Mastel v. Miniclip SA

• Decision Date: 14 July 2021
• Docket Number: No. 2:21-cv-00124 WBS KJN,2:21-cv-00124 WBS KJN
• Citation: 549 F.Supp.3d 1129
• Parties: Derek MASTEL, individually and on behalf of all others similarly situated, Plaintiff, v. MINICLIP SA ; Apple Inc., Defendants.
• Court: U.S. District Court — Eastern District of California

549 F.Supp.3d 1129

Derek MASTEL, individually and on behalf of all others similarly situated, Plaintiff,

v.MINICLIP SA ; Apple Inc., Defendants.

No. 2:21-cv-00124 WBS KJN

United States District Court, E.D. California.

Signed July 14, 2021

Filed July 15, 2021

Philip L. Fraietta, PHV, Pro Hac Vice, Bursor & Fisher, P.A., New York, NY, Lawrence Timothy Fisher, Joel Dashiell Smith, Bursor & Fisher, P.A., Walnut Creek, CA, for Plaintiff.

Elizabeth Ann Kim, Warren Metlitzky, Conrad Metlitzky Kane LLP, San Francisco, CA, Brian P. Borchard, PHV, Pro Hac Vice, Jonathan L. Baker, PHV, Pro Hac Vice, Timothy B. Hardwicke, PHV, Pro Hac Vice, GoodSmith Gregg & Unruh LLP, Chicago, IL, for Defendant Miniclip SA.

Matthew David Powers, O'Melveny & Myers, San Francisco, CA, for Defendant Apple Inc.

ORDER RE: DEFENDANTS’ MOTIONS TO DISMISS

WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE

Plaintiff Derek Mastel brought this putative class action against defendants Miniclip SA ("Miniclip") and Apple Inc. ("Apple"), claiming that they violated the California Invasion of Privacy Act ("CIPA"), Cal. Penal Code § 631, and California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200, and invaded his privacy under the California Constitution via an app developed by Miniclip for use on Mastel's iPhone. (See generally Compl. (Docket No. 1).) Mastel's complaint also brings a claim under the Federal Stored Communications Act ("SCA"), 18 U.S.C. §§ 2701, solely against Miniclip. (Compl. ¶ 62.) Defendants now move to dismiss plaintiff's claims in their entirety. (See Apple's Mot. to Dismiss (Docket No. 8); Miniclip's Mot. to Dismiss (Docket No. 21).)

I. Factual Background

Miniclip is a developer of videogames that can be played on web browsers or downloaded as mobile applications and played on various electronic devices, including iPhones. (Compl. ¶¶ 5, 14.) This case centers around one of Miniclip's iPhone games known as 8 Ball Pool. (See Compl. ¶¶ 1-3.)

Apple manufactures and sells iPhones. (Compl. ¶ 10.) All iPhones run on an operating system known as iOS. (Id. ) One feature of iOS that is relevant to this case is the "Pasteboard," which is similar to the copy-paste function on a computer. (Compl. ¶ 11.) Pasteboard allows the user to copy text while using one application and paste it into another application. (Id. ) For instance, as noted in the complaint, a user might "copy an Internet address from a web browser to the Pasteboard and paste the Internet address in a text message." (Id. )

The Pasteboard itself only saves one set of copied text at a time; as soon as a user copies another set of text, any previously saved text is deleted. (Compl. ¶ 12.) However, Apple authorizes mobile applications to view, copy, and save the text stored in the Pasteboard any time the user opens the application. (Compl. ¶¶ 12, 17) Thus, a mobile application developer may program its application to save and compile a library of text that iPhone users have copied into the Pasteboard while the application is open. (Compl. ¶¶ 12, 17-18.)

Mastel downloaded 8 Ball Pool onto his iPhone in 2013. (Compl. ¶ 22.) Mastel alleges that 8 Ball Pool accessed the Pasteboard on his iPhone each time he opened the application, without his knowledge or consent. (Compl. ¶¶ 24, 29.) Mastel's complaint provides a screenshot of 8 Ball Pool's "device log," which provides a list of the functions performed by the application with corresponding timestamps in chronological order. (Compl. ¶ 19.) The device log purportedly shows 8 Ball Pool requesting access to and reading the contents of the Pasteboard. (See id. )

Mastel does not specifically allege how many times he opened 8 Ball Pool over the eight-year period it has been on his iPhone, or what information was on the Pasteboard each time he opened it. (See id. ) Rather, he alleges that, since he downloaded 8 Ball Pool in 2013, he "has copied numerous sets of text" into the Pasteboard, including his name, email, phone number, and address, addresses of friends and relatives, and personal and private messages that have been sent to friends and relatives. (Compl. ¶ 23.) Mastel alleges that Miniclip had access to all of the data stored in the 8 Ball Pool application. (Compl. ¶¶ 26-27.)

II. Discussion

Federal Rule of Civil Procedure 12(b)(6) allows for dismissal when the plaintiff's complaint fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). The inquiry before the court is whether, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor, the complaint has stated "a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Although legal conclusions "can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679, 129 S.Ct. 1937.

A. California Invasion of Privacy Act

Mastel's first claim is that defendants violated § 631(a) of the CIPA, which addresses "wiretapping." (See Compl. ¶¶ 39-51); Cal. Penal Code § 631(a). Section 631(a) imposes liability upon

Any 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, or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained ....

Id.

The California Supreme Court has explained that this lengthy provision contains three operative clauses covering "three distinct and mutually independent patterns of conduct": (1) "intentional wiretapping," (2) "willfully attempting to learn the contents or meaning of a communication in transit over a wire," and (3) "attempting to use or communicate information obtained as a result of engaging in either of the two previous activities." Tavernetti v. Superior Court, 22 Cal. 3d 187, 192, 148 Cal.Rptr. 883, 583 P.2d 737 (1978) ; accord In re Google Inc., No. 13-MD-02430-LHK, 2013 WL 5423918, at *15 (N.D. Cal. Sept. 26, 2013). Section 631(a) further contains a fourth basis for liability, for anyone "who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the" other three bases for liability. Cal. Penal Code § 631(a).

As an initial matter, Mastel concedes in his opposition that he has only brought his § 631(a) claim against Apple under the fourth clause. (Pl.’s Opp'n at 3.) Thus, while Mastel argues that Miniclip may be found liable under any of § 631(a) ’s four clauses, Apple may only be liable if the court finds that it "aid[ed], agree[d] with," or "conspire[d]" with Miniclip to violate § 631(a).

1. Intentional Wiretapping

Beginning with § 631(a) s’ first clause, in order to plausibly state a claim, Mastel must allege that Miniclip "intentionally tap[ped], or ma[de] any unauthorized connection ... with any telegraph or telephone wire, line, cable, or instrument ...." Cal. Penal Code § 631(a). Miniclip argues that Mastel's allegations are insufficient because, at most, they show that the 8 Ball Pool App tapped or made an unauthorized connection with the iOS Pasteboard, which is not a "telegraph or telephone wire, line, cable, or instrument." (Miniclip Mot. to Dismiss at 4-5; FAC ¶¶ 22-25.)

Mastel cites to several decisions by federal courts interpreting the CIPA for the proposition that the statute should be read broadly to encompass new technologies that have developed since its enactment. See Matera v. Google Inc., No. 15-CV-04062-LHK, 2016 WL 8200619, *19 (N.D. Cal. Aug. 12, 2016) ("[T]he California Supreme Court has construed CIPA in accordance with the interpretation that provides the greatest privacy protection."); In re Google Inc., No. 13-MD-02430-LHK, 2013 WL 5423918, *21 (N.D. Cal. Sep. 26, 2013) (noting that the California Supreme Court "regularly reads statutes to apply to new technologies where such a reading would not conflict with the statutory scheme"); Revitch v. New Moosejaw, LLC, No. 18-cv-06827-VC, 2019 WL 5485330 (N.D. Cal. Oct. 23, 2019).

While it is true that several federal courts interpreting the CIPA have held that the statute may apply to technologies beyond telephones or telegraphs, those holdings have largely been limited to the statute's second clause, which prohibits persons from reading, or attempting to read, the "contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable" without consent or authorization. See Matera, 2016 WL 8200619, at *18 (finding that § 631(a) ’s first prong is "limited to communications passing over ‘telegraph or telephone’ wires, lines, or cables"); In re Google Inc., 2013 WL 5423918, at *20 (explaining that the first prong of CIPA is "limited to communications passing over ‘telegraphic or telephone’ wires, lines, or cables"); accord In re Google Assistant Priv. Litig., 457 F. Supp. 3d 797, 799, 826 (N.D. Cal. 2020) (" Google Assistant") (holding that CIPA claim under first clause must be...