defendants’ counsel acknowledged as much at argument.51
Because the complaint pleads a broad scheme in which the
defendants generally acquired and tracked the plaintiffs’
internet usage, we are satisfied that this scheme, if it operated
as alleged, involved the collection of at least some “content”
within the meaning of the Wiretap Act.52
The Content/Envelope Distinction in Internet Law, 50 Wm. &
Mary L. Rev. at 2136 (“Perhaps because it is so intuitive that
search terms in a URL should be considered content, the
treatment of content-revealing communications data is
undertheorized in computer surveillance scholarship.”).
51
Oral Arg. Tr. at 44 (“We acknowledge that there may be
URLs that could constitute content.”).
52
Because the URL information acquired and tracked by the
defendants is “content” for purposes of the plaintiffs’ Wiretap
Act claim, we need not consider whether the defendants
acquired and/or tracked other “content” from the electronic
transmissions at issue. Our understanding of the factual
position of the defendants is that their cookies operate by
adding a unique sequence of letters and/or numbers to any
GET request transmitted from the user browser hosting the
cookie to the advertiser server that set the cookie. See Oral
Arg. Tr. at 25 (“The cookie doesn’t acquire anything. . . . The
cookie doesn’t look for anything. It just sits on the browser
and gets sent along with information that would otherwise be
sent.”); id. at 26 (“Maybe it’s sort of like a bookmark.
Information gets sent anyway every day, all the time. And
then a cookie is placed. And thereafter the same information
is sent, except that the cookie is there, too. It’s unique. It’s not
personally identifying. It has nothing to do with the actual
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