Yockey v. Salesforce, Inc.

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 PATRICK YOCKEY, et al., Case No. 22-cv-09067-JST 8 Plaintiffs, ORDER GRANTING IN PART AND 9 v. DENYING IN PART MOTION TO DISMISS 10 SALESFORCE, INC., Re: ECF No. 23 Defendant. — 11 — — 12 — 13 Before the Court is Defendant Salesforce, Inc.’s motion to dismiss. ECF No. 23. The 14 Court will grant the motion in part and deny it in part. 15 I. BACKGROUND 16 Salesforce is a software-as-a-service provider that offers a service called Chat. ECF No. 17 22 ¶¶ 6, 11. Chat is an application programming interface (“API”), id. ¶ 12, which is “a tool that 18 ‘allow[s] programmers to use . . . prewritten code to build certain functions into their own 19 programs, rather than write their own code to perform those functions from scratch,” Google LLC 20 v. Oracle Am., Inc., 141 S. Ct. 1183 , 1191 (2021) (quoting Oracle Am., Inc. v. Google, Inc., 750 21 F.3d 1339 , 1349 (2014)). “An API divides and organizes the world of computing tasks in a 22 particular way.” Id. at 1192. Id. Chat operates from Salesforce’s web servers, but its 23 functionality can be implemented on the website of a company that contracts with Salesforce to 24 use the service, thereby allowing that company’s customers to interact with the company directly 25 on the website. ECF No. 22 ¶ 12–13. When a customer sends a chat message to a company’s 26 customer service agent, “it is first routed through a Salesforce server.” Id. ¶ 13. Transcripts of 27 communications over Chat are automatically created in real time and subsequently transmitted to 1 to view the contents of a customer’s message while the customer types the message, i.e., before 2 the customer sends the message to the agent. Id. ¶ 22–23. 3 Rite Aid and Kaiser Permanente utilize Chat on their websites. Id. ¶ 13. Plaintiff Pearl 4 Magpayo is a California resident and used the chat function on the Kaiser Permanente website to 5 discuss her insurance and medical information with Kaiser’s customer service agents. Id. ¶ 4. 6 Plaintiff Patrick Yockey is a Pennsylvania resident and used the chat function on the Rite Aid 7 website to discuss his prescription history and customer rewards with Rite Aid’s customer service 8 agents. Id. ¶ 3. Plaintiffs subsequently brought suit, alleging that Chat’s functions constitute 9 wiretapping in violation of California and Pennsylvania law. As individuals and on behalf of a 10 putative class, they bring claims for violations of the California Invasion of Privacy Act (“CIPA”), — 11 — Cal. Penal Code §§ 631 & 632; and violation of Pennsylvania’s Wiretapping and Electronic 12 Surveillance Control Act (“WESCA”), 18 Pa. Cons. Stat. § 5701 , et seq. ECF No. 22 ¶¶ 48–80. 13 Salesforce moved to dismiss the complaint on April 24, 2023. ECF No. 23. The Court 14 took the motion under submission without a hearing on July 17, 2023. ECF No. 33. 15 II. JURISDICTION 16 The Court has jurisdiction pursuant to 28 U.S.C. § 1332 (d)(2)(A). 17 III. LEGAL STANDARD 18 To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a 19 complaint must contain “a short and plain statement of the claim showing that the pleader is 20 entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal “is appropriate only where the complaint 21 lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 22 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). “[A] complaint 23 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 24 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, — 25 — 550 U.S. 544, 570 (2007)). Factual allegations need not be detailed, but facts must be “enough to 26 raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 . 27 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 1 alleged.” Iqbal, 556 U.S. at 678 . While this standard is not “akin to a ‘probability 2 requirement,’ . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” — 3 — Id. (quoting Twombly, 550 U.S. at 556 ). “Where a complaint pleads facts that are ‘merely 4 consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and 5 plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557 ). In determining 6 whether a plaintiff has met the plausibility requirement, a court must “accept all factual allegations 7 in the complaint as true and construe the pleadings in the light most favorable” to the 8 plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). A plaintiff may “plead[] facts 9 alleged upon information and belief where the facts are peculiarly within the possession and 10 control of the defendant or where the belief is based on factual information that makes the 11 inference of culpability plausible.” Soo Park v. Thompson, 851 F.3d 910, 928 (9th Cir. 2017) 12 (quoting Arista Records, LLC v. Doe 3, 603 F.3d 110, 120 (2d Cir. 2010)). 13 IV. DISCUSSION 14 Salesforce argues that Plaintiffs lack standing, that Plaintiffs fail to state a claim under 15 either statute, and that Plaintiffs otherwise consented to Salesforce’s collection of their 16 information. 17 A. Article III Standing 18 “Article III of the Constitution confines the federal judicial power to the resolution of 19 ‘Cases’ and ‘Controversies.’” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). “For 20 there to be a case or controversy under Article III, the plaintiff must have a ‘personal stake’ in the 21 case—in other words, standing.” Id. (quoting Raines v. Byrd, 521 U.S. 811, 819 (1997)). “[T]o 22 establish standing, a plaintiff must show (i) that he suffered an injury in fact that is concrete, 23 particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant, and 24 (iii) that the injury would likely be redressed by judicial relief.” Id. at 2203. “The party invoking 25 federal jurisdiction bears the burden of establishing these elements.” Lujan v. Defenders of 26 Wildlife, 504 U.S. 555, 561 (1992). “Where, as here, a case is at the pleading stage, the plaintiff 27 must ‘clearly . . . allege facts demonstrating’ each element.” Spokeo, Inc. v. Robins, 578 U.S. 330 , 1 Salesforce argues that Plaintiffs have not suffered a concrete injury because they have not 2 alleged that Salesforce “shared, disclosed, or sold chat transcripts to third parties.” ECF No. 23 at 3 16. The Court is not persuaded. “[V]arious intangible harms can . . . be concrete. Chief among 4 them are injuries with a close relationship to harms traditionally recognized as providing a basis 5 for lawsuits in American courts.” TransUnion, 141 S. Ct. at 2204 . An “exact duplicate” is not 6 required, and the Supreme Court has recognized that “intrusion upon seclusion” is included among 7 those traditionally recognized harms. Id. at 2204 ; see Restatement (Second) of Torts § 652B cmt. 8 b. (1977) (including “tapping . . . telephone wires” as an example of intrusion upon seclusion). In 9 that vein, the Ninth Circuit has written that “[v]iolations of the right to privacy have long been 10 actionable at common law,” and that “[a] right to privacy ‘encompass[es] the individual’s control 11 of information concerning his or her person.’” In re Facebook, Inc. Internet Tracking Litigation, — 12 — 956 F.3d 589, 598 (9th Cir. 2020) (first quoting Patel v. Facebook, 932 F.3d 1264, 1272 (9th Cir. 13 2019); and then quoting Eichenberger v. ESPN, Inc., 876 F.3d 979, 983 (9th Cir. 2017)); see also 14 Restatement (Second) of Torts § 652B cmt. a. (explaining that intrusion upon seclusion “does not 15 depend upon any publicity given to the person whose interest is invaded or to his affairs” but 16 rather “consists solely of an intentional interference with his interest in solicitude or seclusion”). 17 Statutes such as CIPA and WESCA thus “codify a substantive right to privacy, the 18 violation of which gives rise to a concrete injury sufficient to confer standing.” Id.; accord In re 19 Google Inc. Cookie Placement Consumer Privacy Litig., 934 F.3d 316, 325 (3d Cir. 2019) 20 (“History and tradition reinforce that a concrete injury for Article III standing purposes occurs 21 when Google, or any other third party, tracks a person’s internet browser activity without 22 authorization.” (emphasis added)). Both Plaintiffs allege that they disclosed personal health 23 information over Chat and that Salesforce collected the communications containing that 24 information. ECF No. 22 ¶¶ 3, 4. These allegations give rise to a concrete injury because 25 Salesforce’s collection of those communications necessarily deprived Plaintiffs of their control of 26 their information contained therein. See Mastel v. Miniclip SA, 549 F. Supp. 3d 1129 , 1138 (E.D. 27 Cal. 2021 ); see also Licea v. Cinmar, LLC, --- F. Supp. 3d ----, No. CV 22-6454-MWF (JEM), 1 Plaintiffs have standing to bring their claims. 2 B. CIPA 3 1. Section 631 4 Salesforce argues that Magpayo fails to state a Section 631 claim because Salesforce was 5 “acting merely as an extension of . . . Kaiser’s communications” such that it was a party to those 6 communications. ECF No. 23 at 22. Plaintiffs argue that Salesforce’s interpretation of Section 7 631 runs afoul of the statute’s text and corresponding caselaw. ECF No. 28 at 11. 8 Section 631 creates four avenues for relief: 9 (1) where a person “by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or 10 makes any unauthorized connection ... with any telegraph or telephone wire, line, cable, or instrument”; — 11 — (2) where a person “willfully and without consent of all parties 12 to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any 13 message, report, or communication while the same is in transit”; — 14 — (3) where a person “uses, or attempts to use, in any manner, 15 or for any purpose, or to communicate in any way, any information so obtained”; and — 16 — (4) where a person “aids, agrees with, employs, or conspires 17 with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above.” — 18 — 19 Javier v. Assurance IQ, LLC, --- F. Supp. 3d ----, No. 20-cv-02860-CRB, 2023 WL 114225 , at *4 20 (N.D. Cal. Jan. 5, 2023) (quoting Cal. Penal Code § 631 ). Magpayo’s Section 631 claim arises 21 under the second prong. 22 Recent Section 631 jurisprudence stems from two seminal cases: Ribas v. Clark, 38 Cal. 3d 23 355 (1985), and Rogers v. Ulrich, 52 Cal. App. 3d 894 (1975). In Ribas, Ribas and his former 24 wife had reached a settlement agreement during divorce proceedings. 38 Cal. 3d at 358. The wife 25 used Clark’s phone to call Ribas and asked Clark to listen to the conversation on an extension 26 telephone. Id. Ribas relayed to the wife the details of a conversation with the spouse’s lawyer 27 while Clark listened. Id. Ribas subsequently sued Clark for eavesdropping under Section 631. 1 draws a distinction between “the secondhand repetition of the contents of a conversation and its 2 simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or 3 mechanical device.” Id. at 361. The Court wrote that “such secret monitoring denies the speaker 4 an important aspect of privacy of communication—the right to control the nature and extent of the 5 firsthand dissemination of his statements.” Id. 6 In Rogers, Ulrich used a tape recorder jack installed on his telephone to record a 7 conversation with Rogers without Rogers’ knowledge. 52 Cal. App. 3d at 897 . The Court of 8 Appeal held that Ulrich’s conduct did not violate Section 631 because Ulrich was a party to the 9 conversation and thus could not eavesdrop under the statute. Id. at 899 . The Court wrote that “[i]t 10 is never a secret to one party to a conversation that the other party is listening to the conversation; 11 only a third party can listen secretly to a private conversation.” Id. 12 Thus, as the court observed in Javier v. Assurance IQ, LLC, the question for purposes of 13 determining whether Salesforce was a party to the communications is whether Chat “is more akin 14 to the tape recorder in Rogers, held by [Kaiser], or [to] the friend in Ribas (in which case, [Kaiser] 15 is the wife who allowed [Salesforce] to listen in).” 2023 WL 114225 , at *5; accord Yoon v. 16 Lululemon USA, Inc., 549 F. Supp. 3d 1073 , 1081 (C.D. Cal. 2021). In analogous circumstances, 17 courts have arrived at two different answers. 18 In the first set of cases, courts concluded that software providers are third parties. The 19 Ninth Circuit in In re Facebook, Inc. Internet Tracking Litigation held that Facebook was not a 20 party to communications between a user’s browser and a third-party website. 956 F.3d 589 , 608 21 (9th Cir. 2020). On websites with Facebook plug-ins, Facebook’s code copied a header containing 22 a user’s personally identifiable URL information that was transmitted from the user’s web browser 23 to the website. Id. at 607 . This enabled Facebook to compile users’ browsing histories for its 24 own purposes. Id. The Ninth Circuit concluded that “unknown duplication and communication 25 of” information in this manner “do not exempt a defendant from liability under the party 26 exception.” Id. at 608 . Similarly, in Revitch v. New Moosejaw, Inc., the court held that NaviStone 27 was not a party to the communications between a website visitor and Moosejaw.com because 1 that tracked interactions between users and the website. No. 18-cv-06827-VC, 2019 WL 5485330 , 2 at *1 (N.D. Cal. Oct. 2023). The court emphasized that “it cannot be that anyone who receives a 3 direct signal escapes liability by becoming a party to the communication,” id. at *2, and further 4 wrote, 5 Revitch began each communication by pressing a button on his mouse or a key on his keyboard, causing one signal to travel to his 6 computer and then through his browser to Moosejaw’s server. Even if the browser caused a parallel signal to be sent to NaviStone, that 7 intervention happened while the signal was already in transit from Revitch’s device. Section 631’s protections extend explicitly to the 8 beginnings and ends of communications, so there is no reason to consider the first part of an electronic communication beyond the 9 statute’s reach. 10 Id. 11 And in Javier, the court held that ActiveProspect was not a party to communications 12 between Assurance IQ and users of its website. 2023 WL 114225 , at *5. ActiveProspect 13 implemented “a piece of code that can be pasted into a form page to record keystrokes, mouse 14 clicks, data entry, and other electronic communications of visitors to websites.” Id. at *1 (internal 15 quotation marks omitted). The website owner would subsequently obtain “a record of a users’ 16 entire interaction with its website.” Id. Because Javier alleged “that ActiveProspect monitors, 17 analyzes, and stores information about visits to assurance’s websites, and that ActiveProspect can 18 use that information for other purposes,” ActiveProspect was not a party to the communication. 19 Id. at *6; see also Yoon, 549 F. Supp. 3d at 1081 (“Yoon’s first claim for relief survives Quantum 20 Metric’s participant exception challenge because she alleges that QM captures, stores, and 21 interprets her real-time data—which extends beyond the ordinary function of a tape recorder.”); cf. 22 Saleh v. Nike, Inc., 562 F. Supp. 3d 503 , 521 (C.D. Cal. 2021) (“FullStory did not become a 23 ‘party’ to the communication simply because it was providing recording and transmission services 24 for Nike.”). 25 In the second set of cases, courts have held that software providers are “extension[s]” that 26 “provide[] a tool” allowing a company “to record and analyze its own data in aid of [its] business.” 27 Graham v. Noom, Inc., 533 F. Supp. 3d 823 , 832 (N.D. Cal. 2021). In Graham, FullStory 1 allows the clients to analyze their data.” Id. The court likened this software to the tape recorder in 2 Rogers and held that the software did not constitute eavesdropping because the plaintiffs had not 3 alleged that FullStory “intercepted and used the data itself.” Id. In Williams v. What If Holdings, 4 LLC, the court held that ActiveProspect’s software—the same software at issue in Javier—did not 5 constitute wiretapping because there “were no facts . . . to suggest that ActiveProspect ‘intercepted 6 and used the data itself.’” No. C 22-03780 WHA, 2023 WL 114225 , at *3 (N.D. Cal. Dec. 22, 7 2022) (quoting Graham, 533 F. Supp. 3d at 832); see also Johnson v. Blue Nile, Inc., No. C 208 08183 LB, 2021 WL 1312771 , at *3 (N.D. Cal. Apr. 8, 2021); Yale v. Clicktale, Inc., No. C 209 07575 LB, 2021 WL 1428400 , at *3 (N.D. Cal. Apr. 15, 2021). 10 The Javier court partially disagreed with the reading of Section 631 adopted by this second 11 set of cases for two reasons. First, the reading “interprets the second prong of the statute . . . based 12 on the intentions and usage of the prospective third party,” “[b]ut the third prong of the statute 13 already penalizes ‘use.’” Javier, 2023 WL 114225 , at *6. As a result, “reading a use requirement 14 into the second prong would add requirements that are not present (and swallow the third prong in 15 the process).” Id.; see Henson v. Santander Consumer USA Inc., 582 U.S. 79, 86 (2017) (“[W]hen 16 we’re engaged in the business of interpreting statutes we presume differences in 17 language . . . convey differences in meaning.”); United States v. Jicarilla Apache Nation, 564 U.S. 18 162, 185 (2011) (“[W]e are hesitant to adopt an interpretation of a congressional enactment which 19 renders superfluous another portion of that same law.” (quoting Mackey v. Lanier Collection 20 Agency & Serv., Inc., 468 U.S. 825 , 837 (1988)). Second, the California Supreme Court in Ribas 21 did not consider the intention of the eavesdropper or the use of the obtained information, but rather 22 “emphasized the privacy concerns at issue with having an ‘unannounced second auditor’ listening 23 in on the call,” which implicates an individual’s “right to control the nature and extent of the 24 firsthand dissemination of [their] statements.” Id. 25 The Court agrees with the Javier court that Graham and its progeny are based on a 26 misinterpretation of Section 631 and Ribas, both of which compel the conclusion that the third 27 party’s intentions with respect to the use of the collected information are irrelevant. Rather, the 1 its record of the interaction for any other purpose.” Javier, 2023 WL 114225 , at *6 (emphasis 2 altered). If Salesforce can use its records of the communications for any purpose other than to 3 furnish information relating to those communications to Kaiser, then it is more like the wife in 4 Ribas who allowed Clark to eavesdrop. By contrast, if Salesforce “has no independent ability to 5 divulge its recording for any other purpose but for that of” Kaiser, then it is more like the tape 6 recorder in Rogers. Id. 7 Plaintiffs allege that Chat “is run from Salesforce web servers,” ECF No. 22 ¶ 12, that 8 communications over Chat are “routed through a Salesforce server,” id. ¶ 13, that Salesforce 9 “directly receives the electronic communications of visitors, id. ¶ 20, that Salesforce “analyzes the 10 customer-support agent interactions in real time to create live transcripts of communications,” id. 11 ¶ 14, and that “supervisors can view transcripts in real time,” id. ¶ 16. These allegations do not 12 support a reasonable inference that Salesforce has the capability to use these communications for 13 any purpose other than furnishing them to Kaiser. Chat, as alleged, is therefore more akin the tape 14 recorder in Rogers, and Plaintiffs have thus failed to state a claim pursuant to Section 631. 15 2. Section 632 16 a. Confidentiality of Communication 17 “Section 632 provides that ‘(a) every person who, intentionally and without the consent of 18 all parties to a confidential communication, by means of any electronic amplifying or recording 19 device, eavesdrops upon or records such confidential communication . . . shall be punished by 20 fine . . . or by imprisonment.’” Rattray v. City of National City, 51 F.3d 793, 797 (9th Cir. 1994) 21 (quoting Cal. Penal Code § 632 ). “A communication is confidential under Section 632 if a party 22 ‘has an objectively reasonable expectation that the conversation is not being overheard or 23 recorded.’” Brown v. Google LLC, 525 F. Supp. 3d 1049 , 1073 (N.D. Cal. 2021) (quoting 24 Flanagan v. Flanagan, 27 Cal. 4th 766 , 776–77 (2002)). “California appeals courts have 25 generally found that Internet-based communications are not ‘confidential’ within the meaning of 26 [S]ection 632, because such communications can easily be shared by, for instance, the recipient(s) 27 of the communications.” Campbell v. Facebook Inc., 77 F. Supp. 3d 836, 849 (N.D. Cal. 2014) 1 do not give rise to the requisite expectation. Revitch, 2019 WL 5485330 , at *3. 2 Salesforce argues that Magpayo did not have a reasonable expectation of confidentiality 3 because “chat communications are by their very nature non-confidential.” ECF No. 23 at 27 4 (citing Campbell, 77 F. Supp. 3d at 849 ). Plaintiffs respond that Magpayo maintained a 5 reasonable expectation of confidentiality because she communicated information related to her 6 prescription history, medical conditions, and insurance information to the customer service agents 7 in a healthcare context. ECF No. 28 at 23. The Court agrees with Plaintiffs that the context of 8 these communications renders them confidential. 9 A recent case from this district is instructive. In In re Meta Pixel Healthcare Litig., No. 10 22-CV-03580-WHO, 2022 WL 17869218 (N.D. Cal. Dec. 22, 2022), the plaintiffs alleged that a 11 Meta software product called Pixel, when installed on the patient portal of the plaintiffs’ 12 healthcare providers, intercepted “data relating to patient portal logins and logouts alongside 13 identifiers for each patient,” which was then transmitted to Meta. Id., 2022 WL 17869218 , at *8. 14 The plaintiffs further alleged that following login, “the Meta Pixel allegedly continue[d] to 15 transmit information to Meta, including information about doctors, medical conditions, and 16 appointments associated with a patient’s session.” Id., 2022 WL 17869218 , at *3. Meta allegedly 17 then “monetize[d] the information that it receive[d] through the Meta Pixel by using it to generate 18 highly-profitable targeted advertising on-and off-Facebook.” Id. The plaintiffs brought several 19 claims against Meta in connection with these practices, including claims under sections 631(a) and 20 632(a). Id., 2022 WL 17869218 , at *13. 21 As Salesforce does here, Meta argued that the plaintiffs had no reasonable expectation of 22 privacy because the communications occurred over the internet, but the court rejected that 23 argument: 24 Communications made in the context of a patient-medical provider relationship are readily distinguishable from online communications 25 in general for at least two reasons. First, patient-status and medicalrelated communications between patients and their medical 26 providers are protected by federal law . . . . Second, unlike communications made while inquiring about items of clothing on a 27 retail website, Revitch, 2019 WL 5485330 , at *3, health-related more likely to implicate privacy interests than that of one’s health or 1 genetic make-up.” Norman-Bloodsaw v. Lawrence Berkeley Lab'y, 135 F.3d 1260 , 1269 (9th Cir. 1998). — 2 — — 3 — Id., 2022 WL 17869218 , at *14–15 (additional citations omitted). The same is true of the 4 communications at issue in the present case. 5 Salesforce does not meaningfully engage with this authority. Instead, it suggests that the 6 operative complaint can be read so as to suggest that Plaintiffs were “merely using publicly7 available customer support chats [and therefore] they had no objectively reasonable expectation 8 that their communications were ‘confidential’ under the facts alleged.” ECF No. 31 at 18. 9 Salesforce cites no authority for the proposition that communications with a health care provider 10 must occur with only certain of its agents or employees to be confidential, or that such 11 communications are not confidential if conducted with a customer support worker. The Court 12 therefore rejects Salesforce’s argument and concludes that Magpayo’s communications were 13 “confidential” within the meaning of Section 632. 14 b. Consent 15 Salesforce argues that Kaiser’s privacy policies “put [Magpayo] on prior notice, disclosing 16 that [Kaiser] (i) collect[s] Plaintiffs’ PHI and (ii) use[s] service providers that aid in this collection 17 and subsequent customer service functions,” such that Magpayo consented to Salesforce’s 18 monitoring and recording. ECF No. 23 at 29. Plaintiffs respond that Magpayo accessed the chat 19 function using a Kaiser web page that did not require Magpayo’s consent. ECF No. 28 at 31. 20 Salesforce then replies that Plaintiffs make inconsistent allegations about which web pages 21 Magpayo actually viewed, and that the only page that did not require a user’s consent before 22 chatting “applies only to federal employees, which Magpayo does not allege she is or was.” ECF 23 No. 31 at 20 (citing ECF No. 22 ¶ 19). 24 Salesforce’s arguments do not appear to be based on the operative complaint, which says 25 nothing regarding whether the web page(s) Magpayo visited apply only to federal employees, or 26 whether Magpayo is or was a federal employee. Nor need the Court resolve the parties’ 27 disagreements about how to construe the allegations that Plaintiffs actually do make. Because 1 Magpayo used that portal, Salesforce has not established that Magpayo consented to the 2 monitoring and recording of her communications. Salesforce’s motion to dismiss Plaintiffs’ 3 section 632 claim is therefore denied. 4 C. WESCA 5 WESCA “operates in conjunction with and as a supplement to the Federal Wiretap Act, 18 6 U.S.C. § 2150 et seq.” Popa v. Harriet Carter Gifts, Inc., 52 F.4th 121 , 125–126 (3d Cir. 2022). 7 The statute “offers a private civil cause of action to ‘[a]ny person whose wire, electronic or 8 communication is intercepted, disclosed, or used’ . . . against ‘any person who intercepts, 9 discloses, or procures any other person to intercept, disclose or use, such communication.” Id. at 10 125 (quoting 18 Pa. Cons. Stat. § 5725 (a)). WESCA defines “intercept” as “[a]ural or other 11 acquisition of the contents of any wire, electronic or oral communication through the use of any 12 electronic, mechanical, or other device.” 18 Pa. Const. Stat. § 5702. WESCA further defines 13 “electronic, mechanical or other device” as “[a]ny apparatus . . . that can be used to intercept a 14 wire, electronic or oral communication.” Id. That definition expressly excludes, in relevant part, 15 “[a]ny telephone or telegraph instrument, equipment, or facility, or any component thereof 16 furnished to the subscriber or user by a provider of wire or electronic communication service in 17 the ordinary course of its business.” Id. 18 Salesforce first argues that Yockey has failed to allege that Salesforce intercepted his chat 19 communications. The Third Circuit has written that “WESCA”s use of ‘intercept’ . . . reduces to 20 acquiring certain communications using a device. And based on just that definition, anyone could 21 ‘intercept’ communications, including people who ‘acquire’ a text message or chat sent to them.” 22 Popa, 52 F.4th at 126 . Thus, even if the communications at issue were sent directly through the 23 Chat interface, Salesforce has nonetheless intercepted those communications within the meaning 24 of WESCA to the extent that Salesforce received and stored those communications on its servers. 25 Salesforce next argues that WESCA exempts Chat from its definition of “electronic, 26 mechanical or other device.” However, the definition exempts only instruments, equipment, 27 facilities, or components appropriately characterized as “telephon[ic] or telegraph[ic].” 18 Pa. 1 telephone is” insufficient to bring that device within this “telephone exception.” Commonwealth 2 v. Diego, 119 A.3d 370, 375 (Pa. Super. Ct. 2015). One court held, for example, that “telephone” 3 in Section 5702 did not include an iPad because such an interpretation would “radically expand 4 the definition of ‘telephone’ under [WESCA]” and run contrary to the requirement that WESCA’s 5 provisions are to be “strictly construed.” Id. (quoting Commonwealth v. Spangler, 809 A.2d 234 , 6 237 (Pa. 2002)). Therefore, Chat does not qualify as a “telephone or telegraph” even though it 7 may be said to share features with such devices. 8 Third, Salesforce argues that Yockey’s allegations do not establish that his 9 communications were rerouted contemporaneously with transmission. WESCA does not impose a 10 rerouting requirement; rather, it requires that communications be intercepted. See 18 Pa. Cons. 11 Stat. § 5725(a). Salesforce’s argument relies on a case in which the Third Circuit wrote, 12 “Electronic communications are . . . ‘intercepted’ when software reroutes communications to an 13 interceptor.” Popa, 52 F.4th at 130 . The Third Circuit did not articulate such rerouting as a 14 requirement of interception, but rather described the act of rerouting according to the facts of the 15 case for purposes of determining where an interception occurs geographically. And while 16 Salesforce is correct that an intercept must occur “contemporaneously with transmission” under 17 WESCA, see Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107 , 113 & n.6 (3d Cir. 2003), Yockey 18 plausibly alleges that Salesforce, in real time, directly receives Chat communications, creates live 19 transcripts of those communications, and permits Rite Aid supervisors to view those transcripts. 20 ECF No. 22 ¶¶ 13, 14, 16, 20. Yockey also plausibly alleges that Salesforce begins to obtain the 21 contents of a user’s message before the user sends it via the Sneak Peek feature. Id. ¶ 23. 22 Salesforce protests that the complaint is devoid of allegations that Salesforce personnel read or 23 could read the messages before RiteAid, but Yockey alleges misconduct on the part of Salesforce 24 as the provider, not on the part of its personnel. 25 Fourth, Salesforce argues that two of WESCA’s exceptions to liability apply to 26 Salesforce’s conduct. The first exception provides that “[i]t shall not be unlawful . . . for:” 27 An officer, agent or employee of a provider of wire or electronic communication in the normal course of his employment while 1 engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the 2 provider of wire or electronic communication service. However, no provider of wire or electronic communication service shall utilize 3 service observing or random monitoring except for mechanical or service quality control checks. — 4 — 5 18 Pa. Const. Stat. § 5704(1). Salesforce argues that any interception is a “necessary incident to 6 its rendition of [its] service.” 7 There are two problems with this argument. First, it is not clear that “provider” as that 8 term is used in section 5704(1) refers to any entity other than Rite Aid, i.e., the only entity that is a 9 “provider” of services to the Plaintiff. Thus, Salesforce has not established that it is entitled to 10 invoke this protection. Next, the second sentence of the exception states that “no provider of wire 11 or electronic communication service shall utilize service observing or random monitoring except 12 for mechanical or service quality control checks.” 18 Pa. Const. Stat. § 5704(1). Whatever 13 Salesforce is doing, it goes well beyond “service observing or random monitoring . . . for 14 mechanical or service quality control checks.” See ECF No. 22 ¶¶ 21-23 (describing Salesforce’s 15 “Sneak Peek” feature, which enables an agent to view the contents of a customer’s message while 16 the customer types the message, i.e., before the customer sends the message to the agent. Id. ¶ 22– 17 23. For these reasons, the Court concludes that the exception set forth in section 5704(1) does not 18 apply. 19 The second exception provides that “[i]t shall not be unlawful . . . for . . . [a] person or 20 entity providing electronic communication service to the public to divulge the contents of any 21 such communication . . . with the lawful consent of the originator or intended recipient of the 22 communication.” 18 Pa. Const. Stat. § 5704(9). This provision “allows only one party [to] 23 consent to the recording and disclosure involved in computer communications, electronic mail and 24 voice mail.” Barash v. Penn. Public Utility Comm’n, 575 A.2d 79 , 95 n.6 (1990) (Pellegrini, J., 25 concurring in partt and dissenting in part), aff’d sub nom. Barash v. Bell Tel. Co. of Penn., 605 26 A.2d 1198 (Pa. 1992)). Salesforce does not directly provide Chat’s services to the public. Rather, 27 Salesforce provides Chat to companies that contract with it to use the service on their websites. 1 separation between Salesforce and the public that is absent typical from arrangements between 2 service providers and members of the public, such as that of an e-mail service to an e-mail user. 3 Cf. Diego, 119 A.3d at 376 (noting that “it is, at best, a dubious proposition that the authors of the 4 1978 [WESCA]” intended an exception to apply to technology “not invented until the late 5 1980’s”). And because the Pennsylvania Supreme Court has instructed that the WESCA’s 6 provisions are to be “strictly construed,” the Court cannot conclude, as a matter of law, that the 7 exception applies. Spangler, 809 A.2d at 23 . Salesforce identifies no authority to the contrary, 8 and the Court is aware of none. Therefore, Yockey has stated a WESCA claim. 9 D. Consent 10 Salesforce argues that Yockey otherwise consented to Salesforce’s conduct. See 18 Pa. 11 Const. Stat. § 5704(1) (exempting from liability “[a] person . . . intercept[ing] a wire, electronic or 12 oral communication, where all parties to the communication have given prior consent to such 13 interpretation”). Salesforce points to Ride Aid’s privacy policy, which appears via a hyperlink 14 when using the “Chat With a Healthcare Professional” option. ECF No. 24-5 at 2.1 The privacy 15 policy discloses that Rite Aid “may share information about you with our service providers who 16 perform services on our behalf. In addition, we may also share your personal information . . . with 17 third parties who provide services that we offer through our Sites.” ECF no. 24-1 at 3. Yockey 18 argues that he used the “Chat With Customer Support” option, which did not feature the hyperlink. 19 Regardless of whether the hyperlink to the privacy policy appeared in the particular chat 20 window accessed by Yockey, the policy’s language does not encompass the conduct at issue. 21 “[P]ersonal information” is not synonymous with a word-for-word transcript of all 22 communications both as a matter of common sense and as defined by the policy. See ECF No. 2423 — 24 — 1 Because Yockey alleges that he did not consent to the communications at issue, the Court considers the contents of the Rite Aid privacy policy under the incorporation by reference — 25 — doctrine. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018). Salesforce’s requests for judicial notice, ECF Nos. 24 & 32, are otherwise denied because the — 26 — Court need not rely on these materials to resolve the instant motion. The Court notes that judicial notice and incorporation by reference are separate procedures that “permit district courts to — 27 — consider materials outside of a complaint . . . for different reasons and in different ways.” Id. at 1 1 at 2; Calhoun v. Google LLC, 526 F. Supp. 3d 605 , 620 (N.D. Cal. 2021) (“Tn order for consent 2 || to be actual, the disclosures must ‘explicitly notify’ users of the practice at issue. (quoting in re 3 Google Inc., No. 13-MD-02430-LHK, 2013 WL 5423918 , at *12 (N.D. Cal. Sept. 26, 2013))). 4 || And even if “personal information” encompassed a transcript of all communications, the policy 5 does not disclose that Salesforce, via the Sneak Peek feature, obtains those communications while 6 || users type them. 7 CONCLUSION 8 For the foregoing reasons, Salesforce’s motion is granted in part and denied in part. 9 || Dismissal of Magpayo’s CIPA Section 631 claim is with leave to amend because Salesforce has 10 || not shown that amendment would prejudice Salesforce, is sought in bad faith, would produce an 11 undue delay, or would be futile. See AmerisourceBergen Corp v. Dialyst West, Inc., 465 F.3d 946 , 12 || 951 (9th Cir. 2006). Plaintiffs may file an amended complaint within twenty-one days of this 5 13 order solely to cure the deficiencies identified by this order. Failure to file a timely amended 14 || complaint will result in dismissal of Magpayo’s CIPA Section 631 claim with prejudice. IT IS SO ORDERED. 16 Dated: August 25, 2023 . & ‘ M | JON S. IS 18 United States District Judge — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —