Jones v. Tonal Systems, Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JULIE JONES, individually and on behalf Case No.: 3:23-cv-1267-JES-BGS of all others similarly situated, 12 ORDER GRANTING DEFENDANT’S Plaintiffs, 13 MOTION TO DISMISS v. 14 TONAL SYSTEMS, INC., and DOES 1- [ECF No. 14] 15 100, inclusive, 16 Defendants. 17 18 19

20 Before the Court is Defendant Tonal Systems, Inc.’s (“Defendant” or “Tonal”) 21 motion to dismiss Julie Jones’ (“Plaintiff”) complaint under Federal Rule of Civil 22 Procedure 12(b)(6) for failure to state a claim. ECF No. 14-1. The motion is fully briefed 23 and has been subject to oral argument. For the reasons stated below, the motion is 24 GRANTED. 25 I. FACTUAL ALLEGATIONS 26 Defendant is a California-headquartered manufacturer of internet-enabled home 27 fitness equipment. ECF No. 1-2, Compl. ¶ 4. Defendant maintains a customer support chat 28 1 feature on its website, the mechanics of which are the subject of this dispute. The Plaintiff 2 is a California citizen who along with class members visited Tonal’s website and “engaged 3 with the ‘chat’ feature of the Website to communicate with Defendant.” Id. at ¶ 25. 4 Defendant’s website chat feature includes an Application Programming Interface 5 (“API”) run by a third-party vendor called Drift. Id. at ¶¶ 15-16. Drift API is a piece of 6 computer code that creates and stores transcripts of conversations that take place between 7 website visitors and Tonal agents in the chat feature. Id. at ¶ 15. 8 According to the Complaint,2 although “consumers interact with the chat service on 9 Defendant's Website, [such that] it appears they are only communicating with a company 10 representative of Defendant[,]” Plaintiff and Class Members’ messages to Tonal are “first 11 routed through Drift’s server.” Id. at ¶¶ 16-17. Drift thereby gains the ability to “secretly 12 intercept in real time, eavesdrop upon, interpret, analyze, store, and use [chat feature 13 conversations] for [its] own purposes.” Id. at ¶ 15. See also Compl. ¶ 17 (“This enables 14 Drift to analyze, interpret, and collect customer-support agent interactions in real time to 15 create live transcripts of communications as they occur, among other services.”). 16 Plaintiff repeatedly references the prospect that Drift can use Tonal’s chat feature 17 transcripts for “its own business purposes.” Id. at ¶¶ 18, 23. She infers these uses and 18 purposes from Drift’s Product Guide for its Live Chat software (“the Product Guide”).3 19 Plaintiff quotes a statement from the Product Guide that chats are not deleted and are 20 organized by the third-party vendor: “Drift does not allow conversations to be deleted. This 21 is because Drift doesn't want to lose any activity with your contacts and/or leads. Instead 22 of deleting conversations, Drift utilizes Conversation Statuses to help organize your chats.” 23 Id. at ¶ 18. Plaintiff also says Drift uses cookies “to record a Website visitor's activity 24 during and after the visitor's chat sessions with Defendant” and to link Tonal chat 25 26 1 The Defendant’s website is https://www.Tonal.com/. 27 2 On a motion to dismiss for failure to state a claim, “allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.” Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). 28 3 The Live Chat Quick Reference Guide is attached to the Defendant’s motion and incorporated into the Complaint by reference. 1 transcripts if the user is a repeat visitor to the website. Id. at ¶ 20. Apart from keeping chat 2 transcripts and site activity, Plaintiff alleges that Drift analyzes chat feature conversations 3 to determine Class Members’ likelihood of purchasing Tonal’s products and services. Id. 4 at ¶ 19. By combining chat transcripts and chat metadata with Salesforce record details, the 5 site user’s recently visited webpages and activity during his or her website visit; and the 6 visitor’s IP address, browser, and device information, Drift can label and tag web visitor 7 conversations according to the user’s potential interest in Tonal products. Id. 8 Plaintiff alleges the above has occurred without her knowledge or consent. Id. at ¶¶ 9 16, 18, 27-30, 49, 55. By paying for and using Drift’s services, she says, Tonal has 10 intentionally caused the illegal interception and eavesdropping of her communications. Id. 11 at ¶¶ 45-46. Plaintiff accordingly brings claims for violations of the California Invasion of 12 Privacy Act (“CIPA”), California Penal Code §§ 630-638; California’s Unfair Competition 13 Law (“UCL”), California Business & Profession Code § 17200, et seq.; and the California 14 Constitution’s right to privacy provision, Cal. Const. art. I, § 1. Id. at ¶ 13. 15 II. LEGAL STANDARD 16 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal 17 sufficiency of a plaintiff's claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 18 Rule 12(b)(6) is read in conjunction with Rule 8(a)(2), which requires only “a short and 19 plain statement of the claim showing that the pleader is entitled to relief.” To survive a 20 motion to dismiss, a complaint must contain sufficient factual material to “state a claim to 21 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 22 “A claim has facial plausibility when the Plaintiff pleads factual content that allows the 23 court to draw the reasonable inference that the Defendant is liable for the misconduct 24 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin 25 to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant 26 has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). The Court need not accept 27 as true “threadbare recitals of the elements of a cause of action, supported by mere 28 conclusory statements.” Id. The Complaint “must contain sufficient allegations of 1 underlying facts to give fair notice and to enable the opposing party to defend itself 2 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 3 Dismissal is proper only where there is either a “lack of a cognizable legal theory or 4 the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. 5 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 2008). The question is not whether the 6 plaintiff will ultimately prevail, but whether she is entitled to offer evidence to support the 7 claims asserted. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997). 8 When a court grants a motion to dismiss a complaint, it must then decide whether to 9 grant leave to amend. Leave to amend should be “freely given” where there is no (1) “undue 10 delay,” (2) “bad faith or dilatory motive,” (3) “undue prejudice to the opposing party” if 11 amendment were allowed, or (4) “futility” in allowing amendment. Foman v. Davis, 371 12 U.S. 178, 182 (1962). Dismissal without leave to amend is proper only if it is clear that 13 “the complaint could not be saved by any amendment.” Intri-Plex Techs., Inc. v. Crest 14 Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007). “Leave need not be granted where the 15 amendment of the complaint . . . constitutes an exercise in futility . . . .” Ascon Props., Inc. 16 v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). 17 III. REQUESTS FOR JUDICIAL NOTICE AND NOTICES OF RECENT 18 DECISIONS 19 A. Defendant’s Request for Judicial Notice of its Website and Privacy Policy 20 Two doctrines allow the Court to consider matters outside the pleadings without 21 converting a defendant’s motion under Rule 12(b)(6) into a motion for summary judgment. 22 Under incorporation by reference, “a court may consider a writing referenced in a 23 complaint but not explicitly incorporated therein if the complaint relies on the document 24 and its authenticity is unquestioned.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 25 2007). Second, the doctrine of judicial notice allows the Court to consider as part of the 26 record adjudicative facts when they are “not subject to reasonable dispute,” either because 27 the fact is “generally known within the trial court’s territorial jurisdiction” or “can be 28 accurately and readily determined from sources whose accuracy cannot reasonably be 1 questioned.” Fed. R. Evid. 201(b). “[A]s a general matter, websites and their contents may 2 be proper subjects for judicial notice.” Caldwell v. Caldwell, No. C 05-4166 PJH, 2006 3 WL 618511, at *4 (N.D. Cal. Mar. 13, 2006); see also Loomis v. Slendertone Distribution, 4 Inc., 420 F.Supp.3d 1046, 1062 (S.D. Cal. 2019) (granting Defendant’s unopposed request 5 for judicial notice of a printout from the Food and Drug Administration’s publicly available 6 website). 7 Defendant has requested the Court consider as incorporated by reference and take 8 judicial notice of four exhibits. ECF No. 15. These are, respectively, the Drift Live Chat 9 Product Guide as accessed on August 28, 2023 (Ex. A), a copy of Tonal’s chat box and 10 accompanying disclosure (Ex. B), a copy of Tonal’s website homepage (Ex. C), and a copy 11 of the Defendant’s Privacy Policy in effect from March 17, 2021, to June 22, 2023 (Ex. D). 12 All four exhibits are printouts of publicly available webpages. Plaintiff has not opposed 13 Tonal’s judicial notice request as to these exhibits or contested the authenticity of the pages. 14 Plaintiff’s Complaint quotes from Tonal’s Live Chat Product Guide and her 15 characterizations of the website chat feature “form the basis” of her lawsuit. Khoja v. 16 Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018) (citing U.S. v. Ritchie, 342 17 F.3d 903, 907 (9th Cir. 2003)). Accordingly, the Court GRANTS Defendant’s Request for 18 Judicial Notice of Exhibits A-D of the instant motion and considers these Exhibits in the 19 motion. 20 B. Notices of Recent Judicial Decisions 21 Defendant also requests the Court take judicial notice of five other complaints filed 22 by Plaintiff in this district. ECF No. 15 at 2. Separately, each party has filed multiple 23 separate notices of recent decisions relating to this motion, each containing an opinion from 24 within this district on a CIPA defendant’s Rule 12(b)(6) motion. ECF Nos. 28-32. These 25 requests are DENIED as moot. The Court need not take judicial notice of a legal opinion 26 or proceeding in order to consider it. 27 / / / 28 / / / 1 IV. LEGAL ANALYSIS 2 A. California Invasion of Privacy Act Section 631(a) Claims 3 Plaintiff’s first cause of action arises under Section 631(a) of CIPA. Cal. Penal Code 4 §§ 630-638. Section 631(a) prohibits three classes of activity as well as aiding and abetting 5 thereof. The section penalizes: 6 “Any person who, by means of any machine, instrument, or contrivance, or in any other manner, 7

8 [1] intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any 9 telegraph or telephone wire, line, cable, or instrument, including the wire, line, 10 cable, or instrument of any internal telephonic communication system,

11 [2] or who willfully and without the consent of all parties to the 12 communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication 13 while the same is in transit or passing over any wire, line, or cable, or is being 14 sent from, or received at any place within this state;

15 [3] or who uses, or attempts to use, in any manner, or for any purpose, or to 16 communicate in any way, any information so obtained,

17 [4] or who aids, agrees with, employs, or conspires with any person or persons 18 to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section.” 19

20 Cal. Penal Code § 631(a) [subdivisions added for ease of reference].

21 Plaintiff’s first CIPA claim falls under the second, third, and fourth prongs of section 22 631(a). These prongs respectively prohibit interception. These prongs have also regularly 23 been interpreted to cover internet communications. In re Google Inc., No. 13-MD-02430- 24 LHK, 2013 WL 5423918, at *20 (N.D. Cal. Sept. 26, 2013) (“[T]he Court finds no reason 25 to conclude that the limitation of ‘telegraphic or telephone’ on ‘wire, line, cable, or 26 instrument’ in the first prong of the statute should be imported to the second prong of the 27 statute.”) Notably, Plaintiff does not seek to invoke liability under the first prong, nor has 28 1 she filed a cause of action against Drift, only Tonal and Doe Defendants. Plaintiff only 2 invokes the fourth prong under section 631 against Tonal to allege that Tonal aided and 3 abetted Drift to eavesdrop. Therefore, the Court needs to address whether Drift has violated 4 the second or third prong in order to invoke liability against Tonal under the fourth prong. 5 1. Second Prong – Eavesdropping 6 The second prong of section 631(a) provides that it is punishable by fine or 7 imprisonment for “any person … who willfully and without the consent of all parties to the 8 communication, or in any unauthorized manner, reads, or attempts to read, or to learn the 9 contents or meaning of any message, report, or communication while the same is in transit 10 or passing over any wire, line, or cable, or is being sent from, or received at any place 11 within this state[.]” Cal. Penal Code § 631(a). 12 Defendant makes three arguments that its alleged conduct does not create CIPA 13 liability: (1) CIPA’s party exemption applies as Drift’s software is merely a tool that Tonal 14 uses to communicate with visitors to Tonal’s website; (2) there is no adequate allegation 15 of interception; and (3) Plaintiff does not allege that she entered “contents” of 16 communications in the chat feature. ECF No. 14-1 at 13-14. 17 a. Applicability of CIPA’s Party Exemption 18 Tonal first argues that its alleged conduct is exempt from liability via CIPA’s party 19 exemption. ECF No. 14-1 at 6-9. There are two seminal cases that frame the analysis of 20 section 631 liability, Rogers v. Ulrich, 52 Cal. App. 3d 894 (1975) and Ribas v. Clark, 38 21 Cal. 3d 355 (1985). 22 In Rogers, Ulrich used a tape recorder jack installed in his telephone to record a 23 conversation with Rogers, without Rogers’ knowledge, and then played the conversation 24 for a third party. Rogers, 52 Cal. App. 3d at 897-98. Relying on the legislative finding that 25 the law is intended to prevent “eavesdropping,” the appellate court held that a party to a 26 conversation cannot “eavesdrop” under the law: “It is never a secret to one party to a 27 conversation that the other party is listening to the conversation; only a third party can 28 1 listen secretly to a private conversation.” Javier v. Assurance IQ, LLC, 649 F.Supp.3d 891, 2 898 (N.D. Cal. 2023) (citation and quotation marks omitted). 3 In Ribas, during a dispute over a divorce settlement, Ribas’ wife asked her friend, 4 Clark, to secretly listen in via an extension to a conversation with her former husband, 5 about a prior conversation Ribas had with the wife’s attorney. Ribas, 38 Cal. 3d at 358. 6 The California Supreme Court held that the act was eavesdropping under the statute, 7 because the statute differentiates between “the secondhand repetition of the contents of a 8 conversation and its simultaneous dissemination to an unannounced second auditor.” Id. at 9 360-61. “[S]uch secret monitoring denies the speaker an important aspect of privacy of 10 communication—the right to control the nature and extent of the firsthand dissemination 11 of his statements.” Id. at 361. 12 Thus, as the Court in Javier noted, the question for purposes of determining whether 13 Drift was a party to the communications is whether Drift “is more akin to the tape recorder 14 in Rogers … or [to] the friend in Ribas.” Javier, 649 F.Supp.3d at 898. “Despite widespread 15 agreement among courts in this Circuit as to the nature of [this] inquiry, courts have split 16 on how the party exception applies in the context of third-party software, as well as how 17 stringently pleading standards should be applied.” Rodriguez v. Ford Motor Company, No. 18 3:23-cv-00598-RBM-JLB, 2024 WL 1223485, at *10 (S.D. Cal. Mar. 21, 2024) (internal 19 citations and quotations omitted). 20 In the first line of cases, courts have held that software providers are third parties 21 within the meaning of section 631. The Ninth Circuit in In re Facebook, Inc., Internet 22 Tracking Litig., held that Facebook was not a party to communications between a user’s 23 browser and a third-party website. 956 F.3d 589, 607-08 (9th Cir. 2020). On websites with 24 Facebook plugins, Facebook’s code copied a header containing a user’s personally 25 identifiable URL information that was transmitted from the user’s web browser to the 26 website that enabled Facebook to compile users’ browsing histories for its own purposes. 27 Id.; see also Revitch v. New Moosejaw, LLC, No. 18-cv-06827-VC, 2019 WL 5485330, at 28 *1 (N.D. Cal. May 22, 2019) (“NaviStone ‘acted as a third party’ because ‘the code 1 embedded into the Moosejaw.com pages functioned as a wiretap that redirected [Revitch’s] 2 communications to NaviStone while he browsed the site.”); see also Saleh v. Nike, Inc., 3 562 F.Supp.3d 503, 521 (C.D. Cal. 2021) (“Here, as in Revitch, FullStory did not become 4 a ‘party’ to the communication simply because it was providing recording and transmission 5 services for Nike.”). 6 In the second line of cases, led by Graham v. Noom, Inc., courts have held that 7 software providers are “extension[s]” of the websites that employ them that “provide[] a 8 tool” allowing a company “to record and analyze its own data in aid of [its] business.” 533 9 F.Supp.3d 823, 832 (N.D. Cal. 2021). In Graham, FullStory provided a “software service 10 that captures its clients’ data, hosts it on FullStory’s servers, and allows the clients to 11 analyze their data.” Id. The court likened this software to the tape recorder in Rogers and 12 held that the software did not constitute eavesdropping because the plaintiffs had not 13 alleged that FullStory “intercepted and used the data itself.” Id.; see also Cody v. Boscov’s, 14 Inc., 658 F.Supp.3d 779, 782 (C.D. Cal. 2023) (“[the] [p]laintiff must provide facts 15 suggesting that [the software companies] are recording [the] [d]efendant’s customers’ 16 information for some use or potential future use beyond simply supplying this information 17 back to [the] [d]efendant.”); see also Byars v. Hot Topic, Inc., 656 F.Supp.3d 1051, 1066- 18 68 (C.D. Cal. 2023) (“As in Graham … Defendant uses a third-party vendor to ‘record and 19 analyze its own data in aid of [Defendant]’s business,’ not the ‘aggregation of data for 20 resale,’ which make the third-party an ‘extension’ of Defendant’s website, not a ‘third- 21 party eavesdropper.’”). 22 The court in Javier, held that there are two problems with the reading of section 631 23 in Graham. Javier, 649 F.Supp.3d at 900. First, the reading “interprets the second prong 24 of the statute … based on the intentions and usage of the prospective third party.” Id. 25 (quoting Cal. Penal Code § 631(a)). “But the third prong of the statute already penalizes 26 ‘use’ … [of] any information so obtained.” Id. (quoting same). Thus, “reading a use 27 requirement into the second prong would add requirements that are not present (and 28 swallow the third prong in the process).” Id. Second, the California Supreme Court in Ribas 1 did not consider Clark’s intentions or the use of the obtained information, but rather 2 “emphasized the privacy concerns at issue with having an ‘unannounced second auditor’ 3 listening in on the call,” which implicates an individual’s “right to control the nature and 4 extent of the firsthand dissemination of [their] statements.” Id. 5 Javier mentioned two other grounds upon which to conclude that a software 6 company is not an “unannounced second auditor” of a communication: “(1) If [the software 7 company] does not have the capability to use its record of the interaction for any other 8 purpose …; or (2) the ubiquity of services like [the software company] on the internet 9 effectively renders it party to the ‘firsthand dissemination’ of [the plaintiff’s] information 10 to [the website].” Id. 11 The Court finds the reasoning articulated in Javier persuasive. Thus, applying 12 Javier, the question now is whether Plaintiff has adequately alleged that Drift has the 13 capability to use the chat data for its own purposes or benefit. See Balletto v. Am. Honda 14 Motor Co., No. 23-cv-01017-JSW, 2023 WL 7026931, at *2 (N.D. Cal. Oct. 24, 2023); see 15 also Rodriguez, 2024 WL 1223485, at *11-12. 16 Here, Plaintiff alleges “whenever a chat message is sent from a member of the Class 17 to Defendant, it is first routed through Drift’s server. This enables Drift to analyze, 18 interpret, and collect customer-support agent interactions in real time to create live 19 transcripts of communications as they occur, among other services.” Compl. ¶ 17. Plaintiff 20 then alleges that “Drift boasts that it harvests data from the chat transcripts it intercepts, 21 eavesdrops upon, interprets, analyzes, stores, and uses for a variety of its own purposes— 22 all without Plaintiff’s or class members’ consent—saying, ‘In short, Drift does not allow 23 conversations to be deleted. This is because Drift doesn’t want to lose any activity with 24 your contacts and/or leads. Instead of deleting conversations, Drift utilizes Conversation 25 Statuses to help organize your chats.’” Id. at ¶ 18. Plaintiff then alleges that: 26 “Drift claims that it analyzes Plaintiff’s and class members’ conversations to determine the likelihood they will buy a product or service from Defendant. 27 Specifically, Drift creates a “CQL score” for each unsuspecting visitor based 28 on the degree to which Drift’s AI thinks (1) they are interested in buying 1 Defendant’s product or service and (2) their goals can be accomplished with Defendant’s product or service. Each unsuspecting visitor has their 2 conversations analyzed in combination with numerous other attributes that 3 Drift has collected about the visitor, including through ‘Drift Intel.’ Drift Intel is comprised of Salesforce record details, HubSpot record details (using the 4 email address of the visitor or data collected using the HubSpot cookie), 5 visitor’s recently visited webpages, and the ‘full activity timeline’ of the visitor. This data is measured in tandem with every detail that Drift can collect 6 about a visitors’ chat conversation, including the full transcript of the 7 conversation, the date and time the conversation began, the IP address of the visitor, the web browser they used to access the Website (Chrome, Firefox, 8 etc.), the device they used to have the chat conversation (iPhone 14, Microsoft 9 Surface Pro, etc.), and which words in the visitor’s conversation triggered Drift’s software to route the visitor to a particular person or ‘bot playbook.’ 10 Drift then creates an audit log to explain why the software analyzed the visitor 11 in a particular way and creates ‘tags’ to label and organize the visitor’s conversation with other unsuspecting visitors’ conversations.” Compl. ¶ 19. 12

13 “Drift [also] utilizes a number of cookies to record a Website visitor’s activity during and after the visitor’s chat sessions with Defendant and to link to a 14 current chat the transcripts of previously intercepted chats between the visitor 15 and [Tonal].” Compl. ¶ 20.

16 Similar arguments were made in Balletto, 2023 WL 7026931, at *2; Yockey v. 17 Salesforce, Inc., 688 F.Supp.3d 962, 973 (N.D. Cal. 2023); and Rodriguez, 2024 WL 18 1223485. The Court agrees with those cases and finds that Plaintiff has not adequately 19 alleged that Drift has the capability of using the chat data for its own purposes and benefit. 20 Plaintiff’s first allegation that chat conversations are first routed through Drift’s server 21 enabling Drift to “analyze, interpret, and collect customer-support agent interactions in real 22 time to create live transcripts of communications as they occur,” only supports the 23 inference that Drift receives and stores communications for the benefit of its client, Tonal. 24 See Yockey, 688 F.Supp.3d at 973 (finding that similar allegations “do not support a 25 reasonable inference that [the software company] has the capability to use these 26 communications for any purpose other than furnishing them to [its client]. [The] [c]hat, as 27 alleged, is therefore more akin to the tape recorder in Rogers, and [the plaintiff] have thus 28 1 failed to state a claim pursuant to Section 631.”). Plaintiff’s second allegation that Drift 2 “analyzes, stores, and uses for its own purposes,” chat communications is conclusory and 3 is not supported by the quoted information immediately following this allegation in the 4 complaint. In the next sentence in the complaint, Plaintiff alleges that Drift does not allow 5 conversations to be deleted because Drift doesn’t want to lose any activity with your 6 contacts and utilizes conversation statuses to help organize chats further supports the 7 inference that Drift is more akin to the tape recorder in Rogers. Plaintiff’s third allegation 8 is also conclusory. Further, Drift’s analysis of chat communications for Tonal’s purpose as 9 described in the complaint is akin to the tape recorder in Rogers. As in Rodriguez, 10 Plaintiff’s allegations failed to adequately allege that Drift violated the second prong of 11 CIPA section 631(a). 12 Further, as Defendant argues, “Plaintiff alleges no facts in support of the allegation 13 of “aiding and abetting” other than the existence of a third-party vendor.” ECF No. 14-1 at 14 6. The Court agrees. The complaint “only supports the inference that [the vendor] receives 15 and stores these communications for the benefit of its client, the Defendant.” See 16 Rodriguez, 2024 WL 1223485 at *13. “Plaintiff must provide facts suggesting that [third- 17 party vendors] are recording Defendant's customers’ information for some use or potential 18 future use beyond simply supplying this information back to Defendant.” Cody, 658 19 F.Supp.3d at 782. 20 b. Sufficiency of Plaintiff’s Interception Allegation 21 Although, the Court has already found that Plaintiff failed to adequately allege the 22 second prong of Section 631(a), the Court will also address Defendant’s argument 23 regarding the sufficiency of Plaintiff’s interception allegation. The section prong of section 24 631(a) applies to communications intercepted “while . . . in transit or passing over any 25 wire, line, or cable, or . . . being sent from, or received at any place within this state.” Cal. 26 Penal Code § 631(a) (emphasis added). Tonal argues that CIPA’s “in transit” language 27 presents, and that Plaintiff has failed to meet, a pleading requirement which is narrowly 28 defined to cover communications “acquired during transmission, not while … in electronic 1 storage.” ECF No. 14-1 at 10-12 (emphasis added). This requirement derives from the 2 Ninth Circuit’s interpretation of the federal wiretap statute. Konop v. Hawaiian Airlines, 3 Inc., 302 F.3d 868 (9th Cir. 2002). District courts in this Circuit have found it appropriate 4 to apply an identical standard to interception claims in the CIPA context. See, e.g., In re 5 Vizio, Inc., Consumer Priv. Litig., 238 F.Supp.3d 1204, 1228 n.9 (C.D. Cal. 2017) (“Courts 6 have generally construed [CIPA] as coextensive with the Wiretap Act.”). 7 The standard articulated by the Ninth Circuit in Konop precludes interception claims 8 with respect to communications accessed when the communications are “in electronic 9 storage.” Konop, 302 F.3d at 877. To be liable, a defendant must have “read or learned the 10 contents of a communication while the communication was in transit, or in the process of 11 being sent or received.” Mastel v. Miniclip SA, 549 F.Supp.3d 1129, 1136 (E.D. Cal. 2021). 12 Stated differently, “once a [communication] has been received by the destination server, a 13 communication becomes ‘stored’ and contemporaneous interception is no longer possible.” 14 In re Carrier IQ, Inc., 78 F.Supp.3d 1051, 1077-1078 (N.D. Cal. 2015). 15 As alleged by Plaintiff, “Drift runs the chat service from its own servers,” and the 16 Drift API “directs [chat] communications to be routed directly to Drift.” Compl. ¶ 16. 17 While the Court is mindful of Rule 8(a)’s liberal pleading requirements, the complaint 18 lacks allegations that Drift “halt[ed] the transmission of the messages to their intended 19 recipients,” Bunnell v. Motion Picture Ass’n of America, 567 F.Supp.2d 1148, 1154 (C.D. 20 Cal. 2011), rather than, as Tonal argues, that transcripts are retrieved and created after 21 transmission from “the server provided for Tonal’s benefit by Tonal’s software service 22 provider.” ECF No. 14-1 at 11. The Complaint contains averments that customer chats 23 were “intercepted in real time” (Compl. ¶ 19), but these amount to conclusory statements 24 below the Twombly and Iqbal plausibility threshold. See Rodriguez v. Google LLC, No. 25 20-cv-04688-RS, 2022 WL 214552, at *2 (N.D. Cal. Jan. 25, 2022) (“Using the word 26 ‘intercept’ repeatedly is simply not enough without the addition of specific facts that make 27 it plausible [the software company] is intercepting the data in transit.”). 28 1 The Konop Court acknowledged that this definition of interception considerably 2 curtailed the availability of certain claims regarding email and other text-based electronic 3 communications. 302 F.3d at 878, n.6; see also Id. at 874 (“The existing statutory 4 framework is ill-suited to address modern forms of communication.”). Yet it remains the 5 case that “Plaintiffs do not sufficiently allege how the messages were intercepted, and 6 thereby do not provide fair notice to Defendant of their alleged violation.” Licea v. 7 American Eagle Outfitters, Inc., 659 F.Supp.3d 1072, 1085 (C.D. Cal. 2023) (emphasis 8 added). For this reason as well, Plaintiff’s claim under the second prong must be 9 DISMISSED. 10 c. Whether Plaintiff Sufficiently Alleges “Contents” 11 Tonal further argues that Plaintiff has not alleged with sufficient specificity that she 12 entered “contents” into Drift’s chat feature, and that this too constitutes independent 13 grounds for dismissal of her claims under the second prong of section 631(a). ECF No. 14- 14 1 at 12-13. 15 Under Ninth Circuit precedent interpreting the federal wiretap statute, 18 U.S.C. § 16 2510, “contents” “refers to the intended message conveyed by the communication, and 17 does not include record information regarding the characteristics of the message that is 18 generated in the course of the communication.” In re Zynga Priv. Litig., 750 F.3d 1098, 19 1106 (9th Cir. 2014). Courts have applied the same “contents” standard to section 631(a) 20 of CIPA. Brodsky v. Apple Inc., 445 F.Supp.3d 110, 127 (N.D. Cal. 2020). While Zynga 21 does “not hold that certain types of information are unprotected in all contexts,” In re Vizio, 22 Inc., Consumer Priv. Litig., No. 8:16-ml-02693-JLS-KES, 2017 WL 11420284, at *6 (C.D. 23 Cal. July 25, 2017), Plaintiff must at a minimum demonstrate “that the contents were not 24 record information, such as her name and address.” Byars v. Goodyear Tire and Rubber 25 Co., 654 F.Supp.3d 1020, 1027 (C.D. Cal. 2023). 26 Courts in this Circuit have dismissed CIPA plaintiffs presenting similar facts for not 27 sufficiently alleging intercepted “contents.” See, e.g. Graham, 533 F.Supp.3d at 833 28 (dismissing complaint to the extent that it alleged “non-content information,” including “IP 1 addresses, locations, browser types, and operating systems”); Yoon v. Lululemon USA, Inc., 2 549 F.Supp.3d 1073, 1082 (C.D. Cal. 2021) (“Taken together, this body of caselaw 3 suggests that CIPA § 631(a)[ii] protects only the internal, user-generated material of a 4 message, not routine identifiers, whether automatically generated or not.”);4 McCoy v. 5 Alphabet, Inc., No. 20-cv-05427-SVK, 2021 WL 405816 at *14 (N.D. Cal. Feb. 2, 2021) 6 (data on when, how often, and for how long a user opened certain apps on his smartphone 7 constituted record information and could not support a CIPA claim). Cases holding that 8 non-text information generated by CIPA plaintiffs constitutes intercepted “contents” have 9 chiefly focused on “session replay” technologies, which capture video of the user’s entire 10 session. See, e.g., Saleh, 562 F.Supp.3d at 517-518. 11 The complaint’s allegations concerning the substance of Plaintiff’s Drift chat 12 messages are limited to the assertion that she “engaged with the ‘chat’ feature of the 13 Website to communicate with Defendant.” Compl. ¶ 25. She further lists information the 14 Drift software can record, “including the full transcript of the conversation, the date and 15 time the conversation began, the IP address of the visitor, the web browser they used to 16 access the Website (Chrome, Firefox, etc.), [and] the device they used to have the chat 17 conversation.” Id. ¶ 19. She outlines how Drift can or may tag and organize users’ 18 conversations and route visitors to customer service agents or “bot playbook[s],” and how 19 Drift uses cookies to track website visitor activity. Id. ¶¶ 19-20. Taking all of the above as 20 true, Plaintiff has not met her burden to demonstrate that her “engage[ment]” with the chat 21 feature contained more than record information. For this reason as well, Plaintiff’s claim 22 under the second prong must be DISMISSED. 23 2. Third Prong – Use 24 The third prong of section 631(a) provides that it is punishable by fine or 25 imprisonment for “any person … who uses, or attempts to use, in any manner, or for any 26 27 4 Specifically, the Yoon Court held that “keystrokes, mouse clicks, pages viewed, and shipping and billing information ... [and] 28 the date and time of the visit, the duration of the visit, Plaintiff's IP address, her location at the time of the visit, her browser 1 purpose, or to communicate in any way, any information so obtained[.]” Cal. Penal Code 2 § 631(a). 3 In her opposition, Plaintiff alleges that Drift violated the third prong of section 4 631(a) by “harvest[ing] chat transcripts, which are then used by Drift for its own business 5 purposes,” and refers to paragraphs 18, 22-23 of the complaint to support the allegation. 6 ECF No. 24 at 4. However, these paragraphs do not support Plaintiff’s argument. In 7 paragraph 18, Plaintiff makes a conclusory statement that “Drift boasts that it harvests data 8 from the chat transcripts it intercepts … for a variety of its own purposes.” Compl. ¶ 18. 9 Plaintiff then supports that statement by quoting from Drift’s website, stating, “Drift does 10 not allow conversations to be deleted. This is because Drift doesn’t want to lose any activity 11 with your contacts and/or leads. Instead of deleting conversations, Drift utilizes 12 Conversation Statuses to help organize your chats.” Id. at ¶ 18. This quote from Drift’s 13 website contradicts the conclusory statement that Drift uses the chat conversations for its 14 own purposes. In fact, it supports Defendant’s argument that Drift stores the information 15 for Tonal’s future use. Further, in paragraph 22, Plaintiff states, “Drift’s exploitation, 16 modernization, use of, and interaction with the data it gathers through the chat feature in 17 real time makes it more than a mere ‘extension’ of Defendant.” Id. at ¶ 22. In paragraph 18 23, Plaintiff makes several conclusory statements about visitors to the website’s chat 19 feature, “[v]isitors would also be shocked to learn that Defendant allows a third party to 20 interpret, analyze, and also use these intercepted conversations for that third party’s own 21 uses and business purposes.” Id. at ¶ 23. These are all conclusory statements and does not 22 actually allege how Drift uses chat transcripts for its own business purposes. 23 Further, a finding of a violation of prong three is contingent upon a finding of a 24 violation of either prong one or two. Rodriguez, 2024 WL 1223485, at *14 (citing Martin 25 v. Sephora USA, Inc., Case No. 1:22-cv-01355-JLT-SAB, 2023 WL 2717636, at *11 (E.D. 26 Cal. Mar. 30, 2023). Because Plaintiff failed to adequately plead a violation of the second 27 prong, she has also failed to adequately plead a violation of the third prong. Accordingly, 28 Plaintiff’s claim under the third prong is DISMISSED. 1 B. California Invasion of Privacy Act Section 632.7 Claim 2 Section 632.7(a) prohibits the interception or recording of communications between 3 two phones: 4 Every person who, without the consent of all of the parties to a communication, intercepts or receives and intentionally records, or assists in 5 the interception or reception and intentional recordation of, a communication 6 transmitted between two cellular radio telephones, a cellular radio telephone and a landline telephone, two cordless telephones, a cordless telephone and a 7 landline telephone, or a cordless telephone and a cellular radio telephone, shall 8 be punished by a fine …, or by imprisonment in a county jail …”

9 Cal. Penal Code § 632.7(a). 10 Defendant argues that section 632.7(a)’s plain language “unambiguously limits its 11 reach to communications between various types of telephones … [and] Plaintiff has not 12 alleged a conversation between two telephones.” ECF No. 14-1 at 21 (quotation marks and 13 citation omitted). Further, Defendant argues that Plaintiff did not allege that she used her 14 smart phone as a phone and that Plaintiff did not adequately allege that Tonal received and 15 recorded the communications using a cellular radio, cordless, or landline telephone on its 16 end. ECF No. 14-1 at 21. In addition, Defendant argues that Plaintiff “offers only a stretch 17 allegation repeatedly rejected by Courts that any communication over the internet is a 18 ‘phone conversation,’” as a “plain reading of [section 632.7(a)] makes clear that the statute 19 only applies to communications transmitted by telephone, not internet.” ECF No. 14-1 at 20 21. 21 Plaintiff argues that the Central District of California has held that both federal and 22 state courts have characterized section 632.7 as prohibiting the “intentional recording of 23 any communication without the consent of all parties where one of the parties is using a 24 cellular or cordless telephone.” ECF No. 24 at 14 (quotation marks and citation omitted). 25 Second, Plaintiff argues that the Court should broadly construe the term, “landline 26 telephone,” in section 632.7 as encompassing Defendant’s computer equipment, which 27 connected with Plaintiff’s smartphone to transmit and receive Plaintiff’s chat 28 1 communications. Id. at 15. Third, Plaintiff argues that section 632.7 broadly defines the 2 term “communication,” as “includes, but is not limited to, communications transmitted by 3 voice, data, or image, including facsimile.” Id. at 16. Fourth, Plaintiff argues that it is 4 beyond dispute that “[t]he internet works through a series of networks that connect devices 5 around the world through telephone lines.” Id. at 17. Fifth, Plaintiff argues that section 6 632.7 should be read to establish broad privacy protections. Id. at 17. The Court finds that 7 Plaintiff’s arguments are without merit. California district courts have repeatedly addressed 8 this issue with near unanimity. 9 In Rodriguez, the Court conducted an in-depth analysis of the overwhelming 10 majority of district courts addressing this issue. Rodriguez, 2024 WL 1223485, at *15-17. 11 The Court agrees with and repeats that analysis here. 12 The overwhelming majority of district courts addressing this issue have held that 13 section 632.7(a) applies only to communications between two telephones and not to the 14 internet chat communications at issue here, even when the Plaintiff accessed the internet 15 via her smartphone. See Cody v. Ring LLC, No. 23-cv-00562-AMO, 2024 WL 735667, at 16 *7 (N.D. Cal. Feb. 22, 2024) (“The fact that she used a smart phone to access the internet 17 does not fit within Section 632.7’s statutory reach.”); Esparza v. Gen Digital Inc., No. CV 18 23-8223-KK-AGRx, 2024 WL 655986, at *4 (C.D. Cal. Jan. 16, 2024) (“[S]mart phones 19 do not fall within the scope of the five categories of Section 632.7.”) Valenzuela v. 20 Nationwide Mut. Ins. Co., 686 F.Supp.3d 969, 983 (C.D. Cal. Aug. 14, 2023) (“[R]eading 21 [section 632.7] so broadly as to encompass web-based messages sent from the internet 22 browser of a smart phone to another party not using a phone at all would completely divorce 23 [the statute] from its clear limits. The Court need not decide the exact contours of what 24 text-based communications Section 632.7 covers; the statute is limited to communications 25 between two phones, and the allegations here do not fit that category.”); Licea v. 26 Vitacost.com, Inc., 683 F.Supp.3d 1118, 1124 (S.D. Cal. July 24, 2023) (“Plaintiff’s use of 27 his smartphone—not to make a phone call, but rather to engage the chat feature of 28 Defendant’s website—… places Plaintiff’s own device outside the scope of a ‘cellular 1 radio telephone.’”); Valenzuela v. Keurig Green Moutain, Inc., 674 F. Supp. 3d 751, 760 2 (“[Section] 632.7 unambiguously limits its reach to communications between various types 3 of telephones.”); Licea, 659 F. Supp. 3d at 1112 (“The Court determines that section 632.7 4 only applies to the five types of calls enumerated …”); Hot Topic, Inc., 656 F. Supp. 3d at 5 1069 (“The unambiguous meaning of the statute is thus that it only applies to 6 communications involving two telephones. Plaintiff’s allegations all relate to text-based 7 web communications regarding a chat feature on a website, which virtually by definition 8 cannot involve two telephones.”); D’Angelo v. Penny OpCo, LLC, No. 23-cv-0981-BAS- 9 DDL (S.D. Cal. Oct. 24, 2023) (“[S]martphones are not covered by Section 632.7.”); 10 Garcia v. Build.com, inc., Case No. 22-cv-01985-DMS-KSC, 2023 WL 4535531, at *6 11 (S.D. Cal. July 13, 2023) (“A plain reading of the text makes clear that the statute only 12 applies to communications transmitted by telephone, not internet. Plaintiff seems to argue 13 that Defendant’s conduct violated Section 632.7 because Plaintiff’s communications with 14 Defendant through the website chat function on her smart phone amounted to 15 ‘communication … transmitted via telephony.’ This stretches the statutory language too 16 far.”); Martin v. Sephora USA, Inc., No. 1:22-cv-01355-JLT-SAB, 2023 WL 2717636, at 17 *17 (E.D. Cal. Mar. 30, 2023) (“[T]he Court concludes that § 632.7 only applies to the five 18 types of calls previously enumerated.”). 19 The Court is persuaded by the reasoning of the overwhelming majority of California 20 district courts, which have held that CIPA section 632.7 does not encompass web-based 21 messages sent from the internet browser of a smartphone. Therefore, the Court declines to 22 adopt Plaintiff’s interpretation of the statute. 23 The only two cases extending the meaning of the statute to the present 24 circumstances, both written by the same judge, found that only one party needs to be using 25 a telephone to bring a communication within the purview of section 632.7. See Old Navy, 26 LLC, 669 F.Supp.3d at 947; Goodyear Tire & Rubber Co., 654 F.Supp.3d at 1027-28. 27 However, this finding is based on dicta in the California Supreme Court’s decision in 28 Flanagan, which addressed the meaning of “confidential communication,” not at issue 1 here. Flanagan v. Flanagan, 27 Cal. 4 766, 774-76 (2002). Further, the district court’s 2 finding that smartphones fall within the cellular phone category is also unsupported. See 3 Old Navy, LLC, 669 F. Supp. 3d at 947; Goodyear Tire & Rubber Co., 654 F.Supp.3d at 4 1027-28. As stated above, smartphones “are, in reality, small computers.” Mastel v. 5 Miniclip SA, 549 F.Supp.3d 1129, 1135 (E.D. Cal. 2021). Thus, even if only one phone 6 need be involved, CIPA section 632.7 still does not apply to the present case. Therefore, 7 the second cause of action is DISMISSED with prejudice. 8 C. Claims Under California’s Unfair Competition Law 9 The Defendant further moves to dismiss Plaintiff’s UCL claims for lack of statutory 10 standing. ECF No. 14-1 at 19-20. The UCL provides a private cause of action to “a person 11 who has suffered injury in fact and has lost money or property as a result” of an unlawful, 12 unfair or fraudulent business practice. Cal. Bus. & Prof. Code § 17204. California courts 13 have read § 17204 to require both injury in fact and the loss of money or property. Kwikset 14 Corp. v. Superior Ct., 51 Cal.4th 310, 320-324 (2011). An injury in fact will not suffice for 15 statutory standing if it is not economic in nature. 16 The parameters for economic injury are expansive and California courts have not 17 undertaken to define them exhaustively. Economic injury may at least be demonstrated 18 when a plaintiff “(1) surrender[s] in a transaction more, or acquire in a transaction less, 19 than he or she otherwise would have; (2) [has] a present or future property interest 20 diminished; (3) [is] deprived of money or property to which he or she has a cognizable 21 claim; or (4) [is] required to enter into a transaction, costing money or property, that would 22 otherwise have been unnecessary.” Id. at 323.” 23 The Plaintiff here locates an economic injury in the Defendant’s alleged allowing, 24 aiding, or abetting Drift in “exploit[ing]” chat feature conversation transcripts and 25 information for financial gain. Compl. ¶ 29. She says “the economic value of Plaintiff’s 26 and Class Members’ data to them is inherent” in the fact that the data can be harvested and 27 analyzed for Defendant’s and third parties’ financial benefit. ECF No. 24 at 18. However, 28 courts in this Circuit have not extrapolated from the fact that a user’s data has economic 1 value to someone that its collection constitutes an economic loss to the user. See, e.g., 2 Greenley v. Kochava, 684 F.Supp.3d 1024, 1054 (S.D. Cal. 2023) (“The relevant inquiry 3 is not whether Defendants can profit from Plaintiff’s personal information, but whether 4 Plaintiff himself can profit from his own data.”); Bass v. Facebook, Inc., 394 F.Supp.3d 5 1024, 1040 (“That the information has external value, but no economic value to plaintiff, 6 cannot serve to establish that plaintiff has personally lost money or property.”). Because 7 Plaintiff’s allegations do not suffice for standing under the UCL, the UCL claims are 8 DISMISSED with prejudice. Because Plaintiff lacks standing for her UCL claims, it is 9 not necessary at this stage to rule on Tonal’s other arguments that she lacks any predicate 10 claim for the UCL’s unlawful or unfair prongs. ECF No. 14-1 at 21-22. 11 D. Constitutional Invasion of Privacy Claims 12 Plaintiff’s fourth claim alleges violations of her state constitutional right to privacy. 13 Article I, Section 1 of the California Constitution enumerates a non-exhaustive list of 14 “inalienable rights,” to which California voters added “privacy” via a 1972 ballot measure. 15 5 The privacy clause has been held to cover private, non-governmental actors. Hill v. Nat’l 16 Collegiate Athletic Assn., 7 Cal. 4th 1, 16 (1994). The California Constitution sets a “high 17 bar” for establishing an invasion of privacy claim. See Belluomini v. Citigroup, Inc., No. 18 CV 13–01743 CRB, 2013 WL 3855589, at *6 (N.D. Cal. July 24, 2013). 19 The Supreme Court of California has derived three elements plaintiffs must plead 20 for invasion of privacy claims. Id. at 35-38. These are (1) “a specific, legally protected 21 privacy interest,” (2) “a reasonable expectation of privacy on plaintiff's part,” and (3) an 22 invasion “sufficiently serious in [its] nature, scope, and actual or potential impact to 23 constitute an egregious breach of the social norms underlying the privacy right.” Id. The 24 first element is a question of law to be decided by the court, while the latter two elements 25 are mixed questions of law and fact. Id. at 40. “A defendant may prevail in a state 26 27 5 The section reads in full, “All people are by nature free and independent and have inalienable rights. Among these are enjoying 28 and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, 1 constitutional privacy case by negating any of the three elements . . . or by pleading and 2 proving, as an affirmative defense, that the invasion of privacy is justified because it 3 substantively furthers one or more countervailing interests.” Id. 4 As other courts have observed, the threshold elements of Hill are “not a categorical 5 test.” In re Google Location History Litig., 428 F.Supp.3d 185, 196 (N.D. Cal. 2019). The 6 existence of a privacy interest is rarely considered in isolation from the context that molds 7 the plaintiff’s expectations and the defendant’s purportedly intrusive conduct. California 8 Supreme Court precedent confirms that “[T]he specific kind of privacy interest involved 9 and the nature and seriousness of the invasion and any countervailing interests, remains the 10 critical factor in the analysis.” Loder v. City of Glendale, 14 Cal. 4th 846, 890 (1997). 11 The first element under Hill addresses whether Plaintiff has a legally protected 12 privacy interest in the communications she undertook using Tonal’s chat feature. Hill 13 outlined two generally recognized kinds of legally protected privacy interests: “(1) interests 14 in precluding the dissemination or misuse of sensitive and confidential information 15 (‘informational privacy’); and (2) interests in making intimate personal decisions or 16 conducting personal activities without observation, intrusion, or interference (‘autonomy 17 privacy’).” 7 Cal. 4th at 35. The first interest in informational privacy is the most obviously 18 relevant to this case, and courts addressing whether CIPA plaintiffs have a privacy interest 19 in various internet communications have considered the issue under this banner. See, e.g., 20 In re Yahoo Mail Litig., 7 F.Supp.3d 1016, 1039 (N.D. Cal. 2014). 21 Tonal argues first that “Generally, there is no legally protected privacy interest in 22 internet communications with a website.” ECF No. 14-1 at 16. This statement is overbroad. 23 In a field as broad as web-based communications, at least some privacy interests exist for 24 at least some classes of plaintiffs. See In re Yahoo Mail Litig., 7 F.Supp.3d at 1041 (“Under 25 California law, a legally recognizable privacy interest arises from the sort of information 26 revealed[.]”). See, e.g., Mintz v. Mark Bartelstein & Associates Inc., 906 F.Supp.2d 1017, 27 1033–34 (C.D. Cal. 2012) (finding legally protected privacy interest in the personal 28 financial and employment information contained in an email account). 1 However, it is clear enough that courts hearing information privacy cases focus both 2 on the nature of the stored information and the way it is used. See In re Google Assistant 3 Privacy Litig., 457 F.Supp.3d 797, 817 (N.D. Cal. 2020) (“[T]here is no legally protected 4 privacy interest and reasonable expectation of privacy in electronic messages, in general. 5 Rather, a privacy interest can exist, if at all, only with respect to the content of those 6 communications.”) (internal citation and quotations omitted). 7 Further, and in contrast to Plaintiff’s arguments in her opposition brief, courts have 8 found it appropriate to rule on the plausibility of constitutional informational privacy 9 claims at the motion to dismiss stage. “Whether a legally recognized privacy interest is 10 present in a given case is a question of law to be decided by the court. Whether plaintiff 11 has a reasonable expectation of privacy in the circumstances and whether defendant's 12 conduct constitutes a serious invasion of privacy are mixed questions of law and fact. If 13 the undisputed material facts show no reasonable expectation of privacy or an insubstantial 14 impact on privacy interests, the question of invasion may be adjudicated as a matter of 15 law.” Hill, 7 Cal. 4th at 40; see also Mastel v. Miniclip SA, 549 F.Supp.3d 1129, 1140 (E.D. 16 Cal. 2021) (When addressing whether an alleged invasion of privacy “constitute[s] an 17 egregious breach of the social norms underlying the privacy right … one important factor 18 that courts often rely on is whether the plaintiff alleges that the defendant used the private 19 or confidential information obtained for some improper purpose.”); see also In re Yahoo 20 Mail Litig., 7 F.Supp.3d at 1040. (“To the extent Plaintiffs claim a legally protected privacy 21 interest and reasonable expectation of privacy in email generally based on the mere fact 22 that Yahoo intercepted and distributed their emails, regardless of the specific content in the 23 emails, Plaintiffs' claim fails as a matter of law.”). 24 “A particular class of information is private when well-established social norms 25 recognize the need to maximize individual control over its dissemination and use to prevent 26 unjustified embarrassment or indignity.” Hill at 35. Plaintiff makes conclusory allegations 27 in the complaint. Plaintiff’s allegations lack the requisite specificity to indicate the 28 existence of a legally protected privacy interest or a sufficiently serious breach thereof. 1 Defendant’s arguments on this are persuasive and sufficient to foreclose Plaintiff’s 2 constitutional claim at the motion-to-dismiss stage. Plaintiff has made only sparing 3 references to the nature of the communications. Her opposition brief points to two 4 paragraphs in her Complaint, paragraphs 15 and 24. ECF No. 24 at 20, c.f. ECF No. 1-2. 5 Paragraph 15 only alludes to the possibility that chat feature conversations could be 6 “private and deeply personal.”6 Paragraph 24 cites to a recent study by the Electronic 7 Privacy Information Center and does not address the content of the chat feature 8 conversations alleged to be involved in this case. There is no supporting allegation that 9 Plaintiff’s engagement with the Drift chat feature conversations produced or transferred 10 content likely to be embarrassing. Plaintiff’s allegations fail to allege an egregious breach 11 of social norms. Thus, Plaintiff’s claims for violation of the California Constitution’s right 12 to privacy provision is DISMISSED. 13 E. CONCLUSION 14 For the reasons stated above, Defendant’s motion to dismiss is GRANTED. As 15 stated above, Plaintiff’s claim against Defendant for liability under CIPA section 632.7 is 16 DISMISSED with prejudice. Likewise, Plaintiff’s UCL claim against Defendant for 17 liability under the UCL is DISMISSED with prejudice. All remaining claims are 18 DISMISSED without prejudice. Should Plaintiff decide to file an amended complaint, 19 she must do so within 21 days of this order. If Plaintiff fails to file a timely amended 20 complaint, the Court will close the case. 21 / / / 22 / / / 23 / / / 24 / / / 25 26 6 That paragraph, in full, reads: “To enable the wiretapping, Defendant has covertly embedded a third-party's code into its chat 27 feature that automatically records and creates transcripts of all such conversations. To enable the eavesdropping, Defendant allows at least one independent Third Party (on information and belief, "Drift") to secretly intercept in real time, eavesdrop 28 upon, interpret, analyze, store, and use for that Third-Party's own purposes transcripts of Defendant's chat communications I IT IS SO ORDERED. 2 3 Dated: September 30, 2024 = 4, 4 Honorable James E. Simmons Jr. 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28