Sams v. Yahoo! Inc., No. 5:2010cv05897 - Document 57 (N.D. Cal. 2011)
Court Description: ORDER GRANTING 28 MOTION TO DISMISS. Signed by Judge Jeremy Fogel on May 16, 2011. (jflc3, COURT STAFF) (Filed on 5/18/2011)
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Sams v. Yahoo! Inc. Doc. 57 1 2 3 ** E-Filed 5/18/2011** 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 FAYELYNN SAMS, Individually, and on behalf of a class of all others similarly situated, 13 Plaintiff, 14 15 Case Number CV-10-5897-JF(HRL) ORDER1 GRANTING MOTION TO DISMISS [Re: Docket No. 28] v. YAHOO!, INC., 16 Defendant . 17 18 19 20 Defendant Yahoo! Inc. (“Yahoo!”) moves to dismiss the first amended complaint 21 (“FAC”) of Plaintiff Fayelynn Sams, (“Sams”), pursuant to Fed. R. Civ. Pro. 12(b)(6) for failure 22 to state a claim upon which relief may be granted. The FAC asserts the following claims: (1) 23 violation of 18 U.S.C. §§ 2510, et seq. (“Electronic Communications Privacy Act”); (2) violation 24 of 18 U.S.C. §§ 2701, et seq. (“Stored Communications Act”); (3) violation of Cal. Bus. & Prof. 25 Code § 17200, et seq. (“UCL”); (4) violation of Cal. Bus. & Prof. Code § 17500, et seq.; (5) 26 public disclosure of private facts; (6) breach of contract; and (7) breach of the duty of good faith 27 28 1 This disposition is not designated for publication in the official reports. Case No. CV-10-5897 ORDER GRANTING MOTION TO DISMISS (JFEX2) Dockets.Justia.com 1 and fair dealing.2 For the reasons discussed below, the motion will be granted, with leave to 2 amend. 3 4 I. PROCEDURAL HISTORY Sams originally filed her class action complaint in the Superior Court of Fulton County, 5 Georgia. (Mot. to Dismiss, 2:2-3.) Yahoo! removed the action to the United States District 6 Court for the Northern District of Georgia, where it moved to dismiss the complaint for failure to 7 state a claim upon which relief may be granted. (Id. at 2: 5-7.) On November 26, 2010, Sams 8 voluntarily filed the FAC and concurrently filed a motion to transfer the action to this Court. (Id. 9 at 2:9-13.) Yahoo! agreed “that transfer to the Northern District of California was the 10 appropriate remedy in light of Yahoo!’s terms of service.” (Id. at 2:13-16 (citing Dkt. No. 17).) 11 The parties agreed to stay all deadlines in the action until the court entered a ruling on the 12 motion to transfer. (Id. at 2: 17-18; see also Pl.’s Opp., 17-19). An order of transfer was filed on 13 December 20, 2010, (id. at 2:21-24.), and the case was re-filed in this Court on December 27, 14 2010. Yahoo! filed its amended motion to dismiss on January 10, 2011. The parties disagree as 15 to whether the motion was timely filed.3 16 II. BACKGROUND 17 Sams alleges that Yahoo! voluntarily disclosed “certain personal and private user 18 information and data” in violation of federal and state law. (Pl.’s Opp., 1:8-10 (citing FAC ¶1).) 19 Sams is a resident of Georgia and is a registered Yahoo! user. (FAC ¶ 5.) Yahoo! is an Internet 20 Service Provider (“ISP”) and global internet company that provides a number of services, many 21 of which are offered free of charge. (Id. at ¶ 9.) Yahoo! has more than 500 million users 22 worldwide and currently is one of the most visited Internet sites. (Id.) 23 Sams claims that Yahoo!, in response to two separate invalid subpoenas, improperly 24 25 26 27 28 2 In the event that her request for a default judgment is not granted, Sams has agreed to dismiss claims three, four, six and seven. (See Pl.’s Opp., fn 1.) 3 Sams contends that Yahoo!’s motion to dismiss was due no later than January 3, 2011, and that Yahoo!’s current motion is untimely. Sams argues that because Yahoo! failed to respond timely to the FAC she is entitled to default judgment. 2 Case No. CV-10-5897 ORDER GRANTING MOTION TO DISMISS (JFEX2) 1 disclosed her personal and private user information to law enforcement and other government 2 entities in violation of the provisions of the Stored Communications Act. (Id. at ¶ 5.) She 3 alleges that on two occassions Yahoo!’s legal compliance team in Sunnyvale, California, 4 received via facsimile a fax cover page; a subpoena for the production of evidence signed by the 5 Clerk of the Superior Court of Lowndes County, Georgia; and a letter signed by Bradfield 6 Shealy, Chief Assistant District Attorney for the Southern Judicial District, that explained 7 Yahoo!’s obligations under the subpoena. (Mot. to Dismiss, 3:12-4:2; see also Granick Decl., 8 Ex.’s 2 & 3). The first subpoena, dated December 2, 2008, requested “[a]ny and all records 9 regarding the identification of a user with the Yahoo! ID “lynnsams” or “lynnsams@yahoo.com” 10 to include name and address, date account created, account status, Yahoo! E-mail [sic] address, 11 alternate e-mail address, registration from IP, date IP registered and login IP addresses 12 associated with session time and dates” in November 2008. (Granick Decl., Ex. 2 (emphasis in 13 original); see also Mot. to Dismiss, 4:2-6). The second subpoena, dated December 15, 2008, 14 requested “[a]ny and all I.P. login tracker for “lynnsams” or “lynnsams@yahoo.com” for dates in 15 December 2008. (Granick Decl., Ex. 3 (emphasis in original); see also Mot. to Dismiss, 4:6-8). 16 Both subpoenas contained language that specifically instructed Yahoo! not to inform Sams. (See 17 Granick Decl., Ex.’s 2 & 3; Mot. to Dismiss, 4-10). 18 Sams claims that Yahoo! “voluntarily produced the requested records, notwithstanding 19 its actual knowledge that the subpoena[s] w[ere] invalid and unenforceable, because it was more 20 convenient to Yahoo! to voluntarily produce the requested records.” (FAC ¶ 34.) Sams alleges 21 that Yahoo!’s voluntary disclosure of information included some or all of the following: “name, 22 address, phone number, birth date, gender, social security number, date account created, account 23 status, Yahoo! email address, alternate email address, the content of email communications, 24 contact lists, photos, files, website posts, registration from Internet Protocol (IP), date IP 25 registered [sic], login IP addresses, and other IP address information.” (FAC ¶2.) Sams claims 26 that Yahoo!’s action violated federal and state law as well as its own terms of service and 27 privacy policy “concerning the collection, protection, use and disclosure by Yahoo! of Yahoo! 28 users’ personal and private user information and data.” (Pl.’s Opp., 2:11-13 (citing FAC ¶ 11).) 3 Case No. CV-10-5897 ORDER GRANTING MOTION TO DISMISS (JFEX2) 1 III. MOTION TO DISMISS 2 “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a 3 cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. 4 Centinela Hosp. Center, 521 F.3d 1097, 1104 (9th Cir. 2008). For purposes of a motion to 5 dismiss, “all allegations of material fact are taken as true and construed in the light most 6 favorable to the nonmoving party.” Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-338 (9th 7 Cir. 1996). However, “[w]hile a complaint attacked by Rule 12(b)(6) motion to dismiss does not 8 need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his 9 ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of 10 the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 11 (2007) (internal citations omitted). Leave to amend must be granted unless it is clear that the 12 complaint’s deficiencies cannot be cured by amendment. Lucas v. Department of Corrections, 66 13 F.3d 245, 248 (9th Cir. 1995). 14 IV. DISCUSSION 15 Yahoo! argues that because the Stored Communications Act provides ISP’s with 16 immunity from claims based upon their compliance with the terms of a grand jury subpoena, all 17 of Sams’s claims are precluded as a matter of law. (Mot. to Dismiss, 6:8-21.) Sams contends in 18 her opposition papers that Yahoo! is not entitled to immunity because it failed to comply with 19 the requirements of the statute. As noted above, Sams also claims that Yahoo!’s motion to 20 dismiss was untimely filed, and she opposes Yahoo!’s request for judicial notice of its terms of 21 service and privacy policy. (See Pl.’s Opp, 7:23-10:2.) 22 A. Whether the Court May Consider Yahoo!’s Motion 23 Sams claims that Yahoo!’s motion was filed seven days late. However, even if the 24 motion were untimely, which is far from clear, it would be within the Court’s discretion to deny 25 Sams’s request for entry of default. See Kipkirwa v. Santa Clara County Probation Dept., 2 Fed. 26 Appx. 868, 870 (9th Cir. 2001). As a general rule, “[d]efault judgments are generally disfavored 27 [and] ‘[c]ases should be decided upon their merits whenever reasonably possible.’” Id. (citing 28 Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986)). Consistent with that general rule, “a 4 Case No. CV-10-5897 ORDER GRANTING MOTION TO DISMISS (JFEX2) 1 court may consider numerous factors in deciding whether to exercise its discretion to enter a 2 default, including the merits of plaintiff’s substantive claim, the possibility of disputed material 3 facts, whether defendant’s default was due to excusable neglect, and the strong policy favoring 4 decisions on the merits.” Id. Applying these factors here, this Court concludes that Sams’s 5 request for default judgment is unwarranted and that it is appropriate to consider Yahoo!’s 6 motion to dismiss on its merits. 7 B. Whether the Court may take Judicial Notice of Yahoo!’s Terms of Service and Privacy Policy 8 Sams contends that Yahoo! improperly refers to “matters that are outside the pleadings in 9 violation of Fed. R. Civ. P. 12(d).” (Pl.’s Opp., 7:23-24.) She also argues that Yahoo!’s 10 evidence of its terms of service and privacy policy (collectively “terms of service”) is 11 unauthenticated and thus inadmissible. (Id. at 8:4-23.) Sams is correct that courts ordinarily 12 “may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Lee 13 v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citing Branch v. Tunnell, 14 F.3d 449, 14 453 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 15 1119, 1127 (9th Cir. 2002)); see also MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th 16 Cir. 1986). However, “[a] copy of a written instrument that is an exhibit to a pleading is a part 17 of the pleading for all purposes.” Fed. R. Civ. Pro. 10(c). Here, Sams herself has attached a 18 copy of the terms of service to her FAC. (See FAC, Ex. A.) Accordingly, the document is 19 considered “part of the pleading for all purposes.” See Hal Roach Studios, Inc. v. Richard 20 Feiner and Co., Inc., 896 F.2d 1542, 155 n. 19 (9th Cir. 1990) (citing Amfac Mtg. Corp. v. 21 Arizona Mall of Tempe, 583 F.2d 426 (9th Cir. 1978)). 22 C. Whether Yahoo! Has Statutory Immunity for Sams’s Claims 23 The Stored Communications Act contains two separate immunity provisions: 18 U.S.C. § 24 2703(e) and 18 U.S.C. § 2707(e). Yahoo! contends that 18 U.S.C § 2703(e) provides it with 25 complete immunity. (Mot to Dismiss, 6:8-19.) Alternatively, it argues that even if 18 U.S.C. § 26 2703(e) somehow does not apply, it is still entitled to immunity under 18 U.S.C.§ 2707(e) 27 because any disclosure it made was in good faith. Sams attacks Yahoo!’s characterization of 28 5 Case No. CV-10-5897 ORDER GRANTING MOTION TO DISMISS (JFEX2) 1 both sections as “immunity” provisions, arguing that at most they can serve as the basis of “fact- 2 based affirmative defenses” that Yahoo! has the burden of proving. (Id. at 13:4-12.) Second, 3 she argues that the “subpoena is facially invalid in all respects,” and as a result any disclosure by 4 Yahoo! necessarily was “voluntary” and thus outside the scope of immunity. (Id. at 12:23-24.) 5 Third, she argues that Yahoo! “did not act in accordance with the terms of the grand jury 6 subpoena” and thus cannot rely on the defense. Finally, she contends that Yahoo! 7 inappropriately disclosed “content” and that “the absence of notice renders the subpoena invalid, 8 as the subpoena did not meet the requirements of 18 U.S.C. § 2703(b)(1)(B)(ii).” (Id. at 12:21- 9 23.) 10 1. Whether the Court May Consider Affirmative Defenses on a Motion to Dismiss 11 To the extent that Sams argues that affirmative defenses necessarily involve fact-based 12 inquiries and thus are inappropriate for consideration on a motion to dismiss, both this Court and 13 others have held to the contrary. See Goddard v. Google, Inc., 640 F. Supp. 2d 1193, 1200 n.5 14 (N.D. Cal. 2009)). The assertion of an affirmative defense properly may be considered on a 15 motion to dismiss where the defense is “apparent from the face of the [c]omplaint.” Goddard v. 16 Google, Inc., 640 F.Supp.2d 1193, 1200 n.5 (N.D. Cal. 2009) (internal citation omitted); see also 17 Langdon v. Google, Inc., 474 F.Supp2d 622, 630-31 (D.Del 2007) (granting Rule 12(b)(6) 18 motion to dismiss based on application of CDA immunity); Jones v. Block, 549 U.S. 199, 215 19 (2007) (finding “[w]hether a particular ground for opposing a claim may be the basis for 20 dismissal for [a 12(b)(6) motion] depends on whether the allegations in the complaint suffice to 21 establish that ground . . . .”). Sams’s pleading itself raises questions as to whether Yahoo! 22 responded to an invalid subpoena, whether it impermissibly disclosed “content” based 23 information, and whether it complied fully with the terms of the subpoena. Id. 24 2. Whether Yahoo! Is Entitled to Immunity Pursuant to 18 U.S.C. § 2703(e) 25 Pursuant to 18 U.S.C. § 2703(e), “[n]o cause of action shall lie in any court against any 26 provider of wire or electronic communication service, its officers, employees, agents, or other 27 specified persons for providing information, facilities, or assistance in accordance with a court 28 6 Case No. CV-10-5897 ORDER GRANTING MOTION TO DISMISS (JFEX2) 1 order, warrant, subpoena, statutory authorization, or certification under this chapter.” 18 U.S.C 2 § 2703(e) (emphasis added). Yahoo! is entitled to immunity under this section if (1) it is a 3 “provider,” and (2) it has provided “information, facilities, or assistance in accordance with a 4 court order, warrant, subpoena, statutory authorization, or certification under this chapter.” 5 Sams concedes that Yahoo! is a “provider,” but she disputes emphatically whether the second 6 condition has been met here. 7 a. Whether the subpoenas were invalid on their face 8 Sams contends that the subpoenas were invalid on their face because they were not issued 9 in compliance with the Uniform Act to Secure the Attendance of Witnesses from Without a State 10 in Criminal Proceedings (“Uniform Act”). She alleges that the subpoenas “were issued in 11 Georgia and sought to compel a California witness to appear, testify, and produce documents in 12 Georgia.” (Pl.’s Opp., 15:21-25.) The purpose of the Uniform Act is to ensure reciprocity 13 between the various prosecuting authorities in order to compel out-of-state witnesses to testify. 14 See Cal. Pen. Code § 1334.2. Nearly every state has adopted some version of the Act, and 15 California adopted its version in 1937. (See Pl.’s Opp., 16:4-7 (citing People v. Cogswell, 48 16 Cal. 4th 467, 474-75 (2010)).)4 California’s statute provides that “ a person shall be required to 17 appear at a hearing upon receipt of a certificate of a court of another state, which has similar 18 legislation, asserting that the person is a material witness in a criminal prosecution or grand jury 19 investigation.” Cal. Pen. Code § 1334.2. If the judge determines that the witness “is material 20 and necessary . . . he or she shall issue a subpoena, with a copy of the certificate attached, 21 directing the witness to attend and testify in the court where the prosecution is pending, or where 22 the grand jury investigation is, at a time and place specified in the subpoena.” Id. 23 Sams asserts that non-party witnesses in California may not be compelled to appear or 24 produce documents by out-of-state subpoenas. (Pl.’s Opp., 17: 8-11 (citing People v. 25 Cavanaugh, 69 Cal.2d 262, 265-66 (1968); Amoco Chemical Co. v. Certain Underwriters at 26 Lloyd’s of London, 34 Cal. App. 4th 554, 559 (1995)).) She argues that accordingly, the 27 28 4 Georgia’s version of the Uniform Act is codified in Ga. Code. Ann. § 24-10-94(a). 7 Case No. CV-10-5897 ORDER GRANTING MOTION TO DISMISS (JFEX2) 1 subpoenas at issue here did not comply with the Uniform Act and thus Yahoo! was not legally 2 compelled to appear and produce documents.5 Sams contends the subpoenas thus were “invalid 3 on their face and any disclosure by [Yahoo!] allegedly in response thereto was not compulsory, 4 but simply voluntary and violative of the SCA.” (Id. at 17:14-16.) 5 Yahoo! responds that Sams’s argument depends upon the mistaken assumption that the 6 subpoenas at issue sought to compel testimony and product by a California witness. (Def.’s 7 Reply, 8:8-10 (emphasis added).) While it is undisputed that the subpoenas were faxed to 8 Yahoo!’s compliance team in Sunnyvale, California, the subpoenas in relevant part state only 9 that “[y]ou are required to be and appear,” (Granick Decl. Ex.’s 2 & 3) (emphasis added). While 10 the subpoenas certainly could be read as requiring action on the part of Yahoo!’s California- 11 based compliance team, the language also could be read to refer generally to Yahoo! as a 12 singular corporate entity. 13 Yahoo! argues that because it has and at all relevant times had an office in Georgia, 14 (Def.’s Reply, 9:4-5.), it had no reason to believe that it would not be subject to personal 15 jurisdiction in Georgia or to believe that the technical requirements of Uniform Act had any 16 relevance to its obligation to comply with the subpoenas. (Id. at 9:5-10:6.) Yahoo! represents 17 that it has a policy to “no longer contest[] jurisdiction for states in which it has offices and 18 employees,” as it “has previously litigated and lost similar jurisdiction issues in the past.” 19 (Def.’s Reply, 9:13-15.) Yahoo! points out that in Tamburo v. Dworkin, No. 04-C-3317 (N.D. 20 Illinois Mar. 23, 2007), it attempted unsuccessfully to resist producing documents that had been 21 subpoenaed by out-of-state authorities. It argued in that case that it was not subject to personal 22 jurisdiction or compelled to accept a subpoena issued in the Northern District of Illinois because 23 “all of the responsive documents were located in California and no compliance personnel 24 qualified to obtain user data worked in Chicago.” (Def.’s Reply, 9:15-19 (citing Granick Decl., 25 Ex. 1, Order in Tamburo v. Dworkin).) The court found that Yahoo!’s regional locations and 26 27 28 5 Sams also points out that neither Georgia or California permit “free-standing interstate” subpoenas duces tecum. (Pl.’s Opp., 18:18-19:3 (citing Davenport v. State, 303 Ga. App. 401, 402 (2010); Amoco Chemical Co., 34 Cal. App. 4th 554, 559-60 (1995)).) 8 Case No. CV-10-5897 ORDER GRANTING MOTION TO DISMISS (JFEX2) 1 corporate headquarters “are not separate and distinct entities.” (Granick Decl., Ex. 1 p.2.) It 2 concluded that “[b]ecause Yahoo!’s [regional] office is part of the same entity as Yahoo!’s 3 corporate headquarters, the subpoenaed documents are within Yahoo!’s control for purposes of 4 Rule 34 and 45.” (Id. at p. 3.) The court found it irrelevant whether the employee’s particular 5 regional officers had “the ability to access the subpoenaed information. . . .” (Id.) 6 It is apparent that Yahoo! is subject to personal jurisdiction in Georgia and that it could 7 not resist compulsory disclosure by arguing that its regional office had no control over the 8 subpoened documents. As the court held in Dworkin, Yahoo! is “one entity,” and the location of 9 the documents or duties of employees at particular regional offices is irrelevant to its obligation 10 to produce documents sought by subpoena. Accordingly, this Court concludes that the 11 subpoenas at issue here were not subject to the Uniform Act and thus were not invalid on their 12 face. 13 14 b. Whether Yahoo! complied properly with the terms of the subpoena Sams argues alternatively that Yahoo! did not comply with the terms of the subpoena 15 because a Yahoo! agent did not “appear and produce evidence directly to the Grand Jury as 16 commanded by the subpoena.” (Pl.’s Opp., 15:5-9.) Both subpoenas issued to Yahoo!’s legal 17 compliance team stated that “[y]ou are hereby required to be and appear at the September 2008 18 Term of the Lowndes Country Grand Jury . . . at 8:30 a.m. on the 28th day of January, 2009.” 19 (See Granick Decl. Ex.’s 2 & 3.) Sams notes that the letter transmitted with the subpoena 20 advised that Yahoo! “may wish to voluntarily provide copies of the evidence,” and should 21 Yahoo! elect to provide the evidence in advance that such action “should expedite your 22 appearance before the Grand Jury and may make it possible for us to put you on call.” (Id.) 23 Sams interprets this language as suggesting that advance production of the records “might 24 obviate the need to respond to the subpoena.” (FAC ¶ 30.) 25 Yahoo! appropriately elected to produce the documents before the deadline in order to 26 reduce the likelihood that is representatives would need to appear in person before the grand 27 jury. Sams does not cite any authority holding that a person or entity responding to a subpoena 28 must hand-deliver the documents as specified exactly in the subpoena; the fact that the 9 Case No. CV-10-5897 ORDER GRANTING MOTION TO DISMISS (JFEX2) 1 prosecutor in charge subsequently determined that Yahoo!’s appearance was unnecessary does 2 not support a post hoc finding that Yahoo! failed to comply with the terms of the subpoena. 3 c. Whether Yahoo!’s disclosure improperly included “content-based” information 4 Sams observes correctly that § 2703(e) “only provides a defense for the disclosure of 5 content if the user was given advanced notice under 18 U.S.C. § 2703(b)(1)(B)(i), or, if without 6 notice, for disclosure of directory information under 18 U.S.C. § 2703(c)(2).” (Id. at 13:247 14:2.) It is undisputed that neither the government nor Yahoo! provided Sams with notice; 8 indeed, Yahoo! was expressly prohibited from “revealing the existence of [the] subpoena.” (See 9 Granick Decl. Ex.’s 2 & 3.) Yahoo! contends that it did not disclose “content,” but Sams asserts 10 that this contention is unsupported and “contrary to the facts alleged in the Amended 11 Complaint.” (Pl.’s Opp., 15:14-17 (citing FAC ¶¶ 49, 54, 56, 58, 85,89, and 94.) 12 The subpoenas required production of “any and all records regarding the identification of 13 a user with the Yahoo! ID “lynnsams” or “lynnsams@yahoo.com”. . . includ[ing] name and 14 address, date account created, account status, Yahoo! E-mail [sic] address, alternative e-mail 15 address, registration from IP, date IP registered and login IP addresses associated with session 16 time and dates [in November 2008]” and “I.P. login tracker . . . for dates [in December 2008].” 17 (See Granick Decl. Ex.’s 2 & 3.) “Content” is defined “when used with respect to any wire, 18 oral, or electronic communication,” as “any information concerning the substance, purport, or 19 meaning of that communication.” 18 U.S.C. § 2510(8). Sams claims that this “definition 20 includes all aspects of the communication itself. No aspect, including the identity of the parties, 21 the substance of the communication between, or the fact of the communication itself, is 22 excluded. The privacy of the communication to be protected is intended to be comprehensive.” 23 (FAC ¶ 49.) 24 As Yahoo! points out, much of this language was edited out of §2510(8) in 1986 when 25 Congress passed the Electronic Communications Protection Act. (See Def.’s Reply, 11:15-12:2 26 (citing Pub. L. 99-509, Oct. 21 1986, 100 Stat. 1848, § 101(a)(5) (striking out “identity of the 27 parties to such communication or the existence” from 18 U.S.C. § 2510(8))).) The Ninth Circuit 28 10 Case No. CV-10-5897 ORDER GRANTING MOTION TO DISMISS (JFEX2) 1 has determined that access to information such as “e-mail to/from addresses and IP addresses 2 constitute addressing information” and that such “addressing information” does not permit the 3 government to “find out the contents of [] messages or know the particular pages on the websites 4 the person viewed.” See United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008). 5 Moreover, 18 U.S.C. § 2703(c)(2) permits providers to disclose user identification information, 6 “records of session times and durations,” “temporarily assigned network addresses,” and “means 7 of payment (including any credit card or bank account number).” 18 U.S.C. § 2703(c)(2). All 8 this information may be provided without notice to the user, while notice is required for other 9 provisions under the chapter that specifically relate to disclosure of “content.” See 18 U.S.C. § 10 2703(a) & (b). Logically, the fact that no notice is required to obtain disclosures under §2703(c) 11 suggests that the information subject to that provision is not content-based. 12 Sams alleges conclusorily that Yahoo! routinely discloses some or all of the following 13 user information: “name, address, phone number, birth date, gender, social security number, date 14 account created, account status, Yahoo! email address, alternate email address, the content of 15 email communications, contact lists, photos, files, website posts, registration from Internet 16 Protocol (IP), date IP registered [sic], login IP addresses, and other IP address information.” 17 (See e.g., ¶¶ 2, 53-58, 83-94) (emphasis added.) However, Sams alleges no actual facts tending 18 to show that Yahoo! disclosed any information other than the non-content-based information 19 sought by the subpoenas at issue here. While the Court must “take all factual allegations in the 20 complaint as true,” (Ashcroft v. Iqbal, 129 S.Ct.1937, 1949 (2009)), it is not required to accept a 21 “legal conclusion couched as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 22 555 (2007). Here, Sams’s allegations are both conclusory and devoid of factual support. 23 D. Conclusion 24 Pursuant to the foregoing discussion and based on the facts alleged, Yahoo! appears to 25 have complied with the terms of both subpoenas and thus is entitled to immunity pursuant to 10 26 U.S.C. §2703(e). However, because the Court cannot say with certainty that Sams could not 27 allege facts tending to show that Yahoo! impermissibly disclosed content-based information, 28 leave to amend will be granted. 11 Case No. CV-10-5897 ORDER GRANTING MOTION TO DISMISS (JFEX2) 1 2 3 IV. ORDER Good cause therefor appearing, the motion to dismiss is GRANTED, WITH LEAVE TO AMEND. Any amended complaint shall be filed within (30) days of the date of this order. 4 5 IT IS SO ORDERED 6 7 DATED: May 16, 2011 __________________________________ JEREMY FOGEL United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 Case No. CV-10-5897 ORDER GRANTING MOTION TO DISMISS (JFEX2)
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