A fan of celebrity LL Cool J filed a wiretapping suit against Community.com (“Community”), claiming that Community accessed her text message to LL Cool J in violation of the federal Wiretap Act and the California Invasion of Privacy Act (“CIPA”).  In an unpublished opinion highlighting that Section 632 of CIPA does not protect communications that are by nature a recorded medium, the Ninth Circuit affirmed dismissal of the plaintiff’s claims. See Boulton v. Community.com, Inc., No. 23-3145, 2025 WL 314813 (9th Cir. Jan. 28, 2025).

Community’s platform allegedly operates by providing “Community” phone numbers to celebrities, such as LL Cool J, who can then share the Community numbers with fans.  Plaintiff Cyndy Boulton texted LL Cool J’s Community phone number, which she allegedly believed to be the celebrity’s personal phone number.  As it turned out, according to plaintiff, her text message was sent to Community, which sent an automated response requesting that she sign up for the Community platform to communicate with LL Cool J.  Plaintiff brought a putative class action against Community, asserting that Community unlawfully wiretapped her communications with LL Cool J in violation of the federal Wiretap Act and CIPA.

The Ninth Circuit affirmed the district court’s dismissal of each of the plaintiff’s claims on the following grounds:

• No Confidential Communication Under CIPA § 632: The Ninth Circuit held that Boulton’s text message is not a “confidential communication” protected by Section 632 CIPA.  A “confidential communication” is statutorily defined to exclude a communication made in “any . . . circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”  Cal. Penal Code § 632(c).  Since the plaintiff’s “text messages are by nature recorded,” the Ninth Circuit held that her text “was not a ‘confidential communication’ protected by § 632.”  As the Ninth Circuit explained, this conclusion is consistent with decisions by “California appellate courts [that] have held that the exclusion can apply to internet chat messages.”
• No Acquisition In Transit Under Federal Wiretap Act and CIPA § 631: The Ninth Circuit held that the plaintiff also failed to allege that her text message was accessed “during transmission” or “in transit,” as required under the federal Wiretap Act and Section 631 of CIPA.  Rather, “the only logical conclusion from the facts alleged in her complaint is that she texted a Community number and the text was received at that number” by Community.  In reaching this conclusion, the Ninth Circuit reaffirmed settled precedent requiring plaintiffs asserting claims under these provisions to allege that a communication was “acquired during transmission, not while it is in electronic storage.”
• No Transmission Between Telephones Under CIPA § 632.7: Finally, the Ninth Circuit affirmed dismissal of the plaintiff’s remaining claim under Section 632.7 of CIPA, because the plaintiff “has not alleged that her text to LL Cool J was a transmission between two telephones as plainly required by the statute.”  Instead, the plaintiff alleged only that “she texted LL Cool J’s Community number and that Community is a ‘social media platform,’” and she therefore “cannot allege that her text was received by a phone.”

This decision illustrates important defenses available to companies facing wiretapping claims under the federal Wiretap Act and CIPA.