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Kevin Low, Individually and On Behalf of All Others Similarly Situated v. Linkedin Corporation

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


November 11, 2011

KEVIN LOW, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
LINKEDIN CORPORATION, A CALIFORNIA CORPORATION, AND DOES 1 TO 50 INCLUSIVE,
DEFENDANTS.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

Plaintiff Kevin Low ("Low" or "Plaintiff"), brings this putative class action against LinkedIn Corp. ("LinkedIn" or "Defendant") alleging that the personal information of the putative 19 class members, including "personally identifiable browsing history[ies]," were allegedly disclosed 20 by Defendant to third party advertising and marketing companies through the use of "cookies" or "beacons." Compl. at ¶¶ 15-16, March 29, 2011, ECF No. 1. Plaintiff alleges violations of the Stored Communications Act, 18 U.S.C. § 2701 et seq.; the California Constitution; the California 23 Unfair Competition Law, Cal. Bus. & Prof. Code §17200 et seq.; the California False Advertising 24 Law, Cal. Bus. & Prof. Code §17500 et seq.; the California Consumer Legal Remedies Act, Cal. 25 Civ. Code §1750 et seq.; common law breach of contract; breach of implied covenant of good faith 26 and fair dealing; common law invasion of privacy; conversion; and unjust enrichment.

Before this 27 Court is Defendant's motion to dismiss. Def.'s Mot. To Dismiss at 1, June 17, 2011, ECF No. 13. 28

A hearing was held on September 15, 2011. For the foregoing reasons, the Defendant's motion to 2 dismiss is GRANTED with leave to amend.

presumed true for purposes of ruling on Defendant's motion to dismiss. Plaintiff brings this 6 putative class action on behalf of all persons in the United States who registered for LinkedIn 7 services after March 25, 2007. Compl. at ¶ 34. LinkedIn is a web-based social networking site that 8 presents itself as an online community offering professionals ways to network. Compl. at ¶ 3. 9

I. BACKROUND

Unless otherwise noted, the following allegations are taken from the Complaint and are Plaintiff alleges that LinkedIn allows transmission of users' personally identifiable browsing 10 history and other personal information to third parties, including advertisers, marketing companies, 11 data brokers, and web tracking companies, in violation of federal and state la ws and in violation of LinkedIn's privacy policy.

14 related to the transmission of users' information to third parties. First, LinkedIn assigns each 15 registered user a unique user identification number. Compl. at ¶ 14. Then, LinkedIn's website 16 links and transmits the user ID number to third party tracking IDs ("cookies"). Compl. at ¶ 15. 17

These practices allow third parties to track the LinkedIn users' online brower histories and allow 18 them to aggregate data. Compl. at ¶ 19. Plaintiff alleges that "LinkedIn's role in this process is to 19 add 'social' information such as the name of each user and the other LinkedIn profiles they view 20 and interact with, to the otherwise potentially anonymous tracking process." Compl. at ¶ 15. The 21 information is disclosed to third parties each time the member logs in and views pages on the LinkedIn website by transmitting the HTTP Referer header, and adding the user ID as a "URL 23 parameter" when the request is transmitted to the third party. Compl. at ¶ 16. Plaintiff alleges that "merely logging in and looking at a profile page caused LinkedIn to transmit the user ID bundled 25 with that site's tracking cookie ID" to third parties. Compl. at ¶18.

Plaintiff alleges that this practice allows third parties to view a user's browser history, 27 including potentially sensitive information that may be gathered based on a user's prior searches.

The Complaint sets forth allegations regarding LinkedIn's general policies and practices Compl. at ¶ 13. Moreover, Plaintiff alleges that these practices violate several parts of LinkedIn's privacy policy, including the provision that states that "We do not sell, rent or otherwise provide [user's] personal identifiable information to any third parties for marketing purposes." Compl. at ¶ 24.

Low alleges that he is a registered user of LinkedIn. Although it is ambiguous from the 5 face of the complaint, Plaintiff's counsel clarified at the hearing that Low has not paid money for 6 the services LinkedIn provides. Low alleges that LinkedIn transmitted his LinkedIn user 7 identification to third parties, "linking [his personal identity] to [the third party's] secretly 8 embedded tracking device that surreptitiously recorded Mr. Low's internet browsing history."

Compl. at ¶ 2. As a result "he was embarrassed and humiliated by the disclosure of his personally 10 identifiable browsing history;" that his personally identifiable browsing history is valuable personal For the Northern District of California property; and that he "relinquished his valuable personal property without the compensation to United States District Court which he was due." Compl. at ¶¶ 1, 64.

Defendant filed a motion to dismiss arguing that this Court lacks subject matter jurisdiction 14 because Plaintiff has failed to establish that he has standing under Article III of the United States Constitution. Def.'s Mot. To Dismiss at 1, June 17, 2011, ECF No. 13. In the alternative, Defendant argues that the complaint should be dismissed because Plaintiff has failed to state a 17 claim upon which relief can be granted as to all ten claims alleged. Def.'s Mot. To Dismiss at 1, 18 June 17, 2011, ECF No. 13. Because the Court finds that Plaintiff has failed to establish Article III 19 standing, it need not address Defendant's alternative argument that Plaintiff's claims fail under 20 Fed. R. Civ. P. 12(b)(6). 21

II. LEGAL STANDARD AND ANALYSIS

An Article III federal court must ask whether a plaintiff has suffered sufficient injury to 23 satisfy the "case or controversy" requirement of Article III of the U.S. Constitution. To satisfy 24 Article III standing, plaintiff must allege: (1) injury-in-fact that is concrete and particularized, as 25 well as actual and imminent; (2) the injury is fairly traceable to the challenged action of the 26 defendant; and (3) it is likely (not merely speculative) that injury will be redressed by a favorable 27 decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 28 (2000); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992). A suit brought by a plaintiff without Article III standing is not a "case or controversy," and an Article III federal court there-2 fore lacks subject matter jurisdiction over the suit. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998). In that event, the suit should be dismissed under Rule 12(b)(1). See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 109-110 (1998). Defendant argues that Low has 5 failed to allege that he has suffered an injury-in-fact that is concrete and particularized as well as 6 actual and imminent.

A.Injury-In-Fact

At least one named plaintiff must have suffered an injury in fact. See Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2003) ("[I]f none of the named plaintiffs 10 purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class."). As the sole named plaintiff in this action, Low has alleged that Defendant's conduct has harmed him 13 specifically in two ways. First, Low alleges that he suffered "embarrass[ment] and humiliat[ion 14 caused] by the disclosure of his personally identifiable browsing history" Compl. at ¶ 1. Second, 15 Low alleges that his personally identifiable browsing history is valuable personal property with a 16 market value, and "as a result of Defendant's unlawful conduct, Mr. Low relinquished this valuable 17 personal property without compensation to which he was due." Compl. ¶ at 1. Each of these 18 arguments is addressed in turn.

In support of his first theory of harm, Low alleges that LinkedIn assigns its users unique 21 identification numbers and these user IDs are linked with cookies and beacons that allow personal 22 information to be associated with otherwise anonymous users' browsing histories. Compl. at ¶¶ 23 11-12. Low alleges that "anyone who has used the Internet to discreetly seek advice about 24 hemorrhoids, sexually transmitted diseases, abortion, drug and/or alcohol rehabilitation, mental 25 health, dementia, etc., can be reasonably certain that these sensitive inquiries have been captured in 26 the browsing history" and sent to third parties to be exploited. Compl. at ¶ 13. The only 27 allegations specific to Mr. Low state that on March 24, 2011, his personal LinkedIn user 28 identification number, associated with a social search for his own name, was transmitted to third (1) Emotional Harm parties by LinkedIn. Compl. at ¶ 2. As a result, Mr. Low claims he was "embarrassed and 2 humiliated by the disclosure of his personally identifiable browsing history." Compl. at ¶ 1. 3 has failed to allege facts sufficient to establish Article III standing under a theory of emotional 5 harm. It is unclear from the face of the complaint what information was actually disclosed to third 6 parties that would lead Plaintiff to suffer emotional harm. For example, Plaintiff has not alleged 7 that his browsing history, with embarrassing details of his personal browsing patterns, was actually 8 linked to his identity by LinkedIn and actually transmitted to any third parties. See Compl. ¶ at 2.

Several deficiencies regarding Plaintiff's theory of harm convince the Court that Plaintiff More to the point, Plaintiff has not alleged how third party advertisers would be able to infer Low's 10 personal identity from LinkedIn's anonymous user ID combined with his browsing history.

LinkedIn had actually caused him harm. Therefore, Low has not sufficiently alleged a 14 particularized harm as a result of Defendant's conduct. See Lujan, 504 U.S. at 561 n.1 ("By 15 particularized, we mean that the injury must affect the plaintiff in a personal and individual way.").

To the extent that Plaintiff seeks to establish a future harm, Plaintiff's allegation that his 17 sensitive information may be transmitted via his browser history is too theoretical to support injury-18 in-fact for the purposes of Article III standing. Plaintiff has not alleged that his browser history 19 will be linked to his identity by LinkedIn and that this information will necessarily be transmitted 20 to third parties, or indeed, how third party advertisers will be able to infer his personal identity 21 from his anonymous LinkedIn user ID. See Compl. ¶ at 2. Therefore, the Court finds these 22 allegations to be insufficient to establish an injury-in-fact that is concrete and particularized, as 23 well as actual and imminent. See Birdsong v. Apple, Inc., 590 F.3d 955, 960-61 (9th Cir. 2009) 24 (finding lack of standing because of the "conjectural and hypothetical nature" of the alleged 25 injury).

alleges that his browsing history is personal property with market value and that he has Moreover, even at the oral argument Plaintiff was unable to articulate a theory of what information had actually been transmitted to third parties, how it had been transferred to third parties, and how

(2) Economic Harm

Low also alleges that he has been economically harmed by LinkedIn's practices. Low "relinquished this valuable personal property without compensation to which he was due." Compl. ¶ at 1. Plaintiff clarified at oral argument that he has not paid money for LinkedIn's service. Thus, 3 it appears that Plaintiff is alleging that his personal information has an independent economic 4 value, and that he was not justly compensated for LinkedIn's transfer of his personal data to third 5 party data aggregators. Compl. ¶¶ at 1, 64. 6

7 standing. The recent case of Specific Media is instructive. See LaCourt v. Specific Media, Inc.,

These allegations, however, appear to be too abstract and hypothetical to support Article III 2011 U.S. Dist. LEXIS 50543, at *9-12 (C.D. Cal. Apr. 28, 2011). In Specific Media, plaintiffs 9 accused an online third party ad network, Specific Media, of installing "cookies" on their 10 computers to circumvent user privacy controls and track internet use without user knowledge or

The Court noted that while Plaintiffs may theoretically have had some property interest in their 14 personal information, they had not "identif[ied] a single individual who was foreclosed from 15 entering into a 'value-for-value exchange' as a result of [Defendant's] alleged conduct," and they 16 had not explained "how they were 'deprived' of the economic value of their personal information 17 simply because their unspecified personal information was purportedly collected by a third party." Id. at *5. Other cases, analyzing similar legal issues, have held that unauthorized collection of 19 personal information does not create an economic loss. See In re iPhone Application Litig., No. 497, 525 (S.D.N.Y. 2001) (holding that unauthorized collection of personal information by a third-22 party is not "economic loss"); see also In re JetBlue Airways Corp., Privacy Litig., 379 F. Supp. 2d 23 299, 327 (E.D.N.Y. 2005) (explaining that airline's disclosure of passenger data to third party in 24 violation of airline's privacy policy had no compensable value).

consent. The court held that plaintiffs lacked Article III standing in part because they had not alleged any "particularized example" of economic injury or harm to their computers. Id. at *7-13. 13 11-MDL-02250 (N.D. Cal. Sept. 20, 2011); In re Doubleclick, Inc., Privacy Litig., 154 F. Supp. 2d

As in Specific Media, Low has failed to allege facts sufficient to support his theory of harm.

Low relies upon allegations that the data collection industry generally considers consumer 27 information valuable, and that he relinquished his valuable personal information without the 28 compensation to which he was due. See Compl. at ¶¶ 1; 20-23. But Low, like the Plaintiffs in Specific Media, has failed to allege facts that demonstrate that he was economically harmed by LinkedIn's practices. Low has failed to allege how he was foreclosed from capitalizing on the 3 value of his personal data or how he was "deprived of the economic value of [his] personal 4 information simply because [his] unspecified personal information was purportedly collected by a 5 third party." 2011 WL 1661532 at *5. 6

the loss of personal information may be sufficient to confer Article III standing. See Opp'n. to Plaintiff relies on Krottner v. Starbucks Corp., 628 F.3d 1139 (9th Cir. 2010), to argue that Mot. to Dismiss, August 1, 2011, ECF No. 16. Plaintiffs in Krottner were Starbucks employees 9 that had had their personal information, including names, addresses, and social security numbers, 10 compromised as the result of the theft of a company laptop. Id. at 1140. Class members brought an action against Starbucks, alleging negligence and breach of contract. Id. at 1139. The Ninth Circuit held that the plaintiffs satisfied the injury-in-fact requirement through their allegations of 13 increased risk of future identify theft because they had "alleged a credible threat of real and 14 immediate harm stemming from the theft of a laptop containing their unencrypted personal data." 15

Id. at 1143. In reaching its decision, the Ninth Circuit relied on analogous reasoning in 16 environmental claims, wherein a plaintiff may allege a future injury in order to comply with the 17 injury-in-fact requirement. Id. at 1142 (quoting Cent. Delta Water Agency v. United States, 306 [T]he injury in fact requirement can be satisfied by a threat of future harm or by an act which harms the plaintiff only by increasing the risk of future harm that the plaintiff would have otherwise faced, absent the defendant's actions. F.3d 938, 948-50 (9th Cir. 2002). The Ninth Circuit explained that:

Id. at 1143 (quoting Pisciotta v. Old Nat'l. Bankcorp, 499 F.3d 629, 634 (7th Cir. 2007) (internal 22 citations omitted). Thus, where sensitive personal data, such as names, addresses, social security 23 numbers and credit card numbers, is improperly disclosed or disseminated into the public, 24 increasing the risk of future harm, injury-in-fact has been recognized. See Krottner, 628 F.3d 25 1139; see also Doe 1 v. AOL, 719 F. Supp. 2d 1102, 1109-1111 (2010) (holding that past 26 publication of sensitive personal information, including credit card numbers, social security 27 numbers, financial account numbers, and information regarding AOL members' personal issues, including sexuality, mental illness, alcoholism, incest, rape, and domestic violence and continuing 2 collection and dissemination of this same sensitive information is sufficient to establish standing).

Low, in contrast, has not yet articulated or alleged a particularized and concrete harm as the 4 plaintiffs did in Krottner and Doe. The plaintiffs in Krottner and Doe were concerned with the 5 harm that arose from the actual publication or theft of their highly sensitive personal data. Low has 6 not alleged that his credit card number, address, and social security number have been stolen or 7 published or that he is a likely target of identity theft as a result of LinkedIn's practices. Nor has

Plaintiff has failed to put forth a coherent theory of how his personal information was disclosed or 10 transferred to third parties, and how it has harmed him. Accordingly, Low has failed to allege an injury-in-fact.*fn1

Because Plaintiff does not have standing to bring his claims before this Court, no subject 13 matter jurisdiction exists. Therefore, the Court will not address the merits of Plaintiff's claims.

prejudice. Plaintiff has 21 days from the filing of this order to file a First Amended Complaint.

Low alleged that his sensitive personal information has been exposed to the public. Indeed, the

III. CONCLUSION

For the foregoing reasons the Defendant's Motion to Dismiss is GRANTED without

IT IS SO ORDERED.


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