Case 4:19-cv-04577-JSW Document 65 Filed 02/10/21 Page 1 of 22
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`FUMIKO LOPEZ, et al.,
`
`Plaintiffs,
`
`v.
`
`APPLE, INC.,
`
`Defendant.
`
`Case No. 19-cv-04577-JSW
`
`
`ORDER GRANTING IN PART AND
`DENYING IN PART APPLE’S
`MOTION TO DISMISS
`
`Re: Dkt. Nos. 54, 59
`
`
`
`Now before the Court is the motion to dismiss the amended class action complaint filed by
`
`the defendant Apple, Inc. (“Apple”). The Court has considered the parties’ papers, relevant legal
`
`authority, and the record in this case, and it finds the motion suitable for disposition without oral
`
`argument. See N.D. Civ. L.R. 7-1(b). The Court GRANTS Apple’s motion.
`
`BACKGROUND
`
`Plaintiffs Fumiko Lopez, Fumiko Lopez as guardian of minor A.L., Lishomwa Henry, and
`
`Joseph Harms (collectively, “Plaintiffs”) bring this putative consumer class action against Apple
`
`for violation of federal and state privacy laws. Like many others, Plaintiffs own Apple devices,
`
`namely, Apple iPhones. (Dkt. No. 48, Amended Complaint (“AC”) ¶¶ 43-46.) All Apple devices
`
`allegedly come pre-installed with a software program called “Siri,” which is a voice activated
`
`“intelligent assistant.” (Id. ¶ 2.) Plaintiffs allege the following facts:
`
`Siri is an artificial intelligence-based virtual assistant that allows individuals to use their
`
`voice to ask questions and give instructions. (Id.) For instance, a user can ask Siri to provide
`
`information, set an alarm, or play music using only the voice. (Id. ¶ 21.) Apple launched Siri in
`
`2011 and preinstalls it on every device it makes, from the Apple Watch to the Apple TV. (Id. ¶ 2.)
`
`Cognizant that users might be wary of vocal surveillance, Apple assures users that Siri will only
`
`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
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:19-cv-04577-JSW Document 65 Filed 02/10/21 Page 2 of 22
`
`
`
`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
`
`listen to, record, and share their conversations when they give consent by, inter alia, saying a “hot
`
`word,” such as “Hey Siri.” (Id. ¶ 4.) Outside of this “active listening mode,” Apple assures user
`
`that its devices only listen “to recognize the clear, unambiguous audio trigger” that the user wants
`
`to activate Siri. (Id. ¶¶ 26, 31.)
`
`Notwithstanding these representations, on July 26, 2019, The Guardian published an
`
`article reporting that Apple had intercepted and disclosed private conversations without any user
`
`consent.1 (Id. ¶ 5.) The article describes two sets of facts. First, Siri is routinely triggered by
`
`accident without any hot word. (Id. ¶ 35.) Two Apple devices, the Apple Watch and the Home
`
`Pod speakers, have particularly high accidental trigger rates and can be activated by a “sound of a
`
`zip.” (Id.) Second, a “small portion” of Siri recordings, both deliberate and accidental, are sent to
`
`third-party contractors for evaluation. (Id. ¶ 6.) The contractors grade Siri responses on “whether
`
`the activation of the voice assistant was deliberate or accidental, whether the query was something
`
`Siri could be expected to help with and whether Siri’s response was appropriate.” (Id. ¶ 34.) As
`
`the result, the third-party contractors are sometimes exposed to “private discussions between
`
`doctors and patients, confidential business deals, and sexual encounters.” (Id. ¶ 33.)
`
` Plaintiffs allege violations of the Federal Wiretap Act (“Wiretap Act”), 18 U.S.C. § 2510,
`
`et seq., the Stored Communications Act (“SCA”), 18 U.S. C. § 2701, et seq., California Invasion
`
`of Privacy Act (“CIPA”), California Penal Code §§ 631(a) and 632, intrusion upon seclusion,
`
`invasion of privacy under Article I, Section 1 of the California Constitution, breach of contract,
`
`and California Unfair Competition Law (“UCL”), California Business & Professions Code §
`
`17200, and for declaratory and other equitable relief under the Declaratory Judgment Act, 28
`
`U.S.C. § 2201, et seq. The Court will address additional facts as necessary in its analysis.
`
`
`
`
`
`
`1 The Court finds, sua sponte, that the Guardian article is incorporated by reference into the
`complaint as being the basis of Plaintiffs’ claims. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d
`988, 1003 (9th Cir 2018); (AC ¶¶ 5 n.1, 34-37); see Alex Hern, Apple contractors ‘regularly hear
`confidential details’ on Siri recordings, the Guardian (July 26, 2019 12:34 EDT), available at
`https://www.theguardian.com/technology/2019/jul/26/apple-contractors-regularly-hear-
`confidential-details-on-siri-recordings.
`
`
`2
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:19-cv-04577-JSW Document 65 Filed 02/10/21 Page 3 of 22
`
`
`
`A.
`
`Legal Standard on Motion to Dismiss.
`
`ANALYSIS
`
`A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the
`
`pleadings fail to state a claim upon which relief can be granted. The Court’s “inquiry is limited to
`
`the allegations in the complaint, which are accepted as true and construed in the light most
`
`favorable to the plaintiff.” Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
`
`Even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), “a plaintiff’s
`
`obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
`
`conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
`
`Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286
`
`(1986)).
`
`Pursuant to Twombly, a plaintiff must not merely allege conduct that is conceivable but
`
`must instead allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
`
`“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.” Ashcroft v.
`
`Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). If the allegations are
`
`insufficient to state a claim, a court should grant leave to amend, unless amendment would be
`
`futile. See, e.g., Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990); Cook, Perkiss &
`
`Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th Cir. 1990).
`
`As a general rule, “a district court may not consider any material beyond the pleadings in
`
`ruling on a Rule 12(b)(6) motion.” Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) (overruled
`
`on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (citation
`
`omitted)). However, documents subject to judicial notice may be considered on a motion to
`
`dismiss. In doing so, the Court does not convert a motion to dismiss to one for summary
`
`judgment. See Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986) (overruled
`
`on other grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991)).
`
`//
`
`//
`
`3
`
`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
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:19-cv-04577-JSW Document 65 Filed 02/10/21 Page 4 of 22
`
`
`
`B.
`
`Article III Standing.
`
`As a threshold matter, Apple challenges Plaintiffs’ Article III standing. No principle is
`
`more fundamental to the role of the judiciary that the “constitutional limitations of federal-court
`
`jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997). A party
`
`seeking the federal court’s jurisdiction bears the burden of demonstrating that she has standing to
`
`sue. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). If a plaintiff fails to satisfy the
`
`constitutional requirements to establish standing, the court lacks jurisdiction to hear the case and
`
`must dismiss the complaint. See Valley Forge Christian Col. v. Americans United for Separation
`
`of Church and State, 454 U.S. 464, 475-76 (1982). Standing must be supported “with the manner
`
`and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561.
`
`Thus, at the pleading stage, the court must “accept as true all material allegations,” “construe the
`
`complaint in favor of the complaining party,” and “determine whether the plaintiffs have clearly
`
`alleged facts demonstrating each element of standing.” Namisnak v. Uber Techs., Inc., 971 F.3d
`
`1088 (9th Cir. 2020) (citations and internal quotation marks omitted).
`
`The “irreducible minimum” of Article III standing requires plaintiffs to show that they
`
`have “(1) suffered injury in fact, (2) that is fairly traceable to the challenged conduct of the
`
`defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v.
`
`Robins, -- U.S. --, 136 S. Ct. 1540, 1547 (2016) (citing Lujan, 504 U.S. at 560-61). The injury
`
`must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.”
`
`Id. at 1548 (quoting Lujan, 504 U.S. at 560). To be “particularized,” an injury “must affect the
`
`plaintiff in a personal and individual way.” Id. (quoting Lujan, 504 U.S. at 560 n.1). To be
`
`“actual or imminent,” the injury must have already occurred or be “certainly impending.” Clapper
`
`v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013). A violation of substantive privacy rights “gives
`
`rise to a concrete injury sufficient to confer standing.” In re Facebook, Inc. Internet Tracking
`
`Litig., 956 F.3d 589, 598 (9th Cir. 2020); Campbell v. Facebook, Inc., 951 F.3d 1106, 1117-19
`
`(9th Cir. 2020). But standing “requires more than an injury to a cognizable interest”; it requires
`
`“that the party seeking review be himself among the injured.” Lujan, 504 U.S. at 563.
`
`Here, Plaintiffs allege two theories of harm: first, Apple disclosed Plaintiffs’ private
`
`4
`
`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
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:19-cv-04577-JSW Document 65 Filed 02/10/21 Page 5 of 22
`
`
`
`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
`
`information without consent and in violation of substantive privacy laws, and second, Plaintiffs
`
`suffered an economic injury because they overpaid for, and did not receive the full benefit of, their
`
`Apple devices.
`
`As to the first theory, the Court agrees with Apple that the harm is overly speculative.
`
`Although Plaintiffs allege, in a conclusory fashion, that their communications were intercepted
`
`and disclosed, the complaint makes clear that their allegations are based entirely on the Guardian
`
`article. (See AC at ¶¶ 43-46 (referring to interception “as described above”).) The Guardian
`
`article does not plausibly suggest that all Apple’s devices were subject to accidental triggers and
`
`review by third party contractors, much less that such interception always occurred in reasonably
`
`private settings. The article discusses frequency of accidental triggers primarily in relation to the
`
`Apple Watch and the HomePod speakers, neither of which are owned by the Plaintiffs. (Compare
`
`id. ¶ 35, with id. ¶¶ 44-46.) Moreover, the article expressly states that only a “small portion” of
`
`daily Siri activations including were sent to contractors and that they included both deliberate and
`
`accidental activations. (Id. ¶ 34.) Finally, although the article describes private communications
`
`among the recordings sent to contractors (see id. ¶ 33), Plaintiffs allege no facts to suggest that
`
`their own private communications were intercepted by accidental triggers.2
`
`Thus, Plaintiffs’ claims of statutory privacy harm rest on an attenuated chain of
`
`possibilities that (1) their iPhones were accidentally triggered at some point, (2) the accidental
`
`triggers occurred in a context where Plaintiffs had a reasonable expectation of privacy, and (3) (for
`
`some claims) Plaintiffs’ communications were part of the “small portion” of recordings sent to
`
`third party contractors. Absent factual allegations regarding the rate of accidental triggers on
`
`devices that Plaintiffs actually own, as well as their particular use of those devices in contexts
`
`where they had a reasonable expectation of privacy, the injury remains too speculative for Article
`
`
`2 Indeed, Plaintiffs’ primary allegation of a reasonable expectation of privacy rests on home use of
`devices that Plaintiffs do not themselves own. (See AC ¶ 30.) Even assuming that Plaintiffs
`sufficiently alleged accidental triggers, Plaintiffs identify no concrete injury for interception of
`wholly public communications. See Campbell, 951 F.3d at 1118 (finding injury where “private
`communications are intercepted”); cf. In re Google Assistant Privacy Litig., 457 F. Supp. 3d 797,
`817 (N.D. Cal. 2020) (noting that “smartphones are by their nature mobile” and “frequently used
`in public spaces”).
`
`5
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:19-cv-04577-JSW Document 65 Filed 02/10/21 Page 6 of 22
`
`
`
`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
`
`III standing. See Birdsong v. Apple, Inc., 590 F.3d 955, 960-61 (9th Cir. 2009) (finding lack of
`
`standing where the risk of injury “is not concrete and particularized as to [plaintiffs]”); Cahen v.
`
`Toyota Motor Corp., 147 F. Supp. 3d 955, 972 (N.D. Cal. 2015) (dismissing claims for lack of
`
`standing where plaintiffs did not allege that they themselves were affected by defendant’s alleged
`
`behavior); Google Assistant Privacy Litig., 457 F. Supp. 3d at 816-17 (rejecting allegations based
`
`on third party report where “Plaintiffs do not allege that any of [the reported private] recordings
`
`covered Plaintiffs’ communications”); cf. In re Facebook Privacy Litig., 791 F. Supp. 2d 705, 712
`
`(N.D. Cal. 2011) (finding standing where defendant engaged in “dragnet” surveillance that
`
`affected all of its customers, and plaintiffs were customers).3
`
` As to the economic theory of injury, Plaintiffs’ theory suffers from the same defects,
`
`namely, that the allegations do not show that they themselves overpaid for the devices. Although
`
`it does not concern privacy, Birdsong is instructive. There, the plaintiffs alleged that Apple iPod
`
`earbuds could produce hearing loss if used for prolonged periods of time at high volume. See 590
`
`F.3d at 961. The court rejected the plaintiffs’ alleged injury as hypothetical because they have not
`
`alleged that they themselves suffered or were likely to suffer hearing loss. Id. The court then
`
`rejected the economic theory of harm because the risk of hearing loss was hypothetical, depending
`
`on how consumers chose to use the devices, and the plaintiffs thus had not alleged that they were
`
`deprived of the benefit of the bargain. Id. The same result follows here. Although Plaintiffs
`
`could have used their iPhones in private settings, they fail to allege that they have. Nor have
`
`Plaintiffs alleged that they purchased their devices in reliance on particular representations that
`
`Siri would not be accidentally triggered, which is necessary for the “benefit of the bargain” theory.
`
`In short, Plaintiffs simply fail to allege enough facts to show a personal injury.
`
`At bottom, “‘the gist of the question of standing’ is whether [plaintiffs] have ‘such a
`
`personal stake in the outcome of the controversy as to assure that concrete adverseness which
`
`
`3 The purported class action nature of the suit “adds nothing to the question of standing.” Spokeo,
`136 S. Ct. at 1547 n.6. If none of the named plaintiffs have a case or controversy, “none may seek
`relief on behalf of himself or any other member of the class.” O’Shea v. Littleton, 414 U.S. 488,
`494 (1974); see also Warth v. Seldin, 422 U.S. 490, 502 (1975) (“Petitioners must allege and show
`that they personally have been injured, not that injury has been suffered by other, unidentified
`members of the class to which they belong and which they purport to represent.”).
`6
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:19-cv-04577-JSW Document 65 Filed 02/10/21 Page 7 of 22
`
`
`
`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
`
`sharpens the presentation of issues upon which the court so largely depends for illumination.”
`
`Mass. v. E.P.A., 549 U.S. 497, 517 (2007) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
`
`Here, the complaint, read holistically, strongly suggests that Plaintiffs’ claims rest solely on the
`
`Guardian article that reports the privacy harms of other class members that may not have affected
`
`Plaintiffs at all. That is not the type of “concrete adverseness” that creates a case or controversy.
`
`Accordingly, the Court dismisses the complaint for lack of Article III standing.
`
`C. Wiretap Act.
`
`A violation of the Wiretap Act occurs where any person “intentionally intercepts . . . any
`
`wire, oral, or electronic communication” or “intentionally discloses” or “uses” the contents of any
`
`such wire, oral, or electronic communication, while “knowing or having reason to know that the
`
`information was obtained through the [unlawful] interception.” 18 U.S.C. §§ 2511(1)(a), (c)-(d).
`
`Importantly, the Wiretap Act defines “oral communication” as “any oral communication uttered
`
`by a person exhibiting an expectation that such communication is not subject to interception under
`
`circumstances justifying such expectation.” 18 U.S.C. §§ 2510(2). In other words, the Wiretap
`
`Act only protects oral communications in which the speaker has a “reasonable expectation of
`
`privacy.” United States v. McIntyre, 582 F.2d 1221, 1223 (9th Cir. 1978).
`
`
`
`Here, Apple seeks to dismiss for failure to allege that (1) Apple “intercepted” any
`
`communication, (2) intentionally, (3) Plaintiffs had a reasonable expectation of privacy in those
`
`communications, (4) Plaintiffs did not consent to the interception, and (5) under section
`
`2511(1)(c), Apple intentionally disclosed the communications.
`
`1.
`
`Interception.
`
`The Wiretap Act defines “intercept” to mean “the aural or other acquisition of the contents
`
`of any wire, electronic, or oral communication through the use of any electronic, mechanical, or
`
`other device.” 18 U.S.C. § 2510(4). Apple argues, citing Crowley v. CyberSource Corp., 166 F.
`
`Supp. 2d 1263 (N.D. Cal. 2001), that it has not “intercepted” communications because it was the
`
`intended recipient of the communications.
`
`The argument is meritless. The intended recipient of “discussions between doctors and
`
`patients, confidential business deals, and sexual encounters” (AC ¶ 33) are doctors, business
`
`7
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:19-cv-04577-JSW Document 65 Filed 02/10/21 Page 8 of 22
`
`
`
`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
`
`counterparts and sexual partners, respectively—not Apple. In Crowley, the plaintiffs actually sent
`
`information to Amazon in order to make a purchase. 166 F. Supp. 2d at 1265. The court found
`
`that Amazon did not “intercept” the communication because it did not use any device other than
`
`the drive or server on which the email was received. Id. at 1269. Similarly, in Yunker v. Pandora
`
`Media, Inc., the plaintiff actually provided information to Pandora, and this Court dismissed the
`
`claims for failure to allege interception of communications “to another party.” No. 11-CV-03113
`
`JSW, 2013 WL 1282980, at *7 (N.D. Cal. Mar. 26, 2013). Here, on the other hand, Plaintiffs
`
`allege that they did not intend Apple to receive their private communications, but that Apple
`
`“captured” such communications using the software in their devices. That sufficiently alleges
`
`interception. See Satchell v. Sonic Notify, Inc., 234 F. Supp. 3d 996, 1007-08 (N.D. Cal. 2017)
`
`(finding sufficient allegations of interception through “audio beacon” technology).
`
`Accordingly, the Court does not dismiss on this ground.
`
`2.
`
`Intent.
`
`Apple argues that because Plaintiffs admit that the Siri activations were “accidental” (e.g.,
`
`AC ¶ 35), they cannot allege “intentional” interception. The intent requirement of the Wiretap Act
`
`requires a defendant to act “purposefully and deliberately and not as a result of accident or
`
`mistake.” United States v. Christensen, 828 F.3d 763, 774 (9th Cir. 2015). Although no “evil”
`
`motive is required, the defendant must have “acted consciously and deliberately with the goal of
`
`intercepting wire communications.” Id. at 774. At the pleading stage, however, interception may
`
`be considered intentional “where a defendant is aware of the defect causing the interception but
`
`takes no remedial action.” Google Assistant Privacy Litig., 457 F. Supp. 3d at 815; see also
`
`Backhaut v. Apple, Inc., 74 F. Supp. 3d 1033, 1044 (N.D. Cal. 2014).
`
`Although the question is close, the Court finds that Plaintiffs adequately allege intent at
`
`this stage. Plaintiffs allege that Apple knows of the accidental Siri triggers and, instead of deleting
`
`the resulting messages, sends them to contractors to improve Siri’s functioning. (Id. ¶¶ 37-39.)
`
`To be sure, one of the purposes of the third-party contractor review is to distinguish deliberate
`
`from accidental Siri activations (and, presumably, to reduce the latter). (Id. ¶ 34.) It is difficult to
`
`see how Apple could intentionally allow accidental Siri triggers to proceed only to use the
`
`8
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:19-cv-04577-JSW Document 65 Filed 02/10/21 Page 9 of 22
`
`
`
`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
`
`intercepted information to prevent accidental triggers. Nevertheless, the Court finds that at this
`
`stage, Plaintiffs sufficiently allege that Apple fails to take remedial action while knowing of the
`
`accidental activations, sufficient to make the conduct “intentional.”
`
`Accordingly, the Court does not dismiss on this ground.
`
`3.
`
`Confidentiality.
`
`Apple next argues that Plaintiffs fail to allege that the intercepted communications were
`
`subject to a reasonable expectation of privacy. 18 U.S.C. §§ 2510(2). As explained above,
`
`Plaintiffs have adequately alleged that Apple intercepted class members’ private communications,
`
`but not their own. Specifically, Plaintiffs allege that Apple intercepted discussions between
`
`doctors and patients, confidential business negotiations, and sexual encounters (AC ¶ 33), as well
`
`as communications that took place inside private homes (id. ¶ 30), which is sufficient to show
`
`communications “exhibiting an expectation” of privacy “under circumstances justifying such
`
`expectation.” See, e.g., Katz v. United States, 389 U.S. 347, 361 (1967) (holding that “a man’s
`
`home is, for most purposes, a place where he expects privacy . . . “). However, because Plaintiffs
`
`include only conclusory allegations with respect to their own communications, the Wiretap Act
`
`claim is dismissed. See Google Assistant Privacy Litig., 457 F. Supp. 3d at 816-17 (dismissing
`
`analogous claims where plaintiffs failed to allege that they used their devices in circumstances
`
`giving rise to a reasonable expectation of privacy); In re Yahoo Mail Litig., 7 F. Supp. 3d 1016,
`
`1041 (N.D. Cal. 2014) (dismissing conclusory claims of confidentiality) (citing cases).
`
`Accordingly, the Court dismisses the Wiretap Act claims with leave to amend.
`
`4.
`
`Consent.
`
`Interception is not unlawful under the Wiretap Act where “one of the parties to the
`
`communication has given prior consent to such interception.” 18 U.S.C. §§ 2511(2)(d). Consent
`
`“may be either explicit or implied, but it must be actual.” Yahoo Mail Litig., 7 F. Supp. 3d at
`
`1028. Moreover, consent may be limited where a party consents to interception “of only part of a
`
`communication” or only a “subset of its communications.” Id. (quoting In re Pharmatrak, Inc.,
`
`329 F.3d 9, 19 (1st Cir. 2003)). The party seeking to establish consent has the burden of proof.
`
`Id. (citing Pharmatrak, 329 F.3d at 19).
`
`9
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:19-cv-04577-JSW Document 65 Filed 02/10/21 Page 10 of 22
`
`
`
`Here, the Court finds that Apple fails to establish consent. Apple argues that Plaintiffs
`
`consented to interception because the Software License Agreement (“SLA”)4 states that Siri’s
`
`operation may not be “error-free.” (See Dkt. No. 54-5 (SLA) § 7.4.) Specifically, section 7.4 of
`
`the SLA concerns warranties and states that Apple does not warrant that iOS software and services
`
`will be “uninterrupted and error free.” (Id.) Such general disclaimer is nowhere near specific and
`
`unambiguous enough to represent that Siri may activate by accident. See In re Google Inc. Gmail
`
`Litig., Case No. 13-MD-02430-LHK, 2013 WL 5423918, at *14 (N.D. Cal. Sept 26, 2013). Even
`
`if Plaintiffs consented to use Siri generally, they allege that their consent was limited to situations
`
`where a hot word was spoken. (See AC ¶¶ 2, 23-24, 31.) Moreover, the allegations that Plaintiffs
`
`understand how voice assistants generally work and that Siri activates based on a “confidence
`
`score” are insufficient to show that Plaintiffs consented to being recorded after a “sound of a zip.”
`
`(Id. ¶¶ 21, 105.) Drawing all inferences in favor of Plaintiffs, that is simply not how voice
`
`assistants “generally” work.
`
`Accordingly, the Court does not dismiss on this ground.
`
`5.
`
`Disclosure.
`
`Under Section 2511(1)(c) of the Wiretap Act, a party that “intentionally discloses” to “any
`
`other person” the contents of communications while “knowing or having reason to know that the
`
`information was obtained through the interception” of communications in violation of the statute
`
`is separately liable. 18 U.S.C. § 2511(1)(c). Apple seeks to dismiss for failure to plead a
`
`predicate interception. For the reasons stated above, the Court agrees that Plaintiffs have not
`
`alleged that their own communications were intercepted and disclosed and dismisses the claim.
`
`
`4 Apple seeks judicial notice of the SLA and four other documents referenced in Plaintiffs’
`complaint under an incorporation by reference theory. (Dkt. No. 54-7 (“RJN”).) The Court finds
`that exhibits A-D are properly incorporated because they are cited “extensively” in the complaint
`and form the basis of Plaintiffs’ claims that they had a reasonable expectation of privacy in their
`communications. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir 2018).
`Exhibit E, on the other hand, is cited only once and concerns representations made years after
`Plaintiffs purchased their devices, which is insufficient for incorporation by reference. Id. Nor is
`judicial notice proper where Apple seeks to use Exhibit E establish that a “visual indicator” of Siri
`activation was present on Plaintiffs’ devices. See id.at 999 (not every fact is noticeable for its
`truth). Accordingly, the Court GRANTS Apple’s request for Exhibits A-D only.
`10
`
`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
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:19-cv-04577-JSW Document 65 Filed 02/10/21 Page 11 of 22
`
`
`
`D.
`
`Stored Communications Act.
`
`The Stored Communications Act (“SCA”) provides a private right of action against anyone
`
`who: “(1) intentionally accesses without authorization a facility through which an electronic
`
`communication service is provided; or (2) initially exceeds an authorization to access that facility
`
`. . . while it is in electronic storage in such system.” 18 U.S.C. § 2701(a). The SCA also prohibits
`
`a person or entity providing an electronic communication service from “knowingly divulg[ing] to
`
`any person or entity the contents of a communication while in electronic storage by that service.”
`
`18 U.S.C. § 2702(a)(1). Apple seeks to dismiss claims under both provisions.
`
`1. Section 2701(a)(1).
`
`To plead a violation of the “unlawful access” provision of Section 2701(a)(1), a plaintiff
`
`must allege that the defendant “(1) gained unauthorized access to a ‘facility’ where it (2) accessed
`
`an electronic communication in ‘electronic storage.’” Facebook Internet Tracking Litig., 956 F.3d
`
`at 608. The statute does not define a “facility.” However, it specifies that the facility is one
`
`“through which an electronic communication service is provided.” See 18 U.S.C. § 2701(a)(1).
`
`Citing that language, courts have distinguished facilities that provide an electronic communication
`
`service—such as an email provider’s servers or an ISP—from those that merely enable the
`
`electronic communication service—such as a user’s personal computer or phone. See In re iPhone
`
`Application Litig., 844 F. Supp. 2d 1040, 1057-58 (N.D. Cal. 2012); Crowley, 166 F. Supp. 3d at
`
`1271; Garcia v. City of Laredo, Tex., 702 F.3d 788, 792 (5th Cir. 2012). The statute defines
`
`“electronic communication service” as “any service which provides to users thereof the ability to
`
`send or receive wire or electronic communications.” 18 U.S.C. § 2510(15).
`
`Here, Plaintiffs’ Section 2701(a)(1) claim lacks merit. Plaintiffs claim that Siri is a
`
`“facility” through which Apple gained unauthorized access to their communications. That claim
`
`fails for three reasons. First, Siri is software and not a “facility” under any common sense of the
`
`term.5 Second, Plaintiffs do not allege that Siri provides an “electronic communication service”—
`
`
`5 As Apple points out, Plaintiffs variously claim that Siri is both the “facility” and the “electronic
`communication service” provided by a facility. (See AC ¶¶ 104, 107.) To the extent that
`Plaintiffs allege their devices are the facility, the claim fails for the reasons stated in iPhone
`Application Litigation, 844 F. Supp. 2d at 1057.
`11
`
`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
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 4:19-cv-04577-JSW Document 65 Filed 02/10/21 Page 12 of 22
`
`
`
`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
`
`they allege that it enables “a variety of tasks,” such as setting alarms and responding to questions.
`
`(AC ¶ 18.) Third, the statute exempts from liability “conduct authorized [] by the person or entity
`
`providing a wire or electronic communication service.” 18 U.S.C. § 2701(c). Apple is the service
`
`provider here and presumably authorized its own conduct. See In re Google, Inc. Privacy Policy
`
`Litig., No. C-12-01382-PSG, 2013 WL 6248499, at *12 (N.D. Cal. Dec. 3, 2013) (“Whatever the
`
`propriety of Google’s actions, it plainly authorized the actions that it took itself.”).
`
`Ultimately, the SCA is meant to protect information “held by centralized communication
`
`providers.” Google Cookie Placement Consumer Privacy Litig., 806 F.3d at 147; see Facebook
`
`Internet Tracking Litig., 956 F.3d at 609 (“[T]he SCA has typically only been found to apply in
`
`cases involving a centralizing data-management entity.”); Theofel v. Farey-Jones, 359 F.3d 1066,
`
`1072 (9th Cir. 2004) (“Just as trespass protects those who rent space from a commercial storage
`
`facility to hold sensitive documents, the [SCA] protects users whose electronic communications
`
`are in electronic storage with an ISP or other electronic communications facility.” (citation
`
`omitted)). The statute is not meant to provide a “catch-all . . . to protect the privacy of stored
`
`internet communications.” Google Privacy Policy Litig., 2013 WL