engaged in here is outrageous it's the cyber equivalent of breaking in to the office of opposing counsel and copying the litigation file there now it's not just one opposing counsel this case involves about thirty three thousand clients so it be copping all those files the only difference here is it was done by hacking instead of physical breaking and entering so that the question as to liability for the hacking is whether the computer system here which is the h two s new system constitutes an electronic communications service under the federal stored communications act it's worth starting out noting that the definition of an electronic communication service is broad and inclusive quote any service which provider provides users the the ability to send or receive electronic communications constitutes an electronic communication service and there's no question that that is true of each  writings images sounds of any nature and the cases that i've looked at the definition of the electronic communication service providers seem to contemplate the military to communicate with third parties like in the kaufman crisp and erling cases all those involved the ability to at least seven private messages or e mail and i didn't see in this case any allegations that the two seven one one so that is a operable definition now none of the system none of the cases you're talking about or the statute itself has email e lectronic communication system is e mail so that is not the standard and it's not also i think in your honour's question the word third parties is doing a lot of work there third parties does not mean the ability to send messages outside of the system it means people within the system as opposed to let's say the website cases where they hol themselves i think kaufman it wasn't just email it was realtors who were able to message each other on that web site and that's what made an electronic communication system here clients like yours attorneys support staff and clients communicate through the system not only by uploading and downloading documents but by uploading notes and comments where is rather in a complaint where it says that the clients could communicate fifteen and sixteen that set up the system and then also paragraph twenty nine drugs the analogy to traditional litigation files of course a traditional paper litigation file consists of communications  memos and correspondent including among clients and those paragraphs talk about clients using the east us you system to communicate with a lawyer it says attorneys support staff and clients each uploaded and downloaded documents and uploaded and downloaded notes and comments on documents for others to see i thought the disregard described this h q as you is more of  off site storage site rather than like an electronic bulletin board right that's that's what he said and we think he's overlooked those allegations and part of the problem here is that any providing information technology for enough people that it would make any sense to not allow them to communicate amongst each other unless you're setting up those sort of websites where it's just a two way and one of our problems here is  on the world wide web with sites like reddit or quora and they are the were deemed the equivalent of a old fashioned community bulletin board like you might remember from college or the local laundromat we have corkboard and people would use a push pen and put their message there some of my put apply they might call a reply but that was considered communication within the community and electronic bulletins the words which were around when served here by people being able to put documents that the other members of the triangle attorney support staff clients could see comment upon and communicate amongst themselves that way now there's this analogy of the electronic bulletin board with the old fashioned court boards and pushpins is recognized in the cases like crispin vs christian aguilar and united states words riggs all the cases agree electronic communication service they are communicating with each other the members of the triangle and it's very much like an electronic bulletin board and therefore that's why we think of the district court to be reversed particular because it made this determination not upon facts not in summary judgment not a trial but as a matter of law on the face of the complaint and we believe that appellant should be able to move past the complaint and seek to prove the case good morning your honor may have please the court i'm deborah stein i represent berkshire hathaway homestead insurance company and cyprus insurance company and i'll be presenting arguments today on behalf of all  really be boiled down to a single question and that's whether the complaints plead facts that possibly show that h two s u is a service which provides the users there of the ability to send or receive electronic communication and the definition that you're on a reference before is the electronic communications definition think it's important to focus on the definition of the electronic communication service and its  sending or receiving electronic communications here when you compare the allegations the factual allegations in the complaint to the words of the statute as we're required to do it does not satisfy that definition and the reason why and the district court did look at the allegations and in fact referenced in the court's decisions the allegations that play just counsel reference about notes and messages being found in the file but the allegations in the complaint say that the way that h two s you functioned is that a user would upload and download files to h q s u there was no ability for a user to send something to another user to send a communication to a third party as your honor referenced earlier and this matters because the statute requires sending in the common sense layman view dictionary view of sending is taking an action where you would have cause to have delivered to some to someone else had no functionality that could deliver something to another user if one user posted a file as plaintiffs counsel suggested that one would do the only way that that would be received by someone else is if they happened to go on and try and download the file but there was no way that something would be sent to another user and i think the ninth circuit has provided some really  into what in the electronic communications service is and in the quantities the ninth circuit is focused on what they refer to as the plain language of the storage communications act and it's common sense definitions to characterize a text messaging service and there are the ninth circuit said yes the text messaging service is an electronic communications service and the ninth circuit looked at the definition and said this is serves as a conduit for the transmission of an electronic communication from one user to another user and the ninth circuit contrasted that to the other category that congress had in mind when it was in acting the stuart communications act and that was the remote computing service and that was the the function that congress said well that's like when someone puts hospital or medical files offsite at an add another at a vendor and that's like a virtual filing cabinet those are the words that the ninth circuit used a virtual filing cabinet that's a remote computing service not an electronic community to medication service  the virtual filing cabinet and so that the clients could go on and log on and pull down a file from the virtual filing cabinet but there's no allegation that someone could send something through h q and h two under the statute in order to be an electronic communication service it has to provide the users the ability to send something and there is no electronic bolton boards for example judge morrow in the crispin case focused on not the public aspects of an electronic bulletin board because those wouldn't fall within the act but the history behind the electronic vul that clients here could communicate with the lawyers through the h q s you system they would have to then post the message it's like going into a document repository writing a note and then somebody else can pull that note and can read the message right the way it's alleged is that it would be part of a file that cut upload it or downloaded so in order to know whether that even was a communication one would have to examine the content of the file to see whether there was a communication in it and that is not something that the statute contemplates the statute looks to whether someone can send something whether someone can receive something and i'd add that i think it's a little bit dangerous here to rule by analogy it's very important particularly you know  noted that this is an old statute what analogizing to an electronic bolton board that's not in and out of the it's not alleged in the complaint that this is an electronic bolton board those words aren't found in the statute they're not defined in the statute and i'm sure people have different views of what an electronic bolton board even means so i think it's important to go back to the words of the statute because when if we rule by analogy of courts keep ruling by analogy it's like a bad game of telephone where each each one gets a little bit further away from the words of the statute and by the end of that bad game of telephone the analysis has really drifted from looking at what does it really mean to send something if i want to send something to my client i need to make sure that that client receives it i can't just you know upload the file and hope that my client goes on and if i want my client to know to go on i would actually have to use a different form of communication to tell my client i'd call my client e mail my client and say oh you need to log on you know and access this virtual filing cabinet so you can see that i put notes in the file but to suggest that this satisfies the definition of sending a communication i don't think a lay person would consider sending a communication uploading something to a computer database and it's sitting there static unless someone else happens to go on and download information to see what's in the file  e you know the other thing that i'd like to flag is that the the the issue of this being on a motion to dismiss this is really a pure question of law because we and the plausibly satisfy this test does it satisfy send or receive and there is no dispute amongst the parties we're not suggesting any sort of functionality different from what plaintiffs allege pla are saying that it was an upload and download and that is something that can be ruled on it's a question of law there is no error in ruling that way and we believe the judge  was very clear that you had to apply the words of the statute and focus on this idea of connecting user to user now every technology is different especially as the years go on and that's one of the reasons why it's important to stick to the statute you know i would note and you know i will say that it was just a passing comment by the ninth circuit but in twenty fourteen in the graph versus games case the ninth circuit did say that an electronic communication service involves the transfer of electronic messages such as e mails between users and again it's this common sense idea of transferring between users and not just you know uploading something to a static web site that then someone else isn't getting any sort of notification there's no push to the other side saying hey i posted something new you need to go online and view it or click here and look at it they would have it's not a very good his counsel to send electronic communications among themselves by uploading and downloading documents as well as by appending notes to those documents so it's if we're going to use the common sense version of  send sounds like sending i'm uploading these nov to your document and as far as the fact of reality that sending it to the storage cabinet was right and if the deadline to file the paper is friday and it's thursday you best believe i'm going to go on there and see are the notes in or the correct are we getting ready to file the electronic bulletin board nobody's told you that somebody commented on your post you find out when you go to the electronic bulletin board and although technology is changing the cases are consistent of the importance of a server if you have a server the cases are overwhelmingly that constitutes an electronic communication service and h q s you does indeed have a server the parties communicating were communicating with each other that through this means and that's why in the common sense meaning of an electronic communication service