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Ninth Circuit:
Recording Cellphone Message to Chatbox Isn’t a Wire Tap
Panel Interprets California’s Privacy Act; Concurring Judge Says It Has No Applicability to Internet
By a MetNews Staff Writer
There can be no wire-tapping without a wire or similar connection, the Ninth U.S. Circuit Court of Appeals has held, with one member of a three-judge panel saying in a concurring opinion that legislation enacted in California in 1967 cannot be applied to means of electronic communication—in particular, the Internet—that didn’t exist then.
The memorandum opinion, filed Wednesday, affirms a summary judgment awarded by District Court Judge Kenly Kiya Kato of the Central District of California to defendant Converse Inc. The putative class action was brought in the Los Angeles Superior Court by Pico Rivera immigration attorney Nora A. Gutierrez under the California Invasion of Privacy Act (“CIPA”), and was removed by Converse to federal court.
The lawyer said in her complaint:
“Converse Inc. is [he proprietor of Converse.com, an online platform that retails shoes, clothing, sports gear, and accessories to customers globally. During a browsing session on the Defendant’s website, the plaintiff utilized the chatbox feature. However, the plaintiff was not informed that her conversations were being recorded and exploited for commercial surveillance purposes without her consent.”
She went on so say:
“Defendant did not obtain Class Members’ express or implied consent to wiretap or allow third parties to eavesdrop on visitor conversations, nor did Class Members know at the time of the conversations that Defendant was secretly wiretapping them and allowing third parties to eavesdrop on them.”
Crime Defined
One portion of the CIPA invoked by Gutierrez was Penal Code §631(a) which provides, in its first clause, that it a criminal offense is committed by “[a]ny person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system.”
Kato said in her July 12, 2024 ruling that there is “no genuine dispute of material fact exists as to whether Salesforce,” the company Converse used to manage its chat feature, “has violated the first clause of Section 631(a) because Plaintiff has presented no evidence from which a reasonable jury could conclude Defendant’s website involves telephone communications,” adding:
“Rather, it is undisputed the chat feature on Defendant’s website involves internet communications….It is also undisputed Plaintiff used her smart phone’s internet capabilities to utilize the chat feature….The first clause of Section 631(a) is, therefore, inapplicable.”
In Wednesday’s Ninth Circuit decision, Circuit Judges Danielle J. Forrest and Sandra S. Ikuta declared that “[t]he record is devoid of evidence that Salesforth made an unauthorized connection through a telephone wire, line, cable, or instrument with the messages sent by Gutierrez.”
Other CIPA provisions relied upon by Gutierrez were also found not to give rise to liability.
Bybee’s Concurring Opinion
Senior Circuit Judge Jay S. Bybee set forth in a concurring opinion:
“I write separately because I think the first clause claim should be affirmed for a different and more obvious reason: As I read it, § 631 (a)’s first clause does not apply to internet communications.”
He elaborated:
“Today’s smartphones do not send messages over a ‘telephone wire’ as that phrase was understood in 1967 when the California legislature passed CIPA. In 1967, telephones were connected to wires on both ends of a phone call and had one use—you picked up the phone to dial and call another phone. Today, our smartphones not only lack wires, but they also are cameras, atlases, phone directories, music players, weather stations, newspapers, clocks, and more.”
The jurist continued:
“Most important, smartphones are mini-computers capable of accessing the internet, something the California legislature had never heard of (or could have imagined) in 1967. For this reason, simply sending a message on an iPhone (and through an internet browser) does not automatically implicate § 631(a). Instead, the statute, as passed in 1967, focuses on the wiretapping of telegraph or telephone wires—it criminalizes, as relevant here, the wiretapping of a telephone call.”
Bybee added:
“If the California legislature wanted to apply § 631(a) to the internet, it could do so by amending that provision or adding to CIPA’s statutory scheme….California has failed to update § 631(a) to account for advances in technology since 1967. It is not our job to do it for them.”
The Internet is generally considered to have sprung into existence in 1983 and in the 1990s was termed the “Information Superhighway.”
2022 Decision
Gutierrez pointed to a Ninth Circuit’s panel’s 2022 decision in Javier v. Assurance IQ, LLC which says:
“Though written in terms of wiretapping, Section 631(a) applies to Internet communications.”
Bybee responded:
“Javier is not precedential, as it is an unpublished disposition. And Javier only considered §631(a)’s second clause, which prohibits nonconsensual reading of a communication in transit over a wire….It is far from clear whether Javier’s alleged ‘holding’….even applies to § 631(a)’s first clause.”
He said in a footnote:
“Javier has led to a raft of §631(a) litigation, as documented by the Chamber of Commerce’s amicus brief in this case. This has given California’s federal courts ample opportunity to consider whether §631(a)’s first clause applies to internet communications. These courts have overwhelmingly agreed it does not.”
The case is Gutierrez v. Converse, Inc., 24-4797.
At present, if a visitor to the Converse website clicks on “Chat with us,” this message pops up:
“By clicking ‘Start Chat’ below, you agree your chats with us and data collected in them may be viewed, used, and saved by us and our third-party vendors for customer service purposes.”
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