Backhaut v. Apple Inc.

Citations: 148 F. Supp. 3d 844; 2015 U.S. Dist. LEXIS 161147; 2015 WL 7720845Docket: Case No. 14-CV-02285-LHK

Court: District Court, N.D. California; November 29, 2015; Federal District Court

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The Court grants Apple, Inc.'s motion for summary judgment in a putative class action lawsuit filed by plaintiffs Adam Backhaut and Kenneth Morris. The plaintiffs allege that Apple violated the Wiretap Act and California’s Unfair Competition Law by intercepting and storing text messages sent to former Apple device users by current users. The plaintiffs, who switched from iPhones to non-Apple phones in 2012 and 2013, claim that Apple intentionally intercepted these electronic communications after they were sent. 

Apple’s iMessage service, introduced in 2011, uses the Messages application to send messages over Wi-Fi and cellular data, differing from traditional SMS/MMS protocols. The Court ruled without oral argument, finding that the motion was appropriate for decision based on the submitted materials, leading to the conclusion that Apple's practices do not constitute unlawful business acts under the cited statutes.

The Messages application automatically identifies whether a contact is an iMessage user, sending messages via iMessage if they are, and via SMS/MMS if they are not. Users cannot manually choose the message type; however, they can enable a "send as SMS" option that allows iMessages to be resent as SMS/MMS if undelivered after five minutes. Message types are visually indicated: blue for iMessages and green for SMS/MMS. iMessages are encrypted during transmission, preventing Apple from decrypting them. 

Plaintiff Backhaut, who switched from an iPhone to an HTC One, did not receive messages from his spouse's iPhone, despite her seeing "delivered" status. He could not remove his phone number from iMessage. Similarly, Plaintiff Morris faced difficulties receiving messages after switching to a non-Apple phone, even after asking contacts to adjust their settings to send SMS/MMS instead of iMessages. This issue persisted after an iOS update.

The procedural history notes that the plaintiffs filed their original complaint on May 16, 2014, with the defendant moving to dismiss on August 18, 2014. The court partially granted the motion on November 19, 2014, dismissing several claims without prejudice.

The Court denied the Defendant's motion to dismiss the Plaintiffs' claims under the Wiretap Act and the Unfair Competition Law (UCL) related to the Wiretap Act violations. Following the filing of the First Amended Complaint (FAC) by the Plaintiffs on December 10, 2014, the Defendant answered on January 7, 2015. The Plaintiffs' motion for class certification was submitted on May 28, 2015, but was denied by the Court on August 13, 2015. The Plaintiffs sought leave to file a motion for reconsideration of this denial on August 27, 2015, which faced opposition from the Defendant on September 11, 2015. The Defendant filed a motion for summary judgment on August 8, 2015, to which the Plaintiffs responded on September 9, 2015, and the Defendant replied on September 28, 2015.

The legal standard for summary judgment requires that, when viewing evidence favorably for the nonmoving party, there must be no genuine issues of material fact for judgment as a matter of law. The moving party must identify evidence that demonstrates the absence of such issues, while the nonmoving party must present specific facts showing a genuine issue for trial.

The Defendant presents several arguments for granting summary judgment: (1) lack of evidence that Plaintiffs did not receive specific text messages; (2) absence of evidence that the Defendant's iMessage system "intercepted" messages as defined by the Ninth Circuit; (3) insufficient evidence that a "device" was used to intercept messages according to the Wiretap Act; (4) no evidence of intentional interception; (5) the dependency of the UCL claim on the Wiretap Act claim; and (6) a terms of use contract that allegedly precludes the Plaintiffs' claims.

The Court finds that the evidence does not support that Defendant intercepted messages as defined by the Wiretap Act, nor does it demonstrate the use of a device in violation of the Act. Consequently, Defendant's motion for summary judgment on the Wiretap Act claim is granted due to the lack of genuine disputes regarding these material facts. Since the Plaintiffs' claim under the Unfair Competition Law (UCL) is contingent upon the Wiretap Act claim, the Court also grants summary judgment for Defendant on this claim. 

The Wiretap Act, part of the Electronic Communications Protection Act, prohibits the interception of communications and provides a private right of action for intentional interception. "Intercept" is defined as the acquisition of communication contents through any device during transmission. The Court agrees with Defendant's assertion that Plaintiffs failed to show that any acquisition occurred during transmission, as required by the Ninth Circuit precedent. Evidence indicates that no interception occurred when messages were misclassified as iMessages, as the acquisition took place while the messages were not in transmission, which aligns with the precedent that prohibits claims based on storage access rather than real-time interception.

Plaintiffs concede that misclassified messages sent as iMessages do not constitute "interception." They acknowledge that senders can choose the "send as SMS text" option, allowing initially misclassified messages to be resent as SMS/MMS after five minutes if undeliverable. If a message is sent as SMS, there is no unlawful interception, even if it first goes to the iMessage server. Furthermore, Plaintiffs' argument that interception occurs when undeliverable messages are not resent as SMS/MMS does not hold, as this event does not occur during transmission. There can be no interception under the Wiretap Act if a message is acquired while in storage, as established in Konop, 302 F.3d at 878 n. 6. Plaintiffs also acknowledge that initial transmission as an iMessage, which can be converted to SMS if the sender chooses, does not equate to interception. Additionally, they have not identified devices beyond the iMessage server, which Defendant argues falls under the "ordinary course of business" exception to the Wiretap Act. This exception allows for the use of devices by communication service providers as long as any interception is incidental to their business functions, as noted in In re Google Inc. Gmail Litig.

Plaintiffs assert that the iMessage server should not be exempt under the "ordinary course of business" exception of the Wiretap Act, claiming its purpose is message delivery and citing a structural defect that allows message interception. However, Defendant provides evidence demonstrating that the iMessage server operates within its ordinary business functions, facilitating communication services. Plaintiffs have not presented any counter-evidence or shown that the server functions outside its intended purpose. The court notes that an acquisition of communication by a device used in the ordinary course of business cannot support a Wiretap Act claim. Citing similarity to the Hall v. EarthLink case, where the court upheld summary judgment due to lack of contrary evidence from the plaintiff, the court concludes that the iMessage server qualifies as a device used within the ordinary course of business, and thus Defendant is entitled to summary judgment on the Wiretap Act claim. The motion for summary judgment is granted.

Defendant seeks summary judgment on Plaintiffs’ UCL (Unfair Competition Law) claim, arguing it is dependent on the Wiretap Act claim. Plaintiffs acknowledge this dependency and do not provide independent reasons for the UCL claim to withstand summary judgment. The Court, having concluded that Defendant is entitled to summary judgment on the Wiretap Act claim, similarly grants summary judgment on the UCL claim. Consequently, the Court grants Defendant’s motion for summary judgment, denies as moot Plaintiffs’ Motion for Leave, and instructs the Clerk to enter judgment in favor of Defendant and close the case. Additionally, Joy Backhaut, a named plaintiff, filed a motion to voluntarily dismiss her claims against Apple, which Defendant did not oppose, and the Court granted this dismissal with prejudice.