Case 9:21-cv-80601-RAR Document 53 Entered on FLSD Docket 09/09/2021 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`CASE NO. 21-CV-80601-RAR
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`JASON GOLDSTEIN, individually and
`on behalf of all others similarly situated,
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`Plaintiff,
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`v.
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`COSTCO WHOLESALE CORPORATION,
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`Defendant.
`_______________________________/
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`ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
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`THIS CAUSE comes before the Court on Defendant Costco Wholesale Corporation’s
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`Motion to Dismiss [ECF No. 34] (“Motion”). The Court having carefully reviewed the Motion,
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`Plaintiff’s Response in Opposition [ECF No. 42] (“Response”), and Defendant’s Reply [ECF No.
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`48], and being otherwise fully advised, it is hereby
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`ORDERED AND ADJUDGED that Defendant’s Motion [ECF No. 34] is GRANTED
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`for the reasons set forth below. Plaintiff’s First Amended Complaint [ECF No. 22] (“FAC”) is
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`DISMISSED with prejudice.
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`BACKGROUND
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`This action joins a flurry of virtually identical cases wherein creative class action litigants
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`have seized on a novel reading of Florida’s decades-old wiretapping statute, the Florida Security
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`of Communications Act (“FSCA”), to attack the use of so-called session replay software on
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`commercial websites. The FSCA provides a cause of action against parties that intercept or use
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`private communications without the speaker’s consent. FLA. STAT. §§ 934.10(1)(a), (d). Plaintiff
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`alleges that Defendant violated the FSCA by using session replay software to record Plaintiff’s
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`Case 9:21-cv-80601-RAR Document 53 Entered on FLSD Docket 09/09/2021 Page 2 of 7
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`mouse clicks and other commands on Defendant’s website. See generally FAC [ECF No. 22].
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`Defendant moves to dismiss the case for failure to state a claim under Federal Rule of Civil
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`Procedure 12(b)(6). See generally Mot. [ECF No. 34].
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`LEGAL STANDARD
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`When reviewing a motion to dismiss, a court must view the complaint in the light most
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`favorable to the plaintiff and accept the plaintiff’s well-pleaded facts as true. Hunt v. Aimco
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`Properties, L.P., 814 F.3d 1213, 1221 (11th Cir. 2016). But a court need not accept plaintiff’s
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`legal conclusions as true. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009);
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`see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, “[t]o survive a motion to dismiss, a
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`complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
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`plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
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`544, 570 (2007)). A pleading is facially plausible when the plaintiff states enough facts for the
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`court to draw a “reasonable inference” that the defendant is liable for the alleged conduct. Id.
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`ANALYSIS
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`Courts bear the responsibility of applying the law to a constantly shifting technological and
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`societal landscape. When the Framers crafted the Fourth Amendment to the United States
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`Constitution, for example, they could not have envisioned how smartphones and GPS would fit
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`into the framework of “papers” and “effects.” U.S. CONST. amend. IV. See Riley v. California,
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`573 U.S. 373 (2014); United States v. Jones, 565 U.S. 400 (2012). But the courts’ flexibility has
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`its limits. Courts may not rewrite statutes to change with the times. The Constitutions of Florida
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`and the United States give this power to the legislative bodies alone. Rather, the Court must take
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`the law as it is and apply it faithfully to new facts as they arise. Here, Plaintiff asks the Court to
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`rewrite Florida’s wiretapping law in the face of changing technology.
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`Plaintiff alleges that “Defendant utilized ‘session replay’ spyware to intercept Plaintiff’s
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`and the Class members’ electronic computer-to-computer data communications with Defendant’s
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`website, including how they interacted with the website, their mouse movements and clicks,
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`keystrokes, search terms, information inputted into the website, and pages and content viewed
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`while visiting the website.” FAC [ECF No. 22] ¶ 7. These actions, says Plaintiff, violated his
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`“substantive legal privacy rights under the FSCA.” Id. ¶ 17. Virtually identical litigation has
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`popped up in state and federal courts all over Florida. Several district courts have adopted by
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`reference a state court order dismissing the claim because “the FSCA does not apply” to claims
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`regarding session replay software. See, e.g., Swiggum v. EAN Servs., LLC, No. 8:21-493, 2021
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`WL 3022735, at *2 (M.D. Fla. July 16, 2021) (citing Jacome v. Spirit Airlines, Inc., No. 2021-
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`000947-CA-01 (Fla. Cir. Ct. June 17, 2021) (ruling that “the FSCA does not apply to the plaintiff’s
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`claims regarding session replay technology software on a commercial website”)); Cardoso v.
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`Whirlpool Corp., No. 21-60784, 2021 WL 2820822, at *2 (S.D. Fla. July 6, 2021) (same); Connor
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`v. Whirlpool Corp., No. 21-14180, 2021 WL 3076477, at *2 (S.D. Fla. July 6, 2021) (same). The
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`Court agrees with these rulings and finds their brevity compelling. But the Court cannot ignore
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`the fundamental problem of statutory construction in Plaintiff’s interpretation of the FSCA.
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`Plaintiff’s attempt to redefine the FSCA’s key terms, coupled with the outbreak of litigation
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`centered on this statute, begs for a deeper analysis to clarify its limited scope.
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`The Court interprets statutory language according to its plain meaning, in the context of
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`the entire statute, as assisted by the canons of statutory construction. Edison v. Douberly, 604 F.3d
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`1307, 1310 (11th Cir. 2010). The relevant terms of the FSCA must be construed in a manner
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`consistent with their plain meaning and context. See id. The Court therefore turns to the provisions
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`of the statute at issue in this case.
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`Section 934.03(1)(a) of the FSCA prohibits “[i]ntentionally intercept[ing], endeavor[ing]
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`to intercept, or procur[ing] any other person to intercept or endeavor to intercept any wire, oral, or
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`electronic communication,” and Section 934.03(1)(d) prohibits “[i]ntentionally us[ing], or
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`endeavor[ing] to use, the contents of any wire, oral, or electronic communication, knowing or
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`having reason to know that the information was obtained through the interception of a wire, oral,
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`or electronic communication in violation of [the FSCA].” The statute defines intercept as “the
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`aural or other acquisition of the contents of any wire, electronic, or oral communication through
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`the use of any electronic, mechanical, or other device.” FLA. STAT. § 934.02(3) (emphasis added).
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`Contents are “any information concerning the substance, purport, or meaning of that
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`communication.” Id. § 934.02(7) (emphasis added).1 The touchstone in many cases arising under
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`the FSCA and similar statutes is this definition of contents.
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`Courts interpreting contents under the ECPA distinguish between “a record or other
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`information pertaining to a . . . customer” (known as “record information”) and the contents—i.e.,
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`“substance, purport, or meaning”—of the communication itself. In re Zynga Priv. Litig., 750 F.3d
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`1098, 1106 (9th Cir. 2014) (quotations omitted) (“[T]he term ‘contents’ refers to the intended
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`message conveyed by the communication, and does not include record information.”). Here,
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`Plaintiff alleges that Defendant intercepted the substance of his communications with Defendant’s
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`website. FAC ¶ 39. Plaintiff’s purported substance includes (1) his movements on the website
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`(“mouse clicks and movements,” “scroll movements,” and “pages and content viewed”) and (2)
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`information voluntarily input (“keystrokes,” “copy and paste actions,” “search terms,” and
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`“information inputted by Plaintiff”). Id.
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`1 The FSCA was modeled after its federal counterpart, the Electronic Communications Privacy Act of 1986
`(“ECPA”), 18 U.S.C. § 2510 et seq., so Florida follows federal courts as to the meaning of analogous
`provisions. Minotty v. Baudo, 42 So. 3d 824, 831 (Fla. 4th DCA 2010).
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`But contrary to Plaintiff’s interpretation, these actions did not convey the substance of any
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`communication. Rather, this mere tracking of Plaintiff’s movements on Defendant’s website is
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`the cyber analog to record information Defendant could have obtained through a security camera
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`at a brick-and-mortar store. The FSCA’s text itself reinforces that such actions fall outside the
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`statute’s purview. The statute specifically excludes “[a]ny communication from an electronic or
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`mechanical device which permits the tracking of the movement of a person or an object.” FLA.
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`STAT. § 934.02(12)(c). Although the tracking in this case is virtual rather than physical, the Court
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`finds that the plain language of the statute exempts the sort of tracking that triggered this action.
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`In Minotty, a Florida court found no interception under the FSCA where hidden security cameras
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`installed at certain doctors’ offices recorded footage of the doctors. 42 So. 3d at 828, 830–32. The
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`Minotty court concluded that silent surveillance videos of the doctors’ physical movements had no
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`contents, as defined by the FSCA, because they did “not convey the substance of a particular
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`communication.” Id. at 830 (emphasis in original). Likewise, Defendant’s recordings of
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`Plaintiff’s movements on Defendant’s website had no contents because they did not convey the
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`substance of any particular communication by Plaintiff.
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`Plaintiff’s claim that Defendant recorded pages and content he viewed on Defendant’s
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`website has no bearing on the Court’s analysis. See In re Zynga, 750 F.3d at 1107 (finding that
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`webpages a user views are akin to addresses and do not constitute contents); Gonzales v. Uber
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`Techs., Inc., 305 F. Supp. 3d 1078, 1086 (N.D. Cal. 2018) (finding no contents and dismissing
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`argument “that the user was communicating he wanted to view that webpage”). Neither does
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`Plaintiff’s attempt to frame his actions as “commands” transmitted “in the form of instructions” to
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`Defendant’s servers. FAC ¶ 29. This language merely underscores that the information recorded
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`did not convey the substance of a communication. Such commands are equivalent to “dialing,
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`routing, addressing, or signaling information” that courts routinely deem non-contents. See, e.g.,
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`In re Nickelodeon Consumer Priv. Litig., 827 F.3d 262, 275 (3d Cir. 2016) (affirming dismissal of
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`wiretap claim and distinguishing URLs that “may convey substantive information” from those that
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`convey “mere dialing, routing, addressing, or signaling information” (quotations omitted)); United
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`States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008) (comparing numbers dialed on a telephone
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`in pen register cases to “instructions . . . voluntarily turned over” to a computer server for the
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`“purpose of directing the routing of information”); Gilday v. Dubois, 124 F.3d 277, 296, n.27 (1st
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`Cir. 1997) (analogizing “call detailing,” which identifies the caller, the number called, and the
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`date, time, and length of the call, to routing and signaling information associated with pen registers,
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`and finding it outside the ambit of the ECPA); Figueroa v. State, 870 So. 2d 897, 901 (Fla. 5th
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`DCA 2004) (holding that phone numbers dialed and received are not contents under the FSCA).
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`Plaintiff argues in his Response that an inquiry into whether the alleged communications
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`constitute content is premature at the Motion to Dismiss stage because “the question is not what
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`contents were intercepted, but whether contents were intercepted.” Resp. [ECF No. 42] at 6
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`(emphasis in original). This argument is unavailing. The Court must know what information was
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`allegedly intercepted to determine whether it qualifies as content. Like every element of the FSCA,
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`content must be plausibly alleged, and courts routinely dismiss complaints that fail to do so. See,
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`e.g., Spirit at 7–8; Minotty, 42 So. 3d at 830; In re Zynga, 750 F.3d at 1106. To avoid dismissal,
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`Plaintiff must have alleged that Defendant intercepted “the intended message conveyed by the
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`communication” that revealed “the substance, purport, or meaning of [that] communication.” Fla.
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`Stat. § 934.02(7); see In re Zynga, 750 F.3d at 1106. Just because Plaintiff intended to
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`communicate with Defendant’s website, see Resp. [ECF No. 42] at 12, does not mean his
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`communications revealed any substance. They did not.
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`Defendant’s recordings of Plaintiff’s purported communications contained no substance.
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`No substance means no contents, no contents means no interception, and no interception means no
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`FSCA violation. The Court notes, without further analysis, that Defendant’s Motion contains other
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`substantive grounds for dismissal, including consent and insufficient pleading. See generally Mot.
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`[ECF No. 34]. But the Court need not reach those grounds. Statutory construction, standing alone,
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`requires dismissal.
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`CONCLUSION
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`For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Defendant’s
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`Motion [ECF No. 34] is GRANTED. Because Plaintiff’s failure to plead content, an essential
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`element of the statutory cause of action, renders leave to amend futile, Plaintiff’s First Amended
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`Complaint [ECF No. 22] is DISMISSED with prejudice. All pending motions are DENIED as
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`MOOT, and the Clerk of Court is directed to CLOSE this case.
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`DONE AND ORDERED in Fort Lauderdale, Florida, this 9th day of September, 2021.
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` _________________________________
` RODOLFO A. RUIZ II
` UNITED STATES DISTRICT JUDGE
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`Page 7 of 7
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