Though she dismissed with leave to amend, U.S. Magistrate Judge Jacqueline Scott Corley expressed doubt at a hearing Thursday that the prospective class could prove their federal Wiretap Act claim, which anchors their entire case.
“The content is going to be a hurdle here,” Corley told class counsel Mark Burton Jr. during Thursday’s hearing. “You’re going to have to show something.”
Multiple times during oral argument, Corley emphasized that the Wiretap Act prohibits the interception of the content of a communication, but not the interception of the data in a communication, such as GPS location information.
The prospective class only laid out their Wiretap Act claim for the first time Thursday, alleging that Uber intercepted the anonymized identification numbers of Lyft drivers.
An attorney with Audet & Partners in San Francisco, Burton struggled to sell the court on his point that the ID numbers can pinpoint a driver’s location in real time.
“We know from the case law your GPS location is not content,” Corley said, “and I’m trying to figure out how your case is different from that.”
Filed in April on behalf of lead plaintiff Michael Gonzalez, a former San Francisco Bay Area Lyft driver, the lawsuit sprang from an April 12 article by tech-news company The Information.
According to the article, Uber created fake Lyft user accounts and used spyware called Hell to view the information Lyft sent those accounts, allowing Uber to track a 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.
Gonzalez says Uber then offered those drivers pay bonuses and steered more ride requests their way 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.
“Uber is intercepting the communications of their IDs and their location in real time as they’re going around driving around,” Burton told Corley. “They have all these intercepted locations going on. You have to remember the intent of the statute here is to prevent exactly what occurred here.”
Corley corrected the attorney. “The intent of the statute is to prohibit the interception of private communications and the content of them,” she said. “But there is data and information out there that’s public access. And this case is the line between that. It’s somewhere on the line, and we’re going to have decide where it falls on the line.”
Corley noted that the plaintiff’s logic could spell trouble for the practice of executing warrants on GPS location information without running into the Wiretap Act.
“If I were to rule [in favor of the plaintiffs], the way every court operates would have to change,” she said.
Uber argued in its motion to dismiss that Gonzalez failed to state a claim under the Wiretap Act because the allegedly intercepted data was publicly accessible via the Lyft application. The company also questioned the proof that it intercepted any communication, “much less the content of a communication.”
Before dismissing the case, Corley asked Burton Thursday to identify the allegedly intercepted communication in his client’s complaint, suggesting there wasn’t one.
“You didn’t draft a complaint. There are no allegations,” she told him. “You’re going to have to amend with actual allegations and not just quote someone’s article.”
Gonzalez is also suing under the California Invasion of Privacy Act, California’s Unfair Competition Law and the California Constitution. His brief opposing the motion to dismiss was filed in July.
Uber is represented by Patrick Oot Jr. with Shook, Hardy & Bacon in Washington.