NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 29 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADAM BACKHAUT; KENNETH No. 15-17523 MORRIS, individually and on behalf of themselves and all others similarly situated, D.C. No. 5:14-cv-02285-LHK

Plaintiffs-Appellants,

MEMORANDUM *

v.

APPLE INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Lucy H. Koh, District Judge, Presiding

Argued and Submitted November 15, 2017 San Francisco, California

Before: GOULD and MURGUIA, Circuit Judges, and GRITZNER,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa, sitting by designation. Apple, Inc. (“Apple”) provides a text messaging service known as

“iMessage.” 1 This service routes text messages between Apple devices through

Apple’s servers free of charge, rather than using the traditional Short Message

Service or Multimedia Messaging Service (“SMS/MMS”) protocols, which are

routed through a user’s wireless carrier and may have fees attached to their use.

However, iMessage cannot be used to transmit messages to non-Apple devices.

Apple’s method of determining whether someone has stopped using an Apple

device has not proved infallible, so Apple has sometimes tried to deliver a text

message via iMessage to a person who had transferred his or her phone number

from an Apple device to a non-Apple device. When this has happened, the text

message could not be delivered and was instead stored on Apple’s servers for thirty

days while Apple, under its routine and automatic procedures, tried to transmit the

message via iMessage with no success because the person messaged was no longer

using an Apple product.

Plaintiffs Adam Backhaut and Kenneth Morris were sent text messages by

users of Apple devices after Plaintiffs had switched to using non-Apple phones.

Apple routed these messages via iMessage, and as a consequence Plaintiffs never

received those messages. Plaintiffs brought suit on behalf of themselves and a

1 To the extent that this disposition references information that has been filed under seal, we hereby unseal that information for purposes of this disposition.

2 putative class under Title III of the Omnibus Crime Control and Safe Streets Act of

1968 (“the Wiretap Act”), 18 U.S.C. § 2510 et seq., and state law. The district

court denied class certification and granted summary judgment to Apple. Plaintiffs

appeal both rulings, arguing that the district court erred in granting summary

judgment on the Wiretap Act claims and that class certification was improperly

denied.

The Wiretap Act imposes liability on any person, with some exceptions, who

“intentionally intercepts, endeavors to intercept, or procures any other person to

intercept or endeavor to intercept, any wire, oral, or electronic communication.”

18 U.S.C. § 2511(a).

Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), is

instructive here. There we were confronted with circumstances where the

plaintiff’s employer had logged on to the plaintiff’s website, on which the plaintiff

posted bulletins critical of his employer. Id. at 872–73. We there concluded,

based on statutory language and legislative history, that Congress had intended

only for electronic communications that were in transmission to be covered by the

Wiretap Act. Id. at 878–79. On this basis we squarely held: “for a website such as

Konop’s to be ‘intercepted’ in violation of the Wiretap Act, it must be acquired

during transmission, not while it is in electronic storage.” Id. at 878. We held that

there was no interception there, as Konop’s employer had accessed his website

3 while it was in storage. Id. at 879.

Similarly, here there was no interception. The initial misclassification of a

text message to be sent via iMessage, when that was no longer possible, to a person

who was no longer using an Apple device was not an interception within the

meaning of the Wiretap Act, as the district court reasoned. The misclassification

occurred when the recipient’s phone number was first entered in the “To” field by

the user of the Apple product trying to send a message. This misclassification

occurred before any message was sent, not “during transmission” of a message.

See id. at 878. Indeed, a user may enter a number and then change his or her mind

about sending a message at all. Further, a user can override the classification of a

text message as an iMessage by manually directing the user’s phone or other Apple

product to send the text via SMS/MMS instead.

Nor was there an interception simply because a message was initially

misclassified and sent via iMessage. Apple gave users the option to elect to have

an iMessage text sent via SMS/MMS if the text was not delivered after five

minutes. If a user selected that option, then a message initially misclassified as an

iMessage would still successfully be delivered, and Plaintiffs have conceded in

their briefing that in those circumstances there would be no interception.

Finally, we reject the argument that an interception occurred when a

message became trapped in Apple’s iMessage servers. At that point, the message

4 was no longer in transmission—it was in temporary storage—and so under Konop

could not be “intercepted” within the meaning of the Wiretap Act. See id. at 878–

79. Absent any interception, there is no Wiretap Act liability. See 18 U.S.C.

§ 2511(a). We hold that the district court properly granted summary judgment on

the Wiretap Act claims.

Because we hold that summary judgment was properly granted on this

theory, we need not reach the questions of whether the summary judgment should

be sustained because Apple’s conduct occurred in the ordinary course of business

or because Apple only had encrypted versions of the text messages. Where

summary judgment is properly given against the claims of the named plaintiffs,

there can be no class action, so we also need not reach the question of whether the

district court properly denied class certification. See Hodgers-Durgin v. de la

Vina, 199 F.3d 1037, 1039 (9th Cir. 1999).

AFFIRMED.

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