 518 F. Supp. 1285 (D.D.C. 1981)
(recognizing that the tort applies to “electronic surveillance”).

Florida

Cason v. Baskin, 155 Fla. 198 (1944) (“The very able opinion of the Georgia
Supreme Court [in Pavesich], which was written by Justice Andrew J. Cobb,
was unanimously concurred in, is recognized as the leading case on this
subject in this country and has been followed in the vast majority of the
decisions of our courts of last resort since that time.”).

Georgia

Pavesich v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905).

Hawaii

HAW. CONST. art. I, § 6; Fergerstrom v. Hawaiian Ocean View Estates, 441
P.2d 141 (Haw. 1968).

Idaho

Peterson v. Idaho First Nat'l Bank, 367 P.2d 284 (Idaho 1961); Hoskins v.
Howard, 971 P.2d 1135 (1998) (“an intrusion upon one's solitude or
seclusion or private affairs may occur without a physical invasion, for
example, as by eavesdropping by means of wire-tapping.”).

Illinois

Leopold v. Levin, 259 N.E.2d 250, 254 (Ill. 1970) (“We agree that there
should be recognition of a right of privacy, a right many years ago described
in a limited fashion by Judge Cooley with utter simplicity as the right ‘to be
let alone.’ Privacy is one of the sensitive and necessary human values and
undeniably there are circumstances under which it should enjoy the
protection of law.”).

Indiana

Doe v. Methodist Hosp., 690 N.E.2d 681 (Ind. 1997).

Iowa

Howard v. Des Moines Register & Tribune, 283 N.W.2d 289 (Iowa 1979) (en
banc).

Kansas

Froelich v. Adair, 516 P.2d 993 (Kan. 1973) (“We are concerned here with
an action for invasion of privacy by intrusion upon seclusion. The foregoing
authorities recognize such an action and each lists numerous citations of
supporting cases. Although Kansas has recognized other actions for invasion
of privacy, an action for intrusion upon seclusion is one of first impression
in this state. We are impressed by the reasoning of the cases which
sanction such a right. Our research discloses the weight of authority is in
favor of such a right. We conclude invasion of privacy by intrusion upon
seclusion should be recognized in this state.”).

Kentucky

Rhodes v. Graham, 37 S.W.2d 46 (Ky. 1931).

Louisiana

LA. CIV. CODE art. 2315; Batts v. Capital City Press, 479 So. 2d 534 (La. App.
1985), review denied, 503 So. 2d 482 (La.) (“Louisiana recognizes a right of
privacy.”).

Maine

Estate of Berthiaume v. Pratt, 365 A.2d 792 (Me. 1976) (“By our decision in
this case we join a majority of the jurisdictions in the country in recognizing
a ‘right to privacy.' We also declare it to be the rule in Maine that a
violation of this legally protected right is an actionable tort.”).

Maryland

Bilney v. Evening Star Newspapers, 43 Md. App. 560, 406 A.2d 652 (1979)
(“That invasion of privacy would be recognized as a separate tort in
Maryland and redress provided for its commission was first suggested by
the Court of Appeals in . . . 1962. Although, at that time, more than 70
years had elapsed since the American nativity of the tort in the famous
article by Warren and Brandeis . . . and the tort had already been
recognized throughout most of the United States, there had yet to be
reached any real consensus among courts and commentators as to its
precise nature. . . . In the years following, . . . a good bit of “fleshing out”
and molding occurred, notably with the drafting and adoption of new
sections 652A-652I of the Restatement of Torts (2d), and the tort was given
a more precise and standard description. When it next dealt with the
matter, the Court of Appeals recognized these later developments and, in
general, blessed by adoption their product.”).

Massachusetts

Cefalu v. Globe Newspaper, 391 N.E.2d 935 (Mass. App. 1979); see also
MASS. GEN. L. ch. 214, § 1B (“A person shall have a right against
unreasonable, substantial or serious interference with his privacy.”).

Michigan

Hawley v. Prof'l Credit Bureau, Inc., 76 N.W.2d 835 (Mich. 1956) (“There is
no need, in this opinion, to undertake a lengthy exposition of the right of
privacy, of the growth of the law from those ancient days when only a
physical battery found redress in the courts, when gross and evil assaults
upon the spirits and emotions of our people went without recovery. That
the right of privacy exists in this jurisdiction was settled beyond doubt by
the case of Pallas v. Crowley, Milner & Co.”).

Minnesota

Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 234-35 (Minn. 1998) (“Many
other jurisdictions followed Georgia in recognizing the tort of invasion of
privacy, citing Warren and Brandeis' article and Pavesich. Today, the vast
majority of jurisdictions now recognize some form of the right to privacy. . .
. The right to privacy is inherent in the English protections of individual
property and contract rights and the ‘right to be let alone’ is recognized as
part of the common law across this country. Thus, it is within the province
of the judiciary to establish privacy torts in this jurisdiction. Today we join
the majority of jurisdictions and recognize the tort of invasion of privacy.
The right to privacy is an integral part of our humanity; one has a public
persona, exposed and active, and a private persona, guarded and
preserved. The heart of our liberty is choosing which parts of our lives shall
become public and which parts we shall hold close.”).

Mississippi

Young v. Jackson, 572 So. 2d 378 (Miss. 1990).

Missouri

Munden v. Harris, 134 S.W. 1076, 1078-79 (Mo. App. 1911) (“It may be
admitted that the right of privacy is an intangible right; but so are
numerous others which no one would think of denying to be legal rights,
which would be protected by the courts. It is spoken of as a new right,
when, in fact, it is an old right with a new name. Life, liberty, and the
pursuit of happiness are rights of all men. The right to life includes the
pursuit of happiness; for it is well said that the right to life includes the right
to enjoy life. Everyone has the privilege of following that mode of life, if it
will not interfere with others, which will bring to him the most contentment
and happiness. He may adopt that of privacy, or, if he likes, of entire
seclusion.”).

Montana

Welsh v. Pritchard, 241 P.2d 816 (Mont. 1952).

Nebraska

No common law right to privacy. Statutory protections only. See Table 2.

Nevada

Montesano v. Donrey Media Group, 668 P.2d 1081 (Nev. 1983) (“This court
has impliedly recognized an action for invasion of privacy in Norman v. City
of Las Vegas, 64 Nev. 38, 177 P.2d 442 (1947).”).

New Hampshire

Hamberger v. Eastman, 206 A.2d 239 (N.H. 1964) (“The tort of intrusion on
the plaintiffs' solitude or seclusion does not require publicity and
communication to third persons.”).

New Jersey

McGovern v. Van Riper, 43 A.2d 514 (N.J. Ch. 1945), aff'd in part, 45 A.2d
842 (N.J. 1946) (“The basic concepts underlying the right of privacy have
their origin in the law of ancient Greece and Rome. Although the AngloAmerican courts have long recognized the existence of the right, they based
their relief upon the theory that property or contract rights were involved. .
. . The first clear-cut recognition of the existence of the right of privacy as
an independent right is found in an article in 4 Harv. L. Rev. 193. . . . It is
now well settled that the right of privacy having its origin in natural law, is
immutable and absolute, and transcends the power of any authority to
change or abolish it. . . . It is one of the ‘natural and unalienable rights'
recognized in Art. 1, par. 1, of the Constitution of this State.”).

New Mexico

Hubbard v. Journal Publishing, 368 P.2d 147 (N.M. 1962).

New York

No common law right to privacy. Statutory protections only. See Table 2.

North Carolina

Flake v. Greensboro News Co., 195 S.E. 55 (N.C. 1938).

North Dakota

Status unsettled. Hougum v. Valley Memorial Homes, 574 N.W.2d 812
(N.D. 1998) (“This Court has not decided whether a tort action exists in
North Dakota for invasion of privacy. … Claims for invasion of privacy are
recognized in some form in virtually all jurisdictions. … Here, assuming
without deciding a claim for intrusion upon seclusion exists in North
Dakota, we conclude Hougum failed to raised disputed issues of material
fact to support such a claim.”). See Table 2.

Ohio

LeCrone v. Ohio Bell Tel. Co., 201 N.E.2d 533 (Ohio App. 1963) (“As a general
proposition, eavesdropping on phone conversations of another by
unauthorized mechanical means, or a so called ‘tap,’ is the kind of act or
conduct that fits the definition of an intrusion or prying into another's
private affairs. Such conduct generally would be criminal, a violation of
public utility law, a clear invasion of the subscriber's right to exclusive use
and, in our opinion, an affront to the sensibilities of a reasonable man.”).

Oklahoma

McCormack v. Oklahoma Publishing, 613 P.2d 737, 740 (Okla. 1980)
(“Although there was no distinctive tort of invasion of privacy in early
common law, it has evolved in most jurisdictions based on common law
principles sometimes compared to trespass. It is unnecessary for the
Legislature to enact a law to create this tort in abrogation of the common
law. The common law, followed in Oklahoma, refers not only to the ancient
unwritten law of England, but also to that body of law created and
preserved by decisions of courts. The common law is not static, but is a
dynamic and growing thing and its rules arise from the application of
reason to the changing conditions of society. Flexibility and capacity for
growth and adaptation is its peculiar boast and excellence.”).

Oregon

Hinish v. Meier & Frank Co., 113 P.2d 438, 446 (Or. 1941) (“The case
presents to this court for the first time the question whether there is such a
thing in this state as a legal right of privacy, for breach of which an action
for damages will lie. This right, first brought forcefully to the attention of
the profession in the year 1890 by an article in the Harvard Law Review . . .
is said to be one that inheres in an ‘inviolate personality.’ . . . Where this
right has been invaded . . . some of the courts of this country have thought
that no legal redress could be granted, largely because the right was
unknown to the common law, and to recognize it would be judicial
legislation. No one, however, has had the hardihood to excuse as ethically
or morally defensible practices which, becoming increasingly common and
in many instances more and more offensive and injurious, under modern
social conditions and through the use of modern scientific inventions, give
sharper point to the demand that in such cases courts discharge the
function for which they exist, of administering justice and affording redress
for wrongs committed.”).

Pennsylvania

Vogel v. W.T. Grant Co., 327 A.2d 133, 134 (Pa. 1974) (“Since 1890 when
Samuel Warren and Louis Brandeis published their famous article The Right
to Privacy, violation of this right has been steadily accepted as an actionable
tort. In Pennsylvania the development of a cause of action for invasion of
privacy has been somewhat sporadic. . . . Nevertheless, the existence of the
right in this Commonwealth is now firmly established.”).

Rhode Island

No common law right to privacy. Statutory protections only. See Table 2.

South Carolina

Holloman v. Life Ins. Co. of Virginia, 7 S.E.2d 169 (S.C. 1940); Snakenberg v.
Hartford Cas. Ins. Co., Inc., 383 S.E.2d 2 (S.C. 1989) (“The law recognizes
that each person has an interest in keeping certain facets of personal life
from exposure to others. This interest in “privacy” is a distinct aspect of
human dignity and moral autonomy.”).

South Dakota

Truxes v. Kenco Enters., Inc., 119 N.W.2d 914, 917 (S.D. 1963)
(“Restatement, Torts, § 867, recognizes the existence of the right: ‘A person
who unreasonably and seriously interferes with another's interest in not
having his affairs known to others or his likeness exhibited to the public is
liable to the other.’ Concluding that the right of privacy has a foundation in
the present day common law and is supported by the weight of authority,
we hold that an action in this jurisdiction may be maintained for invasion of
such right.”).

Tennessee

Martin v. Senators, Inc., 418 S.W.2d 660 (Tenn. 1967).

Texas

Billings v. Atkinson, 489 S.W.2d 858, 861 (Tex. 1973) (“The right of privacy is
a right distinctive in itself and not incidental to some other recognized right
for breach of which an action for damages will lie. A violation of the right is
a tort.”).

Utah

Cox v. Hatch, 761 P.2d 556, 563 (Utah 1988) (adopting Second Restatement
of Torts).

Vermont

Hodgdon v. Mt. Mansfield Co., Inc., 624 A.2d 1122, 1129 (Vt. 1992) (citing
Second Restatement of Torts).

Virginia

No common law right to privacy. WJLA-TV v. Levin, 564 S.E.2d 383 (Va.
2002) (because the Virginia General Assembly has adopted various
statutory privacy protections, court rejects common law privacy tort). See
Table 2.

Washington State

Rhinehart v. Seattle Times, 654 P.2d 673 (Wash. 1982) (en banc); Mark v.
Seattle Times, 635 P.2d 1081 (Wash. 1981).

West Virginia

Sutherland v. Kroger Co., 110 S.E.2d 716 (W. Va. 1959).

Wisconsin

Wisconsin passed a privacy statute in 1977 broadly protecting privacy. See
Wis. Stat. § 895.50. The statute “essentially codified three of the four
categories of privacy actions set forth in the Restatement (Second) of
Torts.” Marino v. Arandell Corp., 1 F. Supp. 2d 947, 952 (E.D. Wis. 1998).
Since then, case law has developed a unique “common law” of privacy
pursuant to the statute’s broad language but consistent with the common
law of other states. As such, in Wisconsin at least, “the ‘common law
tort’/’statutory claim’ distinction amounts to little more than word play.”
Id. at 953.

Wyoming

Status unsettled. See Table 2.

In re: Facebook Internet Tracking Litigation
5:12-md-2314-EJD-NC (N.D. Cal.)

Table 2 – General Privacy Torts Not Recognized in 6 States
Nebraska

No common law right to privacy. Brunson v. Ranks Army Store, 73 N.W.2d 803
(Neb. 1955).
Neb. Rev. Stat. §§ 20-201 through 20-211 (Brunson statutorily repealed; various
privacy rights codified)
Neb. Rev. Stat. § 25-840.01 (action for publication of a libel)
Neb. Rev. Stat. §§ 86-290 (Nebraska wiretap law)

New York

No common law right to privacy. Wojtowicz v. Delacorte Press, 58 A.D.2d 45 (1st
Dep't 1977) (“In this State, the right of privacy or the right of a person to live his life
quietly and to be left alone rests solely in and is limited by statute”), order aff'd, 43
N.Y.2d 858 (1978).
New York Civil Rights Law § 50 (misappropriation of “name, portrait or picture”)
New York Civil Rights Law § 50-a, 50-d and 50-e (privacy of personnel records)
New York Civil Rights Law § 50-b (privacy of certain information related to sex
offenses and HIV)
New York General Business Law § 349 (private right of action for deceptive
practices); Bose v. Interclick, Inc., 2011 WL 4343517, at *9 (S.D.N.Y., Aug. 17, 2011)
(unauthorized “collection of personal information” can be a privacy violation that
qualifies as “injuries for purposes of Section 349”)
New York Penal Law § 250 et seq. (New York wiretap law)

North Dakota

Status unsettled. Hougum v. Valley Memorial Homes, 574 N.W.2d 812 (N.D. 1998)
(“This Court has not decided whether a tort action exists in North Dakota for
invasion of privacy. . . . Claims for invasion of privacy are recognized in some form in
virtually all jurisdictions. . . . Here, assuming without deciding a claim for intrusion
upon seclusion exists in North Dakota, we conclude Hougum failed to raised
disputed issues of material fact to support such a claim.”).

Rhode Island

No common law right to privacy. Kalian v. People Acting Through Community
Effort, Inc. (PACE), 408 A.2d 608 (R.I. 1979).
R.I. Gen. L. § 9-1-28 (right of action for unauthorized use of name, portrait or
picture)
R.I. Gen. L. § 11-35-21 (Rhode Island wiretap law)

Virginia

No common law right to privacy. WJLA-TV v. Levin, 564 S.E.2d 383 (Va. 2002)
(because the Virginia General Assembly has adopted statutory privacy protections,
court rejects common law privacy tort).
Virginia Code § 18.2-152.4 – §18.2-15.15 (Computer Crimes Act)
Virginia Code § 18.2-152.5 (“computer invasion of privacy”)
Virginia Code § 19.2-62 et seq. (Virginia wiretap law)

Wyoming

Status unsettled. Jewell v. North Big Horn Hosp. Dist., 953 P.2d 135 (Wy. 1998);
Shoshone First Bank v. Pacific Employers Ins. Co., 2 P.3d 510 (Wy. 2000).

In re: Facebook Internet Tracking Litigation
5:12-md-2314-EJD-NC (N.D. Cal.)

Table 3 – Relevant Provisions of the Restatement (Second) of Torts (1977)
Section
652A

Full Text
(1) One who invades the right of privacy of another is subject to liability for the resulting
harm to the interests of the other.
(2) The right of privacy is invaded by:
(a) unreasonable intrusion upon the seclusion of another, as stated in § 652B; or
(b) appropriation of the other's name or likeness, as stated in § 652C; or
(c) unreasonable publicity given to the other's private life, as stated in § 652D; or
(d) publicity that unreasonably places the other in a false light before the public, as stated
in § 652E.

652B

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of
another or his private affairs or concerns, is subject to liability to the other for invasion of
his privacy, if the intrusion would be highly offensive to a reasonable person.

652C

One who appropriates to his own use or benefit the name or likeness of another is
subject to liability to the other for invasion of his privacy.

652D

One who gives publicity to a matter concerning the private life of another is subject to
liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.

652E

One who gives publicity to a matter concerning another that places the other before the
public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable
person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the
publicized matter and the false light in which the other would be placed.

652H

One who has established a cause of action for invasion of his privacy is entitled to recover
damages for:
(a) the harm to his interest in privacy resulting from the invasion;
(b) his mental distress proved to have been suffered if it is of a kind that normally results
from such an invasion; and
(c) special damage of which the invasion is a legal cause.