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.” By contrast, no corresponding exemption from potential liability for the providerexists for section 2702 because disclosure is discretionary, and in the case of public content, anyone can access that content without the need for provider assistance. For example, Twitter accounts are generally public,” such that if a litigant visits a user’s profile and sees that Tweets are visible,that litigant has access to the photos or Tweets available on that user’s profile.

Here, the text of ECPA explicitly bars disclosure of consumer records to the government, making Congress’ intent to prohibit communication of this information patently clear. See 18 U.S.C. § 2702(c). The courts may not create ambiguity where none exists.

Id. at 1365-66. B. Claim 1, Under 18 U.S.C. § 2702(a)(1) & (2), Must Be Dismissed Claim 1, for alleged divulgence of stored content in violation of ECPA, fails for the same reason as the records claim fails: ECPA lacks the clear statement needed to apply it to the President’s alleged national security intelligence-gathering activities. Plaintiffs also do not appear to contest the propriety of dismissing this claim in light of their voluntary dismissal of the Verizon entities that provide Internet and e-mail services.

The SCA provides that the government may obtain non-content information with a - 26 - subpoenaorcourt order.” It also allows service providers to disclose non- content information “to any person other than a governmentalentity” and providers can therefore also provide non-content information to defendants with either a subpoenaor court order. (18 U.S.C. § 2702(c)(6).) | For example, the SCA would not prohibit Defendants from obtaining a court order for non-content information associated with Rice’s accounts.

United States v. Barnard, 490 F.2d 907, 913 (9th Cir. 1973) (citation omitted). B. Claim 1, Under 18 U.S.C. § 2702(a)(1) and (a)(2), Must Be Dismissed As noted, ECPA, including § 2702(a), does not prohibit carriers from voluntarily providing information for national intelligence purposes. In addition, in light of plaintiffs’ dismissal of the Verizon entities that provide Internet and e-mail services, the claim based on alleged disclosure of stored content is inapplicable to the remaining defendants and should be dismissed.

Plaintiffs Have Not Alleged a Cognizable Invasion of Privacy (Third Claim) Utah follows the Restatement (Second) of Torts, and so recognizes “four distinct kinds” 11 Further, the SCA allows Wells Fargo to divulge any communication as to which Wells Fargo was the intended recipient. See 18 U.S.C. § 2702(b)(3); In re Facebook Privacy Litig., 791 F. Supp. 2d 705, 714 & n.8 (N.D. Cal. 2011); In re Am. Airlines, Inc., Privacy Litig., 370 F. Supp. 2d 552, 560–61 (N.D. Tex. 2005). To the extent Plaintiffs maintain that they communicated their personal information to Wells Fargo, the claim fails for that reason.

Here, like the Pennsylvaniastatute, the 18 U.S.C. § 2702is not an absolute bar to the use social media recordsin criminaltrials. For example, prosecuting agencies can obtain electronic records with a service provider by obtaining a warrant or subpoena under 18 U.S.C. § 2702(b)(ii) and 18 U.S.C § 2703(d) for use in criminal trials. Under the rationale of Pennsylvaniav.

And because a criminal defendant is a “person other than a government agency,” a ' That is what appears to have happened in United States v. Pierce (2d Cir. 2015) 785 F.3d 832, 842, where a defendant who was unable to enforce a subpoena seeking information from a Facebook account later reported to the court “that he had received the contents of the ... Account through the work ofa private investigator.” 13 provider could comply with a subpoena seeking the name of the successor without violating the SCA. (18 U.S.C. § 2702(c)(6); see id. § 2702(c) [permitting disclosure of “a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications ...)”].)” 3.

5 The ECPA defines “‘electronic storage’” to mean “temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof” (18 U.S.C. § 2510(17)(A)), or “storage of such communication by an electronic communication service for purposes of backup protection of such communication” (18 U.S.C. § 2510(17)(B)). 6 Among the exceptions to the ECPA’s prohibition on disclosure are those that are incidental to the provision of the intended service (see 18 U.S.C. § 2702(b)(1), (4), (5)); incidental to the protection of the rights or property of the service provider (18 U.S.C. § 2702(b)(5)); made with the consent of a party to the communication or, in some cases, the consent of the subscriber (see 18 U.S.C. § 2702(b)(3)); related to child abuse (18 U.S.C. § 2702(b)(6)); made to public agents or entities under certain conditions (18 U.S.C. § 2702(b)(7), (8)); related to authorized wiretaps (18 U.S.C § 2702(b)(2)); or made in compliance with certain criminal or administrative subpoenas issued in compliance with federal procedures (Id.).

In this case, the Class members’ debit and credit card information, their PINs and other information from the magnetic stripe are the “contents” of the communication. Plaintiffs’ interpretations is consistent with the Eleventh Circuit’s decision in Lopez, which reversed dismissal of claims arising under 18 U.S.C. § 2702 where plaintiffs alleged that their banks disclosed the contents of electronic funds transfers. See Lopez, 129 F.3d at 1188.