Memorandum Points and Authorities

Cal. Super. - 6th Dist.June 18, 2021

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV383231 Santa Clara - Civil EMILY JOHNSON HENN (Bar N0. 269482) KATHRYN E. CAHOY (Bar N0. 298777) COVINGTON & BURLING LLP 3000 E1 Camino Real 5 Palo Alto Square, 10th Floor Palo Alto, CA 94306-21 12 Telephone: + 1 (650) 632-4700 Facsimile: + 1 (650) 632-4800 E-mail: ehenn@cov.com E-mail: kcahoy@cov.com Attorneysfor Defendant Facebook, Inc. Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/18/2021 6:04 PM Reviewed By: R. Walker Case #21 CV383231 Envelope: 7699131 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA Case No.: 21-CV-383231 JOSEPH RICKWALDER, MEMORANDUM OF POINTS AND Plaintiff, AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO V_ PLAINTIFF’S COMPLAINT FACEBOOK, INC” [Filed concurrently With Notice 0f Demurrer and Demurrer, Declaration 0f Kathryn E. Defendant Cahoy, and Request for Judicial Notice] Judge: Hon. Sunil R. Kulkarni Dept. 1 Complaint Filed: June 18, 2021 Hearing Date: February 3, 2022, at 1:30 p.m. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. III. IV. V. TABLE OF CONTENTS INTRODUCTION .............................................................................................................. 5 LEGAL STANDARD ......................................................................................................... 5 FACTUAL ALLEGATIONS ............................................................................................. 6 ARGUMENT ...................................................................................................................... 9 A. Plaintiff Fails To State a Claim Under Section 631(a). .......................................... 9 1. Plaintiff Consented t0 the Complained-Of Activity, So Cannot State a Claim for Unauthorized Wiretapping. ........................................................ 9 2. CNN’s Implementation 0f the Pixel Does Not Amount t0 Third-Party Wiretapping ............................................................................................... 1 1 3. The Complaint Alleges N0 Tapping 0f “Any Telegraph 0r Telephone Wire, Line, Cable, 0r Instrument.” ........................................................... 13 4. The Complaint Alleges N0 Interception “in Transit.” .............................. 14 B. Plaintiff Fails To State a Claim and Lacks a Right 0f Action Under Section 635. ............................................................................................................................... 14 C. Plaintiff’ s Class Allegations Should Be Dismissed or Stricken. .......................... 16 CONCLUSION ................................................................................................................. 16 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases Adler v. Communitycom, Inc. (C.D.Ca1. Aug. 2, 2021) 2021 WL 4805435 ........................................................................................ 14 Cantu v. Resolution Trust Corp. (1992) 4 Ca1.App.4th 857 ...................................................................................................................... 6 Capito v. San Jose Healthcare System (Super. Ct. Santa Clara County, 2021, N0. 20CV366981) .................................................................. 16 In re Facebook Internet Tracking Litig. (9th Cir. 2020) 956 F.3d 589 ............................................................................................................... 12 In re Facebook Internet Tracking Litig. (N.D.Ca1. 2015) 140 F.Supp.3d 922 .................................................................................................... 15 George v. Automobile Club ofSouthem California (201 1) 201 Cal.App.4th 1112 .............................................................................................................. 14 Gonzales v. Uber Techs., Inc. (N.D.Ca1. 2018) 305 F.Supp.3d 1078 ....................................................................................................9 In re Google Assistant Privacy Litig. (N.D.Ca1. 2020) 457 F.Supp.3d 797 .................................................................................................... 13 In re Google Inc. (N.D.Ca1. Sept. 26, 2013) 2013 WL 5423918 ..................................................................................... 13 Graham v. Noam, Inc. (N.D.Ca1. 2021)_ F.Supp.3d _, 2021 WL 13 12765 ........................................................................ 12 Johnson v. Blue Nile, Inc. (N.D.Ca1. Apr. 8, 2021) 2021 WL 1312771 ........................................................................................ 12 LVRC Holdings LLC v. Brekka (9th Cir. 2009) 581 F.3d 1127 ............................................................................................................. 15 Massie v. Gen. Motors C0. (E.D.Ca1. May 26, 2021) 2021 WL 2142728 ...................................................................................... 12 Mastel v. Miniclip SA (E.D.Cal. July 15, 2021) 2021 WL 2983198 ................................................................................. 13, 14 Perkins v. LinkedIn Corp. (N.D.Cal. 2014) 53 F.Supp.3d 1190 .................................................................................................... 10 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Quigley v. Yelp, Inc. (N.D.Cal. Jan. 22, 2018) 2018 WL 7204066 ....................................................................................... 14 Rakestraw v. Cal. Physicians ’ Serv. (2000) 81 Ca1.App.4th 39 .......................................................................................................... 6, 13, 15 Rogers v. Ulrich (1975) 52 Ca1.App.3d 894 ............................................................................................................. 1 1, 12 Smith v. Facebook, Inc. (N.D.Cal. 2017) 262 F.Supp.3d 943 ................................................................................................ 9, 10 Tellez v. Rich Voss Trucking, Inc. (2015) 240 Ca1.App.4th 1052 .............................................................................................................. 16 Tucker v. Pacific Bell Mobile Services (2012) 208 Ca1.App.4th 201 ................................................................................................................ 16 Warden v. Kahn (1979) 99 Ca1.App.3d 805 ............................................................................................................. 1 1, 13 Yale v. Clicktale, Inc. (N.D.Ca1. Apr. 15, 2021) 2021 WL 1428400 ...................................................................................... 12 Statutes CiV. Code, § 1798.120 ............................................................................................................................... 11 CiV. Code, § 1798.175 ............................................................................................................................... 11 Code CiV. Proc., § 430.10 ............................................................................................................................ 5 Code Civ. Proc., § 3515 ............................................................................................................................... 9 Pen. Code, § 631 .................................................................................................................................... 9, 13 Pen. Code, § 635 .................................................................................................................................. 15, 16 Pen. Code, § 637.2 ..................................................................................................................................... 15 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Joseph Rickwalder accuses defendant Facebook, Inc.,1 of secretly “wiretapping” and “eavesdropping” on his online activity. But the Pixel technology at issue is not a secret, nor does it bear any resemblance to a wiretapping or eavesdropping device. It is instead a free, publicly available analytics tool widely used by website owners t0 collect and analyze data about Visitor interactions with their websites. Facebook does not deploy the Pixel itself on those websites and is not involved in the implementation process. Rather, website owners implement the code on their websites, set the desired configurations, and then can access and use resulting data for analytics and measurement purposes. Websites that implement the Pixel d0 s0 pursuant to Facebook’s contractual terms requiring website owners to obtain consent t0 collect data from their Visitors. According t0 plaintiff, the operator of cnn.com (“CNN”) deployed the Pixel and collected data about plaintiff s activity on CNN’s website. Contrary to plaintiff’ s characterizations, this does not constitute “wiretapping” or “eavesdropping.” Plaintiff consented to the complained-of activity, which both Facebook and CNN explicitly disclosed in their user policies, by using Facebook’s platform and by Visiting cnn.com. And Facebook cannot be liable for wiretapping When it was CNN, a party to the alleged communications at issue, that used the Pixel to collect and analyze data about those alleged communications. Moreover, the plain language 0f the wiretapping laws invoked by plaintiff does not match the complained-of conduct, and the complaint alleges n0 facts plausibly suggesting otherwise. Finally, plaintiff s class allegations should be stricken because his alleged Visits to just one website- cnn.com-do not qualify him to represent a class 0f all California residents, including those Who never Visited cnn.com. II. LEGAL STANDARD A demurrer should be sustained when a complaint on its face fails to “state facts sufficient to constitute a cause 0f action.” (Code Civ. Proc., § 430.10, subd. (6).) For purposes of that analysis, the 1 Facebook, Inc. recently changed its name to Meta Platforms, Inc. For consistency with the case caption and complaint, however, this memorandum continues to refer to Facebook by its prior name. 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Court need not accept “contentions, deductions, 0r conclusions of fact 0r law.” (Rakestraw v. Cal. Physicians ’ Serv. (2000) 81 Ca1.App.4th 39, 43.) Instead, the complaint “must set forth factual allegations that sufficiently state all required elements of [a] cause 0f action,” and the “[a]llegations must be factual and specific, not vague or conclusionary.” (Id. at pp. 43-44.) Dismissal without leave t0 amend is appropriate if the alleged facts and the nature 0f the pleading defects make clear that plaintiff cannot state a claim. (Cantu v. Resolution Trust Corp. (1992) 4 Ca1.App.4th 857, 889-890.) III. FACTUAL ALLEGATIONS The Pixel is a free analytics tool that allows website owners to understand Visitor activity on their websites and measure the effectiveness of their advertising. (Comp1., 1W 10, 17.) T0 install the Pixel, a website owner copies a few lines of publicly available code into the website. (Id., 11 10.) The code allows the website owner to actively share information collected on its website with Facebook and use that information to perform analytics and make advertisements more relevant to the website owner’s specific audience, among other things. (See id., 1H] 10, 19.) After implementing the Pixel code, website owners can configure the code to, for example, recognize Visitor actions and analyze Visitor traffic. (See id., W 11-12.) Website owners can also access and use data collected 0n their websites for certain purposes, including measuring advertising campaign performance and developing advertising strategies. (See id., 1W 13-14.) Website owners’ use of the Pixel is subject t0 Facebook’s Business Tools Terms. (See Request for Judicial Notice (“RJN”) EX. 1.) Section 3 of those terms provides in relevant part: c. You represent and warrant that you have provided robust and sufficiently prominent notice t0 users regarding the Business T001 Data collection, sharing and usage that includes, at a minimum: i. For websites, a clear and prominent notice on each web page where our pixels are used that links to a clear explanation (a) that third parties, including Facebook, may use cookies, web beacons, and other storage technologies t0 collect 0r receive information from your websites and elsewhere on the Internet and use that information t0 provide measurement services and target ads, (b) how users can opt-out 0f the collection and use 0f information for ad targeting, and (c) Where a user can access a mechanism for exercising such choice . . . . 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 d. In jurisdictions that require informed consent for storing and accessing cookies 0r other information 0n an end user’s device . . . you must ensure, in a verifiable manner, that an end user provides all necessary consents before you use Facebook Business Tools . . . . (Ibid, bold added.) Plaintiff alleges that CNN had installed the Pixel 0n its website When he Visited cnn.com 0n his phone on 0r about May 21, 2021, 0n his desktop 0n 0r about January 6, 2021, and at “many” other unspecified times. (C0mpl., 1] 3.) During these Visits, plaintiff allegedly browsed and read various articles, clicked 0n various links, and conducted searches. (Id, W 3-4.) Plaintiff contends that the Pixel transmitted information about his CNN website activity t0 Facebook. (1d,, 1N 3-4, 11, 21.) The CNN website that plaintiff allegedly Visited displays a link to a privacy policy containing no less than three separate disclosures that Visitors’ information may be collected Via pixel technology: We may collect different types 0f information during your interactions With our Sites and through our advertising and media across the Internet and mobile apps. This information may include . . . usage information (e.g., how you use and navigate t0 and from our Sites, and information about content 0r advertisements you have been shown 0r have clicked 0n). . . . Information may be collected as described below and through the use 0f cookies, web beacons, pixels, and other similar technologies by us 0r by other companies 0n our behalf. (RJN Ex. 4, bold added); On our own 0r working with affiliates or third parties, we may present advertisements and engage in data collection, reporting, ad delivery and response measurement, and site analytics on our Sites and 0n third party websites across the Internet and applications over time. We, our affiliates, 0r third parties may use cookies, web beacons, pixels, software development kits (“SDKS”) or similar technologies t0 collect information across websites, services, and apps over time t0 perform this activity. We, our affiliates, 0r third parties may use and transfer this information in order t0 help serve advertising that may be more relevant to your interests 0n and off our Sites and across your devices and browsers. (Ibid, bold added); and We may also use pixels 0r “web beacons” that monitor your use 0f our Sites. . . . By Visiting the Site, Whether as a registered user 0r otherwise, you acknowledge, and agree that you are giving us your consent t0 track your activities and your use 0f the Site through the technologies described above, as well as similar technologies developed in the future, and that we may use such tracking technologies in the emails we send to you. 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Ibid, bold added). The CNN website that plaintiff allegedly Visited also displays a link to a separate “Do Not Sell My Personal Information” dialogue box that expressly tracks the requirements of the California Consumer Privacy Act (“CCPA”) and discloses that “WarnerMedia uses data to improve and analyze its functionality and t0 tailor products, services, ads, and offers to your interests. You can disable some types of cookies and opt to stop sharing your information with third parties, unless it is necessary t0 the fimctioning of the website.” (Id. EX. 5.) The dialogue box also gives Visitors the option t0 Withdraw consent to share their data With third parties by simply switching off a toggle. (Ibid) Plaintiff does not allege that he ever exercised his option to withdraw consent t0 share his data with third parties. In addition to the disclosures and opt-out option on the CNN website, Facebook users like plaintiff also received additional disclosures through Facebook. (See Comp1., W 11, 16, 18-19.) By signing up for Facebook and continuing t0 use the platform, Facebook users must agree t0 its Terms 0f Service. (RJN EX. 2.) Those terms explicitly disclose that personal data is collected and used for certain purposes, as explained in Facebook’s Data Policy. (Ibid) The Data Policy, in turn, states: Advertisers, app developers, and publishers can send us information through Facebook Business Tools they use, including our social plug- ins (such as the Like button), Facebook Login, our APIS and SDKs, 0r the Facebook pixel. These partners provide information about your activities off Facebook-including information about your device, websites you Visit, purchases you make, the ads you see, and how you use their services-Whether 0r not you have a Facebook account 0r are logged into Facebook. . . . Partners receive your data when you Visit 0r use their services 0r through third parties they work with. We require each of these partners to have lawful rights to collect, use and share your data before providing any data to us. (Id. EX. 3, bold added, hyperlinks omitted.) Plaintiff does not allege that he ever used Facebook’s privacy settings t0 prevent information from his activity on other websites from being associated with his Facebook account? 2 By way of background, Facebook users have various privacy settings available t0 them t0 manage the use 0f their data. For example, Facebook users can use the Off-Facebook Activity tool to View information Facebook receives about their activity on other websites and choose to disconnect that information from their Facebook accounts. (See generally Facebook, Off-FacebookActivity (2021) Meta [as 0fNov. 18, 2021].) 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff nevertheless complains that Facebook “secretly” used the Pixel “as a Wiretap” t0 “eavesdropfl” on his communications With CNN and its website operator, WarnerMedia. (See Comp1., W 1-4.) Plaintiff seeks t0 represent a class 0f “all California residents who Facebook tracked using the Facebook Tracking Pixel,” even if they never Visited the CNN website. (Id., 1] 23.) Plaintiff asserts causes of action for Violation of the California Invasion of Privacy Act (“CIPA”), specifically California Penal Code sections 63 1(a) and 635. (Id., 1H 30-45.) IV. ARGUMENT A. Plaintiff Fails To State a Claim Under Section 631(a). Section 63 1(a) confers liability 0n a person who engages in any 0f four forms 0f unauthorized eavesdropping. (See Pen. Code, § 631, subd. (21).) The complaint quotes all four prohibitions from section 63 1(a) (see Comp1., 11 32) but specifically accuses Facebook of Violating only the first two of the four prohibitions. (Id., 1H] 35-36.) Neither applies on the facts alleged because plaintiff consented t0 the complained-of activity. Moreover, the use of the Pixel on the CNN website was undertaken, not by Facebook, but by CNN, and the actions of a party to the alleged communications at issue cannot be deemed unlawful under section 63 1(a). In addition, plaintiff fails to allege facts plausibly showing how various elements 0f section 631(a) are met here. 1. Plaintiff Consented t0 the Complained-Of Activity, So Cannot State a Claim for Unauthorized Wiretapping. Under California law, a plaintiff “Who consents t0 an act is not wronged by it.” (CiV. Code, § 35 1 5.) Consistent with this principle, California courts routinely rej ect privacy claims where the plaintiff’s conduct manifested consent to the defendant’s alleged conduct. (See, e.g., Gonzales v. Uber Techs., Inc. (N.D.Cal. 2018) 305 F.Supp.3d 1078, 1090-1091 [plaintiffwho “manifested by his 0r her conduct a voluntary consent to the invasive actions 0f defendant” could not state claim for invasion 0f privacy]; Smith v. Facebook, Inc. (N.D.Ca1. 2017) 262 F.Supp.3d 943, 955-956 [dismissing privacy claims under Civil Code section 35 15], affd. (9th Cir. 2018) 745 Fed.Apr. 8.) CIPA is no exception. By its plain language, section 63 1(a) applies only t0 “unauthorized” conduct. That element is not satisfied where applicable contracts 0r disclosures explicitly notify the user 0fthe conduct at issue. (See Smith v. Facebook, supra, 262 F. Supp. 3d at pp. 953-955.) For this 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reason, a federal court considering a similar question concluded that users had consented to alleged data sharing by signing up for Facebook accounts and agreeing to several Facebook policies containing disclosures similar to the ones applicable here: We collect information when you visit 0r use third-party websites and apps that use our Services (like when they offer our Like button or Facebook Log In or use our measurement and advertising services). This includes information about the websites and apps you Visit, your use of our Services 0n those websites and apps, as well as information the developer 01' publisher 0f the app 0r website provides to you 0r us. (Id. at p. 953, bold added); and Cookies are small files that are placed 0n your browser 0r device by the website or app you’re using 0r ad you’re Viewing. Pixel tags (also called clear GIFs, web beacons, 0r pixels) are small blocks of code 0n a webpage 0r app that allow them t0 d0 things like read and place cookies and transmit information t0 us 0r our partners. . . . Things like Cookies and similar technologies (such as information about your device or a pixel 0n a website) are used to understand and deliver ads, make them more relevant t0 you, and analyze products and services and the use 0f those products and services. (Ibid, bold added; see supra, Part III.) The Smith court concluded the plaintiffs’ consent barred their causes of action against Facebook under wiretapping statutes, including CIPA and section 631(a) specifically. (Smith v. Facebook, supra, 262 F.Supp.3d at p. 955; cf, e.g., Perkins v. Linkedln Corp. (N.D.Cal. 2014) 53 F.Supp.3d 1190, 1214 [dismissing analogous claims under federal Wiretap Act where defendant disclosed that it collected users’ email addresses and plaintiffs did not opt out 0f such collection].) So too here. Facebook’s user policies alone suffice to establish consent to the complained-of conduct, but plaintiff’ s CIPA claims are also barred by a second, independent layer 0f consent Via CNN’s user policies. CNN’S privacy policy repeatedly disclosed the collection, transfer, and use of site Visitors’ information by WarnerMedia, “other companies on [its] behalf,” and other “third parties”-including specifically Via the pixel technology at issue here. (See supra, Part III.) In addition, CNN separately gave users the option to opt out of third-party data-sharing by simply switching off a toggle in a “Do Not Sell My Personal Information” dialogue box expressly tracking CCPA requirements. (See ibid.) 1 0 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff does not allege that he ever exercised this opt-out option, so cannot be heard t0 complain that CNN used the Pixel in precisely the manner disclosed in both companies’ user policies. The complaint asserts in conclusory fashion that plaintiff “did not consent t0 . . . Facebook’s Wiretaps 0n cnn.com,” but alleges no facts to support this assertion. (Comp1., 11 44.) Notwithstanding plaintiff” s repeated attempts to characterize the conduct at issue as “wiretapping,” nothing alleged in the complaint plausibly suggests that Facebook engaged in “wiretapping” or any other conduct beyond the scope 0f plaintiff’ s consent. The fact remains that plaintiff is suing Facebook for receiving data that was shared with it by CNN pursuant to explicit and repeated disclosures in both companies’ user policies. Those disclosures suffice to establish plaintiff’s consent to the complained-of conduct, especially since plaintiff does not allege that he ever exercised his option through CNN’s CCPA dialogue box to opt out of the data sharing at issue. (See generally CiV. Code, § 1798.120 [establishing opt-out framework for user consent to third-party data sharing]; id., § 1798. 175 [“Wherever possible, law relating to consumers’ personal information should be construed to harmonize with the provisions of this title.”].) 2. CNN’s Implementation 0f the Pixel Does Not Amount t0 Third-Party Wiretapping. Section 63 1(a) prohibits eavesdropping only by third parties; it does not apply t0 parties t0 the communication in question. (See, e.g., Rogers v. Ulrich (1975) 52 Cal.App.3d 894, 899 [“It is never a secret t0 one party t0 a conversation that the other party is listening t0 the conversation; only a third party can listen secretly t0 a private conversation.”].) Nor does section 63 1(a) make it unlawful for a party t0 the communication to record that communication. (See, e.g., Warden v. Kahn (1979) 99 Cal.App.3d 805, 811 [“[S]ecti0n 631 . . . has been held to apply only to eavesdropping by a third party and not t0 recording by a participant to a conversation.”].) Here, there is no dispute that CNN is a party to plaintiff s alleged communications (i.e., traffic 0n its own website) and thus could lawfully record those communications. (See Comp1., fl 4 [alleging that plaintiff “requested information from cnn.com,” and the “website operator . . . responded by supplying the requested information”].) The complaint further alleges that CNN, not Facebook, decides Whether to install the Pixel 0n cnn.com t0 collect data about website Visitor activity. (See id., fl 10.) CNN, not Facebook, likewise decides how and where to configure and use the installed Pixel on cnn.com. (See 1 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 id., W 11-12.) And CNN then can access and analyze website traffic data through the Facebook Events Manager to, for example, measure ad performance and improve ad targeting. (See id., 11 13.) The complaint thus does not suffice to show that Facebook “eavesdrops” 0n communications between cnn.com and its Visitors. CNN itself decides whether and how to acquire, store, and use data from its website Visitors. Facebook’s role in the complained-of conduct is simply providing CNN With a modern, web-based “tool-like the tape recorder in Rogers-that allows [CNN] t0 record and analyze its own data in aid of [CNN’s] business.” (See Graham v. Noom, Inc. (N.D.Ca1. 2021)_ F.Supp.3d _, 2021 WL 13 12765, at *5.) On these facts, CIPA’S party exception exempts the alleged conduct and precludes liability under section 631(a). (See Rogers v. Ulrich, supra, 52 Ca1.App.3d at pp. 897-899 [section 631 did not prohibit participant in phone call from recording conversation With a tape recorder jack]; see also, e.g., Yale v. Clicktale, Inc. (N.D.Ca1. Apr. 15, 2021) 2021 WL 1428400, at *1 [dismissing CIPA claim because software vendor did not engage in “eavesdropping” 0r “wiretapping” When its technology was used by website operator to record and analyze Visitor traffic]; Johnson v. Blue Nile, Inc. (N.D.Cal. Apr. 8, 2021) 2021 WL 1312771, at *1 [same]; Graham v. Noam, supra, 2021 WL 1312765, at *5 [same]; cf. Massie v. Gen. Motors C0. (E.D.Cal. May 26, 2021) 2021 WL 2142728, at *8 [agreeing that software providers that “merely provide[] a tool for a website owner to record and analyze its own data [are] not third-party eavesdroppers,” and are in fact “steps removed from the website activities” at issue even if they charge for their services].)3 3 A Ninth Circuit decision reached a different result, but that decision is not binding on this Court, incorrectly applied California law, and involved distinguishable factual allegations. (See In re Facebook Internet Tracking Litig. (9th Cir. 2020) 956 F.3d 589, 607.) In that case, the Ninth Circuit accepted as true allegations that Facebook “continued t0 collect [users’] data after they had logged off the social media platform, in order t0 receive and compile their personally identifiable browsing history” and in conflict with the disclosures and expectations set in Facebook’s user policies. (See id. at pp. 598, 602- 603.) Based on that characterization, the Ninth Circuit concluded “that simultaneous, unknown duplication and communication 0fGET requests d0 not exempt a defendant from liability under the party exception.” (See id. at pp. 607-608.) Here, in contrast, the complaint alleges that website operators, not Facebook, collect website Visitor traffic and activity data for their own purposes using the Pixel as a tool. (See Comp1., 1N 10-13.) There is no allegation that Facebook acted in tension With any 0f its disclosures, and both Facebook and CNN’s user policies demonstrate that plaintiff at multiple steps manifested assent t0 the complained-of conduct. (See supra, Part IV(A)(1).) For these and other reasons, In re Internet Tracking is inapposite 0n the facts alleged in this complaint. 1 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff attempts t0 plead around CIPA’s party exception With a conclusory assertion that Facebook “uses the data that it collects from the Facebook Tracking Pixel for its own purposes.” (Comp1., 11 14.) But nothing in the text of section 63 1 (a) makes it unlawful for a third party to later use data that a party lawfillly obtained in the first instance. On the contrary, the third prohibition under section 63 1(a) specifically makes it unlawful to “use[], or attempt[] to use, in any manner, or for any purpose, 0r to communicate in any way, any information s0 obtained” (emphasis added)-i.e., obtained through a Violation 0f either 0f the first two prohibitions. This indicates that information not so obtained could be used Without fear of Violating section 63 1(a). (See Warden v. Kahn, supra, 99 Ca1.App.3d at pp. 81 1, 8 1 3 [rej ecting section 631 claim Where conversation was recorded by a party t0 the communication, even though a third party later used the recording against plaintiff] .) 3. The Complaint Alleges N0 Tapping 0f “Any Telegraph or Telephone Wire, Line, Cable, 0r Instrument.” Plaintiff also does not and cannot allege facts plausibly showing that Facebook violated the first prohibition against unlawful wiretapping, as that provision applies only t0 unauthorized connections “With any telegraph 0r telephone wire, line, cable, or instrument” (emphasis added). (See Pen. Code, § 63 1, subd. (a), emphasis added.) Nothing in the factual content of the complaint suggests that Facebook made any connection whatsoever With a telegraph or telephone Wire, line, cable, 0r instrument. Plaintiff attempts to plead around the statute’s plain language by asserting that Facebook tapped “the lines 0f internet communication” between him and cnn.com, but that is a Characterization, not a factual allegation. (See Compl., 1] 35; Rakestraw v. Cal. Physicians ’ Sew, supra, 81 Ca1.App.4th at pp. 43-44.) And California courts have consistently held that the phrase “telephone or telegraph wire, line, cable, or instrument” should be construed narrowly, and not t0 apply t0 technologies beyond telephones or telegraphs. (See, e.g., Mastel v. Miniclip SA (E.D.Ca1. 2021)_ F.Supp.3d _, 2021 WL 2983 198, at *3 [limiting first prohibition under section 631(a) to communications in telegraph 0r telephone context]; In re Google Assistant Privacy Litig. (N.D.Cal. 2020) 457 F.Supp.3d 797, 825-826 [same]; In re Google Inc. (N.D.Cal. Sept. 26, 2013) 2013 WL 5423918, at *20 [same].) 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. The Complaint Alleges N0 Interception “in Transit.” The second prohibition under section 63 1(a)-and the only other part of section 63 1 (a) the complaint specifically accuses Facebook of Violating-makes it unlawful t0 “read[], 0r attempt[] to read, 0r to learn the contents or meaning of any message, report, 0r communication” only “while the same is in transit.” Merely reading 0r acquiring the contents of a communication that already happened does not qualify. (See Adler v. Communitycom, Inc. (C.D.Cal. Aug. 2, 2021) 2021 WL 4805435, at *4 [dismissing section 631 claim where plaintiffs did not plausibly allege defendant learned the contents 0f communications While they were “in a technical sense, in transit . . . .”].) Plaintiff asserts in conclusory fashion that his data was “intercepted in real time.” (Comp1., 11 3.) But the Court need not accept such conclusory statements as true, and an unexplained reference to “real time,” Without more, does not suffice to satisfy section 63 1(a)’s “in transit” element. (George v. Automobile Club ofSouthern California (201 1) 201 Cal.App.4th 1112, 1120 [“A demurrer admits all facts properly pleaded, but not contentions, deductions or conclusions 0f law or fact.”].) Plaintiff’s failure to allege any facts explaining how the Pixel installed on cnn.com intercepted any communication between himself and the website While the communication was “in transit” between him and CNN is fatal to his CIPA claim under the second prohibition 0f section 631(a). (See Mastel v. Miniclip, supra, 2021 WL 2983 198, at *4 [dismissing section 631 claim because complaint lacked allegations establishing communications were intercepted “in transit”]; Quigley v. Yelp, Inc. (N.D.Ca1. Jan. 22, 2018) 2018 WL 7204066, at *4 [same].) B. Plaintiff Fails T0 State a Claim and Lacks a Right 0f Action Under Section 635. Plaintiff also asserts a cause of action based on Facebook’s supposed Violation 0f section 635. (Comp1., 11 45.) Section 637.2(a) grants a right of action for a section 635 Violation to a plaintiffwho has “been injured by a Violation 0f this chapter.” Specifically, the complaint accuses Facebook of Violating section 635(a), Which makes it unlawful t0 “manufacturefl, assemble[], sell[], offer[] for sale, advertise[] for sale, possess[], transport[], import[], or furnish[] t0 another any device which is primarily or exclusively designed or intended for eavesdropping upon the communication 0f another.” (See id., W 41-42.) Plaintiff s pleading as to section 635, however, amounts t0 little more than bare recitation 0f the statute and does not satisfy the elements 0f the claim for three reasons. 1 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 First, plaintiff alleges n0 facts to support his assertion that he has “been injured by . . . Violations of [section] 635,” and he therefore lacks a private right of action under section 637.2(a). (See id., 1] 45.) Plaintiff also concludes Without explanation that Facebook “intentionally manufactured, assembled, sold, offered for sale, advertised for sale, possessed, transported, imported, and/or furnished a Wiretap device” “by implementing Facebook’s wiretaps on cnn.com.” (Id., fl 42.) As explained, however, the facts alleged in the complaint do not plausibly show that Facebook ever implemented anything, let alone a “Wiretap,” 0n cnn.com. (See supra, Parts III, IV(A)(2).) At most for plaintiff, the complaint indicates that CNN itself chose to install the Pixel on cnn.com-an act that does not constitute wiretapping, and in any event cannot be attributed to Facebook. (See ibid.) Even if plaintiff had adequately alleged that he was injured by CNN’S use 0f the Pixel, that would not plausibly suggest that plaintiff has been injured by Facebook’s manufacture, assembly, sale, offering for sale, advertising for sale, possession, transport, import, 0r furnishing of the Pixel, as required t0 support a private right of action for Violation of section 635. (See Pen. Code, §§ 635; 637.2, subd. (21).) Second, Plaintiff asserts that the Pixel is a “wiretap device.” (Comp1., W 42-43.) But merely parroting the statutory language, coupled With a bald conclusion that the technology at issue amounts to a wiretapping device, does not suffice t0 state a CIPA claim. (See Rakestmw v. Cal. Physicians ’ Sew, supra, 81 Cal.App.4th at pp. 43-44.) Plaintiff alleges no facts plausibly suggesting that the Pixel is a “device” at all. Rather, the complaint describes the Pixel as “a few lines 0f code.” (Compl. 11 10.) While interpreting a different section of CIPA, a federal court held that the plaintiffs had not alleged facts to show that Facebook’s cookie, “a small text file containing a limited amount of information,” was a “machine, instrument, or contrivance” under CIPA. (See In re Facebook Internet Tracking Litig. (N.D.Cal. 2015) 140 F.Supp.3d 922, 937.) Similarly, plaintiff’s allegations here offer n0 explanation as t0 why “a few lines 0f code” should be considered a “Wiretap device” under section 635. And to the extent there is any ambiguity in the term “device,” it should be construed in Facebook’s favor insofar as section 635, as a penal statute, is subject t0 the rule of lenity. (See LVRC Holdings LLC v. Brekka (9th Cir. 2009) 581 F.3d 1127, 1134 [applying rule of lenity t0 civil application of a penal statute].) Third, plaintiff does not allege facts plausibly showing that the Pixel is “primarily 0r exclusively designed or intended for eavesdropping.” (See C0mp1., 1W 42-43.) On the contrary, the complaint 1 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 describes the Pixel as “an analytics tool that helps website owners ‘measure the effectiveness 0f [their] advertising and understand the actions people take on [their] website.’” (Id., fl 10.) Against this background, even if plaintiff had plausibly alleged that someone used the Pixel t0 eavesdrop 0n him- and he has not-that would fall far short of plausibly alleging that the Pixel is “primarily 0r exclusively” designed for eavesdropping. (See Pen. Code, § 635, subd. (a).) C. Plaintiff’s Class Allegations Should Be Dismissed 0r Stricken. Plaintiff’ s class allegations are fatally deficient 0n their face and should be dismissed 0r stricken. While it is generally preferable “to defer decision on the propriety of [a] class action” for consideration 0n an evidentiary record, a court may decide the propriety 0f class certification 0n the pleadings if, based 0n the facts alleged, “there is no reasonable possibility that the requirements for class certification Will be satisfied.” (See Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1062; Tucker v. Pacific Bell Mobile Services (2012) 208 Cal.App.4th 201, 21 1.) Here, plaintiff asserts that his claims “are typical of the claims of the Class because [he], like all other class members, Visited cnn.com.” (Comp1., 11 26.) But the class he seeks to represent is defined as “all California residents Who Facebook tracked using the Facebook Tracking Pixel”-regardless of Whether 0r not they Visited cnn.com. (Id., fl 23.) As shown above, Whether a particular individual consented to the complained-of conduct depends at least on the website at issue, the individual’s activities on that website, and the applicable user policies, among other things. (See supra, Parts III, IV(A)(1).) The complaint makes no effort to explain how these questions could be answered 0n a common classwide basis Without devolving into unmanageable individualized inquiries. Accordingly, plaintiff’s class allegations should be dismissed or stricken as fatally overbroad. (See Capito v. San Jose Healthcare System (Super. Ct. Santa Clara County, 2021, N0. 20CV366981, at p. 16.)4 V. CONCLUSION For the reasons set forth above, Defendant Facebook respectfully asks that this Court sustain the demurrer and dismiss this case. 4 Facebook reserves all rights t0 oppose class certification t0 the extent class allegations are not dismissed or stricken. 16 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: November 18, 2021 By: Attorneysfor Defendant Facebook, Inc. 17 COVINGTON & BURLING LLP /s/Kathryn E. Cahoy Kathryn E. Cahoy MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT