While the sections of the ECPA thatrestrict unauthorized access to communications (such as section 2511 of the Wiretap Act and section 2701 of the SCA)are subject to a “readily accessible to the general public” exemption, no such exemption is needed for the disclosure provisions of section 2702. This is because in the absence of an exemption for access to publicly available communications, sections 2511 and 2701 would criminalize merely curious behavior by making it unlawfulto intercept or -17- access a communication that was designed to be available to everyone. Congressaccordingly included an exemption applicable to each statute in section 2511(2)(g)(i), which exempts the interception or accessing of electronic communications made through an electronic communication system that is configured to be “readily accessible to the general public.”

The SCA allows ECS providers to access emails in intermediate storage while they are in transit on the providers’ servers and does not require the consent of either party to do so. 18 U.S.C. § 2701(c)(1). The SCA also contains numerous provisions describing the circumstances whereby providers can and must disclose communications in electronic storage.

Each of the Defendants served a subpoena duces tecum on one or more of the petitioners seeking both public andprivate content from user accounts of the murder victim and a witness. Petitioners moved to quash the subpoenas, objecting under the federal Stored Communications Act (SCA or Act) (§ 18 U.S.C. § 2701 et seq.) ! to the compelled disclosure of the content of their users’ electronic communications.

See U.S. v. Vilar, 729 F.3d 62, 74-75 (2d Cir. 2013) (stating that civil and criminal liability under a single statute must have the same scope because otherwise “judges can give the same statutory text different meanings in different cases,” and citing Clark v. Martinez, 543 U.S. 371, 386 (2005)). Therefore, because §2701 applies extraterritorially to Defendants’ conduct under Bowman, as discussed, Defendants are civilly liable under §2707. 45 Points & Authorities In Opposition Case 2:13-cv-04253-MWF-AJW Document 51 Filed 12/10/13 Page 56 of 66 Page ID #:675 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 E. PLAINTIFF HAS SUFFICIENTLY STATED CLAIMS UNDER CALIFORNIA LAW 1. California Penal Code Sections 631, 632 and 632.7

By the statute’s plain language and consistent with the statute’s purpose and uniform case law, the fact that section 2701 does not apply to Google’s access to its own communications facility does not turn on whether Plaintiff authorized the conduct. 18 U.S.C. § 2701(c)(1); see also U.S. Dep’t. of Justice, Prosecuting Computer Crimes at 94. Case 5:13-cv-04080-BLF Document 20 Filed 10/30/13 Page 22 of 31 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 16 NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT Case No.

This is because the SCA exempts from its prohibitions of unauthorized access “conduct authorized . . . by the person or entity providing a wire or electronic communications service.” 18 U.S.C. § 2701(c)(1). Courts have read Section 2701(c) as a sweeping “service-provider exemption,” that “exempt[s] from [the SCA’s] protection all searches [of stored data] by [service] providers.”

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 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION TO DISMISS 14 CASE NO. 5:14-CV-02285 LHK la-1255899 is no more than a threadbare recital of the language of § 2707(e), precisely the kind that we decline to credit”). As discussed above, Apple was authorized under the SCA to access electronic communications on its own systems, 18 U.S.C. § 2701(a), (c), and under the Wiretap Act to acquire electronic communications with the consent of a party to the communication (i.e., the current Apple user), 18 U.S.C. § 2511(c). Further, Apple was authorized to access electronic communications in the ordinary course of its business.

B. A Civil Claim for Violation of the SCA, Like the Other Two Causes of Action, Requires Actual Damage, and the Record Establishes None. The federal Stored Communications Act (“SCA”), at 18 U.S.C. §§ 2701, et seq., provides no basis for liability because the record and the allegations against Mr. Reynolds establish that he did not cause Mr. Casillas any legally cognizable _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) 11 Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 17 of 22 Page ID #:2843 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 THOMPSON COE & O’MEARA, LLP damage.

TO DISMISS FAC CASE NO. 13-CV-04303-LHK 3. Plaintiffs’ Allegations Establish That Google Authorized Access To Its Users’ Accounts Plaintiffs effectively concede that their allegations establish that Google, as the “entity providing the wire or electronic communications service,” authorized access to its users’ accounts, which constitutes an absolute defense under 18 U.S.C. § 2701(c)(1). See Opp.

. LinkedIn bases this argument on Section 2701(c)(1), which provides that the SCA exempts from liability “conduct authorized … by the person or entity providing the wire or electronic communications service.” This exception to liability does not apply here because Plaintiffs never authorized LinkedIn to access this particular data.