D.Del.: Google’s capturing URLs during user searches is not “content” under the wiretapping act

Google’s capturing URLs during user searches is not “content” under the wiretapping act. In re Google Inc., Cookie Placement Consumer Privacy Litigation, 2013 U.S. Dist. LEXIS 145727 (D. Del. October 9, 2013):

Plaintiffs argue that defendants intercepted both transactional information and “contents,” such as the URLs and “information that Class Members exchanged with first-party websites during the course of filling out forms or conducting searches.” (D.I. 81 at 17) Most of this information cannot be characterized as “contents.” Specifically, “personally identifiable information that is automatically generated by the communication” is not “contents” for the purposes of the Wiretap Act. See, e.g., In re iPhone Application Litig., 844 F. Supp. 2d 1040, 1062 (2012) (“iPhone II”) (data conveying the geolocation of plaintiffs was not contents, as it was automatically generated by the iPhone); Sams v. Yahoo!, Inc., No. 10-5897, 2011 WL 1884633, at *6-7 (N.D. Cal. May 18, 2011) (records identifying persons using Yahoo ID and email address, IP addresses, and login times was not content-based); In re § 2703(d) Order, 787 F. Supp. 2d 430, 435-36 (E.D. Va. 2011) (the Wiretap Act did not cover unique Internet Protocol (“IP”) number, Twitter subscriber, user, and screen names, addresses (including e-mail addresses), telephone or instrument number or other subscriber number or identity, and temporarily assigned network address).

With respect to URLs, it is important to note that plaintiffs’ browsers would send a URL regardless of whether a third party cookie was set. To date, no courts have characterized URLs as “contents” for the purposes of the Wiretap Act.5 U.S. v. Allen, 53 M.J. 402, 409 (C.A.A.F. 2000) (“log identifying the date, time, user, and detailed internet address of sites accessed by appellant over several months” was “transactional records” for purposes of the Wiretap Act); see also U.S. v. Polizzi, 549 F. Supp. 2d 308, 393 (E.D.N.Y. 2008) (finding in the context of a Fourth Amendment search that “[n]o expectation of privacy exists for other … online transactional information, such as a user’s Internet search history”), vacated on other grounds by 564 F.3d 142 (2d Cir. 2009). As described by their name, “Universal Resource Locators,” URLs do not change and are used to identify the physical location of documents in the internet’s infrastructure. While URLs may provide a description of the contents of a document, e.g., www.helpfordrunks.com, a URL is a location identifier and does not “concern[] the substance, purport, or meaning” of an electronic communication. 18 U.S.C. § 2510(8). Even if plaintiffs’ browsers were “tricked” into sending the URLs to Google, the court concludes that Google did not intercept contents as provided for by the Wiretap Act. Given this legal obstacle, defendants’ motions to dismiss are granted.