A motion to dismiss has been filed in a California case filed by a New York woman who claims that the National Basketball Association’s Golden State Warriors violated the Electronic Communications Privacy Act (the “Wiretap Act”), 18 U.S.C. § 2510, et seq., by distributing a mobile content app that invades users’ privacy by turning on a device’s microphone and eavesdropping on the audio it picks up. Satchell v. Sonic Notify Inc., et al., 16-c v-04961 (N.D. Cal.)

The app uses the phone’s microphone to track the user’s location by picking up on sonic beacons but fails to warn users that it is doing so and that it is picking up nearby conversations in the process.  The beacons then trigger the delivery of custom-tailored content, promotions, and advertisements directly to users’ smartphones.

The motion, filed by the Warriors and the company that operates the beacons, claims that Plaintiff has not alleged an injury in fact, as required by the Supreme Court’s recent decision in Spokeo v. Robins, 136 S. Ct. 1540 (2016).  According to defendants, Plaintiff’s sole allegation of injury is that there was wear and tear on her phone and that her phone lost battery power.

Defendants also assert that Plaintiff misunderstands how the app operates stating that the beacon technology does not “record” or “intercept” anyone’s communications in that any such recordings remain on the user’s phone and are never transmitted beyond the device to any Defendant. Thus, Defendants could not have committed an illegal “intercept[ion]” within the meaning of the Wiretap Act, which requires an “acquisition of the contents” of an “oral communication.”

Plaintiff responded to the motion by arguing that Defendants misapply Spokeo.  Plaintiff contends that she alleges a substantive (rather than merely procedural) violation of the Wiretap Act, stating that the Wiretap Act guards against intangible harms that are firmly rooted in common-law privacy torts and protects substantive privacy interests that Congress explicitly sought to protect in enacting the Wiretap Act. Thus, taking the position that history and the judgment of Congress establish that the invasion of privacy Plaintiff suffered is a concrete injury sufficient to confer Article III standing, Plaintiff argues the Defendants’ motion should be denied.

We will continue to keep our eye on the ball in this case and report back once the court rules on Defendants’ motion.