privacy settings the object was to render all the browsing activity of the user transparent to pulse point so it could sell that information to third parties apple products are marketed on the basis of superior privacy protection they are the only products with browsers that are set to block or to call third party cookies and the business venture of paul's point at this point was to disable that function so as to render them transparent we claim that this is a violation of restitution or principles of unjust enrichment and of g p l three forty nine hundred new york law does tell us how you're looking at the three forty nine cause of action how your clients were injured by practice yes your honor i think that both claims turn on the exact same injury which is the taking of something which did not belong to paul's point something of value and i think the district court erred fundamentally in believing that the only harm covered by either restitution or three forty nine was a harm to money taken from them as opposed to something of value being taken from them and according to the district court if there was no monetization of the  potential value by the plaintiffs that is by the plaintiffs that is that defeats the claim both under arrest to sion and three forty nine i think the restitution if i could start there your honor is a little bit easier to see if i could preliminary matter him am i right in understanding that the complaint does not allege anywhere that your clients the named plaintiffs actually had cookies installed on their own computers no it does it does allege that it said that they visited certain websites from which the cookies were put on their on their computers it seems to me a kind of step away from saying that they actually had one has to deduce or infer a guess that because they visited those wimps sites that they would have had cookies placed on them there's some general allegations about being as members of the class they were they would have but do you do you know can you allege that they are weekly did the the meccan as i understand the technology judge carney this was all removed from their computers by the defendant after the fact so we have to reconstruct that based upon discovery we haven't gotten to discover what we've alleged is that they were visit they had the nature of this type of information on a computer meant that whatever they took what every the defendants took your client still had the use of and so it wasn't the same as you know you take someone's car they no longer have their car that you still had the ability to do everything you could have done beforehand and so to that extent it wasn't the taking of something of value because it didn't deprive you of anything tell me and under restitution for example it is the taking of anything of value in appropriately that is what triggers the restitution area abrogation what it is what i thought the book was concerned about had you wanted to do something with the exact same information during that past period you could have you get and i'm not condoning what the defense did here but i'm trying to understand what it is you were deprived of let me give an example by way of a hypothetical imagine i have a hunting cabin and during hunting season and when i'm not using it somebody discovers how to get in the back door and then they rent out my hunting cabin during the periods when i'm not there without my knowledge at that point anything that they have acquired through this illicit conduct is subject to restitution that is the fundamental of restitution or principle so i think what the district court made a mistake in believing that that only if i had a legal claim for damages as for example in the court's example of  end of not having the exclusive right of during that period i may suffer no harm that is the cabin may be an excellent situation they may clean it they may do everything else the fact that they wrongfully profited from my undertaking is what deprives me of a value and there in appropriate or inappropriate gains from that is what gives rise to the rest to share claim if i could just quote from the actionable as a matter of equity so there are all sorts of claims where there is an incursion of some or a cost associated with improper conduct and every court that has looked at this has said that this shocks the conscience this is something that is inequitable that it's a it's an egregious breach of social norms that the third circuit in the google case about was under california law it was under if i can go to three forty nine for second section three forty nine g says independent of other sources of law deceptive conduct that imposes an injury of any kind and here the injury is that they trespassed our independent tort of either trespasser trespass to chattels as a predicate the predicate for restitution is that they were unjustly enriched as a result of conduct which transcend some social norm here not quite apt because two people couldn't have rented the capital the same time the concern i thought the district court had here is that the curious nature of this information is that at the same time they were taking advantage of it you could have and so there is inadequately pleaded how they are unjustly and rich accu our expense but i'm more than willing to hear how it is how it occurred because i understand that the nature of the conduct troubling but your honor let me address that point because the district court said something which i think is just flat wrong to describe said at page one eighty three the record plaintiffs can see that they have failed to plead injury based on misappropriation of the value of their browsing information and that's the basis for the dismissal the citation to that is page twelve of our of our brief in the court below in the brief says  misappropriation of their valuable personal information specifically their web browsing histories even absent out of pocket losses such injury provides the only basis for the unjust enrichment claim we're data is misappropriated and used for financial gain by fit that in new york that it can and it can occur without it being at your expense well it's the elements of of restitution from from the k v grossman opinion of this court which sets out the elements as being the defendant benefited and now the question is what's at our expense that's the key question and the the district court reduced at our expense to something that would give rise to damages  and that has never been the tradition of restitution which is an equitable remedy you're saying that a trespass is it basically is triggers restitution as i understand why you would argue that what they did was  of trust pass but it's a trespass and if in virtual domain your honor it's hard to get the literal fit but they hacked our computer we know that these this has value because apple which is a sophisticated market actor says buy our product because we guarantee you better privacy and we know that firms like google will pay one hundred dollars a year to have free access to your web information instead they serve tissues slee came  took this from us that's the allegation here and the allegation is that that's a modern form of trust pass it doesn't have to get to why aren't you pressing the trespass to chattels and because we thought it was simpler to go with the restitution and you do you have you can see that it's not a trespass to chattels we're not conceding that your honor we didn't appeal that because that would force us into a narrow body of law in new york on whether this is a diminution in the functionality whether it slows it down or something of that sort and that's not our main claim our main claim is that we bought a product that would give us the capacity to have more privacy in our browsing history this is something which chief justice roberts in the riley b california decision described as being at the heart of concerns of of modern life that is we don't want people to know that we went to web m d and then looked up cancer treatments or something of that sort it has tremendous impact upon the way we get but these were all anonymous right anonymized they were not like to individuals right they were links to a browser which is the only thing that matters in this world because it's the browser that is the trigger for these ads to come in and for these vendors to start following you what my name is is irrelevant in this world and it should never turn on whether they can they can broadcast this publicly  without accusing them of being store shintoists that want to broadcast this to blackmail us but it's an insult to the sense of integrity that one has everybody has one of these i phones and you buy them thinking that you are protected from being de luzhin monitored by outside entities and what these people did was they came in and they disabled the functionality they disabled what we why we buy these things  sure your honor i'm not sure if this is criminal hacking or not i'd have not looked at that question clearly we just with the client did seek seek that kind of action well thirty three attorneys thirty three attorneys general thought that this was actionable under their variant of the consumer protection the deceptive trade practices laws including the new york attorney general they went after every answers michel kiss off on behalf of pulse point your honour's the appellants in this case are asking this court to do something that no court in new york has ever done which is take a situation where the parties where the inconvenience let alone no monetary injury and turn that into an actionable injury in fact there is no support for the idea that this type of that there is no support for this harm serving to support either in article three standing action and certainly not a claim under the new york deceptive prayed strayed practices statute under three forty nine or unjust enrichment act with impunity your honor this wasn't a well first of all this isn't a hacking case this was a placement to work around to place a miniscule data file on a on the computers and your honor so that the company so that users could get more relevant advertising i mean cookie based advertising on the internet isn't is as i am and i understood the argument that was just say that's exactly what apple promises it's purchasers will not  and so what you've done is deprive them of the ability to honor their promise i think it's important your honor to look at what the new york d b l requires on that point right the new york require at g b l requires injury that is caused by the defendant's conduct there is no allegation if we go back to the complaint your honor that these plaintiffs even read the safari apple marketing statements along that line there is certainly no allegation that they ever read post points undifferentiated anonymous browsing history has been found to be even support really standing alone let alone an unjust enrichment claim i would say that panel to the google case the in re google case which of course the the have talked about the court the third circuit in that case found that the no injury from that last browser history value right the fact that the google was able to know the places you went saying that if you were not anonymised you would agree that there were an interest i am i think in this in new york i think it would be very hard under the g p l to even find that your honor but certainly under the so your client could publish  business purposes my book my browsing history without with impunity is that right sorry your honor and under new york law of course under the g p l and under new york on general new york has taken a much more circumscribed view to the right to sea than many other states there is no generalized invasion of privacy tort here in new york there is no generalized right to privacy in new york new york has taken the view that it is limited to the very specific things in the statute such as your name your likeness publication for birth commercial purposes so i think judge carney what you're talking about would get towards what's protected under fifty in fifty one of the new york civil rights law but there is no general free floating right to privacy under new york law and certainly where it's not offered injury however i'm sorry i missed i have suffered an injury that you would recognize that there g p l would recognize if my own browsing history were published widely among vendors i think that's not before you but that would be a much harder case for me your arse the yes i understand but i think we do have the placement of a cookie on a device that an individual owns  staff right so if so while there might be a case of injury if we publicized your anonymized data that would get maybe closer to what the traditional toward of intrusion upon seclusion would be were publication of private facts those common law to we don't have either of those facts here and of course in new york there is no intrusion upon seclusion theory you can imagine cases just speaking hypothetically where there'd be pretty clear injury even given that the data is not over the data is anonymised so if i understand the record correctly let's suppose you deceptively change the cookies on my own computer i'm receiving advertisements as a result of your use of that of my own information maybe i share my computer with so when else and that person and first something about where i've been and what i'm doing based on the advertisements that are popping up by virtue of the manipulation of the cookies to two points on that your honor the first is of course that would possibly you're talking i think about embarrassment right you're you're talking about some sort of emotional distress or you're finding injury you're saying well gee i'm embarrassed because i use this i share this with my coworker or the person i live with and i didn't want them to know this you're positing an injury that's not in the complaint there was no allegation and there's meant harm decreased job opportunities you're right we could come up with that higher rate i'm just exploring the my colleagues point that the anonymization of the data doesn't mean there's no injury can imagine many ways in which injury can occur i think that's right your honor it's just not here at the other end it's just absent from this complaint in the other think and  yes why is what you've wired affected the effect of equivalent of an address because you can now send them material because you know how to send it to them that you didn't know how to say you didn't know how to reach them before i think your honor well the case i would bring to your honor's attention on that is the smith versus chase manhattan bank case which we've cited which is an appellate division case apologize i don't remember which department but the  allegation in that case was that chase bank who had the kind who had the plaintiff's information legitimately but sold it and said i wouldn't sell it sold it now you started getting junk mail from advertisers so it's very similar to what you're talking about your honor now your address is out there and all these advertisers are sending us the court found no claim under the new york g p l in that theory as the court said that's not injury just the fact that you're getting advertisements you don't want as the appellate division found no injury there the other thing i just wanted to get back to judge carney's point one thing to remember about this browser history information is that these plaintiffs were of course sharing this information with first part with first party sites so the notion that this browser history information i some sort of sensitive protected information we decided it's disaggregated then i mean if you've gone to one site at your own volition and chosen to engage they're buying a book from amazon and then amazon sends you you might be interested x strikes me as much less intrusive and also part of the terms and conditions of doing business with amazon likely than an aggregator of information who is then making available to third parties i think entirely different i'm sorry these are many many first party sites have the ability to aggregate this information and do not just amazon but news sites etc i think the point is my point is not meant many first party sense you would go to aggregate but i think my point your honor is it's not that this is some super sensitive category of information that the plaintiffs took significant steps to protect here we know as they own apple products we don't know that they ever read the privacy policy that apple gave them additional promises we certainly don't know whether in the post point privacy policy we don't know whether they took any steps to do anything to protect their private information and again just the nature of browsing history d n a d d and d identified anonymized browsing history is that it's not of a level of super sensitivity that the courts of new york or the courts nationwide have chosen to protect this tells me again those who if i go to an amazon site i assume that it's somewhere in the terms and conditions that they're going to place a cookie and i can set my browser to accept cookies or for the site only or what have you so there's some element of mission involved does pulse point have an analog in some way that the mr mount would have agreed to have the cookie placed on his site i think the issue here your honor is again we just go back to injury is that what is the thing that is is is so terrible that happened to the about what is the answer to my question though is there some active action that mr mout took that was equivalent to my  going to the amazon site and agreeing to have their cookie placed on my site on my computer well i think your honor by going well if you really wanted to get this is your honor when you go to most first party sites if you went to a news site for example c n n or the most of the and you actually dug into the privacy policies of those sites many of them do say that they allow cookies to be placed by partner companies so you have to really go kind of site by site to see that but many many from privacy policies contain disclosures that say exactly that that we allow our partners to place  ads and yeah and i think again that just goes to things that that were alleged in the complaint these plaintiffs never allege they took those steps to do to do those things your honor i did just want to also say to get back to the point that i understood your honor the point that opposing counsel was making the point of this this type of information being a taking a value it has been rejected by the third circuit in the google case the browser history being a value even if you never tried to it even if you never claimed you had it a loss of exclusive use of it it was also rejected by the seventh circuit in the ball and in the neiman marcus case all of which are before you and i think your honour's the last thing i'll say before i sit down is that new york takes a very restrictive view on the new york insists that there be injury separate from the deception and that's the small versus lorillard case and here there is no such injury alleged thank you and you  much of the argument was that ms because of just gave was based on the idea that our clients did not rely on the representations made by the safari browser or by paul's point in its public statements there is no reliance requirement under either three forty nine or in just enrichment to return to the theme of unjust enrichment it is to profit to your benefit to the detriment of somebody else when they hacked our computers that was to our detriment they altered the functionality of a possession of ours how do we know that that something of value because they marketed what they got and they profited handsomely for that's the essence of the claim they are not allowed to hack our computers in order to to get data from us even if we don't want to monetize it ourselves even if we couldn't monetize it ourselves the fact that they have the computer is the wrong that underlies everything here says case you are that would support that isn't just in the circumstances you just identified where you said even if we couldn't used it ourselves even if we wouldn't have i should have said your honor because we could have we are the allegation in the complaint is that we couldn't have a case in new york sports and unjust enrichment claim in those circumstances i think that on the computer side the law is bars now we have said that there are no cases that recognize this there are no cases that say that invasion of privacy of this kind is not a basis for three forty nine or is not a basis for unjust enrichment all the cases that we cite in our brief including a west virginia case including a washington state case including some state supreme court cases said go our way on this including judge batts in the bates case they go our way they are not conclusive authority by any means and in erie analysis this is not binding on this court but the idea that you can alter the functionality of our phones to make them transparent to outsiders and get away with that for you or profit is the heart of our sense of privacy and dignity in the modern world that's what the harm is and new york somewhat more limited fashion in deep and did three forty nine that there don't seem to be any cases that have recognized an injury based on privacy lost last it was confidential individually identifiable all dealt with ability to trace to the individual but the argument that was just put forward was that that wouldn't be actionable either under their theory that it doesn't matter whether it's an anonymous ha that's not the case here but there's no principle there's no principle in new york law that says that privacy only turns on the fact of your name if somebody publishes nude photos and this is an example that we gave from the seven circuit marine hacking incident today it doesn't matter whether the the person's name is known or not it is the fact of publication of something that is private even if not traceable to locate this in new york law and so nothing in new york prevents it is not a very solid foundation for of met that's that's why i think york law requires i think that's why new york when it adopts the the restatement of restitution is the easier path for this court because restitution says that you take something of value it is not yours you monetize it yourself and you do so through what morally ethically socially impermissible means even if not unlawful directly under under that's not the principle of restitution it is not a remedy at law it is an equitable remedy and new york by adopting the only urging and i'm just not sure that i've heard much about where new york law clearly allows us to reach the conclusion you're well new york cases again they've adopted the  example illustration ten of section forty of the restatement third is a connecticut case that says somebody comes on to someone's land with a metal detector finds buried treasure and there they have to give it over to the owner of the lid even if the owner of the land was never going to look for it was never got it didn't have a metal detector or anything of the sort i understand that but trespass there and the removal of proper i understand your honor but but the equivalent the virtual equivalent of trust pass and this idea is just very small files that are put on there that they're all small i mean that's the nature of microprocessors but the idea that they come into our response timely or you get a response that's not altogether helpful because the the state courts don't like to be told what to do for the kind of obvious reason so i don't want  timely very responsive and very i have nothing but the highest regard for the new york court of appeals if the if this is a a practice that this court is comfortable with we don't have a problem with that because this really is to question t