morning me please the court my name is steve wyman and with a dozen partners l l p representing plaintiffs ken morris and adam back out this is an important case to a lot of people for better or worse people's lives are lived online these days and when you don't get a message you think something's wrong or you miss an important meeting so there are strong reasons why this wiretap back to claim needs to be interpreted in such a way that the wiretap keeps  its protection for people in the district courts analysis and apple's arguments as to why the wiretap claim was not stated here or there was no interception because the message was not being transmitted when it was mr directed there is no device because the i message server is used for text messaging generally and the i message a server it was acting in the ordinary course of business which is an exception to liability none of these grounds have merit focusing first on the issue of whether was in transmission the characterization of the court accepted was when it's misdirected it's not in transmission and then also later when it's sent from the phone it's not in transmission essential is never in transmission according to their view of things in the court's order when a person with an iphone attempts to send a text message to another person who also has an i phone and is registered in this line message system it first asks you press the send button in the first asks this it's called the i d s directory system it asks whether the other person is registered if it gets a yes it tries to send it as an i message and it goes through the i message server if it doesn't get that yes message it sends it as a short message system or m m s system then it goes to the phone carriers and people who don't have i phones that's what they use in this instance though because of problems with the way the i d s system was set up when someone leaves the apple universe and decides they don't want an i phone anymore people can still try to send their messages and there was a problem with the apple system where it would wrongfully tell the hump to people's phones that were sending them yes it's ok to send as and i message well once that happens and this is seamless from the person sending its point of view it just looks it up and it sends it it's gone instantaneously but because it's been mr wrecked it it goes to the i message server and it can't go any further because it can't leave all of those messages that are mr rectitude can't leave so it's in transmission lines leaving the plaintiff to show that interception under the wiretap act must be a one step process it seems like you're challenging that but i'm just trying to figure out what authority you might have for the proposition that this transmission can occur in a two step process well it's the way the statute is written it says in transmission i mean apple all but concedes in its brief that it isn't transmission and tries to say no no we're over here with the acquisition but the acquisition has to be happening when it lands in the i message server because it's not going anywhere apple has it it's stored there it's not in temporary storage before that when this first phone directory look up happens it's not being sent it's just a query but that's part of the whole i message system the server and the i d s system which are both which is a device well i guess i'm just trying to figure out how you reconcile what i'm  guess i was describing is a two step process i don't know that you would call it a two step process but what you just described here with the requirement under the is not cannot verses airlines that interception must occur during transmission how's that i'm just trying to figure that out and your thirty theory what is the transmission and what is the interception so the transmission is when it's leaving the phone but part of that is because it's already been told to go to the wrong place you know it's as if apple whispered in the in the phone's ear no send it there then it goes to the i message server and it can't leave so it's already doomed to to end up there once it leaves the phone so it's a yes it's a two step process in there are two things that happen but it's all part of the same universe it's the same device and system which this i d s system is part of so the transmission that it's clearly leaving the phone is trying to go there an analogy i used in the brief was if a post office tells you to send two enough to the wrong place there's no zip code and then zip it a dead letter file it's the same as if you were actually physically in the post office and somebody said oh no put it in that one there  the dead letter file it's in transition you were sending it you were putting it in the envelope but it can't go anywhere so you were trying and the senders were trying to send this message forward but if it was in transmission it was leaving the wires as it were and that's all that's required under the act i mean failing this the reason we think this is really an important issue but the companies could set up word nefarious people it doesn't have to be nefarious under the act they can set it up so  two step process we're not intercepting because we did something first that caused to be intercepted later while it was being transferred if it can't be transferred to the ultimate end user in the first place it's stored for a period of time during which time  could be transferred correct that's not pertinent to this issue your honor because in the way we define the class it's people who have who don't have i phones anymore so it's that we're not talking about another point i want to make is that this is a device that was another point that apple made and it's a device that they were claiming was no device that's what the court held because it's used in the ordinary course of business but she focused the message server and we didn't say in our briefing it's just the server i mean maybe she got that impression but i guess system is part of the overall i at internet messaging system so that is also a device support of the whole system so it is judge herself as held in her google privacy case it's not necessarily something that's ordinarily part of the regular course of business if it's used this is clearly clearly a device it's one in the same thing to just separate them out doesn't make any sense because it's part of the system that goes through as to the issue of the class the message can't leave me that once you have a a for a going message as a conversation indefinitely the the message can still be misdirected even if you haven't had an i phone for a year if someone has an old conversation it could be sent there and nothing nothing that apple has said really really disputes that immediate harm and the threat of immediate harm is that someone with an existing conversation on their phone will try to send them the message and it won't go through and that can happen forever i mean apple tried to a it can happen indefinitely so the instant harm is because they've had i phone conversations before with these people they try to go back to that old conversation and send it to them you know they no longer have an i phone it's happened to me and i had an i phone and people trying to send it on there like weren't you getting it because it was toddled off so it's a very similar situation they were using in all conversation they were being told oh it's delivered and it wasn't as to the class i'm sort of running on time your best of the the classification that they do have standing because of that as a result we think the war should be reversed and they should be allowed to bring at least an inju relief claim under under twenty three b two or before a liability only class and as to the damages class judge co of pages your twenty four twenty five used it ministry ground alone and i'll reserve the rest of my time unless thank your honor i'm joseph how more here on behalf of apple congress an act of the wiretap act to protect the confidentiality of communications and thus the privacy of those communicating the statute was never intended to punish the less than perfect operation of complex communications systems if that is how plaintiffs are seeking to deploy it here they want to use the wiretap act which is a criminal statute to punish and regulate the non delivery of text messages given that fundamental contradiction between the aims of the statute and plaintiff's claim it's not surprising that it suffers from multiple independent defects plaintiffs offered no evidence that communication was acquired while in transmission no evidence that the equipment at issue was operating in anything other than the ordinary course of business and no evidence that apple ever acquired the contents of their text messages what's the foundation of your logic that they don't acquire their contact contents because they're encrypted i mean the fact that you're encrypted know you still have it you just can't read it that's correct your honor because the contents is actually a defined term under the statute and contents are defined as any information concerning the substance purport or meaning of that communication and this court and raising said again that contents means you know what was said this again this is a privacy statute as opposed to you could know what was said if you can break the encryption correct your honor if you if you if holding a sealed envelope is that you draws a line absolutely it does and the courts have consistently drawn that line to this court and raising the fourth circuit in sanders have said that because there are other parts of the statute this is a complex regulatory scheme there are other step parts of the statute that may cover other kinds of calling information who was being called the route that it took but if you're bringing a wiretap act claim you have to show that the contents were acquired think about the classic wiretap which is someone kind of listening in on a phone call that's what's required here no judge co didn't find it necessary to reach this question but we think this is provides of quite compelling additional basis for affirming because it is undisputed here that all of these text messages text messages were encrypted and to and that is undisputed that apple could not access them not only that it didn't but it could not that's e r to thirty eight through to thirty nine the would declaration and plaintiffs haven't suggested otherwise so because apple never acquired the contents of these communications there can't be a wiretap that claim but of course that's only one of the three problems with the claim that we've advanced here the first is the one that judgment you know was questioning my friend on the other side about which is that there was no acquisition of a communication while it is in while it was in transit this court in conn up construe definitively this in transmission requirement and said the wiretap act applies to the acquisition of a communication while it's traveling across a wire or through the air at the speed of light and there may be other statutes the stored communications act the computer fraud and abuse act it may cover other kinds of conduct as for instance accessing stored communications or invading someone's computer in order to acquire communications but the wiretap act requires that the acquisition happen while the communication is in transit and here plaintiffs have never been able to satisfy that requirement all the messages are sent to the i message server everything sent as an message they certainly can't and aren't arguing that every single message sent to the i message server is intercepted for purposes of the wiretap act moreover they acknowledge that when the user has the sand as s toggle on that there's no wiretap act while ation in that situation the message still goes to the i message server and isn't delivered via that route but the five minutes later it's sent as a text message under the that system and again so that they aren't able to locate an actual transmission where the where the message is kind of plucked out of the air and acquired by someone their real complaint in this is that page twenty nine of their brief they say the problem here is that the i message server can't convert and pass on the message to an up to non i message user but of course once it's in the server it is in storage and this court in con definitively held that something in storage is not covered by the wiretap act even if it's incidental even if it's momentary even if it's on the way that's not covered again it may be covered by other statutes but it's not covered by the wiretap act the second basis that judge co granted summary judgment to apple on was the fact that the equipment at issue here was being operated in the ordinary course of business these this is a complex communication system she explained how it works at e r two fifty seven to two fifty nine many of the details are under seal but in this case this system exists in order to pass on messages and each piece of it exists in order to deliver messages the only argument made below was that the i message server was the device if you look at the pages that judgment that my friend on the other side will cite for supposedly preserving this argument below they were simply just describing the system they never argued that the system as a whole was a device so that argument is waived in any event it doesn't really matter because the system as a whole is designed it's purpose is to deliver messages their argument is well it couldn't be operating the ordinary course of business because it doesn't always work but that's not the standard again the wiretap act is not a warranty statute it's not a consumer protection statute it's not a communications regulation statute it's a privacy statute so just because the device doesn't work one hundred percent of the time doesn't make it a device for purposes of a wiretap act and holding otherwise would open the floodgates to all manner of claims against communications providers any time their systems don't work was wonder admittedly a flaw in the system though that suggested to the sender that it was being delivered when in fact it was not there's been a recognised issue judgments are from the from the beginning that when someone switches away and doesn't do you register for the system there may be a delay and this that message may not go through if the person doesn't the register for from the system so the sender is misinformed in that situation record isn't entirely clear on that point judge the  said that that was the case and i don't think it matters for purposes of this this is not a fraud or misrepresentation case this is a wiretap that case i think we can stipulate that there are some messages that don't go through and there this system doesn't  percent of the time and apple adopted a number of failsafe systems to address that problem and i think if you read the e mails again many of them are under seal you see the apple employees quite diligently working through this and coming up with any number of redundant systems for solving this problem and the plaintiffs here have said that the problem is solved for them so the record below is not adequate to address whether or not this flaw in the system would interfere with the ordinary course of business now the record is absolutely clear your honor because they they have they not made no showing their burden they're the plaintiffs they have to show that the equipment was not being used in the ordinary course of business and it clearly was that apple business this part of apple's business is is to endeavor to deliver text messages the fact that it doesn't always work one hundred percent of the time doesn't make the equipment a device for purposes of the wiretap act regular s m s messages don't go through five percent of the time that's in the record in this case would we even reach the ordinary course of business exception if there's a finding the there was no acquisition of the messages during transmission you don't need to your honor there are three independent bases for affirming the summary judgment motion here one is that there was no acquisition during the transmission two is that there was no showing that the equipment here was operating in anything other than the ordinary course of business and three days that the one that judge co didn't find it necessary to address is that there was no acquisition of the contents of any communications much of those as well and i didn't mean to interrupt your finishing your answer i was going to say that each of those  an independent basis for well on a different issue when i wanted to know was when you said it was the plan of spartan show this was not in the ordinary course of business i was just wondering if if there are cases that say that because i would initially have thought that this was sort of like an affirmative defense on the set so that the burden might be on the apple show that it was in the ordinary course your honor i'm not aware of cases specifically addressing that burden issue it's not if you look at the structure of the act it's not an affirmative defense it's part of the definition of a device the wiretap act only applies to acquisitions of communications using a device and then if you look at the definition of the device there's a carve out for equipment used in the ordinary course of business ok so so to show that a device being used they have to show that it's not in the ordinary course of business that's right judge gould i think they do i think regardless of who bears the burden the outcome here is the same because there is no evidence that this wasn't being used in the ordinary course of business and apple provided evidence and this is the wood declaration that you are to thirty eight through to forty that this equipment all was being used in the ordinary course of business really the argument on the other side is well your business is delivered text messages so if it doesn't work if the message doesn't go through than that can't be part of the ordinary course of business but that's not just test could i go back to judgment is the question again i have some sympathy with the idea that that if comp controls and and this message there's never intercepted in and in judge gould i'm trying to be complete here if you want to firm just on that basis that's perfectly fine with us we agree that conduct is completely controlling on this question it was later followed by this court's decision and theophile as applied to email we think the law in this circuit is quite clear that the acquisition has to happen in a contemporaneous fashion with transmission and that's a fully sufficient basis for affirming here are only point is that there are yet other circuit decision called steve jackson games that we discuss in our brief and that that court did a fairly exhaustive analysis of the statute and concluded that it applied only to acquisition of communications while in transmission and not while in storage so is there no published circuit court opinion you have a different circuit disagreeing disagreeing with common your honor i'm not aware of any and certainly the other side hasn't cited any i can say that with confidence and they haven't suggested that this court could or should not follow qana because of some kind of disagreement and i think that and allison kohn it's not just that the that the precedent is there although that's sufficient the statutory analysis in qana is quite compelling and this court pointed to a number of different factors the fact that the word intercept and it cited a dictionary definition means to arrest something in flight while it's in movement the court looked at the definition of electronic communications which requires a transfer the court looked at the structural difference between the wiretap act in the store communication act and said to  shorthand that wiretap act applies to data in flight while the stored communication act applies to data at rest and storage and the court look to the history of the statute in the fact that the definition of wire communications had in an earlier version of the statute actually applied to data in storage while the definition of electronic communication never did so that the court in connacht did a fairly exhaustive analysis of the statute before arriving to the conclusion that it had arrived honor just as the court doesn't need to reach the other bases for summary judgment it doesn't need to reach any of the class action issues if it affirms the summary judgment motion because those issues would basically be moot i will briefly address the standing issue because my friend on the other side did judge poe made a factual finding at twenty three twenty one that neither of these plaintiffs are suffering from this issue anymore and neither had established any reasonable likelihood that they would suffer from it again speculation isn't enough under chapman and the city of los angeles vs the lions to get injunctive relief a plaintiff has to show a reasonable likelihood that he will face this problem again and if there is a factual a question is your one sixty seven which is plants opposition apple's motion for summary judgment there's an entire paragraph which discusses how this system works and it starts out lastly should there be any question that apple uses  device it describes what some of the engineers said about it and then the footnote as part of that paragraph it says it includes the i d s system and we know where in that paragraph do we say the hold the device is only the server it says accordingly there is evidence that apple used a device to intercept plaintiff's messages as to the fact that this is a criminal statute there was a private right of action so it's not that there's mudslinging going on as to apple this is simply the way the law is written and we're allowed to have a private right of action as far as the device being used in the ordinary course of business judge code even acknowledged in her google privacy case it's something is in the ordinary course of business ordinarily but it's being used in a different manner and in this case the idea system is being used in different matter it can be a device and in this instance the way the i d s directory set up x users never get their messages through i message anyway so the fault of them designing this and directing it and then not having a way for it to leave that is that is the device and it's absolutely being used not in the ordinary course of business which is to send it along as to this class of people it's being used improperly to stop them from getting their messages and apple hasn't bothered to fix it as of the in my council as as to your position on the first issue that was raised by apple that is read it there's nothing in the statute that said you have to be able read it contemporaneously if it was in russian and they couldn't read it when they got it they could learn russian they could get in a decrypting device they could i'm sure apple could do this if they really wanted to read these messages but they've acquired the