SAN FRANCISCO (CN) – A federal judge on Wednesday dismissed the bulk of a California man’s proposed class action accusing Uber of spying on Lyft drivers to lure them away from its competition.
But U.S. Magistrate Judge Jacqueline Scott Corley in San Francisco granted plaintiff Michael Gonzalez permission to amend his claims, including his federal Wiretap Act claim, which anchors the case.
“Plaintiff’s Wiretap Act claim fails because he has not alleged and cannot allege that Uber ‘intercepted’ the ‘contents’ of a communication,” Corley ruled in an afternoon order.
Gonzalez, a former San Francisco Bay Area Lyft driver, sued Uber in April 2017 after reading an article about the company’s alleged spying activity in tech-news publication The Information.
According to the article, Uber created fake Lyft rider accounts and used spyware called Hell to intercept the information Lyft sent those accounts, allowing Uber to access a driver’s Lyft identification number and track the driver’s location over time.
Uber then combined Lyft’s data with its own driver-location data to determine which Lyft drivers also worked for Uber. Their names ended up on lists distributed to Uber’s city managers, who targeted them for bonuses and steered more ride requests to them to manipulate them into devoting more work-time to Uber.
With fewer Lyft drivers on the road, Lyft customers faced increased wait times, leading them to cancel their rides and hail new ones through Uber, Gonzalez says.
Corley, however, ruled Wednesday that Gonzalez’s allegations don’t satisfy the Wiretap Act. The Wiretap Act prohibits the interception of the “contents” of a communication – its sender’s intended message – but not “record information,” such as a sender’s name or identity, which can be automatically generated when a communication is sent.
Gonzalez’s lawyers had argued that although driver identification numbers and geolocation data are usually considered record information, they are content in the Gonzalez case because Lyft drivers intended to communicate the information to Lyft to find riders.
But Corley found that “with the possible exception of the estimated price,” also part of each communication, the information doesn’t qualify as contents under the Wiretap Act because “none of that information involves a communication from the Lyft driver, let alone the content of such a communication.”
“The ‘content’ analysis may be different as to pricing information; however, there are no allegations in the FAC [First Amended Complaint] that suggest that plaintiff intended to communicate pricing information,” Corley added.
Uber declined to comment Wednesday.
Corley also found Gonzalez hadn’t shown that Uber intercepted communications sent by him, another element required to satisfy the Wiretap Act.
Gonzalez, Corley pointed out, alleged that his driver ID and geolocation information were sent to Lyft’s servers, which Lyft then unwittingly sent to Uber posing as Lyft riders. “Thus, the communication Uber acquired is a communication from Lyft and not Plaintiff,” she concluded.
Corley first dismissed Gonzalez’s case last September with leave to amend, prompting his lawyers to add a Stored Communication Act claim and a state claim alleging violations of California’s Computer Data Access and Fraud Act.
Gonzalez is also suing under the California Constitution, California’s Invasion of Privacy Act, and its Unfair Competition Law, the only claim Corley didn’t dismiss Wednesday.
Caleb Marker of Zimmerman Reed in Manhattan Beach, Calif. represents Gonzalez, and Patrick Oot Jr. of Shook, Hardy & Bacon in Washington represents Uber. Neither attorney could be reached for comment Wednesday.