[00:00:03] Speaker 04: Thank you, Your Honours. [00:00:04] Speaker 04: May it please the Court, Naren Kumar, for Plaintiff Appellant Nora Gutierrez. [00:00:09] Speaker 04: I'd like to reserve four minutes of my time. [00:00:12] Speaker 04: Okay, please watch the clock. [00:00:15] Speaker 04: So if I could, I'd like to begin with the first issue presented on appeal, the question of interception under Clause 631A, Clause 1, and whether or not it applies to the internet. [00:00:30] Speaker 04: The district court decided and held that it does not. [00:00:35] Speaker 04: Sort of the plain meaning, in a sense, as it was applying it, that the phrase telephone and telegraph and telephone communications is often been used and was in fact cited by the district court. [00:00:53] Speaker 04: But the actual language is certainly much broader [00:00:58] Speaker 04: it applies to any telegraph or telephone wire, line, cable, or instrument. [00:01:04] Speaker 04: And we think that this language in our case is dispositive. [00:01:06] Speaker 01: Can you explain how Salesforce actually works? [00:01:10] Speaker 01: I did look at the two experts' declarations, but was left as confused as I came. [00:01:18] Speaker 01: So maybe you could tell us in simple language, because I know internet can sometimes be spread over telecommunications lines. [00:01:25] Speaker 01: So can you explain us how that works? [00:01:29] Speaker 04: Sure. [00:01:29] Speaker 04: Of course, Your Honor. [00:01:30] Speaker 04: So Nora Gutierrez types a query question into the little search [00:01:36] Speaker 04: pop up on Nike, or in this case, Congress's website. [00:01:41] Speaker 04: It could be on her home computer, it could be on a cell phone. [00:01:48] Speaker 04: In this case, it's undisputed that it was on her cell phone. [00:01:52] Speaker 04: So you go to the website, there's a little sort of [00:01:56] Speaker 04: I don't want to quite say pop-up, but it is part of the website there, where then you can put in, type in whatever your question is. [00:02:03] Speaker 04: And then that question is transmitted to Salesforce's website. [00:02:08] Speaker 01: And how is it transmitted? [00:02:09] Speaker 01: But in what way? [00:02:11] Speaker 01: So I have my cell phone. [00:02:13] Speaker 01: I type on my cell phone. [00:02:15] Speaker 01: To me, it's just magically. [00:02:18] Speaker 01: How does it actually work? [00:02:21] Speaker 04: It's, as my understanding, it's going to generally be transmitted through data, through the... Does it go to a cell tower? [00:02:32] Speaker 01: Does it go to a repeater? [00:02:33] Speaker 01: Where does it go? [00:02:34] Speaker 04: It's eventually going to a cell tower. [00:02:37] Speaker 04: Well, I guess, let me correct myself. [00:02:39] Speaker 04: It may depend on whether or not you're on a Wi-Fi network, or you are sort of using cellular data provided by a third-party company. [00:02:51] Speaker 01: Do we know what it was in this case? [00:02:53] Speaker 04: In this case, I would have to double-check, but I believe it was her home Wi-Fi. [00:02:59] Speaker 01: So it goes to the home Wi-Fi, and then where does that go? [00:03:02] Speaker 04: The home Wi-Fi will then send it to the... Over wires? [00:03:06] Speaker 01: Is it over wires? [00:03:07] Speaker 01: Or is it through radio signals? [00:03:10] Speaker 01: How does it go? [00:03:11] Speaker 04: It will be through some, I guess, radio signal in a sense. [00:03:15] Speaker 04: It's going to be some form of wireless communication to her home router. [00:03:19] Speaker 04: And then her home router is going to... [00:03:23] Speaker 04: obviously plugged into the usually most often network cable line, which will go directly to her internet service provider, who will then, through the sort of series of tubes that is the internet, get that to Converse's website. [00:03:37] Speaker 01: So the cable is a wire, or is it something else? [00:03:41] Speaker 04: The cable will be a wire, yes. [00:03:43] Speaker 04: Your home internet line is usually coming out through a physical cable. [00:03:49] Speaker 04: There is certainly a cable that is connecting you and your internet service provider. [00:03:53] Speaker 01: Is that different than if I make a telephone call? [00:03:56] Speaker 01: Or does that work the same way? [00:03:58] Speaker 01: She's in her house, she makes a call. [00:04:00] Speaker 04: In our view, it's exactly the same, whether or not it's coming through your home through a sort of a cable or cable line or a more traditional landline telephone. [00:04:12] Speaker 04: In fact, to us, there's no meaningful distinction. [00:04:15] Speaker 01: So where does Salesforce intersect with that? [00:04:19] Speaker 04: So when she types in her message, it goes from her computer or from her phone in this case to directly to Salesforce. [00:04:27] Speaker 01: So it goes over the wire, or goes through the Wi-Fi, or has to go directly to Salesforce? [00:04:34] Speaker 04: Well, it will go, in fact, in this case, over both. [00:04:36] Speaker 04: It'll go over wires and over wireless. [00:04:40] Speaker 04: And it will then be transmitted to her, in this case, her ISP. [00:04:47] Speaker 04: And then that will transmit it to Salesforce over cables. [00:04:53] Speaker 01: Over wire. [00:04:54] Speaker 01: OK. [00:04:56] Speaker 02: And Council, the 631 feels a little wrenched here. [00:05:02] Speaker 02: It's clear it was adopted in 1967. [00:05:04] Speaker 02: It's a different technological background. [00:05:07] Speaker 02: They were concerned about eavesdropping, references to telephones, telegraphs. [00:05:12] Speaker 02: It really feels very anachronistic. [00:05:15] Speaker 02: California has amended its statutes, and you have other causes of action you might have brought. [00:05:20] Speaker 02: You might have brought one under 1798. [00:05:22] Speaker 02: You might have brought one under, it looks like, 632-01. [00:05:25] Speaker 02: Those are much more recent California statutes that refer to the internet and provide causes of action for people who release information that's obtained over the internet. [00:05:40] Speaker 02: Why should we hold that 631 applies to the internet? [00:05:46] Speaker 04: I appreciate the question, Your Honor. [00:05:47] Speaker 04: And so we're specifically talking about clause one here. [00:05:50] Speaker 04: And because there's no dispute, at least in this case, that clauses two and three certainly can apply to the internet. [00:05:57] Speaker 04: And so for clause one, certainly to some degree, telegraph isn't the language that seems the most technologically up to date. [00:06:09] Speaker 04: But certainly the fact that the legislature has updated all of these, in some cases, updated other references. [00:06:15] Speaker 04: And in the case of 631, [00:06:17] Speaker 04: S61A has in fact also specified, you know, through its exceptions, more recent technology suggests that the legislature is certainly aware of and has no problem continuing to apply these phrases according to, you know, their plain meaning. [00:06:33] Speaker 02: Yeah, but plain meaning, this is telephone and telegraph. [00:06:37] Speaker 02: I just, I mean, it just, again, it just feels really, really wrenched here. [00:06:42] Speaker 02: when what they're concerned with is eavesdropping in a 1967 that had a particular understanding. [00:06:48] Speaker 02: When the California legislature addresses the internet and communications that are leaked from the internet to third parties and creates causes of action, it feels like this one is really branched. [00:07:01] Speaker 02: I'm sort of curious because it looks like there are other statutes where you might have had a good cause of action. [00:07:08] Speaker 04: So I think the important part of the statute is that the California legislature hasn't specified to the telegraph or telephone. [00:07:19] Speaker 04: It's in fact specifying specific devices and aspects of the technology which it's trying to protect. [00:07:25] Speaker 04: And here it's in fact protecting [00:07:27] Speaker 04: telephone instruments, which we think is the most salient point, because the statute is telegraph or telephone wire, line, cable, or instrument. [00:07:37] Speaker 04: And so we think that, in fact, that plain language very clearly has to cover other things which are telephone instruments, like an iPhone. [00:07:45] Speaker 04: And we think that there is no real distinction or way in the statute to parse an iPhone using [00:07:52] Speaker 02: Do you have any California cases that have held that one applies to the internet? [00:07:59] Speaker 04: I don't believe that there's any appellate authority in California on this. [00:08:03] Speaker 02: And a split authority among federal district courts on this one? [00:08:07] Speaker 02: Yes, Your Honor. [00:08:08] Speaker 02: And our loose statement in Javier? [00:08:12] Speaker 04: As well as the statement in Javier, yes. [00:08:14] Speaker 00: So are you saying that the claim depends on whether the person accesses the website through a cell phone versus through a desktop computer? [00:08:23] Speaker 04: That is not our position. [00:08:27] Speaker 04: Our position is the fact that a telephone instrument is clearly encompassed within the plain text of the statute there. [00:08:35] Speaker 00: It means that if an iPhone is covered... So basically your argument is if they access the website through a cell phone it's a really easy question, but if they accessed it through a desktop we still win. [00:08:45] Speaker 04: Yes, exactly, Your Honor. [00:08:46] Speaker 04: And the fact that it really doesn't seem like the California legislature had any intent to sort of parse out exactly the type of, you know, oh, well this is coming from this sort of device and then this, you know, it looks a little bit different here, but it's the identical communication. [00:09:02] Speaker 04: We don't think that given SIPA's broad purpose in protecting privacy and protecting California consumers, [00:09:08] Speaker 04: that it really makes any sense to sort of prohibit or, you know, differentiate claims or this exact same identical communication, you know, with privacy violated in the exact same way is covered under 631A, Clause 1, if it is on an iPhone, but, you know, if it's done on an iPad, it might be a completely different analysis. [00:09:29] Speaker 04: So I think really sort of the only holistic way to read this entire section as a whole is to understand that it does encompass the internet. [00:09:39] Speaker 04: It does encompass all of these communications. [00:09:42] Speaker 00: I have some confusion that Judge Akuta has mentioned in terms of just the technology. [00:09:47] Speaker 00: So I just want to, does a cell phone, when you access a website from a cell phone versus when you access a website from a laptop connected to a Wi-Fi network, so there is no wire, [00:09:59] Speaker 00: going to the laptop. [00:10:01] Speaker 00: What is the difference? [00:10:03] Speaker 00: Is there one? [00:10:05] Speaker 04: I mean, I think in both cases, those communications are touching wires. [00:10:09] Speaker 04: Those communications, by the time they get to the other end of conversation, have gone through many, many wires. [00:10:15] Speaker 00: So your argument isn't so simplistic as, if I'm accessing a website from a phone, of course the statute is triggered because it's a telephone. [00:10:23] Speaker 04: No, we think that is actually, in fact, a part of our argument. [00:10:27] Speaker 04: Yes, if you're using a telephone instrument, [00:10:29] Speaker 04: then your conversation is protected from interception. [00:10:32] Speaker 02: But there's no dial-up here. [00:10:34] Speaker 02: Nobody's using the phone function. [00:10:35] Speaker 02: If this was an iPhone, nobody's on the iPhone touching numbers in order to call sort of a phone-to-phone service. [00:10:45] Speaker 02: You're going to Safari, or you're going to Google. [00:10:48] Speaker 02: Yes, you are. [00:10:49] Speaker 02: And accessing that. [00:10:49] Speaker 02: So what you've got is a handheld computer. [00:10:52] Speaker 02: If you can't answer Judge Forrest's question about the desktop as being plainly covered, [00:10:58] Speaker 02: Then why is a handheld desktop and maybe it's just been misnamed by Apple? [00:11:04] Speaker 04: Well, we think I apologize if I misspoke. [00:11:07] Speaker 04: We do think that a desktop is going to be covered under this and we think that it really is because it's a telephone line is the telegraph line. [00:11:15] Speaker 04: I think certainly it would be analogous, as we point out in our brief, it is certainly analogous to a modern telegraph of transmitting ones and zeros in text is essentially the conversation that was occurring here. [00:11:28] Speaker 04: But we also think that it's sort of the only sort of rational way to interpret the statute. [00:11:33] Speaker 02: Once we accept that a telephone instrument covers an iPhone, the phrase telephone instrument doesn't sort of... Why wouldn't it be rational to interpret the statute to apply only to what it applied to in 1967? [00:11:45] Speaker 02: and look to the other statutes that California has recently adopted that refers specifically to the internet and social media and provide causes of action for people disclosing matters to third parties. [00:11:59] Speaker 04: Because the statute is very clear and just by the plain language, covers a telephone instrument. [00:12:03] Speaker 04: And that isn't specifying telephone instruments when it's using a telephone landline or a wire or telephone signal or anything else. [00:12:11] Speaker 04: It is a... California intended to protect telephone instruments being used. [00:12:17] Speaker 04: And an iPhone is clearly a telephone instrument. [00:12:20] Speaker 04: So the legislature clearly intended for that to be covered no matter how it was being used here and sort of the specifics of the technology. [00:12:28] Speaker 04: And the fact that indeed the legislature has amended the statute clearly expresses the understanding that certain, you know, for example, voice over internet protocol telephone calls under the opposing side's view would not be covered because they're using the internet. [00:12:47] Speaker 04: And those look and feel exactly like telephone calls. [00:12:50] Speaker 01: If a telephone call... You want to save some time for rebuttal? [00:12:53] Speaker 04: Oh, yes. [00:12:54] Speaker 04: I'd like to reserve my remaining two minutes for rebuttal. [00:12:58] Speaker 04: Thank you. [00:13:12] Speaker 03: If it may please the court, my name is Michael Roth. [00:13:14] Speaker 03: And I represent the defendant and appellee, Converse Inc. [00:13:19] Speaker 03: What you just heard was very complicated. [00:13:22] Speaker 03: But affirming the district court's decision here is very straightforward, because there's one thing that sets this case apart from every other SIPA case that's been filed. [00:13:30] Speaker 03: Hundreds of SIPA cases that have been filed after Javier. [00:13:34] Speaker 03: And that's because this case went to summary judgment. [00:13:37] Speaker 03: And nothing you just heard is in the record. [00:13:42] Speaker 03: The district court summary judgment ruling can be affirmed for two very simple reasons. [00:13:48] Speaker 03: Number one, as a matter of plain meaning and as a matter of evidence, the internet doesn't involve telephone and telegraph technologies. [00:13:59] Speaker 03: And number two, there was no evidence at all, not a scintilla of evidence [00:14:06] Speaker 03: that Salesforce read or had access to Ms. [00:14:09] Speaker 03: Goudier's chat message with Converse, and certainly not while it was in transit and in real time. [00:14:14] Speaker 01: With respect to your first point, can you explain why it's not a telecommunication system? [00:14:20] Speaker 01: At some point, the information from the phone goes over wires that are telecommunication live. [00:14:30] Speaker 03: can do my best. [00:14:32] Speaker 03: And I will also say that the only evidence in the record about this was from Converse's expert who did opine, and this is at year 128, that communications over the internet that are initiated from a mobile device through a Wi-Fi network do not implicate telephone and telegraph technologies. [00:14:56] Speaker 03: And I think they're fundamentally different technologies. [00:15:00] Speaker 01: But I know I pay for spectrum, and it's both my cable and my telephone and everything else. [00:15:09] Speaker 01: And so presumably they have one line that the information is going through. [00:15:14] Speaker 01: But I don't know. [00:15:17] Speaker 03: Well, currently you're paying for a bundled service. [00:15:19] Speaker 03: There have been times where you paid for all of those services separately. [00:15:23] Speaker 03: And there have been times when [00:15:26] Speaker 03: I'm old enough to remember this when you would actually access the internet through your telephone line, which you don't do anymore. [00:15:32] Speaker 03: It's accessed through radio waves and fiber optic cables. [00:15:37] Speaker 03: There are cables involved. [00:15:38] Speaker 01: And our phone service goes through something completely different or what? [00:15:42] Speaker 01: I mean, I don't have a landline. [00:15:44] Speaker 01: Only my parents would have had a landline. [00:15:47] Speaker 03: There are different types of phones. [00:15:49] Speaker 03: There are landlines, which obviously are going through wires and connecting through a switching station, which is owned by [00:15:55] Speaker 03: third parties. [00:15:56] Speaker 03: If you're using a cellular device, it connects either through your Wi-Fi or through your cell phone and ultimately goes through wires to a cellular tower. [00:16:06] Speaker 03: Those cellular towers are owned by third parties. [00:16:09] Speaker 03: They lease space to your cell phone provider. [00:16:13] Speaker 03: So you'll have AT&T and Verizon and multiple providers who are all leasing space. [00:16:19] Speaker 03: And then they will direct that through another [00:16:23] Speaker 03: I mean, it's cellular, right? [00:16:24] Speaker 03: So the idea of cellular is like our planet is divided into cells, and there's a tower at each point, and it's connecting from tower to tower almost instantly. [00:16:35] Speaker 03: But the key part about a telephone conversation is it's communicating your voice. [00:16:40] Speaker 03: And the way the statute's written, it's communicating your voice over wires, lines, [00:16:46] Speaker 03: and cables, and this is a wiretapping statute. [00:16:48] Speaker 01: So the other side says, what about voice over internet protocol, VOIP? [00:16:55] Speaker 03: That's not using a telephone or telegraph device. [00:16:57] Speaker 03: I don't think it matters that an iPhone is named an iPhone. [00:17:01] Speaker 03: An iPhone's also a camera. [00:17:03] Speaker 03: It's also a gaming device. [00:17:05] Speaker 03: What you're using to use your iPhone to connect to the internet, you have to access an app. [00:17:10] Speaker 03: This is your web browser. [00:17:11] Speaker 03: This is Safari. [00:17:13] Speaker 03: This is Chrome. [00:17:15] Speaker 03: Without that, [00:17:16] Speaker 03: You can't connect to the internet. [00:17:18] Speaker 03: If you open up the telephone app on your iPhone, you can't connect to the internet. [00:17:23] Speaker 03: You can't make a connection. [00:17:24] Speaker 03: Send data in packets, encrypted data through the HTTPS protocol. [00:17:31] Speaker 03: It just doesn't happen, right? [00:17:33] Speaker 03: It's your voice. [00:17:34] Speaker 03: Your voice hits wires, transfers through the wires to cellular towers. [00:17:42] Speaker 03: and is communicated to other phones through those cellular. [00:17:46] Speaker 01: Is that not an internal telephone communication system, which is in 631A clause 1? [00:17:54] Speaker 03: I think an internal telephone communication system has to do with internal within a building, for example. [00:18:02] Speaker 03: It's referring to something [00:18:03] Speaker 03: totally different, this is if you're making inter-office calls. [00:18:07] Speaker 03: And it's a wiretapping statute from 1967. [00:18:11] Speaker 03: What it criminalizes is making a tap into those forms of connecting two phones or two telegraphs. [00:18:21] Speaker 03: What we have here is an app, it's a web-based SaaS software that connects two people communicating. [00:18:29] Speaker 03: It's not intercepting it, it's forming the connection [00:18:32] Speaker 03: allowing two packets, multiple packets of information that are all encrypted to travel through the cloud and shake hands and meet each other so there can be a communication. [00:18:43] Speaker 03: This is actually facilitating the communication. [00:18:45] Speaker 03: It's not an interception by a third party. [00:18:52] Speaker 03: I think Judge Bybee, you referred to a split in district courts on how to read the statute. [00:18:56] Speaker 03: I think that's a generous reading. [00:18:58] Speaker 03: There have been hundreds of these cases after Javier [00:19:02] Speaker 03: We provided you with over two pages of cases saying, as a matter of plain statutory interpretation, clause one doesn't apply to the internet. [00:19:10] Speaker 03: There have been two decisions that said clause one applies to the internet. [00:19:16] Speaker 03: One was this case in front of Judge Klausner when it was first filed, and then when it was reassigned to Judge Cato, she looked [00:19:24] Speaker 03: at the evidence and she looked at the other decisions and changed that decision. [00:19:28] Speaker 03: And the other one was Kaufman and Kaufman just relied on Javier and Judge Klausner just relied on Javier. [00:19:34] Speaker 03: And Javier looked at clause two of SIPA to say that it applies to the internet. [00:19:40] Speaker 03: There's not a case. [00:19:40] Speaker 03: And do you think clause two does apply to the internet? [00:19:43] Speaker 03: I think clause two applies to communications and it's definitely written broader and it can refer to the communications while they're in transit or it can refer to the communications [00:19:53] Speaker 03: that are being sent or received, but it has a contemporaneous requirement. [00:19:57] Speaker 03: I think that because the internet is involved, it doesn't immunize you to liability under a clause two. [00:20:06] Speaker 03: And that's why it reached summary judgment here. [00:20:08] Speaker 03: And the plaintiff was required to put in evidence that that communication was being intercepted in real time by Salesforce, and they didn't do that. [00:20:20] Speaker 03: There wasn't a single piece of evidence that Salesforce [00:20:23] Speaker 03: was intercepting the communication in real time. [00:20:29] Speaker 03: The primary piece of evidence they relied on [00:20:32] Speaker 03: was their expert. [00:20:33] Speaker 03: But this wasn't a battle of the experts. [00:20:35] Speaker 03: The experts' entire opinion is eight pages. [00:20:38] Speaker 03: It was submitted in the context of class certification. [00:20:41] Speaker 03: And it raised issues that could be common to the class. [00:20:45] Speaker 03: I didn't answer a single one of those. [00:20:47] Speaker 03: You can read the entire declaration. [00:20:49] Speaker 03: It doesn't mention Ms. [00:20:50] Speaker 03: Gutierrez. [00:20:51] Speaker 03: It doesn't mention her chat communication. [00:20:54] Speaker 03: And it certainly doesn't say that Salesforce read that chat communication while it was in transit. [00:20:58] Speaker 01: So I understood the argument. [00:21:00] Speaker 01: Salesforce didn't read the chat information because it had agreed not to. [00:21:06] Speaker 01: In other words, it was a contractual thing. [00:21:08] Speaker 01: It wasn't that they were foreclosed from reading it. [00:21:13] Speaker 03: It was contractual and technological. [00:21:15] Speaker 03: This is SAS software that sits [00:21:18] Speaker 03: in the cloud and it's segmented so Converse's instance of the service cloud is siloed. [00:21:26] Speaker 03: So there are many companies that can contract with Salesforce. [00:21:29] Speaker 03: You have your separate piece of the service cloud and Salesforce by contract and technologically [00:21:36] Speaker 03: can't access converse as a piece. [00:21:38] Speaker 01: So technologically, I think the argument was, well, they encrypted it. [00:21:43] Speaker 01: But of course, whatever Salesforce encrypted, they cannot encrypt also, unless they're foreclosed by contract. [00:21:50] Speaker 03: Well, Salesforce can only unencrypted if it has the key to unencrypt it. [00:21:56] Speaker 03: And that key is given to [00:21:57] Speaker 03: Converse by contract it's not just a contractual obligation they have to Abide by there actually has to be a physical transfer someone says here's the code I'm giving I'm giving you the keys so that you can decipher this encrypted information and all of the evidence was that that did not happen Converse said it didn't happen salesforce said it didn't happen Contracts say it couldn't happen the audits that they that converse ran said it didn't happen [00:22:26] Speaker 03: This was a very straightforward issue on summary judgment. [00:22:28] Speaker 03: I mean, there just was no evidence at all that Salesforce was reading, attempting to read, or could read a communication while it was in transit. [00:22:38] Speaker 03: And it has to be real time also. [00:22:41] Speaker 03: There's a difference between Salesforce and its software and what's being recorded. [00:22:45] Speaker 03: There's nobody at Salesforce who's jumping in and breaking into Converse's access, Converse's siloed section of the service cloud and learning anything in real time. [00:22:55] Speaker 03: There's a customer service representative who's having a real time conversation with Ms. [00:23:01] Speaker 03: Gutierrez. [00:23:02] Speaker 03: She types in six words to generate a claim, and this is a made up claim, and then sues Converse for [00:23:09] Speaker 03: company killing statutory damages. [00:23:11] Speaker 03: This is why none of these cases make it to summary judgment and why this one did, because the company said enough of this already, that Javier doesn't apply to every [00:23:19] Speaker 03: third-party software used on the internet. [00:23:22] Speaker 03: It doesn't apply when somebody hosts your website. [00:23:24] Speaker 03: This is a wiretapping and eavesdropping statute. [00:23:27] Speaker 03: There's $5,000 in statutory damages for every violation and about a million people who access Congress's website during the statute of limitations. [00:23:37] Speaker 03: That's a $5 billion claim for helping customers, for providing customer service and support. [00:23:43] Speaker 03: That's not what this statute was supposed to do. [00:23:45] Speaker 03: This is a total misuse of the statute. [00:23:49] Speaker 03: And it made it to summary judgment, and it was an evidentiary burden. [00:23:54] Speaker 03: It was an evidentiary burden to say that telephone and telegraph technologies were in use and being tapped. [00:24:01] Speaker 03: And there was no evidence of that at all. [00:24:04] Speaker 03: So whether you agree with the district court and every other district court, this is dozens of judges in every district in California who have said the first clause doesn't apply to the internet, whether you treat it as a matter of statutory interpretation or a matter of evidence, [00:24:19] Speaker 03: There was no claim under the first clause. [00:24:23] Speaker 03: As to the second clause, there were three pieces of evidence. [00:24:27] Speaker 03: There's this declaration from the expert, who doesn't mention Gutierrez. [00:24:32] Speaker 03: He says there are the presence of uniform identifiers, UUIDs, that could in theory allow Salesforce to connect the dots between different data sets, but doesn't say that that ever happened, didn't happen with Ms. [00:24:47] Speaker 03: Gutierrez. [00:24:48] Speaker 03: It doesn't explain what that means. [00:24:50] Speaker 03: And then they refer to a login spreadsheet, which they didn't even bother to put in the excerpts of record. [00:24:56] Speaker 03: And that was just the only testimony about that was that it gave Salesforce access, if requested, to provide technological support. [00:25:04] Speaker 03: There's no evidence that that ever happened. [00:25:05] Speaker 03: The evidence was the opposite, that that permission was never granted. [00:25:10] Speaker 03: And that's the key, Judge Akita, that Converse never gave Salesforce the key to read any of its communications. [00:25:26] Speaker 03: What Congress's expert opined was that it was virtually impossible to read an internet communication while it's in transit. [00:25:34] Speaker 03: And this has to do with both the internet protocols and encryption. [00:25:40] Speaker 03: It creates a cipher. [00:25:43] Speaker 03: And the plaintiff had to put in evidence that that was read in transits, that somehow someone broke into that. [00:25:50] Speaker 03: And they just passed over that burden completely. [00:25:59] Speaker 03: Unless there are specific questions, I'll just wrap up. [00:26:01] Speaker 03: I've said it before, this case was decided on summary judgment. [00:26:05] Speaker 03: I think it's a straightforward case. [00:26:06] Speaker 03: It's a straightforward case of statutory interpretation. [00:26:10] Speaker 03: It's a straightforward case of the evidence. [00:26:14] Speaker 03: Javier was an unpublished decision. [00:26:17] Speaker 03: It unleashed a tidal wave of these cases. [00:26:19] Speaker 03: It's overwhelmed the California district courts. [00:26:22] Speaker 03: And it's forced companies to make a choice. [00:26:25] Speaker 03: Do we face company killing statutory damages [00:26:27] Speaker 03: based on this bizarre interpretation of a 1967 wiretapping statute, or do we pay a small amount of money and make it go away? [00:26:35] Speaker 03: And the evidence in this case was that misdemeanors had done that 27 times before suing Converse and then continued to do it after suing Converse. [00:26:45] Speaker 03: This is just a shakedown, and the court has the opportunity not just to affirm [00:26:49] Speaker 03: Summary judgment here, which I think is an easy call but also recognize that there are guardrails built into the statute and in particular built into clause one It doesn't allow plaintiffs to take advantage of these provisions Thank you. [00:27:05] Speaker 01: You have some time left for people. [00:27:08] Speaker 03: Thank you [00:27:14] Speaker 04: Thank you, Your Honors. [00:27:16] Speaker 04: I wanted to sort of start with point two here, the second issue raised by plaintiffs and the appeal here. [00:27:25] Speaker 04: And the real answer is that there certainly was evidence that the district court just sort of chose to ignore. [00:27:32] Speaker 04: As mentioned, there was a spreadsheet that was a list of who Converse had given access to for all of this sensitive information. [00:27:40] Speaker 02: Is that spreadsheet in the record? [00:27:43] Speaker 04: I thought it was, but I would not, after counsel's representation, that it was not. [00:27:49] Speaker 04: We couldn't find it. [00:27:51] Speaker 04: Then I believe it was not. [00:27:52] Speaker 04: It was certainly described in the district court opinion, and all of the relevant aspects of it are just verbatim from the district court's opinion on page five. [00:28:01] Speaker 04: Obviously, there's nothing else that we need beyond it, what was just verbatim quoted by the district court. [00:28:06] Speaker 04: And so because the honest truth is they gave it the district court gave sort of Congress gave access to Salesforce email addresses that had direct access to it. [00:28:17] Speaker 04: So for all of Salesforce protests of they couldn't do this, you know, contract and blah blah. [00:28:22] Speaker 04: All of that is contingent on if you had not given them direct access. [00:28:25] Speaker 04: You gave them the keys, so of course Salesforce could do that. [00:28:29] Speaker 04: Or at least, of course a reasonable jury could conclude that. [00:28:32] Speaker 04: Because Congress has not presented any reason or explanation for why these email addresses were there. [00:28:41] Speaker 02: Does the success of your case turn on whether Salesforce in fact accessed her records? [00:28:48] Speaker 02: I don't believe it's just enough that it was that it was available but even if they didn't look at it for the purpose of summary judgment yes at trial it might be perhaps a little bit different but that wasn't the grounds summary I thought summary judgment was going to be your opportunity to tell the district court what all the evidence was [00:29:07] Speaker 04: Congress didn't move on that issue for summary judgment. [00:29:09] Speaker 02: For example... What could a jury decide if you haven't put in any evidence that suggests that... And if you've got an expert who says, yes, Salesforce did, and they put in an expert who says, no, Salesforce didn't, then we've got a jury issue. [00:29:22] Speaker 04: So, for example, the UUIDs, which were just referenced, were grounds that a jury could find that, yes, Salesforce had in fact read this and did in fact access this because Salesforce was creating unique keys that would allow it to use this information presented in one service program in a different aspect. [00:29:42] Speaker 00: Can I ask one last question? [00:29:44] Speaker 00: Yeah. [00:29:44] Speaker 00: One more question. [00:29:44] Speaker 00: Would you, on the first point about the technology question that we asked you a lot about in your initial argument, can you point me to the pages in the record that you want us to be sure to look at in determining whether you proved that the internet qualifies as a telephonic wire or communication? [00:30:00] Speaker 04: I think for us, the answer is just as simple. [00:30:01] Speaker 04: Is an iPhone a telephone instrument? [00:30:03] Speaker 00: So you just want us to take our sort of generalized knowledge of the internet and phones and make that call, not as a matter of evidence? [00:30:10] Speaker 04: I mean, there was certainly undisputed evidence that an iPhone is a telephone, but I don't really think that it's a matter of evidence as much as it is just common sense. [00:30:21] Speaker 01: Okay, thanks. [00:30:22] Speaker 04: Thank you. [00:30:23] Speaker 01: Thank you. [00:30:24] Speaker 01: The case of Gutierrez v. Converse is submitted.