In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 76

STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d PLAINTIFFS NOTICE OF STATEMENT OF RECENT DECISIONS RELEVANT TO MOTION TO DISMISS PLAINTIFFS CORRECTED FIRST AMENDEDED CONSOLIDATED CLASS ACTION COMPLAINT; PLAINTIFFS REQUEST FOR LEAVE filed byPerrin Aikens Davis, Brian K. Lentz, Cynthia D. Quinn, Matthew J. Vickery. (Related document(s) # 54 ) (Kiesel, Paul) (Filed on 5/12/2014)

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Paul R. Kiesel (SBN 119854)
[e-mail]
KIESEL LAW LLP
8648 Wilshire Blvd.
Beverly Hills, CA 90211-2910
Telephone: [phone]
Facsimile: [phone]
Liaison Counsel

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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Case No.: 5:12-MD-02314-EJD
IN RE: FACEBOOK INTERNET
TRACKING LITIGATION

PLAINTIFFS’ NOTICE OF STATEMENT OF
RECENT DECISIONS RELEVANT TO MOTION
TO DISMISS PLAINTIFFS’ CORRECTED FIRST
AMENDEDED CONSOLIDATED CLASS ACTION
COMPLAINT; PLAINTIFFS’ REQUEST FOR
LEAVE

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Judge: The Honorable Edward J. Davila
Court Room: 4

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PLAINTIFFS’ NOTICE OF NEW AUTHORITY AND REQUEST FOR LEAVE
CASE NO.: 5:12-MD-02314-EJD

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This notice is submitted pursuant to Local Rule 7-3(d)(2). On July 2, 2012, Defendant

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Facebook, Inc. (“Facebook”) filed a Motion to Dismiss Plaintiffs’ Corrected First Amended

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Consolidated Class Action Complaint (“Motion”) [Dkt. 44]. On October, 5, 2012, this Court heard

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argument on Facebook’s Motion and took the matter under submission [Transcript, Dkt. 60]. On

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October 10, 2013, Defendant Facebook filed a notice of new authority and requested leave to have the

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new authority considered when ruling on the Motion [Dkt. 69]. On October 11, 2013, Plaintiffs filed a

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separate notice of new authority and similarly requested leave to have the new authority considered

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[Dkt. 70], and another notice on March 21, 2014 [Dkt. 73]. Last week, the Ninth Circuit issued two

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decisions in two cases consolidated with In re: Zynga Privacy Litigation, Case No. 11-18044, both

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involving defendant Facebook, Inc., that bear directly on the Motion:

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Exhibit A:

Graf v. Zynga Game Network, Inc.: On May 8, 2014, the Ninth Circuit affirmed the

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dismissal of Wiretap Act and Stored Communications Act claims against Zynga and

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Facebook because the intercepted URLs in that case did not contain “content.” However,

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the court noted that a URL can contain “content” within the meaning of the statutes:

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“Under some circumstances, a user’s request to a search engine for specific information

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could constitute a communication such that divulging a URL containing that search term

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to a third party could amount to disclosure of the contents of a communication. But the

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referer header information at issue here includes only basic identification and address

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information, not a search term or similar communication made by the user, and therefore

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does not constitute the contents of a communication.” Slip Op., p. 22. This ruling relates

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to Facebook’s argument that “a URL, to the extent it is even a ‘communication,’ is not

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‘content.’” Motion, p. 14, and the plaintiffs’ argument that the intercepted URLs contain

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content.. See Plaintiffs’ Opposition to Defendant’s Motion to Dismiss, p. 16 [Dkt. 52].

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Exhibit B:

Robertson v. Facebook, Inc.: Also on May 8, 2014, the Ninth Circuit reversed the trial

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court’s dismissal of two California common law causes of action related to Facebook’s

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allegedly improper disclosure of member data to Zynga. The plaintiffs alleged that the

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dissemination of personal information was harm. The court agreed, and held “these

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allegations are sufficient to show the element of damages for their breach of contract and

PLAINTIFFS’ NOTICE OF NEW AUTHORITY AND REQUEST FOR LEAVE
CASE NO.: 5:12-MD-02314-EJD

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fraud claims.” Slip Op., p. 2. This ruling relates to Facebook’s theory that the

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Consolidated Class Action Complaint does not allege facts sufficient to establish subject

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matter jurisdiction over claims related to the theft of PII. Motion, p. 8.

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Plaintiffs provide these decisions as supplemental authority for the Court’s consideration when deciding

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the Motion.

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Dated: May 12, 2014

Respectfully Submitted,
KIESEL LAW LLP

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By:
/s/ Paul R. Kiesel
Paul R. Kiesel (SBN 119854)
[e-mail]
8648 Wilshire Blvd.
Beverly Hills, CA 90211-2910
Telephone: [phone]
Facsimile: [phone]
Liaison Counsel

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BARTIMUS, FRICKLETON, ROBERTSON &
GOZA, P.C.
By:
/s/ Jim Frickleton
James P. Frickleton
[e-mail]
11150 Overbrook Road, Suite 200
Leawood, KS 66211
Telephone: [phone]
Facsimile: [phone]
Stephen G. Grygiel
[e-mail]
88 E. Bergen Place
Red Bank, NJ 07701
Telephone: [phone]
Facsimile: [phone]

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Plaintiffs’ Executive Committee
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PLAINTIFFS’ NOTICE OF NEW AUTHORITY AND REQUEST FOR LEAVE
CASE NO.: 5:12-MD-02314-EJD

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KAPLAN, FOX & KILSHEIMER LLP
By:
/s/ David A. Straite
David A. Straite (admitted pro hac vice)
[e-mail]
850 Third Avenue
New York, NY 10022
Telephone: [phone]
Facsimile: [phone]
Plaintiffs’ Steering Committee

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PLAINTIFFS’ NOTICE OF NEW AUTHORITY AND REQUEST FOR LEAVE
CASE NO.: 5:12-MD-02314-EJD

EXHIBIT A

Case: 11-18044

05/08/2014

ID: 9087564

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE: ZYNGA PRIVACY LITIGATION,

NANCY WALTHER GRAF; RICHARD
BEILES; HOWARD L. SCHREIBER;
JOHN SWANSON; LELLANIAH
ADAMS; VALERIE GUDAC; WILLIAM
J. O’HARA; IRIS PHEE; ZENA
CARMEL-JESSUP; SHELLEY ALBANI;
CHRISTOPHER BROCK; KAREN
BRYANT; BARBARA MOSKOWITZ,
Plaintiffs-Appellants,
v.
ZYNGA GAME NETWORK, INC., a
Delaware corporation,
Defendant-Appellee.

No. 11-18044
D.C. No.
5:10-cv-04680JW

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IN RE: ZYNGA PRIVACY LITIGATION

IN RE: FACEBOOK PRIVACY
LITIGATION,

MIKE ROBERTSON, as representative
of the class,
Plaintiff-Appellant,

No. 12-15619
D.C. No.
5:10-cv-02389JW

OPINION
v.
FACEBOOK, INC., a Delaware
corporation,
Defendant-Appellee.

Appeals from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted
January 17, 2014—San Francisco, California
Filed May 8, 2014
Before: Arthur L. Alarcón, Richard C. Tallman,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta

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SUMMARY*

Electronic Communications Privacy Act
In consolidated cases, the panel affirmed the district
court’s dismissal of claims for violations of the Wiretap Act
and the Stored Communications Act, two chapters within the
Electronic Communications Privacy Act, when Facebook,
Inc., a social networking company, and Zynga Game
Network, Inc., a social gaming company, allegedly disclosed
confidential user information to third parties.
The panel held that the plaintiffs in both cases failed to
state a claim because they did not allege that either Facebook
or Zynga disclosed the “contents” of a communication, a
necessary element of their ECPA claims.

COUNSEL
Adam J. Levitt (argued), Grant & Eisenhofer P.A., Chicago,
Illinois; Francis M. Gregorek, Betsy C. Manifold, Rachele R.
Rickert, and Patrick H. Moran, Wolf Haldenstein Adler
Freeman & Herz LLP, San Diego, California; Jonathan Shub,
Seeger Weiss LLP, Los Angeles, California; Michael J.
Aschenbrener, Aschenbrener Law, PC, San Francisco,
California, for Plaintiffs-Appellants Nancy Walther Graf,
John Swanson, Richard Beiles, Howard L. Schreiber,
Lellaniah Adams, Valerie Gudac, William J. O'Hara, Iris

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Phee, Zena Carmel-Jessup, Shelley Albani, Christopher
Brock, Karen Bryant, and Barbara Moskowitz.
Kassra Nassiri (argued), Nassiri & Jung LLP, San Francisco,
California; John Joseph Manier, Nassiri & Jung LLP, Los
Angeles, California, for Plaintiff-Appellant Mike Robertson.
Richard L. Seabolt (argued), Oliver E. Benn, Suzanne R.
Fogarty, Duane Morris LLP, San Francisco, California, for
Defendant-Appellee Zynga Game Network, Inc.
Aaron Martin Panner (argued), Kellogg, Huber, Hansen,
Todd, Evans & Figel, P.L.L.C., Washington, D.C.; Matthew
D. Brown, Cooley LLP, San Francisco, California; James M.
Penning, Cooley LLP, Palo Alto, California, for DefendantAppellee Facebook, Inc.

OPINION
IKUTA, Circuit Judge:
The plaintiffs in these cases appeal the district court’s
dismissal with prejudice of their claims for violations of the
Wiretap Act and the Stored Communications Act, two
chapters within the Electronic Communications Privacy Act
of 1986 (ECPA). The plaintiffs allege that Facebook, Inc., a
social networking company, and Zynga Game Network, Inc.,
a social gaming company, disclosed confidential user
information to third parties. We have consolidated these
cases for this opinion and conclude that the plaintiffs in both
cases have failed to state a claim because they did not allege
that either Facebook or Zynga disclosed the “contents” of a

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communication, a necessary element of their ECPA claims.
We therefore affirm the district court.1
I
Facebook operates Facebook.com, a social networking
website. Zynga is an independent online game company that
designs, develops, and provides social gaming applications
that are accessible to users of Facebook. To understand the
claims at issue, some background on Facebook and internet
communication is necessary.
A
Social networking and gaming websites provide an
internet forum where users can interact with each other and
share information. Anyone may register to use Facebook’s
social networking site, but registrants must provide their real
names, email addresses, gender, and birth dates. Facebook
does not charge any fees to sign up for its social networking
service. Upon registration, Facebook assigns each user a
unique Facebook User ID. The User ID is a string of
numbers, but a user can modify the ID to be the user’s actual
name or invented screen name. Facebook considers the IDs
to be personally identifiable information.
Facebook users upload information to the site to share
with others. Users frequently share a wide range of personal
information, including their birth date, relationship status,

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In a memorandum disposition filed simultaneously with this opinion,
we affirm in part and reverse in part the district court’s dismissal of the
state law claims in Robertson v. Facebook, ___ Fed. App’x ___ (9th Cir.
2014). The state law claims are not before us in Graf v. Zynga.

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place of residence, religion, and interests, as well as pictures,
videos, and news articles.
Facebook arranges this
information into a profile page for each user. Users can make
their profiles available to the public generally, or limit access
to specified categories of family, friends, and acquaintances.
To generate revenue, Facebook sells advertising to third
parties who want to market their products to Facebook users.
Facebook helps advertisers target their advertising to a
specific demographic group by providing them with users’
demographic information. For example, a purveyor of spring
training baseball memorabilia can choose to display its ads to
males between the ages of 18 and 49 who like baseball and
live in Phoenix, Arizona, on the theory that the members of
that particular demographic group will be more likely to click
on the ad and view the offer. Nevertheless, Facebook’s
privacy policy states that it will not reveal a user’s specific
identity and that only anonymous information is provided to
advertisers.
In addition to its social networking and advertising
services, Facebook offers a platform service that allows
developers to design applications that run on the Facebook
webpage. Zynga is one such developer. It offers free social
gaming applications through Facebook’s platform that are
used by millions of Facebook users. Until November 30,
2010, Zynga’s privacy policy stated that it did “not sell or
rent your ‘Personally Identifiable Information’ to any third
party.”
B
A brief review of how computers communicate on the
internet is helpful to understand what happens when a

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Facebook user clicks on a link or icon. The hypertext transfer
protocol, or HTTP, is the language of data transfer on the
internet and facilitates the exchange of information between
computers. R. Fielding, et al., Hypertext Transfer Protocol
—HTTP/1.1, § 1.1 (1999), http://www.w3.org/Protocols/H
TTP/1.1/rfc2616.pdf.2
The protocol governs how
communications occur between “clients” and “servers.” A
“client” is often a software application, such as a web
browser, that sends requests to connect with a server. A
server responds to the requests by, for instance, providing a
“resource,” which is the requested information or content. Id.
§§ 1.3, 1.4. Uniform Resource Locators, or URLs, both
identify a resource and describe its location or address. Id.
§§ 3.2, 3.2.2. And so when users enter URL addresses into
their web browser using the “http” web address format, or
click on hyperlinks, they are actually telling their web
browsers (the client) which resources to request and where to
find them. Id. § 3.2.2.
The “basic unit of HTTP communication” is the message,
which can be either a request from a client to a server or a
response from a server to a client. Id. §§ 1.3, 4.1. A request
message has several components, including a request line, the
resource identified by the request, and request header fields.
Id. § 5. The request line specifies the action to be performed
on the identified resource. Id. § 5.1. Often, the request line
includes “GET,” which means “retrieve whatever information
. . . is identified by the” indicated resource, or “POST,” which

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We take judicial notice of the current version of the publicly-available
HTTP specification, RFC 2616, because it is referenced and relied on in
the body of the complaint in Robertson v. Facebook, and no party has
questioned the authenticity of this document. See Marder v. Lopez,
450 F.3d 445, 448 (9th Cir. 2006).

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requests that the server accept a body of information enclosed
in the request, such as an email message. Id. §§ 9.3, 9.5. For
example, if a web user clicked a link on the Ninth Circuit
website to access recently published opinions (URL:
http://www.ca9.uscourts.gov/opinions/), the client request
line would state “GET /opinions/ HTTP/1.1,” which is the
resource, followed by “Host: www.ca9.uscourts.gov,” a
location header that specifies the website that hosts the
resource. Id. § 5.1.2.
Other request headers follow the request line and “allow
the client to pass additional information about the request,
and about the client itself, to the server.” Id. § 5.3. A request
header known as the “referer”3 provides the address of the
webpage from which the request was sent. Id. § 14.36. For
example, if a web user accessed the Ninth Circuit’s website
from the Northern District of California’s webpage, the GET
request would include the following header: “Referer:
http://www.cand.uscourts.gov/home.” A client can be
programmed to avoid sending a referer header. Id. § 15.1.2.
During the period at issue in this case, when a user
clicked on an ad or icon that appeared on a Facebook
webpage, the web browser sent an HTTP request to access the
resource identified by the link. The HTTP request included
a referer header that provided both the user’s Facebook ID
and the address of the Facebook webpage the user was
viewing when the user clicked the link. Accordingly, if the
Facebook user clicked on an ad, the web browser would send
the referer header information to the third party advertiser.

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Referer, although a misspelling of “referrer,” is the term of art in the
industry. Id. § 14.36.

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To play a Zynga game through Facebook, a registered
Facebook user would log into the user’s Facebook account
and then click on the Zynga game icon within the Facebook
interface. For example, if a user wanted to access Zynga’s
popular FarmVille game, the user would click the FarmVille
icon, and the user’s web browser would send an HTTP
request to retrieve the resource located at
http://apps.facebook.com/onthefarm. Like the HTTP request
to view an ad on Facebook, the HTTP request to launch a
Zynga game contained a referer header that displayed the
user’s Facebook ID and the address of the Facebook webpage
the user was viewing before clicking on the game icon. In
response to the user’s HTTP request, the Zynga server would
load the game in an inline frame4 on the Facebook website.
The inline frame allows a user to view one webpage
embedded within another; consequently, a user who is
playing a Zynga game is viewing both the Facebook page
from which the user launched the game and, within that page,
the Zynga game.
According to the relevant complaint, Zynga programmed
its gaming applications to collect the information contained
in the referer header, and then transmit this information to
advertisers and other third parties. As a result, both Facebook
and Zynga allegedly disclosed the information provided in the
referer headers (i.e., the user’s Facebook IDs and the address
of the Facebook webpage the user was viewing when the user
clicked the link) to third parties.

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An inline frame is an element of HyperText Markup Language
(HTML), which is the standard language of displaying internet content in
a web browser.

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C

In the separate proceedings before us here, the plaintiffs
filed consolidated class action complaints against Facebook
and Zynga, alleging violations of ECPA based on Facebook
and Zynga’s disclosure of the information contained in referer
headers to third parties. In Robertson v. Facebook, the
plaintiffs alleged that Facebook violated the Stored
Communications Act, 18 U.S.C. § 2702(a)(2). In Graf v.
Zynga, the plaintiffs alleged violations of both the Stored
Communications Act and the Wiretap Act, 18 U.S.C.
§ 2511(3)(a). In both cases, the district court determined that
the plaintiffs had standing because they alleged a violation of
their statutory rights, but nevertheless granted Facebook and
Zynga’s motions to dismiss the plaintiffs’ claims under both
the Wiretap Act and the Stored Communications Act for
failure to state a claim. The district court read the complaints
as alleging that the plaintiffs intended for Facebook, Zygna,
or the third parties to receive the communications. Because
both the Wiretap Act and the Stored Communications Act
allow disclosures to intended recipients, 18 U.S.C.
§§ 2511(3)(a), 2702(b)(1), the district court concluded that
the complaints did not state a claim for violation of the
Wiretap Act or Stored Communications Act. These appeals
followed.
II
We review de novo the district court’s dismissal for
failure to state a claim and we “must construe the complaint
in favor of the complaining party.” Arakaki v. Lingle,
477 F.3d 1048, 1056 (9th Cir. 2007). “To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on

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its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. We may affirm the district court’s
judgment on any ground supported by the record. Classic
Media, Inc. v. Mewborn, 532 F.3d 978, 990 (9th Cir. 2008).
Before ECPA, the chief statutory protection for
communications was the Wiretap Act, enacted in 1968, which
regulated only the “aural acquisition of the contents of any
wire or oral communication,” 18 U.S.C. § 2510(4) (1970). In
1986, Congress enacted ECPA to update statutory privacy
protections that had failed to keep pace with the technological
developments in the 17 years since the Wiretap Act was
enacted. S. Rep. 99-541, at 1–3 (1986), reprinted in 1986
U.S.C.C.A.N. 3555, 3556–57; see generally Orin S. Kerr, The
Next Generation Communications Privacy Act, 162 U. Pa. L.
Rev. 373, 378–82 (2014).
ECPA focused on two types of computer services that
were prominent in the late 1980s: electronic communications
services (e.g., the transfer of electronic messages, such as
email, between computer users) and remote computing
services (e.g., the provision of offsite computer storage or
processing of data and files). See generally Quon v. Arch
Wireless Operating Co., 529 F.3d 892, 895, 900–02 (9th Cir.
2008), rev’d in nonrelevant part sub nom. City of Ontario v.
Quon, 560 U.S. 746 (2010); Office of Tech. Assessment, U.S.
Cong., Federal Government Information Technology:
Electronic Surveillance and Civil Liberties 45–48 (1985).
Title I of ECPA amended the existing Wiretap Act. As
relevant here, the amended Wiretap Act provides that (with

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certain exceptions), “a person or entity” (1) “providing an
electronic communication service to the public” (2) “shall not
intentionally divulge the contents of any communication
(other than one to such person or entity, or an agent thereof)”
(3) “while in transmission on that service” (4) “to any person
or entity other than an addressee or intended recipient of such
communication or an agent of such addressee or intended
recipient.” 18 U.S.C. § 2511(3)(a). The “contents” of a
communication are defined as “any information concerning
the substance, purport, or meaning of that communication.”
Id. § 2510(8). Even if a disclosure is otherwise prohibited by
§ 2511(3)(a), an electronic communications service provider
can reveal the contents of communications transmitted on its
service “with the lawful consent of the originator or any
addressee or intended recipient of such communication.” Id.
§ 2511(3)(b)(ii).
Title II of ECPA, termed the Stored Communications Act,
covers access to electronic information stored in third party
computers. Id. §§ 2701–12. The relevant provision here
imposes requirements on providers of remote computing
services that are similar to the requirements of the Wiretap
Act discussed above. Under the Stored Communications Act,
“a person or entity” (1) “providing remote computing service
to the public” (2) “shall not knowingly divulge to any person
or entity the contents of any communication” (3) “which is
carried or maintained on that service . . . on behalf of, and
received by means of electronic transmission from (or created
by means of computer processing of communications
received by means of electronic transmission from), a
subscriber or customer of such service” (4) “solely for the
purpose of providing storage or computer processing services
to such subscriber or customer,” unless the provider is
authorized to access the contents of any such communications

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to provide other services. Id. § 2702(a)(2). Also, like the
Wiretap Act, the Stored Communications Act allows a
provider of covered services to “divulge the contents of a
communication” to “an addressee or intended recipient of
such communication,” or “with the lawful consent of the
originator or an addressee or intended recipient of such
communication, or the subscriber in the case of remote
computing service.” Id. § 2702(b)(1), (3).
The Stored Communications Act incorporates the Wiretap
Act’s definition of “contents.” See id. § 2711(1). It also
differentiates between contents and record information.
Section 2702(c)(6) permits an electronic communications
service or remote computing service to “divulge a record or
other information pertaining to a subscriber to or customer of
such service (not including the contents of communications
covered by [§ 2702](a)(1) or (a)(2)) . . . to any person other
than a governmental entity.” Although there is no specific
statutory definition for “record,” the Stored Communications
Act provides examples of record information in a different
provision that governs the government’s power to require a
provider of electronic communications service or remote
computing service to disclose such information. Id.
§ 2703(c). According to § 2703(c), record information
includes, among other things, the “name,” “address,” and
“subscriber number or identity” of “a subscriber to or
customer of such service,” but not “the contents of
communications.” Id. § 2703(c)(2)(A), (B), (E). In other
words, the Stored Communications Act generally precludes
a covered entity from disclosing the contents of a
communication, but permits disclosure of record information
like the name, address, or client ID number of the entity’s
customers in certain circumstances.

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ECPA provides a cause of action to third parties for
violations of the Wiretap Act and the Stored Communications
Act. Under the Wiretap Act, “any person whose wire, oral,
or electronic communication is . . . disclosed . . . may in a
civil action recover from the person or entity . . . such relief
as may be appropriate,” including damages and attorney’s
fees, id. § 2520(a), and under the Stored Communications
Act, “any . . . person aggrieved by any violation of this
chapter in which the conduct constituting the violation is
engaged in with a knowing or intentional state of mind may,
in a civil action, recover from the person or entity . . . which
engaged in that violation such relief as may be appropriate,”
id. § 2707(a).
III
On appeal, the plaintiffs argue that the district court erred
in holding that Facebook, Zynga, and the third parties were
the intended recipients of the referer headers containing the
user’s Facebook IDs and the URLs. According to the
plaintiffs, because their complaints allege that Facebook and
Zynga had privacy policies which precluded them from
providing personally identifiable information to third parties,
the exceptions in §§ 2511(3) and 2702(b) for intended
recipients are inapplicable. Facebook and Zynga, in turn,
raise a number of arguments as to why we should affirm the
district court. Because the plaintiffs’ complaints suffer from
a common defect—they fail to allege that either Facebook or
Zynga divulged the contents of a communication to a third
party—we focus our analysis on this single ground.5 In doing

5

Facebook and Zynga argue that the plaintiffs lack standing because
they have not suffered any concrete or particularized injury arising from
the alleged disclosure of users’ Facebook IDs and URL information to

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so, we express no opinion on the other elements of an ECPA
claim.
A
Because the plaintiffs alleged that Facebook and Zynga
violated ECPA by disclosing the HTTP referer information to
third parties, we must determine whether such information is
the “contents” of a communication for purposes of 18 U.S.C.
§§ 2511(3)(a) and 2702(a)(2).
To answer this question, we first must determine
Congress’s intended meaning of the word “contents.” “In
ascertaining the plain meaning of the statute, the court must
look to the particular statutory language at issue, as well as
the language and design of the statute as a whole.” K-Mart
Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). We start
with the plain language of the statutes. See Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49,
56 (1987). For purposes of §§ 2511(3)(a) and 2702(a), the
word “contents” is defined as “any information concerning
the substance, purport, or meaning of [a] communication.”
18 U.S.C. §§ 2510(8), 2711(a). Because the words
“substance, purport, or meaning” are not further defined, we
consider the ordinary meaning of these terms, including their

third parties. This argument has been foreclosed by Edwards v. First
American Corp., which held that a plaintiff demonstrates an injury
sufficient to satisfy Article III when bringing a claim under a statute that
prohibits the defendant’s conduct and grants “‘persons in the plaintiff’s
position a right to judicial relief.’” 610 F.3d 514, 517 (9th Cir. 2010)
(quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)). Because the
plaintiffs allege that Facebook and Zynga are violating statutes that grant
persons in the plaintiffs’ position the right to judicial relief, we conclude
they have standing to bring this claim. See 18 U.S.C. §§ 2520, 2707.

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dictionary definition. See Wilderness Soc’y v. U.S. Fish &
Wildlife Serv., 353 F.3d 1051, 1061 (9th Cir. 2003) (en banc),
amended by 360 F.3d 1374 (9th Cir. 2004) (en banc). A
dictionary in wide circulation during the relevant time frame
provides the following definitions: (1) “substance” means
“the characteristic and essential part,” Webster’s Third New
International Dictionary 2279 (1981); (2) “purport” means
the “meaning conveyed, professed or implied,” id. at 1847;
and (3) “meaning” refers to “the thing one intends to convey
. . . by language,” id. at 1399. These definitions indicate that
Congress intended the word “contents” to mean a person’s
intended message to another (i.e., the “essential part” of the
communication, the “meaning conveyed,” and the “thing one
intends to convey”).
The “language and design of the statute as a whole,” KMart Corp., 486 U.S. at 291, sheds further light on the
meaning of “contents” by indicating that “contents” does not
include “record” information. Specifically, the Stored
Communications Act provides that a covered service provider
“may divulge a record or other information pertaining to a . . .
customer” but may not divulge “the contents of
communications.” 18 U.S.C. §§ 2702(c), 2703(c)(1).
Customer record information (which can be disclosed under
certain circumstances) includes the “name,” “address,” and
“subscriber number or identity” of a subscriber or customer.
Id. § 2702(c)(2). Accordingly, we conclude that “contents”
does not include such record information.
This conclusion is confirmed by ECPA’s amendments to
the Wiretap Act enacted in 1968. Before ECPA, the Wiretap
Act defined “contents” as including “the identity of the
parties to such communication or the existence, substance,
purport, or meaning of that communication.” 18 U.S.C.

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§ 2510(8) (1982). When it enacted ECPA, Congress
amended the definition of “contents” to eliminate the words
“identity of the parties to such communication,” indicating its
intent to exclude such record information from its definition
of “contents.” See Pub. L. 99-508 § 101(a)(5).
Accordingly, we hold that under ECPA, the term
“contents” refers to the intended message conveyed by the
communication, and does not include record information
regarding the characteristics of the message that is generated
in the course of the communication. We have previously
made this distinction between contents and record
information. See United States v. Reed, 575 F.3d 900, 917
(9th Cir. 2009) (holding that information about a telephone
call’s “origination, length, and time” was not “contents” for
purposes of § 2510(8), because it contained no “information
concerning the substance, purport or meaning of [the]
communication”). And this conclusion is consistent with the
reasoning of our sister circuits. See Gilday v. Dubois,
124 F.3d 277, 296 n.27 (1st Cir. 1997) (holding that a device
that “captures electronic signals relating to the [personal
identification number] of the caller, the number called, and
the date, time and length of the call” does not capture the
contents of communications and therefore “is not within the
ambit of the Wiretap Act”); see also In re Application of U.S.
for an Order Directing a Provider of Elec. Commc’n Serv. to
Disclose Records to Gov’t, 620 F.3d 304, 305–06 (3d Cir.
2010) (holding that cell phone users’ location data is not
content information under the Stored Communications Act).
B
We must next determine whether the plaintiffs plausibly
alleged that the referer header information at issue here

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constituted the “contents of any communication,” 18 U.S.C.
§§ 2511(3)(a), 2702(a), that is, “any information concerning
the substance, purport, or meaning of a communication,” id.
§ 2510(8).
The referer header information that Facebook and Zynga
transmitted to third parties included the user’s Facebook ID
and the address of the webpage from which the user’s HTTP
request to view another webpage was sent. This information
does not meet the definition of “contents,” because these
pieces of information are not the “substance, purport, or
meaning” of a communication. A Facebook ID identifies a
Facebook user and so functions as a “name” or a “subscriber
number or identity.” Id. §§ 2702(c)(6), 2703(c)(2)(A), (E).
Similarly, the webpage address identifies the location of a
webpage a user is viewing on the internet, and therefore
functions like an “address.” Id. § 2703(c)(B). Congress
excluded this sort of record information from the definition
of “contents.” See id. §§ 2702(c)(6), 2703(c)(2)(A), (B), (E).
The plaintiffs argue that the referer header discloses
content information, because when the referer header
provides the advertiser with a Facebook ID (which, at the
election of the user, may have been changed to a user name)
along with the address of the Facebook page the user was
previously viewing, an enterprising advertiser could uncover
the user’s profile page and any personal information made
available to the public on that page. But the statutes at issue
in these cases do not preclude the disclosure of personally
identifiable information; indeed, they expressly allow it. See
id. §§ 2702(c)(6), 2703(c)(2) (allowing providers to disclose
subscribers’ names, addresses, telephone connection records,
length of service, telephone numbers, subscriber numbers,
credit card numbers, and bank account numbers under certain

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circumstances). There is no language in ECPA equating
“contents” with personally identifiable information. Thus, an
allegation that Facebook and Zynga disclosed personally
identifiable information is not equivalent to an allegation that
they disclosed the contents of a communication.
The plaintiffs also argue that record information can
become content if the record is the subject of a
communication, as in an email message saying “here’s my
Facebook ID number,” or “you have to check out this
website.” Such was the case in In re Pharmatrak, where the
First Circuit recognized an ECPA violation when an entity
intercepted the content of the sign-up information customers
provided to pharmaceutical websites, which included their
“names, addresses, telephone numbers, email addresses, dates
of birth, genders, insurance statuses, education levels,
occupations, medical conditions, medications, and reasons for
visiting the particular website,” and provided this information
to third parties. 329 F.3d 9, 15, 18–19 (1st Cir. 2003).
Because the users had communicated with the website by
entering their personal medical information into a form
provided by a website, the First Circuit correctly concluded
that the defendant was disclosing the contents of a
communication. But the complaints here do not plausibly
allege that Facebook and Zynga divulged a user’s
communications to a website; rather, they allege that
Facebook and Zynga divulged identification and address
information contained in a referer header automatically
generated by the web browser. Unlike the information
disclosed in Pharmatrak, the information allegedly disclosed
by Facebook and Zynga is record information about a user’s
communication, not the communication itself. ECPA does
not apply to such disclosures.

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Finally, the plaintiffs rely on cases analyzing when
disclosure of a URL may provide the contents of a
communication, rather than record information, for purposes
of Fourth Amendment protections. The plaintiffs rely on a
footnote in United States v. Forrester, where we noted that a
“URL, unlike an IP address, identifies the particular
document within a website that a person views,” and
therefore “might be more constitutionally problematic.”
512 F.3d 500, 510 n.6 (9th Cir. 2008). Forrester quoted a
district court case for the proposition that if a user entered a
search phrase into a search engine, “‘that search phrase would
appear in the URL after the first forward slash,’” and
disclosure of that URL “‘would reveal content.’” Id. (quoting
In re Application of U.S. for an Order Authorizing Use of a
Pen Register & Trap On (xxx) Internet Serv. Account/User
Name, ([e-mail]), 396 F. Supp. 2d 45, 49 (D.
Mass. 2005)). Based on this footnote, the plaintiffs argue that
the webpage addresses contained in the referer headers in this
case revealed the contents of a communication, because they
disclose specific information regarding a webpage that a user
previously viewed. For example, they allege that “if a
Facebook user who was gay and struggling to come out of the
closet was viewing the Facebook page of a gay support
group, and then clicked on an ad, the advertiser would know
. . . that s/he was viewing the Facebook page of a gay support
group just before navigating to their site.”
This argument fails. As a threshold matter, our task in
interpreting ECPA is to discern Congress’s intent, see
Gwaltney, 484 U.S. at 56–58, and our Fourth Amendment
jurisprudence is largely irrelevant to this enterprise of
statutory interpretation. But even assuming that Congress
considered the body of law regarding persons’ reasonable
expectation of privacy under the Fourth Amendment in

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making the statutory distinction between content and record
information at issue in ECPA, we disagree with the plaintiffs’
claims. Under the Fourth Amendment, courts have long
distinguished between the contents of a communication (in
which a person may have a reasonable expectation of
privacy) and record information about those communications
(in which a person does not have a reasonable expectation of
privacy). Forrester, 512 F.3d at 509–11. Thus the
warrantless installation of pen registers, which capture only
the telephone numbers that are dialed and not the calls
themselves, does not violate the Fourth Amendment. See
Smith v. Maryland, 442 U.S. 735, 745–46 (1979). Courts
have made a similar distinction between the outside of an
envelope and its contents in mail cases. See, e.g., United
States v. Jacobsen, 466 U.S. 109, 114 (1984); United States
v. Hernandez, 313 F.3d 1206, 1209–10 (9th Cir. 2002). And
we have allowed the warrantless collection of email and IP
addresses under the same reasoning because email and IP
addresses “constitute addressing information and do not
necessarily reveal any more about the underlying contents of
communication than do phone numbers.” Forrester,
512 F.3d at 510. So Forrester does not support the plaintiffs,
but rather reinforces the distinction between contents and
record information that we have discerned in ECPA.
Nor does Forrester’s dicta about URL information being
“content” under some circumstances help the plaintiffs.
Information about the address of the Facebook webpage the
user was viewing is distinguishable from the sort of
communication involving a search engine discussed in
Forrester. As noted in the district court opinion cited by
Forrester, a Google search URL not only shows that a user is
using the Google search engine, but also shows the specific
search terms the user had communicated to Google. In re

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Application, 396 F. Supp. 2d at 49.
Under some
circumstances, a user’s request to a search engine for specific
information could constitute a communication such that
divulging a URL containing that search term to a third party
could amount to disclosure of the contents of a
communication. But the referer header information at issue
here includes only basic identification and address
information, not a search term or similar communication
made by the user, and therefore does not constitute the
contents of a communication.
IV
In order for the plaintiffs to state a claim under the
Wiretap Act and Stored Communications Act, they must
plausibly allege that Facebook and Zynga divulged the
“contents” of a communication. Because information
disclosed in the referer headers at issue here is not the
contents of a communication as defined in ECPA, the
plaintiffs cannot state a claim under those statutes.
Accordingly, we affirm the district court’s dismissal with
prejudice.
AFFIRMED.

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Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)

United States Court of Appeals for the Ninth Circuit
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, swear under penalty of perjury that the services for which costs are taxed

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Costs are taxed in the amount of $
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EXHIBIT B

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

MAY 08 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

In re: FACEBOOK PRIVACY
LITIGATION,

No. 12-15619
D.C. No. 5:10-cv-02389-JW

MIKE ROBERTSON, as representative of
the class,

MEMORANDUM*

Plaintiff - Appellant,
v.
FACEBOOK, INC., a Delaware
corporation,
Defendant - Appellee.

Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted January 17, 2014
San Francisco, California
Before: ALARCÓN, TALLMAN, and IKUTA, Circuit Judges.

*

This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Plaintiffs appeal the district court’s dismissal with prejudice of their state
law claims for breach of contract and fraud, as well as their claims under
California’s Unfair Competition Law (UCL) and Consumer Legal Remedies Act
(CLRA). We have jurisdiction under 28 U.S.C. § 1291.1
Plaintiffs allege that the information disclosed by Facebook can be used to
obtain personal information about plaintiffs, and that they were harmed both by the
dissemination of their personal information and by losing the sales value of that
information. In the absence of any applicable contravening state law, these
allegations are sufficient to show the element of damages for their breach of
contract and fraud claims. Cf. Gautier v. Gen. Tel. Co., 44 Cal. Rptr. 404, 406
(Cal. Ct. App. 1965) (holding that breach of contract requires damage to the
plaintiff); Lazar v. Sup. Ct., 909 P.2d 981, 984 (Cal. 1996) (stating that fraud
requires damage to the plaintiff). Therefore, the district court erred in dismissing
these state law claims.
We affirm the district court’s dismissal of plaintiffs’ UCL claim because
plaintiffs failed to allege that they “lost money or property as a result of the unfair
competition.” Cal. Bus. & Prof. Code § 17204; see also Folgelstrom v. Lamps
1

In a published opinion filed concurrently with this memorandum, we affirm
the district court’s dismissal of plaintiffs’ claims under the Stored Communications
Act, 18 U.S.C. § 2702. Robertson v. Facebook, ___ F.3d ___ (9th Cir. 2014).
2

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Plus, Inc., 125 Cal. Rtpr. 3d 260, 266–67 (Cal. Ct. App. 2011). We also affirm the
district court’s dismissal of plaintiffs’ claim under the CLRA because plaintiffs
failed to allege that they obtained anything from Facebook “by purchase,” or by a
“consumer transaction.” Schauer v. Mandarin Gems of Cal., Inc., 23 Cal. Rptr.
233, 241 (Cal. Ct. App. 2005); Cal. Civ. Code §§ 1761(d), 1780(a).
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

3

1
2

CERTIFICATE OF SERVICE
I hereby certify that on May 12, 2014, I caused the foregoing to be electronically filed

3 with the Clerk of the Court using the CM/ECF system which will send notification of such filing
4 to the e-mail addresses denoted on the Electronic Mail Notice List, and I hereby certify that I
5 caused the foregoing document or paper to be mailed via the United States Postal Service to the
6 non-CM/ECF participants indicated on the Manual Notice List.
7

I certify under penalty of perjury under the laws of the United States of America that the

8 foregoing is true and correct. Executed on May 12, 2014.
9
10 DATED: May 12, 2014

Respectfully Submitted,

11

KIESEL LAW LLP

12
13
14
15
16

By:

/s/ Paul R. Kiesel
Paul R. Kiesel
[e-mail]
8648 Wilshire Boulevard
Beverly Hills, California 90211
Tel.: [phone]
Fax: [phone]

17
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CERTIFICATE OF SERVICE
5:12-MD-02314-EJD