several statutory exceptions, one is the exception of
§ 2511(2)(d). Section 2511(2)(d) provides that, ordinarily, no
cause of action will lie against a private person “where such
person is a party to the communication or where one of the
parties to the communication has given prior consent to such
interception.”22
1.
Acquisition of “Content”
The District Court dismissed the plaintiffs’ Wiretap
Act claim on the basis that the defendants’ alleged conduct
did not involve the acquisition of communications “content.”
While the plaintiffs allege that the defendants acquired and
tracked the URLs they visited, the Act defines “contents” as
“any information concerning the substance, purport, or
meaning of th[e] communication [at issue].”23 The District
Court held that, “[a]s described by their name, ‘Universal
Resource Locators,’ . . . . a URL is a location identifier and
does not ‘concern [ ] the substance, purport, or meaning’ of
an electronic communication.’”24
22
The exception does not apply if “such communication is
intercepted for the purpose of committing any criminal or
tortious act in violation of the Constitution or laws of the
United States or of any State.” 18 U.S.C. § 2511(2)(d).
23
18 U.S.C. § 2510(8).
24
In re: Google, 988 F. Supp. 2d at 444 (final alteration in
original) (quoting 18 U.S.C. § 2510(8)).
17