[00:00:05] Speaker 00:
Good morning, Your Honor.

[00:00:07] Speaker 04:
Good morning.

[00:00:07] Speaker 04:
Can you all hear us?

[00:00:10] Speaker 00:
Yes, Your Honor.

[00:00:11] Speaker 04:
Mr. Matsui?

[00:00:14] Speaker 04:
Can you hear us?

[00:00:16] Speaker 00:
Yes, I can, Your Honor.

[00:00:18] Speaker 04:
All right.

[00:00:19] Speaker 04:
Counselor for Appellate, please proceed.

[00:00:21] Speaker 00:
Thank you, Your Honor.

[00:00:23] Speaker 00:
Good morning, and may it please the Court, Jeremy Glapion on behalf of Plaintiff Cindy Bolton.

[00:00:29] Speaker 00:
I'd like to reserve two minutes for rebuttal, and I'll do my best to watch my time.

[00:00:33] Speaker 04:
All right, Counsel.

[00:00:34] Speaker 00:
We are here on a de novo review of the District Court's dismissal of four claims, three under the California Invasion of Privacy Act and one under the Electronic Communications Privacy Act.

[00:00:46] Speaker 00:
For the dismissal of three of those claims, two under SIPA and one under ECPA, we believe that the District Court

[00:00:54] Speaker 00:
misconstrued our allegations, or at minimum did not construe the allegations in the light most favorable to plaintiff, as should be the case on a motion to dismiss.

[00:01:04] Speaker 00:
And we believe the fourth claim, the SIPA 632 claim, the district court adopted what amounts to a very broad, but we believe to be erroneous statutory interpretation that would exempt from the definition of confidential, essentially any written communications.

[00:01:21] Speaker 00:
But I first want to start with this concept of transit and whether the text messages that our client intended for this celebrity or as community calls them community leaders was in transit at the time it was acquired by community.

[00:01:36] Speaker 00:
This is relevant to SIPA section 631 and required for ECPA.

[00:01:42] Speaker 00:
In 2002, this court in the Konop v. Hawaiian Airlines case expressly found that to qualify as an interception, the communication must be acquired during transmission.

[00:01:53] Speaker 00:
And it found that consistent with the ordinary meaning of intercept, which is to stop, seize, or interrupt in progress or course before arrival.

[00:02:03] Speaker 00:
And it's this concept before arrival where we think that there's an ongoing misunderstanding because this is precisely what we allege about these messages.

[00:02:13] Speaker 00:
Because when we talk arrival or receipt in our complaint, we're not talking about

[00:02:20] Speaker 00:
arrival at the celebrity's eyeballs or where the celebrity actually retrieved it.

[00:02:26] Speaker 00:
We're talking about arrival at that point where they could have ever accessed it.

[00:02:30] Speaker 00:
Even if they were waiting with bated breath for this text message, looking at this location, it never reached that point.

[00:02:36] Speaker 02:
Well, it did not go to the number that was listed on the invitation.

[00:02:47] Speaker 00:
It did not.

[00:02:49] Speaker 00:
We don't think it's as simple.

[00:02:51] Speaker 00:
The way their system is constructed, which I think is a highly technical question, it seems to be constructed in a way where there is multi-step.

[00:02:59] Speaker 00:
So it hits some sort of checkpoint and says,

[00:03:03] Speaker 00:
Did the sender sign up?

[00:03:05] Speaker 00:
If the sender did sign up, the message is allowed to continue on its journey to that final destination, which is where the owner, or at least I guess you could call them the lessor of the number, could access it.

[00:03:18] Speaker 01:
If the sender did not sign up.

[00:03:20] Speaker 01:
With respect, I don't think you answered Judge Rakoff's question.

[00:03:23] Speaker 01:
He asked you whether the text went to the number that was listed on the invitation.

[00:03:28] Speaker 01:
And I think the answer to that is yes, is it not?

[00:03:31] Speaker 00:
I don't think so, Your Honor.

[00:03:32] Speaker 00:
Why is that?

[00:03:37] Speaker 00:
I think that sort of assumes the issue, which is that it went as part of the process to getting to that final number, the way we perceive that final number.

[00:03:50] Speaker 01:
What was the final number?

[00:03:52] Speaker 01:
Again, I struggle, apparently, as my colleague does.

[00:03:56] Speaker 01:
As I understand it, the invitation had a number which was X.

[00:04:00] Speaker 01:
your client had an anticipation that it would be to the celebrity.

[00:04:06] Speaker 01:
But the reality is it went to the number that was listed.

[00:04:10] Speaker 01:
Now what happened after that is a different issue, but when you talk about transit, isn't the issue of what the number was and what was received and whether it was intercepted in transit an important factor?

[00:04:25] Speaker 00:
It is, but I think what

[00:04:28] Speaker 00:
The main issue with this is that there were apparently two different destinations depending on when someone signed up.

[00:04:37] Speaker 00:
So the concept of, did it go to the number?

[00:04:40] Speaker 00:
Well, if it went to the number in this circumstance, but it was going somewhere different in a circumstance where they signed up, that's a question of which one actually constitutes that final destination.

[00:04:50] Speaker 00:
And I think that's where the hang up is.

[00:04:52] Speaker 00:
Forgive me, what you just said doesn't make any sense to me.

[00:04:56] Speaker 01:
Would you please explain it again?

[00:04:58] Speaker 00:
That's fair.

[00:04:59] Speaker 00:
Sure, so the way their system works, and this is something they put in their response brief, and I think maybe their language is best to explain it, is that community members text the community leaders at their community number.

[00:05:13] Speaker 00:
Leaders can access and respond to those messages through community's platform.

[00:05:18] Speaker 00:
If an individual does not sign up and agree to those terms of service, however, their messages do not appear on the platform.

[00:05:25] Speaker 00:
That to us, the platform that they refer to in their response brief in that context, that is the number.

[00:05:32] Speaker 00:
That is the destination.

[00:05:33] Speaker 01:
But again, I understand you're a good lawyer and you're trying to argue for something different than what, to me, the words say.

[00:05:41] Speaker 01:
The words say, you know, if you want to reach this, you've got to text this community number.

[00:05:47] Speaker 01:
That's what happened.

[00:05:49] Speaker 01:
The community got it.

[00:05:50] Speaker 01:
And if you listen to the rest of it, it suggests that if you sign up for something, then it will be passed on to the celebrity who may respond through the community number.

[00:05:59] Speaker 01:
But if you will, the hub was the community number.

[00:06:03] Speaker 01:
And if I understand the facts correctly, your client texted what I'll call the hub.

[00:06:09] Speaker 01:
It was received there.

[00:06:10] Speaker 01:
That was the intended destination as far as the number is concerned.

[00:06:14] Speaker 01:
Is that correct?

[00:06:17] Speaker 00:
I don't believe that is correct, but I also don't want to fight the hypothetical because I understand this perspective.

[00:06:24] Speaker 00:
I, we, the best analogy for this, and I don't want to, we don't think that community is anything like a Verizon or an AT&T or communications carrier.

[00:06:34] Speaker 00:
But if you're texting, if you're on Verizon and you're texting someone on AT&T and it hits AT&T server and AT&T says, well, you're not an AT&T subscriber.

[00:06:44] Speaker 00:
We want you to sign up for AT&T.

[00:06:45] Speaker 00:
Sign up for AT&T or we won't pass your message along.

[00:06:49] Speaker 00:
The message didn't reach the AT&T number.

[00:06:51] Speaker 00:
And in this analogy, we're saying that community, at least in this intermediary context, is more like that AT&T, not the individual.

[00:07:00] Speaker 01:
Well, again, I take your point.

[00:07:02] Speaker 01:
But you don't have that with AT&T and Verizon.

[00:07:05] Speaker 01:
You don't have a document that says, if you send something to AT&T, we're going to see if Verizon wants to talk to you.

[00:07:13] Speaker 01:
Whereas in this case, if I understand it correctly,

[00:07:17] Speaker 01:
the ad, if you will, says, text this number, and then community will pass it on to the celebrity who may respond to you if you've signed up.

[00:07:27] Speaker 01:
Now, that's different than your AT&T and Verizon example, if I'm understanding it correctly.

[00:07:33] Speaker 01:
Isn't that right?

[00:07:35] Speaker 00:
I think it's different in some ways, but I think in the most meaningful way, or the way that's relevant to this case, it's not.

[00:07:41] Speaker 00:
Because I think the

[00:07:43] Speaker 00:
the communities acting as this intermediary or ostensibly as an intermediary where they assign numbers to these celebrities.

[00:07:51] Speaker 01:
But again, I guess what I'm trying to say is that what you read from what was posted makes that clear.

[00:08:01] Speaker 01:
There's nothing in there that, at least as I understand it, that says, when you text this number, you're going to be talking directly to the celebrity and the celebrity is going to contact you directly without any reference to community or any sign up or anything.

[00:08:15] Speaker 01:
Quite the contrary.

[00:08:15] Speaker 01:
They say, you send it to this number and if you sign up, the celebrity can return it to you through community's number.

[00:08:24] Speaker 01:
Isn't that correct?

[00:08:26] Speaker 00:
I think that's not ... First of all, the only thing that our client knows about what they're sending is what the celebrity put out.

[00:08:35] Speaker 00:
In this particular factual circumstance, and in most that we looked at, what the celebrity puts out is, this is my phone number, text me, I'll respond.

[00:08:44] Speaker 00:
This is, we'll talk, or et cetera, et cetera.

[00:08:47] Speaker 02:
Right.

[00:08:47] Speaker 02:
There may be an aspect of false advertising there, but that's not the claim you're bringing.

[00:08:54] Speaker 02:
So your clients may have been misled into believing that they would talk directly to the guy, but

[00:09:03] Speaker 02:
under the statutes that you're proceeding, the question is whether when they access that number in response to the invitation, they were going to the number that was indicated or whether en route it was intercepted.

[00:09:26] Speaker 02:
And what I think Judge Smith is saying is it wasn't intercepted.

[00:09:29] Speaker 02:
went to that number but the arrangement the company had in effect which we could sort of understand but they didn't disclose it kind of a screening to keep out crazy people and stuff like that so the when you access that number the message would go to that number it wouldn't be intercepted but community would then look it over

[00:09:55] Speaker 02:
and see whether it's appropriate to pass on to the celebrity.

[00:10:01] Speaker 02:
Is that the way it works?

[00:10:04] Speaker 00:
I think in part, but I think there's still an issue here of one, it's sort of a side question of, but this is not the only reason they were looking at these messages.

[00:10:14] Speaker 00:
They expressly say, you know, this is for marketing.

[00:10:17] Speaker 00:
You give us royalty-free use of these messages.

[00:10:20] Speaker 00:
So while there was ostensibly a component of let's protect our clients, it was also for their revenue and business generation.

[00:10:26] Speaker 02:
Okay, I accept that, but it's still, the point is, you call the number, you get the number.

[00:10:33] Speaker 02:
or in this case who attached the number, is there's no interception on the what?

[00:10:42] Speaker 00:
I think the question, the core question on that, and I think this is something that we don't know because it's a very technical workings of the system, is that there is indisputably a subsequent step on the journey to where it could be perceived

[00:10:59] Speaker 00:
for this message to take.

[00:11:01] Speaker 00:
I don't think there's any way around that.

[00:11:02] Speaker 00:
Once you sign up, the message has somewhere else to go.

[00:11:05] Speaker 00:
So the question is, does that somewhere else to go render the message still in transit or does this checkpoint essentially serve to terminate transit?

[00:11:14] Speaker 00:
And our position is that so long as there is that additional step on the journey, transit is not complete.

[00:11:20] Speaker 00:
Even though it's sitting at this server sort of idling waiting for you to sign up, it's like if you're at a gated community and you're asked to show your ID,

[00:11:28] Speaker 00:
you've done your transit just because you're at the checkpoint.

[00:11:31] Speaker 00:
You're showing your ID, they let you through, and then you get to your destination.

[00:11:35] Speaker 00:
That's what we love about their service function, yes.

[00:11:37] Speaker 01:
I get your point, but surely you can see why the construction of transit that the district court put on this is also perfectly reasonable.

[00:11:46] Speaker 01:
Can you not, given the writing that was put out there?

[00:11:51] Speaker 00:
I think it's reasonable if we're adopting the construction of how their system functions, which is something that comes sort of a one-sided perspective from their position.

[00:12:02] Speaker 00:
I think there's enough technical aspects to how this actually functions of whether this was actually the destination of the number or whether this was an intermediary checkpoint server that some level of this- Let me understand your argument here.

[00:12:17] Speaker 02:
Supposing if you call

[00:12:20] Speaker 02:
You get this invitation from a celebrity, you know, call my number.

[00:12:26] Speaker 02:
You call the number and the person who, and you get that number and the person who answers the number is the secretary.

[00:12:35] Speaker 02:
Hello, I'm Mr. Celebrity Secretary.

[00:12:38] Speaker 02:
Can I help you?

[00:12:40] Speaker 02:
And then the secretary either passes it on or not depending on whether she thinks you're legit or not.

[00:12:54] Speaker 02:
Is that a violation of your statutes?

[00:12:57] Speaker 00:
No, because in that scenario, the communication, you dial a number, it completed the transmission.

[00:13:05] Speaker 00:
What we're not alleging is that

[00:13:07] Speaker 00:
that it got to from A to B. Let me get on the camera.

[00:13:10] Speaker 00:
It got from A to B and then it, you know, something happened at B. Like all of the cases about emails and bulletin board stuff deals with something happening after it hit that point B.

[00:13:22] Speaker 00:
What we're alleging is that you had something along this pathway, this transmission pathway that said, did you sign up?

[00:13:28] Speaker 00:
No, you're going up here and you're sitting right there.

[00:13:30] Speaker 00:
It never reaches this beat point B. That's our position.

[00:13:33] Speaker 01:
Counsel, I think you have well articulated your point, whether we agree is another matter, but let me just go to a separate issue.

[00:13:41] Speaker 01:
Why is it really reasonable that Ms.

[00:13:44] Speaker 01:
Bolton thought

[00:13:46] Speaker 01:
that her text to a stranger she'd never met, along with millions of other people, would be, in quotes, confidential under the statute.

[00:13:55] Speaker 00:
Because confidential doesn't have anything to do with what the end user of the communication can or does do with that communication.

[00:14:04] Speaker 00:
The California Supreme Court and the appellate courts have been very clear on this point that subsequent dissemination is irrelevant to the confidentiality analysis.

[00:14:15] Speaker 01:
That's not my question.

[00:14:17] Speaker 01:
My question is, how could your client

[00:14:20] Speaker 01:
assume that this was remotely confidential given the nature of the invitation and the number of people that arguably would be responding to this same invitation.

[00:14:34] Speaker 00:
Well, I don't think confidentiality has to do with how many other people are texting this number.

[00:14:38] Speaker 00:
Confidentiality has to do with whether her particular message will be read by someone else in real time.

[00:14:46] Speaker 00:
It's that firsthand

[00:14:47] Speaker 00:
dissemination and control that matters.

[00:14:49] Speaker 00:
So that doesn't matter whether the recipient is super popular or just their mother.

[00:14:54] Speaker 00:
I mean, the whole business model of community, which manifested through the way these celebrities put out their number, was to give the appearance of text a celebrity like you're texting your best friend or mother.

[00:15:05] Speaker 00:
And they worked with these celebrities, as we allege, to put their numbers out in that way to give that appearance of confidentiality.

[00:15:11] Speaker 00:
So it's not about who the celebrity was, it's more about was anyone

[00:15:16] Speaker 00:
Were you deprived of your firsthand dissemination of your message?

[00:15:19] Speaker 00:
And we don't think there's anything about a written communication or about the recipient that changes that analysis, which the Supreme Court has repeatedly adopted.

[00:15:29] Speaker 02:
I'm not sure the analogy of LL Cool J to someone's mother is a perfect analogy.

[00:15:36] Speaker 00:
We agree, but that's the business model that they put out.

[00:15:41] Speaker 00:
I agree with that.

[00:15:43] Speaker 04:
All right.

[00:15:43] Speaker 04:
Thank you, Council.

[00:15:45] Speaker 04:
We'll give you a couple minutes for rebuttal.

[00:15:48] Speaker 00:
Thank you, Your Honor.

[00:15:50] Speaker 04:
Mr. Matsui?

[00:15:57] Speaker 04:
Mr. Matsui?

[00:15:59] Speaker 04:
Is he frozen?

[00:16:00] Speaker 03:
Yeah, he's frozen.

[00:16:03] Speaker 03:
Thank you, Your Honor.

[00:16:03] Speaker 03:
There he is.

[00:16:06] Speaker 01:
I'm sorry.

[00:16:07] Speaker 01:
You're breaking up.

[00:16:10] Speaker 01:
Oh, I think you were mute for a minute, but you may not be a mute anymore, so.

[00:16:14] Speaker 01:
I apologize.

[00:16:15] Speaker 03:
I apologize.

[00:16:18] Speaker 03:
The District Court correctly dismissed Plaintiff's Claims.

[00:16:20] Speaker 04:
Now, so for the record, could you just state your name and who you represent?

[00:16:23] Speaker 03:
Certainly, Your Honor.

[00:16:24] Speaker 03:
I thought I did that.

[00:16:25] Speaker 03:
Maybe I broke up at that moment.

[00:16:27] Speaker 03:
We support Brian Matsui on behalf of community.com.

[00:16:34] Speaker 03:
He dismissed Plaintiff's Claims.

[00:16:37] Speaker 03:
under the Federal Wiretap Act and the California Invasion of Privacy Act.

[00:16:43] Speaker 04:
You're breaking up, Mr. Matsui.

[00:16:46] Speaker 03:
Okay, I apologize for that, Your Honor.

[00:16:49] Speaker 03:
I believed I had a stable interconnection in the office.

[00:16:54] Speaker 03:
Is it possible for me to try to disconnect and reconnect?

[00:16:59] Speaker 03:
We'll have to ask our- With the courts indulgent.

[00:17:02] Speaker 04:
All right, let's see if that works.

[00:17:05] Speaker 03:
Okay.

[00:17:09] Speaker 04:
Could you stop the clock, please?

[00:17:11] Speaker 04:
Madam Clerk?

[00:17:25] Speaker 05:
Apologies, judges.

[00:17:26] Speaker 05:
I was dealing with a different courtroom.

[00:17:28] Speaker 05:
Is there an issue?

[00:17:30] Speaker 04:
It's breaking up.

[00:17:33] Speaker 04:
Mr. Matsui is breaking up.

[00:17:34] Speaker 04:
He's trying to call back in and reconnect.

[00:17:38] Speaker 05:
Understood.

[00:17:38] Speaker 05:
I will wait for them to reconnect.

[00:17:40] Speaker 05:
Thank you, Judge.

[00:17:41] Speaker 04:
Thank you, Callie.

[00:17:47] Speaker 01:
So Judge Rakoff, you think that LL Cool J and your mother are different?

[00:17:52] Speaker 02:
Well, yeah, of course, my mother was a wonderful entertainer, but perhaps in a different style.

[00:18:06] Speaker 05:
Here comes counsel Matsui.

[00:18:16] Speaker 04:
All right.

[00:18:16] Speaker 04:
Thank you.

[00:18:17] Speaker 05:
Thank you, judges.

[00:18:26] Speaker 04:
All right, Mr. Metzly, let's try it again.

[00:18:28] Speaker 03:
Okay, thank you, Your Honor.

[00:18:30] Speaker 03:
I appreciate the opportunity to try again.

[00:18:34] Speaker 03:
I just would like to say, you know, the crook of the plaintiff's appeal here is that she wanted to communicate directly with the celebrity, LL Cool J, and she felt that she was effectively tricked by a TikTok video into sending a message to his community number instead of his personal one.

[00:18:51] Speaker 03:
Whatever disappointment she might have with what happened there,

[00:18:55] Speaker 03:
That's not a violation of criminal law laws that she says the community violated.

[00:19:01] Speaker 03:
And I'd like to begin where most of the court's attention was spent on the wire tap act and then briefly discuss some of the county state law issues.

[00:19:11] Speaker 03:
I think that as this court question sort of like indicated, the key issue here is whether or not there was an interception during transmission because the wire tap act and section 631 require

[00:19:24] Speaker 03:
an actual interception of an electronic communication during the transmission itself.

[00:19:31] Speaker 03:
And we know that that's not what happened here because the electronic communication reached the number that plaintiffs sent the text message to.

[00:19:41] Speaker 03:
Much of her allegations in the complaint indicate that she directed the text to LL Cool J's community number and the community received, the community number received that text.

[00:19:52] Speaker 03:
Her real complaint is that

[00:19:54] Speaker 03:
LL Cool J, the individual, the person, the celebrity, didn't actually receive and look at that text message.

[00:20:02] Speaker 03:
Well, there's nothing in the Wiretap Act that would address a situation like that.

[00:20:07] Speaker 03:
Now, it could be that in certain situations, once a message is in storage, then you have laws that deal with electronic communications that are stored.

[00:20:19] Speaker 03:
But the Wiretap Act deals completely

[00:20:22] Speaker 03:
with claims that happened, with transmissions that happened, electronic communications that happened during transmission, and that they have to actually be intercepted.

[00:20:34] Speaker 03:
I think it's important also just to take a step back and look that much of plaintiff's argument seemed to be based upon what the plaintiff's intent was here, that the intent was to send something to LL Cool J's number.

[00:20:49] Speaker 03:
Well, she sent a text

[00:20:51] Speaker 03:
one text only to the number that she received on the TikTok video, which was to the community number that was associated with it.

[00:20:59] Speaker 02:
I think an argument could be made that your client misled her and others by not making clear that if you call this number, you're going to have to sign up for this and provide that and so forth.

[00:21:18] Speaker 02:
But that's not the claim that's being made here.

[00:21:22] Speaker 03:
I think that what community did was explain that this is how you create this dialogue.

[00:21:30] Speaker 03:
But what happened here was just one text message.

[00:21:33] Speaker 03:
And what was brought was a wiretap act claim.

[00:21:37] Speaker 03:
And that's something that requires an interception.

[00:21:39] Speaker 03:
It's a criminal law.

[00:21:41] Speaker 03:
And I think that

[00:21:42] Speaker 03:
given that it's a criminal law, what this court hold would create open the door to numerous situations.

[00:21:48] Speaker 03:
For example, if stalkers decide to text people, then services that could block the stalker would end up being in a situation where they could end up being liable under federal criminal law.

[00:22:01] Speaker 03:
And that's not what Congress intended here.

[00:22:03] Speaker 03:
And that's why you have to have an interception during the transmission itself.

[00:22:12] Speaker 01:
As you know, with, of course, the exception of the 18 USC 2511A claim, these are all California state law construction issues.

[00:22:29] Speaker 01:
It appears that there's not too much definitive law in California on the issues that are raised in this particular case.

[00:22:40] Speaker 01:
Would you agree with that or do you think that the issue of what was in transit in this case is clearly defined under California case law?

[00:22:51] Speaker 03:
I think it is clearly defined.

[00:22:53] Speaker 03:
I mean, I think that to take a step back, I think that when you look at the text of the statute, it's very clear that you have to have some- That's a different issue.

[00:23:01] Speaker 01:
I understand your construction of the statute.

[00:23:04] Speaker 01:
What I'm saying is have the California courts

[00:23:08] Speaker 01:
construed the statute at issue here in such a way that we can, with confidence, apply what they have said to the facts in this case?

[00:23:21] Speaker 03:
I think it depends entirely on how narrow one were to look at the facts of the case.

[00:23:26] Speaker 03:
There certainly is California law that would apply in situations where, whether, you know, a telephone conversation has been

[00:23:37] Speaker 03:
over her in situations like that.

[00:23:40] Speaker 03:
But what I think what that underscores is that there's a disconnect between what plaintiff has alleged in this complaint and this, for example, the 631 issue with respect to what constitutes in transit.

[00:23:56] Speaker 03:
Because I think that, your honor, if you're alluding to sort of the slightly different language of while being received in section 631,

[00:24:07] Speaker 03:
That really is meant to capture situations where someone's overhearing something on the telephone.

[00:24:13] Speaker 01:
They're trying to capture the fact that- And I understand that potential construction.

[00:24:19] Speaker 01:
My question to you is, we're a federal appellate court.

[00:24:23] Speaker 01:
We're doing, except for the issue of the 25111A claim, we're doing with matters of California statutory law.

[00:24:33] Speaker 01:
To the degree that California case law does not clearly address, or by analogy, addresses the issues in this case, we can, of course, if there's case law in the courts of appeal, that we can predict with some degree of certainty what the California Supreme Court would do, we can construe that.

[00:24:56] Speaker 01:
But we're really not generally advised to do and not really much at liberty to be construing California law

[00:25:03] Speaker 01:
if there is no guidance in that regard.

[00:25:05] Speaker 01:
So my question to you again is, what California case law would you refer us to in each case here that would be, from your perspective, at the very least, an invitation to us to follow what the guidance of the California Courts of Appeal have provided, or to the degree appropriate, the California Supreme Court?

[00:25:30] Speaker 01:
Am I question clear?

[00:25:31] Speaker 03:
Yes, yes, Your Honor, I understand that.

[00:25:33] Speaker 03:
So I think that for the 631 claim, it probably would be People versus Wilson would be a case that the court could follow.

[00:25:41] Speaker 03:
I also would just like to, of course, emphasize that when this court predicts what the California Supreme Court does, it does it both on case law and based upon what the text of the statute would read.

[00:25:54] Speaker 03:
And I think that there would be a lot of confidence in the court being able to understand that

[00:26:00] Speaker 03:
the text of the statute makes clear that it would have to be an interception both before and after, before it was received.

[00:26:10] Speaker 01:
Yeah, and you're talking about the way the statute ought to be construed.

[00:26:14] Speaker 01:
My question to you again is, I gather you are saying that if we take each of these California statutes

[00:26:23] Speaker 01:
that there is California case law that gets you to where you want to get.

[00:26:27] Speaker 01:
We can construe it appropriately, given our role as a federal appellate court.

[00:26:33] Speaker 01:
Is that right?

[00:26:34] Speaker 03:
I believe that, yes, Your Honor, that's correct.

[00:26:36] Speaker 03:
And I was going to say for section 632, for example, there is the California Supreme Court Smith case, which has a footnote in dicta, which indicates that things like facile effects and text

[00:26:49] Speaker 03:
are not inherently confidential communications.

[00:26:52] Speaker 03:
Again, that's dicta, but I think that this court would follow California Supreme Court dicta because that's a good indication of what the California Supreme Court would end up doing.

[00:27:03] Speaker 03:
So I believe that when you look at these claims the plaintiff is bringing, there is California court precedent, which would provide guidance along with the text of the statute, which would make clear that you do not have any sort of

[00:27:19] Speaker 03:
claim based upon sort of interception over the wire or for invading privacies with respect to text messages while they're in transit, which is how these claims are being based.

[00:27:34] Speaker 03:
The last thing I'll say is that with respect to the 632 claim, which the court discussed a bit on whether or not there was a confidential communication,

[00:27:44] Speaker 03:
I don't think that there are any plausible allegations that you could have a confidential communication when you send a text message to a celebrity based upon a number that you hear in a TikTok video.

[00:27:56] Speaker 03:
But even if we were to say that based upon that, there is California law based upon the Smith decision, based upon the Nakai decision, which indicates that when you have electronic communications like emails and texts, they are not

[00:28:14] Speaker 03:
subject to any sort of reasonable expectation of confidentiality because there are things that just can be so easily shared.

[00:28:22] Speaker 03:
And so the California courts have indicated that you don't have a 632 claim when you're dealing with things like emails and text messages.

[00:28:35] Speaker 03:
If there are no further questions, we would ask the court to affirm.

[00:28:39] Speaker 04:
All right, thank you, counsel.

[00:28:41] Speaker 04:
Let's give two minutes for rebuttal.

[00:28:45] Speaker 00:
Thank you, your honor.

[00:28:46] Speaker 00:
I just want to touch on a couple of quick items.

[00:28:49] Speaker 00:
I think the one item, because your honors had continuously asked, you know, did this get to the community number?

[00:28:56] Speaker 00:
And I think, again, given that we're dealing with this sort of modern and sort of, I guess, cutting edge sort of approach of how this number functioned,

[00:29:05] Speaker 00:
It's a very highly technical question of whether it actually reached the community number or some intermediate step before it reached what is conceived or perceived as the community number from community's perspective.

[00:29:18] Speaker 01:
I hear what you're saying, but I don't find it be at all highly technical.

[00:29:23] Speaker 01:
If the number was X, she texted to X and it was received by X. What's highly technical about that?

[00:29:31] Speaker 00:
I think what's highly technical would be sort of what some of these courts that talked about the difficulty of intercepting electronic communications touch on.

[00:29:39] Speaker 00:
And I think the Yaqui Court touches on it as well.

[00:29:42] Speaker 00:
When there is this automatic rerouting process sitting on the stream of communications, that is one of the still possible avenues that these instances communicate.

[00:29:52] Speaker 02:
You haven't alleged that in your complaint, have you?

[00:29:56] Speaker 00:
that it's automatic rerouting.

[00:29:58] Speaker 00:
We do say that they rerouted, withheld them from the intended... No, yes, that's a different point.

[00:30:05] Speaker 02:
But you don't say that it did not reach the number that it was sent to, which would be what a rerouting would be.

[00:30:14] Speaker 02:
And I didn't see anything to complain to that of.

[00:30:18] Speaker 00:
If we didn't plead it that clearly, I think that's something we absolutely could and would plead.

[00:30:22] Speaker 00:
But again, we were dismissed on first instance with prejudice.

[00:30:25] Speaker 00:
And I think while it is a tough question, I don't think it's- What would be your basis for making that assertion?

[00:30:32] Speaker 00:
I think similar to what happened with the, if it functions, if this is functioning akin to an API, like we saw in Yaqui, where it hit a chat, it hit the server intermediary before it hit the actual destination.

[00:30:46] Speaker 00:
I think that's an example of where this intermediary is maybe part of that transmission, but is not the necessary, is not the actual destination.

[00:30:55] Speaker 00:
So I think something like that is the analogy that we would draw here.

[00:31:03] Speaker 00:
And I just do want to quickly say, if I can have another 30 seconds, that while transit is fatal to the ECPA claim, if there's no transit, there's no ECPA claim.

[00:31:14] Speaker 00:
We can see that.

[00:31:15] Speaker 00:
We do think under SIPA 631, there is this alternative temporal obtainment process where it was being sent from or received in California.

[00:31:26] Speaker 00:
I don't think there's a dispute that it wasn't received by the intended recipient.

[00:31:30] Speaker 00:
And I don't know of any California case law that discusses what that particular receipt in the process of being received means.

[00:31:39] Speaker 00:
And I think there's a window here where that could be a distinction between something in transit and something being received if it's stuck on this server pre-signup.

[00:31:48] Speaker 04:
All right, counsel.

[00:31:49] Speaker 04:
Thank you to both counsel for your helpful arguments.

[00:31:51] Speaker 04:
The case just argued and submitted for decision by the court.