1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 FRANK D. RUSSO, ET AL., CASE NO. 4:20-cv-04818-YGR
7 Plaintiffs, ORDER GRANTING DEFENDANT 8 vs. MICROSOFT CORPORATION’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT 9 MICROSOFT CORPORATION, Re: Dkt. No. 25 10 Defendant.
11 12 Plaintiffs Frank D. Russo; Koonan Litigation Consulting, LLC; and Sumner M. Davenport 13 & Associates, LLC (collectively, “Plaintiffs”) bring this class action against Defendant Microsoft 14 Corporation for violation of privacy laws. (Dkt. No. 29 (“Comp.”).) Plaintiffs allege violations of 15 (1) the Wiretap Act, 18 U.S.C. § 2511, et seq., (2) the Stored Communications Act (“SCA”), 18 16 U.S. C. § 2701 et seq., (3) the Washington Consumer Protection Act (“WCPA”), Wash. Rev. Code 17 9,73.010 et seq., (4) Washington Privacy Act (“WPA”), Wash. Rev. Code 9.73.010 et seq., and (5) 18 intrusion upon seclusion under Washington law. 19 Now before the Court is Microsoft’s motion to dismiss. (Dkt. No. 25 (“Mot.”).) Having 20 considered the papers submitted and the pleadings in this action, and for the reasons below, the 21 Court hereby GRANTS IN PART and DENIES IN PART the motion to dismiss.1 22 I. BACKGROUND 23 Plaintiffs use Microsoft’s software to conduct business. Mr. Russo uses Microsoft 365 24 Business Standard for his sole proprietorship, Russo Meditation & Law, to provide mediation, 25 arbitration, and alternative dispute resolution services to clients. (Comp. ¶¶ 13-15.) Koonan 26 Litigation Consulting, LLC employs Microsoft 356 Business Basic to provide advice on “all 27 1 aspects of litigation.” (Id. ¶¶ 20-23.) Sumner M. Davenport & Associates, LLC similarly uses 2 Microsoft 365 Business Basic to provide marketing services. (Id. ¶¶ 28-34.) Each product 3 provides cloud-based access to Microsoft’s Office software suite for a monthly subscription fee. 4 (Id. ¶ 46.) 5 Plaintiffs allege that Microsoft (1) shared its business customers’ data with Facebook, (2) 6 shared its business customers data with third-party developers, (3) shared its business customers’ 7 data with subcontractors to support Microsoft’s products, and (4) used business customers’ data to 8 develop and sell new products and services through their software without consent. (Id. ¶ 1.) 9 Although the precise nature of plaintiffs’ claims lacks clarity, the complaint appears to 10 quote from various documents related to different features.2 First, with respect to Facebook data 11 sharing, plaintiffs quote from a technical document describing “Facebook Contact Sync,” which 12 “shares information in your Outlook Contacts folder with Facebook and imports your Facebook 13 friends’ contact information into your Outlook Contacts folder.” (Id. ¶ 76; Dkt. No. 25-1 at 12.) 14 Although the complaint acknowledges that this feature can be disabled, it states that “the damage 15 has already been done” at that point because “[o]nce contacts are transferred to Facebook, they 16 cannot be deleted from Facebook’s system except by Facebook.” (Comp. ¶ 76.) 17 Second, with respect to third-party developers, plaintiffs apparently refer to “Microsoft 18 Graph,” which allows developers to “build smarter apps” for Windows using APIs that “model 19 and represent people in Microsoft 365 services,” including by “perform[ing] searches for people 20 who are relevant to the signed-in user and have expressed an interest in communicating with that 21 user over certain ‘topics.’” (Id. ¶ 84; Dkt. No. 25-1 at 51, 53.) Although plaintiffs apparently 22 acknowledge that this feature requires user permission, they allege that “Microsoft nonetheless 23 transmits [a] non-consenting business customer’s data to third-party developers if another Office 24 365 user consented to the application.” (Comp. ¶ 82 (emphasis in original); see Dkt. No. 25-1 at 25
26 2 The Court GRANTS Microsoft’s request for judicial notice of these documents. (Dkt. No. 25-2.) The statements in these documents form the basis of Plaintiffs’ claims and are therefore 27 incorporated by reference. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1022 (9th Cir 1 53.) For instance, if a signed-in user give consent, the API allows a developer to search that user’s 2 email to find other users who have communicated about particular topics. (See id.) 3 Third, with respect to subcontractors, plaintiffs allege generally that Microsoft uses 4 subcontractors “not only to provide customers with the services they purchased, but also to serve 5 Microsoft’s separate commercial ventures, including discovering new business insights and 6 developing new services, products, or features,” without requiring anonymization or encryption. 7 (Comp. ¶¶ 87-90.) The factual basis for this claim is not alleged. 8 Finally, with respect to using data to develop new products, plaintiffs refer to the following 9 products: Security Graph API, Microsoft Audience Network, Windows Defender Application 10 Control, Azure Advanced Threat Protection, Advanced Threat Protection, and Cortana. (Id. ¶¶ 93- 11 97.) Plaintiffs allege facts for only the first two products and Cortana. Security Graph is an API 12 provided to developers “so they can create new security-related products” that is allegedly built by 13 “scanning ‘400 billion’ . . . customers’ emails and ‘data from 700 million Azure user accounts.’” 14 (Id. ¶¶ 93-94.) Microsoft Audience Network appears to be an advertisement product that imparts 15 “rich user understanding” through “robust data sets.” (Id. ¶ 95.) Cortana allegedly “collects and 16 uses business customer data (including documents, contacts, and calendar information)” to 17 “develop and improve” its service. (Id. ¶ 97.) 18 Plaintiffs claim that Microsoft’s practices are contrary to its marketing representations and 19 contracts, which tout its privacy protections. (Id. § B.) For instance, Microsoft’s “Trust Center” 20 website allegedly states that “[w]e use your data for just what you pay us for: to maintain and 21 provide Office 365” and “only to provide the services.” (Id. ¶ 58.) Its Online Service Terms 22 similarly allegedly state that it will use customer data only to “[d]eliver[] functional capabilities,” 23 “troubleshoot[] problems,” and “improv[e] the product through updates.” (Id. ¶ 65.) Indeed, the 24 terms allegedly promise that customer data will not be used for “(a) user profiling, (b) advertising 25 or similar commercial purposes, or (c) market research aimed at creating new functionalities, 26 services, or products or any other purpose, unless such use or processing is in accordance with 27 Customer’s documented instructions.” (Id. ¶ 66.) Plaintiffs claim that they would not have 1 II. LEGAL STANDARD 2 Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed for failure 3 to state a claim upon which relief may be granted. Dismissal for failure under Rule 12(b)(6) is 4 proper if there is a “lack of a cognizable legal theory or the absence of sufficient facts alleged 5 under a cognizable legal theory.” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 6 2011) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)). The 7 complaint must plead “enough facts to state a claim [for] relief that is plausible on its face.” Bell 8 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face “when the 9 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 10 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. If the facts alleged do not 11 support a reasonable inference of liability, stronger than a mere possibility, the claim must be 12 dismissed. Id. at 678-79; see also In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 13 2008) (stating that a court is not required to accept as true “allegations that are merely conclusory, 14 unwarranted deductions of fact, or unreasonable inferences”). 15 If a court dismisses a complaint, it should give leave to amend unless “the pleading could 16 not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe, Inc. v. N. Cal. 17 Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). 18 III. ANALYSIS 19 A. Plaintiffs Have Not Shown Standing. 20 To bring a claim in federal court, a plaintiff needs to have standing. Lujan v. Defenders of 21 Wildlife, 504 U.S. 555, 559-60 (1992). Article III standing requires plaintiffs to have “(1) suffered 22 injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is 23 likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, -- U.S. --, 136 S. 24 Ct. 1540, 1547 (2016). Plaintiffs who have not been personally injured in by defendant’s conduct 25 lack a “personal stake” in the outcome and thus have no standing. Id. at 1548; see also Raines v. 26 Byrd, 521 U.S. 811, 818-19 (1997). The party invoking federal jurisdiction must “clearly allege 27 facts demonstrating each element” of standing at the motion to dismiss stage. Spokeo, 136 S.Ct at 1 Here, plaintiffs do not allege enough facts to draw a reasonable inference that they have 2 been injured by Microsoft’s conduct. With respect to Facebook Connect, plaintiffs do not allege 3 that they have used Outlook, much less that they added anyone to their Outlook Contacts folder 4 who could have been disclosed to Facebook. With respect to third-party developers, plaintiffs do 5 not allege any user with whom they communicated that granted consent for Microsoft Graph to 6 scan their emails. With respect to both subcontractors and Microsoft’s other products, plaintiffs 7 do not allege any facts that could support a reasonable inference that Microsoft’s cloud software 8 customers were affected at all. For instance, plaintiffs do not explain how the information for 9 Advanced Threat Protection was gathered and how involved Office 365 customers. 10 Instead, plaintiffs cite two paragraphs that generically state that Microsoft used and shared 11 “Plaintiffs’ and Class Members’” data, including their emails, as described above. (See Comp. ¶¶ 12 141, 143.) Such allegations are far too sparse and conclusory to make the claim of personal injury 13 plausible. See Gilead, 536 F.3d at 1055; cf. In re Chrysler-Dodge-Jeep Ecodiesel Mktg., Sales 14 Practices, & Product Liability Litig., 295 F. Supp. 3d 927, 949 (N.D. Cal. 2018) (no standing 15 based on overpayment theory where plaintiffs do not allege that their products were defective). 16 The Court thus dismisses the complaint for failure to allege facts demonstrating standing.3 17 B. Plaintiffs Have Not Stated a Claim. 18 For similar and additional reasons, plaintiffs have failed to state a claim on the merits. As 19 an initial matter, plaintiffs’ allegations concerning subcontractors and use of customer data to 20 develop new products (the third and fourth set of alleged conduct) are too conclusory to render 21 their claims plausible. Based on plaintiffs’ complaint, Microsoft could be using customer data and 22
23 3 In addition to Article III, the statutes here limit the types of injuries sufficient for a party to bring suit. The Wiretap Act provides a cause of action only to persons “whose wire, oral, or 24 electronic communication is intercepted, disclosed, or intentionally used.” 18 U.S.C. § 2520. The SCA provides a cause of action to a person “aggrieved by any violation,” 18 U.S.C. § 2707(a), 25 which typically requires a plaintiff to “allege[] with particularity that her communications were part of the [disclosure].” Jewel v. Nat’l Sec. Agency, 673 F.3d 902, 910 (9th Cir. 2011) (emphasis 26 in original). Further, the WPA provides a cause of action only to those “claiming that a violation of this statute has injured his or her business, his or her person, or his or her reputation.” Wash. 27 Rev. Code § 9.73.060. Thus, because plaintiffs fail to allege Article III standing, they also fail to 1 subcontractors to develop new products. That said, plaintiffs allege no facts to suggest that this 2 actually happens. Similarly, plaintiffs do not allege that Microsoft Audience Network actually 3 involves Office 365 products. The complaint thus fails to allege enough facts to nudge claims 4 from “mere possibility” to plausibility. Iqbal, 556 U.S. at 678. Thus, the Court evaluates only the 5 alleged features for which Plaintiffs provide sufficient factual allegations, namely: (1) Facebook 6 Connect, (2) Microsoft Graph API, (3) Security Graph API, and (4) Cortana. See supra § I. 7 1. Court One: Wiretap Act 8 The Wiretap Act provides relief against any person who “intentionally intercepts . . . the 9 contents of any electronic communication,” or who “intentionally discloses” or “intentionally 10 uses” such content while “knowing or having reason to know” it was so intercepted. 18 U.S.C. §§ 11 2511(1)(a), (c)-(d). Microsoft moves to dismiss on three grounds: (1) the alleged conduct does 12 not involve “contents” of communications, (2) any communications would have been stored prior 13 to access and therefore not “intercepted” while in transmission, and (3) the “ordinary course of 14 business” exception applies. 15 With respect to communication contents, plaintiffs sufficiently allege that Graph and 16 Security Graph are developed or improved by scanning email. (Comp. ¶¶ 84, 94-95.) Thus, to the 17 extent that plaintiffs can allege that their emails were scanned, they will have stated a claim under 18 the Wiretap Act.4 See Doe v. Chao, 540 U.S. 614, 624-25 (2004) (explaining that standing and the 19 existence of cause of action involve separate inquiries). However, the Court agrees that Facebook 20 Connect, which involves contact lists, cannot form the basis of a Wiretap Act claim. See In re 21 Zynga Privacy Litig., 750 F.3d 1098 (9th Cir. 2014) (name and identity data does not represent 22 “contents”). Nor can Cortana, which allegedly scans “documents, contacts, and calendar 23 information,” not communications. (Comp. ¶ 97.) 24 With respect to interception, the complaint does not allege enough facts to determine 25 whether the Graph and Security Graph scan stored or transmitted content. Ordinarily, this would 26
27 4 Judicially noticed documents suggest that not all of the subscription products purchased 1 render plaintiffs’ claims insufficient. In this case, however, plaintiffs plausibly argue that they do 2 not know the precise nature of Microsoft’s email scanning, as the information resides with the 3 defendant, and plead the Wiretap Act and SCA claims in the alternative. The Court will permit 4 plaintiffs to plead in the alternative because the point of scanning is not generally known. See In 5 re Yahoo Mail Litig., 7 F. Supp. 3d 1016, 1027-28 (N.D. Cal. 2014). Namely, the Ninth Circuit 6 has permitted “interception” claims where information was either “captured or redirected” during 7 transit. Noel v. Hall, 568 F.3d 743, 751 (9th Cir. 2009). The Court finds plausible plaintiffs’ 8 allegations of scanning, since they are based on Microsoft’s documents, and concludes that the 9 precise point of scanning is an issue best left for summary judgment. See Campbell v. Facebook 10 Inc., 77 F. Supp. 3d 836, 840-41 (N.D. Cal. 2014). 11 With respect to the ordinary course of business exception,5 the rule applies only to conduct 12 that “facilitates the transmission of the communication at issue or is incidental to the transmission 13 of such communication.” In re Google Assistant Privacy Litig., 457 F. Supp. 3d 797, 818 (N.D. 14 Cal. 2020) (citation omitted). In other words, there must be “some nexus” between interception 15 and the provision of the service at issue. In re Google Inc., No. 13-MD-02430-LHK, 2013 WL 16 5423918, at *11 (N.D. Cal. Sept. 26, 2013). The precise closeness of the required nexus remains 17 unsettled, but courts broadly agree that “not everything [a party] does in the course of its business 18 would fall within the exception.” Matera v. Google Inc., 2016 WL 8200619, at **7-9 (N.D. Cal. 19 Aug. 12, 2016); see, e.g., Campbell, 77. F. Supp. 3d at 844 (advertising is not part of the “ordinary 20 business” of providing social networking services). 21 Here, Microsoft claims that the challenged conduct relates to features of Office 365, which 22 are necessarily “incident” to provision of that service. With respect Cortana and Advanced Threat 23 Protection, the Court agrees. Plaintiffs expressly allege that Cortana was part of their Office 365 24 subscription, and judicially noticed documents show the same for Advanced Threat Protection. 25 (Comp. ¶ 97; Dkt. No. 25-1 at 63.) Even if plaintiffs did not personally use these features, they 26 5 The “ordinary business exception” arises from a phrase in the statute: the Wiretap Act 27 defines interception as requiring a “device” and then defines “device” to exclude those “used by a 1 specifically purchased them and cannot now complaint that Microsoft collects data necessary to 2 provide them. With respect to Graph and Security Graph APIs, however, plaintiffs allege that 3 Microsoft sells these APIs to developers, not to customers. (Id. ¶¶ 81, 93.) Drawing all inferences 4 in favor of plaintiffs, data interception to develop the graph APIs are not “incident” to provision of 5 service to plaintiffs. 6 Accordingly, to the extent that plaintiffs can allege that their specific emails were scanned, 7 the complaint may state a claim under the Wiretap Act based on the Graph and Security Graph 8 API features. The claims based on other features are dismissed with prejudice. 9 2. Count Two: Stored Communications Act 10 The SCA imposes liability on “electronic communication service” providers who 11 “knowingly divulge to any person or entity the contents of a communication while in electronic 12 storage by that service.” 18 U.S.C. § 2702(a)(1). It also imposes liability on “remote computer 13 service” providers who do the same for communication contents “carried or maintained on that 14 service” “(A) on behalf of, and received by means of electronic transmission from . . . a subscriber 15 or customer of such service,” or “(B) solely for the purpose of providing storage or computer 16 processing services to such subscriber or customer, if the provider is not authorized to access the 17 contents of any such communications for purposes of providing any services other than storage or 18 computer processing.” 18 U.S.C. § 2702(a)(2). 19 Microsoft moves to dismiss because (1) the allegations do not involve “contents” of 20 communications, (2) the “necessarily incident” exception applies, and (3) the statute does not 21 apply to Microsoft’s own use of data. The Court has already found that plaintiffs sufficiently 22 allege that Microsoft intercepted the contents of communications for Graph and Security Graph 23 APIs (but not other features). Moreover, the Court has already found that the scanning was not 24 part of Microsoft’s ordinary course of business. While the “necessarily incident” exception under 25 the SCA may, conceivably, have different scope, Microsoft cites no authority to show that is the 26 case, and the argument fails for the same reasons.6 Last, plaintiffs plausibly allege that Graph and 27 1 Security Graph APIs involve disclosures to third-party developers, which goes beyond Microsoft’s 2 own use of data. (Comp. ¶¶ 82, 93.) That is sufficient to state a claim for those features only. 3 Accordingly, to the extent that plaintiffs can allege that their specific emails were scanned, 4 the complaint may state a claim based on Graph and Security Graph APIs. The claims based on 5 other features are dismissed with prejudice. 6 3. Count Three: Washington Consumer Protection Act 7 To state a claim under the WCPA, plaintiffs must allege facts establishing “(1) an unfair or 8 deceptive act or practice that (2) affects trade or commerce and (3) impacts the public interest, and 9 (4) the plaintiff sustained damage to business or property that was (5) caused by the unfair or 10 deceptive act or practice.” Keodalah v. Allstate Ins. Co., 194 Wash. 2d 339, 349-50 (2019). 11 Microsoft challenges plaintiffs’ compliance with the fourth and fifth elements—injury and 12 causation—and further argues that the complaint fails to comply with the heightened pleading 13 standard required for pleading fraud under Rule 9(b). 14 Starting with the first issue, plaintiffs claim an overpayment theory of injury where they 15 “paid more for a service or product advertised as having certain qualities . . . when in fact the 16 product did not have those qualities.” (Comp. ¶ 167.) That states a cognizable injury under the 17 WCPA, and plaintiffs plead enough factual content to make it plausible. Namely, plaintiffs allege 18 that Microsoft publicly recognizes that its success “depends on [the] ability to win and retain [its] 19 users’ trust” and identifies privacy as a “competitive differentiator.” (Id. ¶¶ 48-49.) The Court 20 finds it plausible that, if Microsoft lacked its “competitive differentiator,” it may have charged less 21 for the subscriptions.7 This also satisfies causation under a theory that plaintiffs overpaid for their 22 subscriptions regardless of whether they were exposed to the misrepresentations. See Kelley v. 23 Microsoft Corp., 251 F.R.D. 544, 557-59 (W.D. Wash. 2008) (permitting class certification under 24 price inflation theory). But see Kelley v. Microsoft Corp., No. C07-0475 MJP, 2009 WL 413509, 25 7 Plaintiffs also allege that they “would not have purchased [their] subscription, or 26 alternatively would have paid less for it,” if they knew the truth. (E.g., Comp. ¶ 26.) However, because they do not allege that they saw any misrepresentation (but merely “believed” that their 27 data would be secure), this theory fails to satisfy causation. Cf. McGee v. S-L Snacks Nat’l, 982 1 at *6 (W.D. Wash. Feb. 18, 2009) (decertifying the class where plaintiffs failed to link specific 2 customer demand to the misrepresentation). 3 However, the Court agrees that the complaint utterly fails the requirements of Rule 9(b). 4 Rule 9(b) applies “where a claim is based on ‘a unified course of fraudulent conduct,’ even if the 5 word ‘fraud’ is not used.” Water & Sanitation Health, Inc. v. Rainforest All., Inc., C15-75RAJ, 6 2015 WL 12657110, at *5 (W.D. Wash. Dec. 29, 2015) (citation omitted). It also applies “where 7 fraud is an essential element of a claim or where Plaintiffs allege some fraudulent and some non- 8 fraudulent conduct.” Id. (citation omitted). Here, the complaint plainly alleges a “unified course 9 of fraudulent conduct.” Id. Plaintiffs claim that Microsoft “misleads its business customers as to 10 how it shares and uses their data,” “misrepresented and did not disclose” material facts that were 11 directly contrary to its representations, and duped customers into sharing data it knew to be highly 12 sensitive to obtain a commercial benefit. (See Comp. ¶¶ 100, 37, 50, 81.) These are exactly the 13 type of circumstances where Rule 9(b) must apply to protect defendants’ reputation from spurious 14 (but highly damaging) allegations of fraud.8 See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 15 1104 (9th Cir. 2003). 16 Plaintiffs fail to meet that standard. Although the allegations are barely sufficient to meet 17 the requirements for a “short and plain statement” under Rule 8 (mostly because they quote from 18 Microsoft’s own documents), they leave the public entirely in the dark about the nature of the 19 purported data misuse. Microsoft apparently had to sort through—and then request judicial notice 20 for—obscure technical documentation just to identify features that plaintiffs are accusing. The 21 Court still has no idea how those features function, which parties use them, the form in which the 22 data is provided, or anything else about them.9 In short, plaintiffs do not plead nearly enough facts 23 8 Plaintiffs implausibly argue that the CPA claim is based on mere “capacity to deceive the 24 purchasing public.” (Comp. ¶ 164.) That makes little sense. The complaint states that Microsoft knowingly makes privacy a central tenet of its marketing campaign and then knowingly takes a 25 course of action directly contrary to it. (Id. ¶¶ 3, 81.) The mere absence of the words “intent to deceive” does not defeat Rule 9(b) where fraud is the clear implication of the allegations. 26
9 These deficiencies are far from technical. Microsoft claims, for instance, that some of the 27 accused features are provided to network administrators to protect their organizational networks— 1 to justify the gravity of their claims. 2 Accordingly, the Court dismisses the Washington CPA claim without prejudice. 3 4. Count Four: Washington Privacy Act 4 The WPA prohibits interception and recording of a “[p]rivate communication transmitted 5 by telephone, telegraph, radio, or other device between two or more individuals between points 6 within or without the state . . . without first obtaining consent of all the participants in the 7 communication.” Wash. Rev. Code § 9.73.010(1)(a). Microsoft moves to dismiss because (1) 8 plaintiffs do not allege interception of private communications, (2) the WPA does not apply to 9 corporations, and (3) the WPA does not apply extraterritorially. 10 As explained above, the Court agrees that plaintiffs have not alleged that their own 11 communications were intercepted (private or otherwise). They therefore have no standing to bring 12 a WPA claim.10 Microsoft’s other arguments lack merit. 13 Although the WPA does not define “person,” it uses the term consistent with a broad 14 definition that includes corporations. For instance, it imposes liability on conduct by “any 15 individual, partnership, corporation, association, or the State of Washington, its agencies, and 16 political subdivisions,” but then provides a cause of action against any “person” who violates the 17 statute. See Wash. Rev. Code §§ 9.73.010(1)(a), 9.73.060. Under Microsoft’s interpretation, the 18 Washington Legislature created liability against a broad range of entities, but only provided a 19 cause of action against individuals, which is implausible. Similarly, the WPA defines common 20 carriers as including “any person engaged as a . . . public service company” in certain fields, which 21 demonstrates that companies are persons. Wash. Rev. Code § 9.73.070. Microsoft’s argument to 22 the contrary focuses on the use of the words “his or her” in section 9.73.060, but Microsoft does 23 not contend that the other use of “person” in that section excludes corporations. See Wash. Rev. 24 Code § 9.73.060 (using “person” to refer to both the party violating the statute and the party that 25 can bring a claim). Because the Washington Legislature presumably used the term “person” 26
27 10 Plaintiffs again claim an economic injury because “would not have purchased (or would 1 consistently in that subsection, Microsoft’s argument fails to persuade. 2 As for extraterritoriality, “the test for whether a recording of a conversation or 3 communication is lawful is determined under the laws of the place of the recording.” State v. 4 Fowler, 157 Wash. 2d 387, 395 (2006) (en banc). The WPA “does not limit the territory in which 5 telephone calls may be intercepted, as long as the interception occurs in Washington. Kadoranian 6 by Peach v. Bellingham Police Dept., 119 Wash. 2d 178, 184 (1992) (en banc); see also Wash. 7 Rev. Code § 9.73.010(1)(a) (protecting communications “between points within or without the 8 state”). As explained above, the Court finds that the precise points of interception is an issue best 9 tested through discovery and does not dismiss on this ground, notwithstanding allegations that 10 plaintiffs’ communications originated in California and Wyoming.11 11 Accordingly, to the extent that plaintiffs can allege that their private communications were 12 intercepted, they may state a claim under the WPA based on Graph and Security Graph APIs. 13 5. Count Five: Intrusion Upon Seclusion 14 Under Washington law, invasion of privacy through intrusion “consists of a deliberate 15 intrusion, physical or otherwise, into a person’s solitude, seclusion, or private affairs.” Fisher v. 16 State ex rel. Dept. of Health, 125 Wash. App. 869, 879 (2005); see also Eastwood v. Cascade 17 Broadcasting Co., 106 Wash. 2d 466 (1986) (intrusion upon seclusion is a sub-type of invasion of 18 privacy under Washington law). Microsoft moves to dismiss the claim because (1) businesses do 19 not have privacy rights, (2) plaintiffs voluntarily provided their information, and (3) the intrusion 20 at issue is not “highly offensive.” 21 The Court agrees with the first argument and dismisses on that ground. “[A] corporation 22 has no personal right of privacy and thus has no cause of action for invasion of privacy.” Life 23 Designs Ranch, Inc. v. Sommer, 191 Wash. App. 320, 338 (2015); see Restatement (Second) of 24 Torts § 652I, comment c (1976). Plaintiffs do not dispute this common sensical proposition, but 25
26 11 Plaintiffs rely on the statement that “[o]f course, [WPA] may be violated by a recording made outside of this state if the recording was made for use of the evidence in Washington by an 27 agent of a Washington official or other person.” Fowler, 157 Wash. 2d at 347. The import of this ] argue that Mr. Russo, as an individual, may bring an intrusion upon seclusion claim. However, 2 || Mr. Russo never alleges that he used Microsoft’s products for his own “private affairs.” Instead, 3 || the complaint states that Mr. Russo used his subscription “in the course of his business,” which 4 || consists of “mediation, arbitration, and alternative dispute resolution services.” (Comp. §§ 13, 15.) 5 || At most, the complaint suggests that Mr. Russo may have used the products for his clients’ private 6 || affairs. Plaintiffs cite no case to suggest that Mr. Russo has standing to bring other people’s 7 || common law tort claims, and the claim is improper. 8 Accordingly, the Court dismisses Mr. Russo’s intrusion upon seclusion claim without 9 || prejudice and the other plaintiffs’ claims with prejudice. 10 || IV. CONCLUSION 11 For the foregoing reasons, the Court GRANTS Microsoft’s motion to dismiss. The 12 dismissal is without prejudice unless stated otherwise. Plaintiffs may file an amended complaint wa: 13 || within twenty-one days. 14 IT Is SO ORDERED. 3 15 2 16 || Dated: June 30, 2021 Lene Hagptelflecss YVONNE GONZALEZ ROGERS = M7 UNITED STATES DISTRICT COURT JUDGE Z 18 19 20 21 22 23 24 25 26 27 28