We can only conclude that persons “of common intelligence must necessarily guess at [the] meaning” of the term “injurious” as it is used in section 2511(2)(d). 425 U.S. at 620 (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926). Accordingly, we affirm the District Court’s dismissal of plaintiff’s claim under section 2511(2)(d). Boddie, 881 F.2d at 271-72. Thus, for the reasons set forth in Boddie, CSP Defendants ask this court to hold the “injurious harm” language in D.C. Code § 23-542(b)(3) unconstitutionally vague and not apply it in this case. Consequently, the D.C. Wiretap Act claims in Count One should be dismissed for the same reasons articulated for the dismissal of the Federal Wiretap Act.

The tape was left in the mailbox of Mr. Yocum, who subsequently gave the tape to Vopper, a local radio host, who played the tape on the air. Bartnicki and Kane sued Yocum, Vopper, and other members of the media who had disclosed the contents of the tape, alleging violations of 18 U.S.C. 2511(c) and an analogous state statute. CaseM:06-cv-01791-VRW Document319 Filed06/23/07 Page44 of 66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ JOINT OPPOSITION TO VERIZON’S MOTION TO DISMISS 636135.

OB 46. Plaintiffs misread the first clause of 18 U.S.C. § 2511(2)(f). Opp. 13 n.14.

13 While Plaintiffs’ Complaint only makes reference to interception in Count I, see Compl. ¶¶ 129-30, it alleges a violation of 18 U.S.C. § 2511 and the facts necessary to support a claim for disclosure of the communications. Case5:10-md-02184-JW Document64 Filed01/25/11 Page21 of 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 - NO. 5:10-md-02184 JW PLTFS’ RESPONSE TO DEF’S MOTION TO DISMISS CONSOLIDATED CLASS ACTION COMPLAINT Cal. 4th 95, 137 P.3d 914 (Cal.

The decision on which AT&T principally relies for its “absolute common-law immunity” argument, Smith v. Nixon, 606 F.2d 1183 (D.C. Cir. 1979), conflicts with the Ninth Circuit’s decision in Jacobson and is not an immunity case. Smith, which addressed claims under the Constitution and 18 U.S.C. § 2511, does not purport to apply any rule of immunity from suit, much less an established “absolute common-law immunity.” After reciting a sentence from the district court’s opinion – “C&P’s limited technical role in the surveillance as well as its reasonable -23- No.

B.) Application of CIPA in this case would intrude upon Congress’s comprehensive regulatory scheme for ECS providers. See Sherwood Partners, Inc. v. Lycos, Inc., 394 F.3d 1198, 1200 (9th Cir. 2005) (“Congress’ intent to supersede state law altogether may be found from a ‘scheme of federal regulation . . . so pervasive as to make reasonable the inference 14See 18 U.S.C. §§ 2511(2)(a) – (i). 15See Section V.D., supra, discussing 18 U.S.C. § 2520(d) and 18 U.S.C. § 2707(e).

In Johnson, as in this case, the delay was four years. 2 As set forth in WOW’s Response to Supplement to Plaintiffs’ Position Statement, filed concurrently with this Opposition, the dismissal of the interception claim is also dispositive of Plaintiffs’ remaining claims under 18 U.S.C. § 2511(1)(c) and (d). Case: 1:09-cv-07653 Document #: 170 Filed: 03/06/13 Page 13 of 16 PageID #:1188 -10- Likewise, in Sanders v. Venture Stores, the Seventh Circuit reviewed the district court’s denial of a motion for leave to amend a complaint to add new add new claims more than two years after the filing of the initial complaint.

If § 632 were thus interpreted to prohibit providers from “recording” and storing emails on their servers, ECS Providers would be subject to conflicting federal and state regulation, rendering it impossible for ECS Providers to provide email services to their subscribers nationwide. Indeed, this is why under federal law, the Ninth Circuit has found that the provisions dealing with communications in electronic storage under 18 U.S.C. § 2701, and not the provisions dealing with intercepts under 18 U.S.C. § 2511, come into play when analyzing access to communications stored on providers’ systems. Konop, 302 F.3d at 878-80.

Case5:10-md-02184-JW Document60 Filed12/17/10 Page21 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GOOGLE INC.’S MOTION TO DISMISS CASE NO. 5:10-MD-02184 JW (HRL) -16- radio transmissions, including those sent over unlicensed bands should be considered “readily accessible to the general public” unless one of five specific exceptions applied. 18 U.S.C. § 2511(2)(g)(i); 18 U.S.C. § 2510(16)(A)-(E). Congress easily could have prohibited the acquisition of radio broadcasts sent over unlicensed radio bands, but elected not to.

8 The Wiretap Act requires only “consent to [the] interception”—not consent to the purpose of the interception. 18 U.S.C. § 2511(2)(d) (emphasis added); see also In re High Fructose Corn Syrup Antitrust Litig., 216 F.3d 621, 624 (7th Cir. 2000) (if consent is obtained for an interception, there are “no . . . restrictions on its use”); Buckingham v. Gailor, No. 00-cv-1568, 2001 WL 34036325, at *6 (D. Md. Mar. 27, 2001) (“The use and disclosure of interceptions . . . will not be considered unlawful, if, as in this instance, the interceptions themselves are lawful.”).