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Heeger v. Facebook, Inc.

United States District Court, N.D. California

December 27, 2019

BRETT HEEGER, Plaintiff,
v.
FACEBOOK, INC., Defendant.

          ORDER RE MOTION TO DISMISS RE: DKT. NO. 26

          JAMES DONATO United States District Judge.

         This is a privacy class action lawsuit brought by plaintiff Brett Heeger against defendant Facebook, Inc., on behalf of a putative class of Facebook users who turned off Facebook's “Location History” feature. Heeger alleges that Facebook continued to “track, log, and store” their private location information “regardless of users' choices” to deactivate that feature. Dkt. No. 1 ¶¶ 1, 43. Facebook has moved to dismiss plaintiff's complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. No. 26. The motion is granted and denied in part, with leave to amend.

         DISCUSSION

         Facebook's unopposed request for judicial notice, Dkt. Nos. 27, 32, is granted, and plaintiff's fifth claim under California's Consumer Legal Remedies Act, Cal. Civ. Code § 1750 et seq., is dismissed because plaintiff has abandoned that claim to “streamline the case.” Dkt. No. 33 at 15 n.12. That leaves four claims: (1) violation of the California Invasion of Privacy Act (“CIPA”), Cal. Pen. Code § 630 et seq.; (2) violation of California's constitutional right of privacy; (3) intrusion upon seclusion; and (4) violation of the Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq. Dkt. No. 1 ¶¶ 52-86.

         I. ARTICLE III STANDING

         Facebook says that Heeger lacks Article III standing for all of the claims because he has not alleged a concrete and specific injury in fact. Dkt. No. 26 at 6-9. Heeger originally filed this lawsuit in federal court, and so he bears the burden of establishing Article III jurisdiction. Patel v. Facebook, Inc., 932 F.3d 1264, 1270 (9th Cir. 2019). “[G]eneral factual allegations of injury resulting from the defendant's conduct may suffice, and we presume that general allegations embrace those specific facts that are necessary to support the claim.” Id. (quotations omitted).

         The question is whether the intangible harm to privacy that Heeger alleges under federal and state statutes is a concrete injury in fact for Article III purposes. Patel v. Facebook Inc., 290 F.Supp.3d 948, 952 (N.D. Cal. 2018). To determine whether the violation of a statute creates a concrete injury, the Court considers “(1) whether the statutory provisions at issue were established to protect [the plaintiff's] concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged in this case actually harm, or present a material risk of harm to, such interests.” Patel, 932 F.3d at 1270-71 (quoting Robins v. Spokeo, Inc., 867 F.3d 1108, 1103 (9th Cir. 2017)). History and legislative judgments “play important roles” in the analysis. Patel, 290 F.Supp.3d at 952. “History is instructive because an intangible harm is likely to be concrete for standing purposes when it bears ‘a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit.'” Id. The legislative judgments of Congress and state legislatures are also “‘instructive and important' to our standing inquiry.” Patel, 932 F.3d at 1273.

         The complaint alleges that “Facebook systematically and covertly tracks, collects, and stores users' private location information even after users have affirmatively opted not to share their location history, ” Dkt. No. 1 ¶ 9, and that Facebook uses this information “to provide third party companies with targeted advertising” for its own corporate profits. Id. ¶ 34. That is the factual platform for the intrusion upon seclusion claim, and the violations of the California Constitution, CIPA and SCA.

         These allegations amply establish a concrete injury under Article III. To start with the intrusion claim, Heeger states that Facebook “intentionally intruded on [his] and class members' solitude, seclusion, and private affairs by continuing to track, build and store detailed location histories without their knowledge and consent, ” Dkt. No. 1 ¶ 71, and that Facebook exploited that information for its own financial gain. Heeger also alleges a “reasonable expectation[] of privacy in [his] mobile device[] and online behavior generally, including [his] physical locations.” Id. ¶ 69. Such “[p]rivacy rights have long been regarded ‘as providing a basis for a lawsuit in English or American courts.'” Patel, 932 F.3d at 1271 (quoting Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1549 (2016)). “The Supreme Court has likewise recognized the common law roots of the right to privacy, ” and “[b]oth the common law and the literal understandings of privacy encompass the individual's control of information concerning his or her person.” Id. at 1272-73. Consequently, Heeger has adequately alleged an actual and concrete invasion of his privacy rights that is actionable in federal court under Article III.

         So too for Heeger's privacy claim under the California Constitution. The California Supreme Court has stated that the “principal focus” for Article I, section 1 is “readily discernible, ” and the ballot argument for its passage warned “of unnecessary information gathering, use, and dissemination by public and private entities.” Hill v. Nat'l Collegiate Athletic Ass'n, 7 Cal.4th 1, 21 (1994). “Informational privacy is the core value furthered by the Privacy Initiative, ” and the “California constitutional right of privacy ‘prevents government and business interests from (1) collecting and stockpiling unnecessary information about us and from (2) misusing information gathered for one purpose in order to serve other purposes or to embarrass us.'” Id. at 35. Heeger has alleged facts sufficient to state a concrete harm in light of these factors.

         The injuries for the CIPA and SCA claims are also actual and concrete. “In enacting [CIPA], the Legislature declared in broad terms its intent ‘to protect the right of privacy of the people of this state' from what it perceived as ‘a serious threat to the free exercise of personal liberties [that] cannot be tolerated in a free and civilized society.' (Pen. Code, § 630.) This philosophy appears to lie at the heart of virtually all the decisions construing the Privacy Act.” Ribas v. Clark, 38 Cal.3d 355, 359 (1985). And for the Stored Communications Act, our circuit has held that “[b]ecause the plaintiffs allege that Facebook and Zynga are violating statutes that grant persons in the plaintiffs' position the right to judicial relief, we conclude they have standing to bring this claim.” In re Zynga Privacy Litigation, 750 F.3d 1098, 1105 n.5 (9th Cir. 2014).

         Consequently, there is no doubt that Heeger has the right to bring this case in federal court. Facebook makes a last effort to avert this conclusion by saying that the SCA and CIPA “do[] not apply” to plaintiff's allegations. Dkt. No. 26 at 8. The point is not well taken. That is in effect a merits argument, and the jurisdictional and merits inquiries are independent. Patel, 290 F.Supp.3d at 952, 956 (“dispositive disputes on the merits should be decided on summary judgment or at trial, and not in the Rule 12(b)(1) jurisdictional context”) (citing Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). The only issue in play at this stage of this case is whether Heeger may sue in federal court. He can. Whether he will prevail is an entirely different question.

         II. THE CIPA CLAIM

         Although Heeger has a perfect right to be before the Court, the individual counts are not sufficiently developed to go forward. For the CIPA claim, Heeger says that Facebook illegally used an “electronic tracking device to determine the location or movement of a person” in violation of California Penal Code § 637.7(a). Dkt. No. 1 ¶ 54. The problem with this proposition is that the plain language of the CIPA does not accommodate technology like a mobile app on a digital device, and plaintiff does not persuasively show otherwise. Section 637.7 became law in the late 1990s, and was expressly directed to banning the use of an “electronic tracking device, ” which is defined by subsection (d) as “any device attached to a vehicle or other movable thing that reveals its location or movement by the transmission of electronic signals.” This language contemplates things like a freestanding GPS unit hidden on a car, but not a downloaded Facebook app of the sort in dispute here. In effect, the fast pace of developments in digital technology has rendered the CIPA a poor fit for the ...


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