Rosenow v. Facebook, Inc.

[5] 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA [8] 9 CARSTEN ROSENOW, Case No.: 19-cv-1297-WQH-MDD 10 Plaintiff, ORDER 11 v. 12 FACEBOOK, INC.; and YAHOO, INC., [13] Defendants. [14] 15 HAYES, Judge: 16 The matters before the Court are the Motions to Dismiss Plaintiff’s Complaint filed 17 by Defendants Facebook, Inc. (“Facebook”) (ECF No. 7), and Yahoo, Inc. (“Yahoo”)1 18 (ECF No. 8). 19 I. PROCEDURAL BACKGROUND 20 On June 21, 2017, Carsten Rosenow was arrested at the San Diego airport and placed 21 in federal custody. On July 19, 2017, an information was filed charging Rosenow with one [23] 1 Oath Holdings, Inc., asserts that Plaintiff Rosenow erroneously named Yahoo, Inc., as a Defendant. Oath [24] Holdings, Inc., states: [25] Effective June 12, 2017, Defendant Yahoo! Inc. transferred to Yahoo Holdings, Inc. all 26 liabilities relevant to Plaintiff’s claims. Yahoo Holdings Inc. thereafter changed its name to Oath Holdings Inc. Defendant Yahoo! Inc. no longer owns any interest in the past, 27 present, or future liabilities relevant to this lawsuit. [28] 1 count of travel with intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2 2423(b). (USA v. Rosenow, 3:17-cr-01937-WQH, ECF No. 20). On October 19, 2017, a 3 three-count indictment was filed charging Rosenow with one count of attempted sexual 4 exploitation of a child in violation of 18 U.S.C. § 2251 (c); one count of travel with intent 5 to engage in illicit sexual conduct in violation of 18 U.S.C. § 2423 (b); and one count of 6 possession of images of minors engaged in sexually explicit conduct in violation of 18 7 U.S.C. § 2252 (a)(4)(B) and (b)(2). (USA v. Rosenow, 3:17-cr-03430-WQH, ECF No. 1). 8 On March 19, 2018, Rosenow filed a Motion to Suppress Evidence in his criminal 9 case. (Id., ECF No. 29). Rosenow moved the Court to suppress all of the evidence against 10 him pursuant to the Fourth Amendment of the United States Constitution, contending that 11 “[u]ltimately, all of the evidence against Mr. Rosenow is the result of warrantless searches 12 of his private communications [by Facebook and Yahoo]—searches that were ‘government 13 action’ on these facts.” (Id., ECF No. 29-1 at 9). On July 27, 2018, and August 8, 2018, the 14 Court held an evidentiary hearing on Rosenow’s Motion to Suppress Evidence. (Id., ECF 15 Nos. 72, 73). On September 10, 2018, Rosenow filed Supplemental Briefing in support of 16 his Motion to Suppress Evidence. (Id., ECF No. 76). On November 20, 2018, the Court 17 issued an Order denying Rosenow’s Motion to Suppress Evidence. (Id., ECF No. 87). The 18 Court found that Yahoo and Facebook were not government actors and that Yahoo and 19 Facebook conducted investigations in their own interest, in accordance with their internal 20 policies and procedures. The Court found that law enforcement conducted an investigation 21 independent of Yahoo and Facebook and utilized the information provided by Yahoo and 22 Facebook in compliance with all applicable laws. The Court further found that “Yahoo and 23 Facebook reported information to NCMEC pursuant to applicable law based upon facts 24 and circumstances supporting an apparent violation of child pornography laws.” (Id., ECF 25 No. 87 at 23). 26 The Court held a jury trial in August 2019. On August 30, 2019, a jury returned a 27 verdict finding Rosenow guilty on counts one and three of the indictment, for attempted 28 sexual exploitation of a child in violation of 18 U.S.C. § 2251 (c) and (e) and possession of 1 images of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2 2252(a)(4)(B). (Id., ECF No. 198). On March 3, 2020, the Court sentenced Rosenow to 3 300 months imprisonment. (Id., ECF No. 247). On February 27, 2020, Rosenow filed a 4 Notice of Appeal. (Id., ECF No. 239). 5 On July 12, 2019, Rosenow, proceeding pro se, filed the civil Complaint against 6 Defendants Facebook and Yahoo. (ECF No. 1). Rosenow brings claims against Defendants 7 for negligence and for violations of the Stored Communications Act, 18 U.S.C. § 2702 ; the 8 Wiretap Act, 18 U.S.C. § 2520 ; and the California Invasion of Privacy Act, Cal. Pen. Code 9 § 631. Rosenow seeks general and compensatory damages, civil penalties, and attorneys’ 10 fees and costs. 11 On November 15, 2019, Defendants filed Motions to Dismiss Plaintiff’s Complaint 12 and Requests for Judicial Notice. (ECF Nos. 7-9). On December 9, 2019, Rosenow filed 13 an Opposition to Defendants’ Motions to Dismiss. (ECF No. 12). On December 16, 2019, 14 Defendants filed Replies. (ECF No. 13, 14). 15 II. ALLEGATIONS OF THE COMPLAINT 16 In September 2014, internet company “Xoom” advised Defendant Yahoo “that 17 certain Yahoo accounts were potentially involved in illegal activity involving minors.” 18 (ECF No. 1 ¶ 7). Yahoo searched the electronic communications of the accounts identified 19 by Xoom. As a result of these searches, Yahoo “discovered various account holders who 20 allegedly either bought or sold child pornography.” (Id. ¶ 11). In October 2014, Yahoo 21 created a report that identified the account holders Yahoo suspected bought or sold child 22 pornography. The report included the contents of private communications, contact lists, IP 23 information, and metadata. Yahoo provided this report to the National Center for Missing 24 and Exploited Children (“NCMEC”). Rosenow was not identified in the October 2014 25 report. 26 While the Federal Bureau of Investigation (“FBI”) was serving subpoenas related to 27 the Yahoo accounts identified in the October 2014 report, Yahoo searched Rosenow’s 28 accounts, emails, and chat messages. During this process, Sean Zadig—a Yahoo employee 1 in the E-Crimes Investigation Team and former law enforcement officer—“communicated 2 and worked closely” with the FBI in San Diego. (Id. ¶ 17). After Yahoo and Zadig reviewed 3 Rosenow’s electronic communications, Yahoo submitted a supplemental report to 4 NCMEC that contained “the contents of Plaintiff’s electronic communications and record 5 information, and implicated Plaintiff in traveling internationally for the purpose of 6 soliciting minors.” (Id. ¶ 20). In July 2015, Yahoo gave the FBI notice that it would be 7 performing more account searches. Yahoo “gathered Plaintiff’s entire chat history, and 8 yielded more evidence that allegedly incriminated Plaintiff.” (Id. ¶ 29). 9 In December 2015, Yahoo provided NCMEC with more of Rosenow’s chat 10 messages. The FBI relied on the information Yahoo provided to “attempt to obtain a search 11 warrant for Plaintiff’s Yahoo accounts.” (Id. ¶ 42). The U.S. Attorney’s Office refused to 12 authorize a search warrant. Rosenow’s “Yahoo accounts never contained any evidence of 13 solicitation, receipt, or exchange of child pornography.” (Id. ¶ 36). 14 In early 2017, the FBI sent Defendant Facebook a request to preserve Rosenow’s 15 private Facebook profile. In March 2017, “the FBI in San Diego served an administrative 16 subpoena on Facebook requesting the details of Plaintiff’s Facebook accounts.” (Id. ¶ 45). 17 Facebook searched Rosenow’s Facebook accounts, messages, and communications, even 18 though the FBI did not have a warrant for the search. After this search, Facebook reported 19 to NCMEC that it “had allegedly discovered evidence of child exploitation on Plaintiff’s 20 accounts.” (Id. ¶ 49). The report included Rosenow’s messages and communications. 21 Rosenow’s Facebook accounts “never contained any evidence of solicitation, receipt, or 22 exchange of child pornography.” (Id. ¶ 52). 23 The information that Facebook provided “led the government to obtain a search 24 warrant against Plaintiff’s property and personal effects.” (Id. ¶ 58). After Rosenow was 25 arrested in June 2017, government agents searched Rosenow’s cellular phone and home. 26 These searches led to Rosenow’s criminal indictment. 27 /// 28 /// 1 III. CONTENTIONS 2 Defendants contend that Rosenow’s claims arise from Defendants’ legal obligations 3 to report apparent violations of child exploitation laws to NCMEC. Defendants contend 4 that Rosenow’s Stored Communications Act (“SCA”) and Wiretap Act claims fails because 5 Defendants’ disclosed information pursuant to their legal obligations to report apparent or 6 imminent violations of child sexual exploitation laws involving child pornography to 7 NCMEC. Defendants contend that Rosenow’s Wiretap Act claim fails because Rosenow 8 does not plead facts that show Defendants intercepted Rosenow’s communications. 9 Rosenow contends that Defendants’ disclosed information that exceeded the scope 10 of Defendants’ authority under 18 U.S.C. § 2258A. Rosenow contends that he adequately 11 states claims for violations of the SCA and Wiretap Act. 12 IV. LEGAL STANDARD 13 Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal for “failure 14 to state a claim upon which relief can be granted.” In order to state a claim for relief, a 15 pleading “must contain . . . a short and plain statement of the claim showing that the pleader 16 is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 12(b)(6) “is proper only 17 where there is no cognizable legal theory or an absence of sufficient facts alleged to support 18 a cognizable legal theory.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035 , 19 1041 (9th Cir. 2010) (quotation omitted). 20 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 21 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, [22] 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 23 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 24 court to draw the reasonable inference that the defendant is liable for the misconduct 25 alleged.” Iqbal, 556 U.S. at 678 (citation omitted). However, “a plaintiff’s obligation to 26 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 27 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 28 Twombly, 550 U.S. at 555 (quoting Fed. R. Civ. P. 8(a)). A court is not “required to accept 1 as true allegations that are merely conclusory, unwarranted deductions of fact, or 2 unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 3 2001). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual 4 content, and reasonable inferences from that content, must be plausibly suggestive of a 5 claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 6 2009) (quotation omitted). 7 V. JUDICIAL NOTICE AND INCORPORATION BY REFERENCE 8 Defendants request that the Court take judicial notice of facts and filings from 9 Rosenow’s criminal case. (See ECF No. 8 at 5-7; ECF No. 9-2 at 2-4). Yahoo requests that 10 the Court take judicial notice of the facts of Rosenow’s arrest, indictment, and conviction. 11 Yahoo further requests that the Court take judicial notice of Rosenow’s March 19, 2018, 12 Motion to Suppress Evidence; the United States’ April 27, 2018, Opposition to Rosenow’s 13 Motion to Suppress Evidence; Rosenow’s May 11, 2018, Reply in Support of Rosenow’s 14 Motion to Suppress Evidence; and the Jury Verdict Form in Rosenow’s criminal case. 15 Facebook requests that the Court take judicial notice of Rosenow’s Motion to Suppress 16 Evidence; the Court’s Order denying Rosenow’s Motion to Suppress Evidence; 17 Facebook’s April 28, 2017, CyberTipline Report; and the FBI Form 302 filed by the U.S. 18 Attorney’s Office in Rosenow’s criminal case. Facebook further requests that the Court 19 consider the following documents incorporated by reference in Rosenow’s Complaint: 20 Facebook’s Terms of Service; Facebook’s data policy; and the FBI administrative 21 subpoena served on Facebook. 22 Rosenow objects to the Court taking judicial notice of the requested documents. 23 Rosenow contends that the Court “should only consider the documents from Plaintiff’s 24 criminal case for the limited purpose of their filing and existence, not for the truth of any 25 of the allegations contained therein.” (ECF No. 12 at 5). Rosenow contends that the Court 26 should deny Facebook’s request that the Court incorporate by reference Facebook’s Terms 27 of Service and data policy and the FBI subpoena, because the “attempt to provide extrinsic [28] 1 evidence in support of its motion to dismiss . . . [is] improper at this pleading stage of the 2 proceedings.” (Id.). 3 “As a general rule, ‘a district court may not consider any material beyond the 4 pleadings in ruling on a Rule 12(b)(6) motion.’” Lee v. City of Los Angeles, 250 F.3d 668 , 5 688 (9th Cir. 2001) (citation omitted) (quoting Branch v. Tunnell, 14 F.3d 449, 453 (9th 6 Cir. 1994), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 7 (9th Cir. 2002)). “There are, however, two exceptions to the requirement that consideration 8 of extrinsic evidence converts a 12(b)(6) motion to a summary judgment motion.” Id. 9 “First, a court may consider ‘material which is properly submitted as part of the complaint’ 10 on a motion to dismiss without converting the motion to dismiss into a motion for summary 11 judgment.” Id. (quoting Branch, 14 F.3d at 453 ). Under this “incorporation by reference” 12 doctrine, the court may consider “documents ‘whose contents are alleged in a complaint 13 and whose authenticity no party questions, but which are not physically attached to the 14 [plaintiff’s] pleading.’” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (alteration 15 in original) (quoting In re Silicon Graphic Inc. Sec. Litig., 183 F.3d 970 , 986 (9th Cir. 16 2002)). The court may also consider documents incorporated by reference where “the 17 plaintiff’s claim depends on the contents of a document, the defendant attaches the 18 document to its motion to dismiss, and the parties do not dispute the authenticity of the 19 document, even though the plaintiff does not explicitly allege the contents of that document 20 in the complaint.” Id. (citing Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998)). 21 Second, the court may take judicial notice of “matters of public record” pursuant to Rule 22 201 of the Federal Rules of Evidence. Lee, 250 F.3d at 689 (quotation omitted). Rule 201 23 allows courts to take judicial notice of facts that are “not subject to reasonable dispute 24 because” the facts “can be accurately and readily determined from sources whose accuracy 25 cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). 26 The date of Rosenow’s arrest, the date of Rosenow’s indictment, the charges on 27 which Rosenow was indicted, the date of Rosenow’s conviction, and the charges of which 28 the jury found Rosenow guilty are facts that “can be accurately and readily determined . . 1 . .” Fed. R. Evid. 201(b). Rosenow does not oppose Yahoo’s request that the Court take 2 judicial notice of these facts, and these facts are “not subject to reasonable dispute.” Id. 3 The Court takes judicial notice of the requested facts regarding Rosenow’s arrest, 4 indictment, and conviction. The Court further takes judicial notice of the entire record in 5 Rosenow’s criminal case. See Reyna Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741 , 6 746 n. 6 (9th Cir. 2006) (explaining that it is appropriate to take judicial notice of court 7 filings and other matters of public record, such as pleadings in related litigation). 8 The Court further finds that the contents of Yahoo’s December 2, 2015, 9 CyberTipline Report and Facebook’s April 28, 2017, CyberTipline Report are incorporated 10 by reference in Rosenow’s Complaint. Rosenow alleges facts regarding the contents of the 11 CyberTipline Reports in the Complaint, and no party has questioned the authenticity of the 12 reports. (See ECF No. 1 ¶¶ 36, 52 (alleging that Rosenow’s communications disclosed by 13 Defendants as part of the CyberTipline Reports “never contained any evidence of the 14 solicitation, receipt, or exchange of child pornography”)). The Court does not consider 15 Facebook’s Terms of Service, Facebook’s data policy, or the FBI administrative subpoena 16 in this Order. 17 VI. STORED COMMUNICATIONS ACT CLAIM 18 Rosenow brings his first cause of action against Defendants for violations of the 19 SCA, part of the federal Electronic Communications Privacy Act (“ECPA”). Rosenow 20 alleges that Defendants wrongfully disclosed the contents of his private communications 21 to NCMEC in violation of 18 U.S.C. § 2702 . 22 Defendants assert that they are required or permitted by federal law to report 23 apparent or imminent violations of child sexual exploitation laws to NCMEC pursuant to 24 18 U.S.C. § 2258A. Defendants contend that § 2702(b)(6) of the SCA exempts from 25 liability Defendants’ disclosures of stored communications to NCMEC pursuant to § 26 2258A. Defendants contend that the Court has determined that Defendants lawfully 27 reported Rosenow’s communications to NCMEC pursuant to § 2258A in the Order denying 28 Rosenow’s Motion to Suppress Evidence in Rosenow’s criminal case. 1 Rosenow contends that he sufficiently states a claim against Defendants for 2 violations of the SCA. Rosenow contends that § 2258A only permits the reporting of 3 complete communications that contain an image of apparent child pornography; § 2258A 4 does not permit the disclosure of the private messages provided by Defendants. Rosenow 5 contends that the motions in his criminal case did not involve the SCA or Wiretap Act. 6 The SCA prohibits providers of electronic communication services and remote 7 computing services from “divulg[ing] to any person or entity the contents” of electronic 8 communications, records, and other information, except under certain circumstances. 18 9 U.S.C. § 2702 (a).2 Under the exceptions to § 2702(a), “[a] provider . . . may divulge the 10 contents of a communication . . . to the National Center for Missing and Exploited Children, 11 in connection with a report submitted thereto under section 2258A.” 18 U.S.C. § 12 2702(b)(6). [2] 18 U.S.C. § 2702 (a) provides: [17] (a) Prohibitions.--Except as provided in subsection (b) or (c)-- 18 (1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication 19 while in electronic storage by that service; and (2) a person or entity providing remote computing service to the public shall not [20] knowingly divulge to any person or entity the contents of any communication 21 which is carried or maintained on that service-- (A) on behalf of, and received by means of electronic transmission from (or 22 created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such 23 service; (B) solely for the purpose of providing storage or computer processing [24] services to such subscriber or customer, if the provider is not authorized to 25 access the contents of any such communications for purposes of providing any services other than storage or computer processing; and 26 (3) a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to 27 a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity. [28] 1 18 U.S.C. § 2258A provides that electronic communication service providers must 2 or may disclose electronic communications, records, and other information in certain 3 circumstances to “reduce the proliferation of online child sexual exploitation and to prevent 4 the online sexual exploitation of children.” 18 U.S.C. § 2258A(a)(1)(A). Section 2258A 5 requires that a provider that “obtain[s] actual knowledge of any facts or circumstances” 6 from which there is “an apparent violation” of a federal child sexual exploitation law “that 7 involves child pornography” shall 8 (i) provid[e] to the CyberTipline of NCMEC, or any successor to the CyberTipline operated by NCMEC, the mailing address, telephone number, [9] facsimile number, electronic mailing address of, and individual point of 10 contact for, such provider; and [11] (ii) mak[e] a report of such facts or circumstances to the CyberTipline, or any 12 successor to the CyberTipline operated by NCMEC. [13] 18 U.S.C. § 2258A(a)(1)(A)(i), (a)(1)(B), (a)(2)(A). Section 2258A also permits the [14] reporting of any “facts or circumstances which indicate a violation of [the federal child [15] sexual exploitation laws] involving child pornography may be planned or imminent.” 18 [16] U.S.C. § 2258A(a)(1)(A)(ii), (a)(2)(B). The report “may, at the sole discretion of the [17] provider,” include: [18] (1) Information about the involved individual. Information relating to the [19] identity of any individual who appears to have violated or plans to violate a 20 Federal [child exploitation law], which may, to the extent reasonably practicable, include the electronic mail address, Internet Protocol address, [21] uniform resource locator, payment information (excluding personally 22 identifiable information), or any other identifying information, including selfreported identifying information. [23] 24 (2) Historical reference. Information relating to when and how a customer or subscriber of a provider uploaded, transmitted, or received content relating to [25] the report or when and how content relating to the report was reported to, or 26 discovered by the provider or remote computing service provider, including a date and time stamp and time zone. [27] 28 (3) Geographic location information. Information relating to the geographic 1 location of the involved individual or website, which may include the Internet Protocol address or verified address, or, if not reasonably available, at least [2] one form of geographic identifying information, including area code or zip 3 code, provided by the customer or subscriber, or stored or obtained by the provider. [4] 5 (4) Visual depictions of apparent child pornography. Any visual depiction of apparent child pornography or other content relating to the incident such [6] report is regarding. [7] (5) Complete communication. The complete communication containing any [8] visual depiction of apparent child pornography or other content, including— [9] (A) any data or information regarding the transmission of the [10] communication; and [11] (B) any visual depictions, data, or other digital files contained in, or [12] attached to, the communication. [13] 18 U.S.C. § 2258A(b). After NCMEC reviews any report, it is required to provide the [14] report to federal or state law enforcement. 18 U.S.C. § 2258A(c). [15] In this case, Rosenow alleges that Defendants unlawfully disclosed his record [16] information and the contents of his electronic communications, including emails, [17] messages, and chats, to NCMEC. Rosenow alleges that his Yahoo and Facebook accounts [18] “never contained any evidence of the solicitation, receipt, or exchange of child [19] pornography . . . .” (ECF No. 1 ¶¶ 36, 52). The Court considered Rosenow’s argument that [20] Yahoo and Facebook exceeded the scope of their reporting responsibilities under § 2258A [21] in Rosenow’s criminal case. After substantial briefing and an evidentiary hearing, the Court [22] determined that “Yahoo and Facebook reported information to NCMEC pursuant to [23] applicable law based upon facts and circumstances supporting an apparent violation of [24] child pornography laws.”3 (USA v. Rosenow, 3:17-cr-03430-WQH, ECF No. 87 at 23). [26] 27 3 Rosenow has appealed his criminal conviction. (USA v. Rosenow, 3:17-cr-03430-WQH, ECF No. 239). This civil action would require this Court to reconsider its Order on Rosenow’s Motion to Suppress [28] 1 The contents of the CyberTipline Reports demonstrate that Defendants obtained 2 knowledge of facts or circumstances indicating “apparent” or “imminent” violations by 3 Rosenow of the federal child sexual exploitation laws involving child pornography. 18 4 U.S.C. § 2258A(a). In the December 2, 2015, CyberTipline Report, Yahoo provided 5 NCMEC with the contents of Rosenow’s messages in which Rosenow appeared to be 6 making arrangements to pay young girls ages eight to sixteen in the Phillippines for sex. 7 (See generally, USA v. Rosenow, 3:17-cr-03430-WQH, Ex. 8, ECF No. 49-8). In the Yahoo 8 messages, Rosenow requested pictures of the young girls. (See id. at 10 (“do you have 9 pics”); Id. at 12 (“if you can send pic or show me before I can pick”); Id. at 13 (“can I see 10 them now;” “can I see the girls first here in [Yahoo Messenger”)). In the April 28, 2017, 11 CyberTipline Report, Facebook provided NCMEC with the contents of Rosenow’s 12 messages in which Rosenow appeared to be making arrangements to pay young girls in the 13 Philippines for sex. (See generally, Ex. 5, Declaration of Christin J. Hill in Support of 14 Facebook’s Motion to Dismiss, ECF No. 7-3). The messages contained three images 15 Rosenow described in the message as “naked pic[s].” (Id. at 79). 16 Defendants, in their discretion, properly disclosed Rosenow’s complete 17 communications to NCMEC pursuant to 18 U.S.C. § 2258 (b). Accordingly, Defendants’ 18 disclosures fall within the exception to liability under the SCA for divulging “the contents 19 of a communication . . . to the National Center for Missing and Exploited Children, in 20 connection with a report submitted thereto under section 2258A.” 18 U.S.C. § 2702 (b)(6). 21 The Court concludes that Rosenow fails to state a claim for violation of the SCA. 22 Defendants’ Motions to Dismiss Rosenow’s first cause of action are granted. 23 VII. WIRETAP ACT CLAIM 24 Rosenow brings his second cause of action against Defendants for violations of the 25 Wiretap Act, part of the federal ECPA. Rosenow alleges that Defendants intercepted [27] conviction or confinement.” Heck v. Humphrey, 512 U.S. 477, 487 (1994). A civil tort action is “not [an] [28] 1 Rosenow’s private communications and unlawfully disclosed the contents of his 2 communications to NCMEC in violation of 18 U.S.C. § 2511 . 3 Defendants contend that Rosenow fails to plead facts sufficient to show that 4 Defendants intercepted the contents of Rosenow’s communications. Rosenow contends 5 that he sufficiently alleges that Defendants intercepted his communications in transit in 6 violation of the Wiretap Act. 7 The Wiretap Act makes it unlawful to “intentionally intercept[ ] . . . any wire, oral, 8 or electronic communication” or to “use[ ]” or “disclose[ ]” the contents of any 9 intentionally intercepted communication. 18 U.S.C. § 2511 (1). The Wiretap Act defines 10 “intercept” as “the aural or other acquisition of the contents of any wire, electronic, or oral 11 communication through the use of any electronic, mechanical, or other device.” 18 U.S.C. 12 § 2510(4). For a communication “to be ‘intercepted’ in violation of the Wiretap Act, it 13 must be acquired during transmission, not while it is in electronic storage.” Konop v. 14 Hawaiian Airlines, Inc., 302 F.3d 868, 878 (9th Cir. 2002). “[A]cquisition occurs ‘when 15 the contents of a [ ] communication are captured or redirected in any way.” Noel v. Hall, [16] 568 F.3d 743, 749 (9th Cir. 2009) (quoting United States v. Rodriguez, 968 F.2d 130 , 136 17 (2d Cir. 1992)). 18 In this case, Rosenow alleges that Facebook “knowingly and purposefully searched 19 Plaintiff’s accounts––including his private messages and communications . . . .” (ECF No. 20 1 ¶ 48). Rosenow alleges that Facebook reported the contents of Rosenow’s messages to 21 NCMEC. Rosenow fails to state facts that support an inference that Facebook “acquired 22 [Rosenow’s communications] during transmission.” Konop, 302 F.3d at 878 . Rosenow 23 fails to state facts that support an inference that Facebook “use[d]” or “disclose[d]” the 24 contents of any communication that was “acquired during transmission.” Id.; 18 U.S.C. § 25 2511(1)(c)-(d). Rosenow fails to state facts that support an inference that the contents of 26 the communications alleged in the Complaint were “intercept[ed]” by Facebook within the 27 meaning of the Wiretap Act. 18 U.S.C. § 2511 (1)(a). [28] 1 Rosenow further alleges that “Yahoo warrantlessly searched Plaintiff’s Yahoo 2 account, including emails, chats, and other electronic communications.” (ECF No. 1 ¶ 15). 3 Rosenow alleges that “Yahoo knowingly used an algorithm to intercept and scan Plaintiff’s 4 incoming chat messages for content during transit and before placing them in electronic 5 storage.” (Id. ¶ 16). Rosenow alleges that Yahoo “reviewed the contents of Plaintiff’s 6 electronic communications––including emails, messages, and chats” and provided the 7 contents of Plaintiff’s communications to NCMEC. (Id. ¶ 19). Rosenow’s allegation that 8 Yahoo intercepted Rosenow’s communications during transit are conclusory. Rosenow 9 fails to allege facts that support an inference that Yahoo “captured or redirected” the 10 contents of Rosenow’s communications while in transit. Noel, 568 F.3d at 749 . Rosenow 11 fails to state facts that support an inference that Yahoo “use[d]” or “disclose[d]” the contents 12 of any communication that was “acquired during transmission.” Konop, 302 F.3d at 878 ; [13] 18 U.S.C. § 2511 (1)(c)-(d). Rosenow fails to state facts that support an inference that the 14 contents of the communications alleged in the Complaint were “intercept[ed]” by Yahoo 15 within the meaning of the Wiretap Act. 18 U.S.C. § 2511 (1)(a). 16 Defendants’ Motions to Dismiss Rosenow’s second cause of action are granted. 17 VIII. STATE LAW CLAIMS 18 Rosenow’s remaining claims arise under California state law and include causes of 19 action for negligence4 and violation of the California Invasion of Privacy Act. The federal 20 supplemental jurisdiction statute provides, “[I]n any civil action of which the district courts 21 have original jurisdiction, the district courts shall have supplemental jurisdiction over all 22 other claims that are so related to claims in the action within such original jurisdiction that 23 they form part of the same case or controversy under Article III of the United States 24 Constitution.” 28 U.S.C. § 1367 (a). “The district courts may decline to exercise [26] 27 4 Rosenow alleges that Defendants breached a duty owed to Rosenow under the SCA and Wiretap Act. However, “[f]ederal question jurisdiction over a state law claim is not created just because a violation of [28] 1 ||supplemental jurisdiction” for a number of reasons, including if “the district court has 2 || dismissed all claims over which it has original jurisdiction[.]” 28 U.S.C. § 1367 (c)(3). 3 “Depending on a host of factors, then—including the circumstances of the particular 4 ||case, the nature of the state law claims, the character of the governing state law, and the 5 ||relationship between the state and federal claims—district courts may decline to exercise 6 || jurisdiction over supplemental state law claims.” Chicago v. Int’l Coll. of Surgeons, 522 7 156, 173 (1997). “While discretion to decline to exercise supplemental jurisdiction 8 state law claims is triggered by the presence of one of the conditions in § 1367(c), it 9 informed by the [United Mine Workers of America v.| Gibbs{[,] [ 383 U.S. 715 (1966),] 10 || values of economy, convenience, fairness, and comity.” Acri v. Varian Assocs., 114 F.3d 11 1001 (9th Cir. 1997) (quotation omitted). “‘[I]n the usual case in which federal-law 12 || claims are eliminated before trial, the balance of factors . . . will point toward declining to 13 |} exercise jurisdiction over the remaining state law claims.’” Schneider v. TRW, Inc., 938 14 || F.2d 986, 993 (9th Cir. 1991) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 , 350 15 7 (1970)). 16 Rosenow’s federal claims have been dismissed. The Court declines to exercise 17 supplemental jurisdiction over Rosenow’s state law claims. 18 Defendants’ Motions to Dismiss are granted. Rosenow’s Complaint is dismissed 19 || without prejudice. 20 CONCLUSION 21 IT IS HEREBY ORDERED that Defendants’ Motions to Dismiss Plaintiffs 22 ||Complaint (ECF Nos. 7, 8) are granted. Plaintiff's Complaint is dismissed without 23 || prejudice. No later than sixty (60) days from the date of this Order, Plaintiff may file a 24 || motion for leave to amend pursuant to Civil Local Rules 7.1 and 15.1(c). 25 || Dated: April 27, 2020 BE: eg Ze. A a 26 Hon, William Q. Hayes 17 United States District Court