[00:00:01] Speaker 04: Good morning, your honors. [00:00:02] Speaker 04: My name is Aaron Lawson. [00:00:03] Speaker 04: I represent the plaintiff appellant, Saman Malai, in this case. [00:00:07] Speaker 04: In my experience, when we get an order like the one you all entered on the docket last week, I can read the writing on the wall. [00:00:13] Speaker 04: So let's just begin by talking about certifying this case to the California's pre-court. [00:00:17] Speaker 02: Well, counsel, you shouldn't interpret that more than it is. [00:00:19] Speaker 02: I mean, some of us might be interested. [00:00:20] Speaker 02: So long as one person is interested in it, that's why it's sent out. [00:00:24] Speaker 02: Don't assume that any one or the majority or anything believe other than just be prepared to address it. [00:00:31] Speaker 04: Well, I think it provides a useful way to begin the argument, and we'll of course get to the actual merits of the case as well. [00:00:38] Speaker 04: Our bottom line is we don't oppose certifying this case to the California Supreme Court. [00:00:43] Speaker 04: At the end of the day, this case involves interpreting [00:00:47] Speaker 04: a relatively uncomplicated statute. [00:00:49] Speaker 04: And that's a big part of the reason why we didn't seek certification in our briefs, because this court is obviously equally capable of applying the tools of statutory construction to this law. [00:01:02] Speaker 02: Perhaps we are capable, but the question is, should we? [00:01:05] Speaker 04: Well, so to address the particular requirements in Rule 8.548, [00:01:12] Speaker 04: I think you would be undertaking this task in the absence of any controlling authority from the California Supreme Court interpreting this law. [00:01:19] Speaker 04: And we do think that the interpretive issues presented by the district court's judgment would be dispositive of the appeal. [00:01:25] Speaker 04: So just as a basic matter, we think the requirements are met. [00:01:30] Speaker 04: And it would be, as I said, I think we have a very strong case on the text of this law. [00:01:36] Speaker 04: And this is a pretty straightforward case of statutory interpretation. [00:01:39] Speaker 04: I also do believe, and we filed this case in California in part because these are, I think this case presents issues of pretty, public interest in California to the public, to the legislature, so it would be an appropriate case to seek the California Supreme Court's guidance as well. [00:01:58] Speaker 00: So this may jump a bit to the merits of the issues, but it seems to me that we don't know very much here about what the [00:02:07] Speaker 00: consent would have been, like what the lease agreement says, what the manual says about what is expected, how this GPS works. [00:02:18] Speaker 00: Wouldn't it be more helpful for the California Supreme Court to evaluate whether this statute creates a cause of action in this type of situation with more information about the facts of consent and how these GPSs work? [00:02:33] Speaker 04: Well, on consent specifically, I think [00:02:36] Speaker 04: The case is probably in a posture where the California Supreme Court can pretty appropriately consider it, because the consent is an affirmative defense. [00:02:44] Speaker 01: You think that your complaint as pled addresses the concern I think that Judge Friedland is raising, which is there are these various elements. [00:02:53] Speaker 01: The statute talks about use. [00:02:56] Speaker 01: It talks about if the TCU is a tracking device. [00:03:00] Speaker 01: And then, obviously, there's an exclusion for consent. [00:03:05] Speaker 01: maybe you can, because we're at a 12b6 posture, is there enough in the complaint, as alleged in your view, to satisfy a claim under this statute? [00:03:17] Speaker 04: Absolutely, especially if we're talking about the proposed amendment complaint. [00:03:19] Speaker 04: But I believe both of the complaints are good in this case, in part because, as I think an answer to your question, Judge Friedland, consent is an affirmative defense. [00:03:29] Speaker 04: I don't think we need to be pleading around it at this stage of the case. [00:03:32] Speaker 04: It pretty clearly functions. [00:03:33] Speaker 04: as a justification for engaging in otherwise prohibited conduct. [00:03:37] Speaker 04: And I think under pretty long-standing rules of construction, the party that wants to justify its conduct has to set out the facts that provide that justification. [00:03:44] Speaker 04: So we see this pretty clearly as an affirmative defense. [00:03:49] Speaker 04: So it's not something that we can really consider at this stage. [00:03:54] Speaker 04: On the rest of the statute, does this device reveal its location by electronic signals? [00:04:00] Speaker 04: Is it attached to the car? [00:04:01] Speaker 04: Yes, I think that is in the complaint as well. [00:04:03] Speaker 04: Is it used by Autonomo to track the location or movement of a person? [00:04:07] Speaker 04: Yes, I think all of this is alleged in the complaint. [00:04:10] Speaker 00: I guess what I'm wondering though is, we may agree with you that you have alleged enough to get over the motion to dismiss. [00:04:21] Speaker 00: Whether that's going to tell people in California whether cars can be sold like this, though, I think depends on more about what consent might actually be on the ground. [00:04:31] Speaker 00: I mean, you could have pled enough, but for us to answer the question about whether a car like this can be sold in California, I think we might need more facts about how they're sold and what people know and how they work. [00:04:42] Speaker 00: And so I'm just not sure at this posture asking the California Supreme Court to tell us whether this car can be sold in California, is that possible? [00:04:49] Speaker 00: Like, maybe we need more. [00:04:51] Speaker 04: Well, I think one thing the California Supreme Court could tell us is what does it mean to consent to the use of an electronic tracking device with respect to a vehicle? [00:04:58] Speaker 04: I think that is a bit of a contested question here. [00:05:01] Speaker 02: Or what does it mean to be attached? [00:05:03] Speaker 02: Well, I mean, that's the question, isn't it? [00:05:06] Speaker 04: That is certainly the big question presented by the briefs. [00:05:09] Speaker 04: And I'll get to that in a second. [00:05:12] Speaker 04: But I wouldn't have any issue with developing the record on consent and what this looks like for different, for lessees, for buyers. [00:05:20] Speaker 04: I think that would be entirely appropriate. [00:05:22] Speaker 04: On the issue of attached, I think this appeal is a little bit unusual because everyone agrees that in some sense, this device is attached to the car. [00:05:32] Speaker 04: As we explain, it's screwed onto the car. [00:05:34] Speaker 04: So really, the interpretive issue is, do we apply an ordinary understanding of the word attached or a narrower, more bespoke understanding of this word? [00:05:43] Speaker 02: And the principal argument offered in support of this narrower view of the statute is this idea that to give this- And are we at the Ninth Circuit going to define what that is and not let the California Supreme Court figure that out? [00:05:57] Speaker 04: Well, so this is why I do believe it's an appropriate case to seek the California Supreme Court's guidance. [00:06:02] Speaker 01: We have cases every day where we are interpreting state law that affects many people in a particular state that [00:06:11] Speaker 01: In our cases that talk about certification, you can meet the standard under the statute. [00:06:16] Speaker 01: It doesn't necessarily mean that our court is certifying questions to the Supreme Court on every situation or instance where we're interpreting state law. [00:06:25] Speaker 01: I think what I hear you saying is that this is a straightforward issue of statutory interpretation. [00:06:30] Speaker 01: What the district court did here really is an anomaly in terms of [00:06:35] Speaker 01: Taking some of these terms like attached that are defined, you know, pretty straightforwardly in the even dictionary terms attached means connected or joined to something and it has created an interpretive outcome that isn't necessary. [00:06:50] Speaker 01: So, [00:06:51] Speaker 01: If we were to certify this question to the Supreme Court, it seems to me that it would make sense first to look to see whether this is something that requires, is the statute ambiguous on its face? [00:07:05] Speaker 01: Is there something that is going to require the highest court of the state to weigh in on? [00:07:10] Speaker 01: Because we're otherwise interpreting statutes in the states every day. [00:07:14] Speaker 01: That's what our court does. [00:07:15] Speaker 04: No, you're preaching to the choir here. [00:07:16] Speaker 04: There's a reason we didn't ask for certification, right? [00:07:19] Speaker 04: We do think this is pretty straightforward. [00:07:21] Speaker 04: And I understand that you all also want to respect the time and energy of the California Supreme Court. [00:07:27] Speaker 04: I think just as a basic matter, the very bare requirements are met. [00:07:31] Speaker 04: And that's the point that I wanted to make there. [00:07:34] Speaker 04: I think the bare requirements are met. [00:07:35] Speaker 04: And it's an issue of public interest. [00:07:37] Speaker 01: The bare requirements are met in many cases. [00:07:38] Speaker 04: Yes. [00:07:39] Speaker 04: And so the reason we don't oppose beyond that is that we do think this is an issue that's of some interest to the Californian public and the Californian legislators. [00:07:48] Speaker 04: I want to get back to the issue of Attach, but I will discuss this briefly. [00:07:53] Speaker 04: In terms of the public, first of all, we have a public that is, twice in the last five years, passed various sweeping privacy initiatives that protect, among other things, geolocation information. [00:08:05] Speaker 04: So it's something that the public is generally interested in. [00:08:07] Speaker 04: About three or four months ago, we had what I would call a bombshell in the New York Times article that discussed how [00:08:14] Speaker 04: information generated by similar devices on General Motors cars was being shared with Lexus Nexus and then with insurance companies in a way that tended to raise insurance rates. [00:08:25] Speaker 04: And that caused a bit of an outcry. [00:08:26] Speaker 01: I don't think it was... Do you think the statute is ambiguous? [00:08:29] Speaker 04: I do not. [00:08:30] Speaker 04: I really don't. [00:08:32] Speaker 04: I think that this device is pretty clearly attached. [00:08:35] Speaker 04: You know, if you were to remove it, you would describe yourself as detaching it. [00:08:38] Speaker 04: You know, it is connected with screws. [00:08:41] Speaker 02: I understand that... Council, but if you look at the legislative history, is that what it tells us? [00:08:46] Speaker 02: Is that what the legislators thought here? [00:08:50] Speaker 04: I think the fairest read of the legislative history and one that really takes into account what the legislature ultimately did. [00:08:57] Speaker 01: Why would we go to the legislative history if the statute is unambiguous? [00:09:01] Speaker 04: I don't think you would. [00:09:04] Speaker 04: But in the instance that you do think it is ambiguous, I think that the best way to read the legislative history is that they were, the legislature was alerted to the dangers, the broader dangers of electronic tracking by this [00:09:17] Speaker 04: private investigator scenario that my friends highlight in their brief, that the legislature took that scenario, and police surveillance, of course, as we describe in our briefs, but ultimately realized that this was a much broader issue and regulated much more broadly. [00:09:32] Speaker 04: So if you look at section one of the bill that was ultimately adopted, this is not in the California penal code, but the bill that was ultimately adopted. [00:09:40] Speaker 04: It says, electronic tracking without your knowledge violates a reasonable expectation of privacy. [00:09:45] Speaker 04: It's not electronic tracking by a particular class of people. [00:09:48] Speaker 04: It's just electronic tracking without your knowledge. [00:09:51] Speaker 00: The idea of a built-in GPS in a car, it existed at that time that this was written, but it was very rare. [00:09:58] Speaker 00: It was rare. [00:10:00] Speaker 00: So what do we do if we think that the legislature didn't even have this in mind? [00:10:07] Speaker 00: If they wrote this language but they didn't even have this in mind, does that weigh in favor of saying this is covered or against saying this is covered? [00:10:14] Speaker 04: I think it doesn't weigh either way. [00:10:16] Speaker 04: I think at the end of the day, the question is, is it attached? [00:10:20] Speaker 04: And I think what the district court was attempting to do, and I think it sort of engaged in a category error here, is give this word some meaning. [00:10:28] Speaker 04: It said we have to draw lines somewhere in order to give this word meaning. [00:10:32] Speaker 04: And I grant the legal premise, this word has to have some function. [00:10:35] Speaker 04: But I don't think that function is to distinguish between things attached at different times or attached by different people. [00:10:41] Speaker 04: as the district court thought. [00:10:42] Speaker 04: I think the only question posed by the word attached is, is it attached? [00:10:47] Speaker 04: We don't live in a world where every single device that might be used to track someone is going to be attached to a vehicle or other movable object. [00:10:54] Speaker 01: And of course, it's not really for our court to [00:10:57] Speaker 01: contemplate what the or to make a ruling based on what the legislature might not have been thinking about if we Interpret the statute which is what courts do and the legislature says that's not we hadn't thought about that That's not what we meant. [00:11:11] Speaker 04: We intended it to be narrower than the legislature will fix the law and And I can see first of all you guys are gonna have a great conference after this argument [00:11:21] Speaker 04: But that I think is the second point about why this issue is important to the public in California as you're considering whether to certify it. [00:11:30] Speaker 04: The legislature has been considering what you might call connected car issues, privacy issues connected to, that relate to connected cars. [00:11:39] Speaker 04: I think there was a bill passed last year that dealt with cameras in cars. [00:11:44] Speaker 04: There has actually been a bill introduced in both sides of the California legislature in this session that would [00:11:50] Speaker 04: require manufacturers to give the driver the ability to turn off technology that allows a third party to track the car. [00:11:57] Speaker 04: So this is something they're thinking about. [00:11:59] Speaker 04: And I think as they do, they probably deserve a definitive answer on what California law already requires. [00:12:05] Speaker 04: And this court, I think, is capable of giving them that answer. [00:12:08] Speaker 04: It's also something they can fix if you get it wrong. [00:12:10] Speaker 04: But to the point about certification, the only body that can truly give them a definitive answer is the California Supreme Court. [00:12:17] Speaker 01: Do you know, and this is maybe a little bit of a tangent, but I'm curious, the cases that the district court cites, which are other district court cases in the Moreno case and also the Google location litigation, those related to phones and not [00:12:36] Speaker 01: Vehicles has the legend but but there are you know 2017 cases? [00:12:42] Speaker 01: has the legislature done anything to to address those decisions to clarify whether or not this particular statute would cover Mobile phones versus vehicles to my knowledge it has not and I would I would add it's not just mobile phones But software right in those cases, and I think that I think that makes a big difference because we are talking about hardware here [00:13:05] Speaker 04: But to my knowledge, the answer to your question is no. [00:13:08] Speaker 04: And if there are no further questions at this time, I'd like to reserve the balance of my time for a bottle. [00:13:12] Speaker 00: Great. [00:13:13] Speaker 00: Thank you. [00:13:28] Speaker 03: Good morning, Your Honors. [00:13:29] Speaker 03: Ramon Martinez for Atanamo. [00:13:30] Speaker 03: May it please the Court. [00:13:31] Speaker 03: Plaintiff is advancing a novel theory here under which my client is criminally liable and owes up to $10 billion, maybe more, because it received location data from the kind of standard devices that are built in to virtually every car that's sold in the United States today. [00:13:48] Speaker 03: That's wrong for multiple reasons. [00:13:50] Speaker 03: We think that the reason that we focused on the most in our brief is that the BMW installed TCU device here doesn't satisfy [00:13:58] Speaker 03: the statutory definition of electronic tracking device. [00:14:02] Speaker 03: That definition contemplates two distinct things. [00:14:05] Speaker 03: One, a vehicle, and two, something separate that's attached to the vehicle. [00:14:10] Speaker 01: Where do you get that something separate attached to the vehicle? [00:14:14] Speaker 01: I understand that the district court found on page five, which is ER 28, [00:14:20] Speaker 01: that the device must be a separate device that is attached or placed onto an automobile by the alleged wrongdoer. [00:14:25] Speaker 01: And in my view, the sort of must be a separate device by the alleged wrongdoer are words that are not found anywhere in the statute. [00:14:33] Speaker 01: And after this determination, the court has no citation. [00:14:38] Speaker 03: Right. [00:14:38] Speaker 03: So I think there are two different points here, which we've made both arguments. [00:14:42] Speaker 03: One point is that the device has to be attached to the vehicle. [00:14:45] Speaker 03: And then there's the separate question of whether it has to be attached by the wrongdoer. [00:14:49] Speaker 03: I think the district court ruled for us on both of those theories. [00:14:51] Speaker 01: OK, let's talk about each of those. [00:14:53] Speaker 01: So on the attached piece, you're saying not just attached, you're saying a separate device. [00:14:57] Speaker 03: Attached to the vehicle is the key thing. [00:14:59] Speaker 03: And that comes from 637.7D. [00:15:01] Speaker 03: And just to look at that, that's the definition of electronic tracking device. [00:15:06] Speaker 03: It says any device attached to a vehicle. [00:15:08] Speaker 03: So you have device attached to a vehicle. [00:15:11] Speaker 01: I agree with you. [00:15:12] Speaker 01: We're on the same page, but you're using the word separate device. [00:15:15] Speaker 01: And the district court used the word separate device. [00:15:17] Speaker 01: And I'm trying to figure out where that comes from, because it's not in the language. [00:15:20] Speaker 03: I think it comes from the language that I just read, because if the device is attached to the vehicle, that presumes that you have something that is the vehicle and that you have some other thing that is not that vehicle that's then attached to the vehicle. [00:15:32] Speaker 03: And I think the logical conclusion from that is that the other thing is separate from the vehicle. [00:15:36] Speaker 03: If it were part of the vehicle already, then it wouldn't be attached to the vehicle. [00:15:40] Speaker 01: And the steering wheel attached to a vehicle? [00:15:42] Speaker 03: No, the steering wheel is part of the vehicle. [00:15:44] Speaker 03: It's built into the vehicle. [00:15:46] Speaker 03: And I think if you go to buy a car and you say, I'm buying a vehicle, what you think you're doing is you're buying a thing that comes and part of what you bought, part of the vehicle you bought is the steering wheel. [00:15:58] Speaker 03: You don't think, I'm buying a vehicle and attached to that is a steering wheel, the backseat, the windows, the lights, et cetera. [00:16:04] Speaker 01: So you're saying that any part of a vehicle, even one that is attached, when you sell the vehicle, then it becomes a component of the vehicle as opposed to being attached. [00:16:12] Speaker 03: I think, to put it in my own terms, what I'm saying is that there is a thing that consists of the vehicle. [00:16:17] Speaker 03: The vehicle consists of certain components, and yes, they're attached, but they're attached to each other. [00:16:23] Speaker 03: They're not attached to some separate thing that is the vehicle. [00:16:25] Speaker 01: So how do you get around sort of just the plain dictionary definition of attached, which is connected or joined to something? [00:16:31] Speaker 03: We don't have to get around that because we concede that the vehicle's components are attached to one another. [00:16:36] Speaker 03: The debate here really isn't about attached. [00:16:39] Speaker 03: The debate here is about what counts as the vehicle. [00:16:41] Speaker 03: And so if we are right that the TCU device, like the steering wheel or the tires, are part of the vehicle, then that means that the TCU is not attached to the vehicle because it's already part of the vehicle. [00:16:53] Speaker 03: And that's our core statutory argument. [00:16:55] Speaker 03: That's why the attached, the kind of question of attached is not in dispute here. [00:16:59] Speaker 03: I think everyone agrees what attached means. [00:17:01] Speaker 03: The question is whether [00:17:02] Speaker 03: you have a device that's built into the vehicle, whether that counts as being attached to the vehicle. [00:17:08] Speaker 03: And I think the problem the other side has on that issue is that they have no real account of what counts as the vehicle. [00:17:14] Speaker 03: They don't have a theory. [00:17:15] Speaker 03: Under what I understand their view to be is like if it's removable. [00:17:18] Speaker 01: But what are the 12b6 stage? [00:17:19] Speaker 01: So all they need to allege is that it's attached to the vehicle, which [00:17:23] Speaker 01: They do. [00:17:24] Speaker 01: I understand that maybe what you're getting at is that ultimately there is going to be some expert testimony or other evidence to suggest whether or not it's truly connected or joined to the vehicle, but I don't understand why if on the face of the complaint or the amended complaint they've alleged that they really just repeat [00:17:49] Speaker 01: the language in subsection D. Why isn't that enough? [00:17:53] Speaker 03: Our argument is not about the facts. [00:17:54] Speaker 03: Our argument is about the legal meaning of the term vehicle here and whether we are right that a built in component of the vehicle is not attached to the vehicle. [00:18:02] Speaker 03: Their theory is that as a matter of law, as I understand it, any vehicle component [00:18:08] Speaker 03: Also, any part of the vehicle also counts as being attached to the vehicle, so long as it's removable. [00:18:15] Speaker 03: But obviously, there are plenty of parts of the vehicle that you can remove and still operate the car. [00:18:19] Speaker 03: If I took the reading light in the back seat of my car out, I could still operate the car. [00:18:25] Speaker 03: But obviously, the reading light that's built into the roof of the back seat of my car is part of the vehicle. [00:18:31] Speaker 02: Council, can you address the certification question and what your position is? [00:18:35] Speaker 03: Yeah, so we think that, and I'll give you a slightly self-serving answer, but let me play it out. [00:18:40] Speaker 03: I think that we think we have the most straightforward reading of this statute, especially on this question of the distinction between the vehicle and something attached to the vehicle. [00:18:49] Speaker 02: Let's assume that that's up for debate. [00:18:50] Speaker 03: If it's close, then I think we win under the rule of lenity because it's a criminal statute. [00:18:56] Speaker 03: If it's ambiguous, if there are two reasonable understandings of the statute that are in close equipoise, then we think that the rule of lenity, this is a criminal statute under which people like my client were potentially liable to go to prison for six months if they violate the statute. [00:19:11] Speaker 03: And under California law, the rule of lenity means the tie goes to us. [00:19:15] Speaker 01: So you're saying that the statute is unambiguous. [00:19:18] Speaker 01: Your friend on the other side says the statute is unambiguous. [00:19:21] Speaker 01: So given that you think you win under the plain language of the statute, do you think certification is appropriate? [00:19:27] Speaker 03: I think if you agree with us on the plain language, if you lean our way in the plain language, absolutely not. [00:19:32] Speaker 03: No need to certify for the reasons that I think you laid out earlier. [00:19:35] Speaker 03: I think if you think it's close, then I think you have to apply the rule of lenity, and then we win under the rule of lenity. [00:19:40] Speaker 03: Again, no need to certify. [00:19:41] Speaker 03: If you're leaning in their direction on this, there's the self-serving part. [00:19:44] Speaker 03: But if you are leaning in this, so I'll put it on the table. [00:19:47] Speaker 03: It is a little bit self-serving, but I think it's self-serving for a good reason, which is that if you are leaning in their direction, a ruling in their favor is going to have very significant practical consequences for the way automobiles are regulated and sold in California. [00:20:01] Speaker 03: Because it's going to create this criminal liability that would potentially extend to manufacturers and to companies like my client. [00:20:07] Speaker 03: it would create massive civil liability, it would open the floodgates to litigation, and it would- So this gets back to my consent question. [00:20:14] Speaker 00: That's only true if, I mean, they may be able to get past emotion to dismiss, but if you can show that everyone who buys a car with a GPS understands that there's data and it goes to cell towers and it's gonna be shared, and maybe you can show that the manual says it's gonna be shared, I don't know what you can show, because it's not in the complaint. [00:20:32] Speaker 00: Whatever you're gonna say about that, [00:20:35] Speaker 00: If you can show what you want to show that everyone understands how this works, then you're not going to have this huge liability. [00:20:40] Speaker 03: I think if they are right both about the attached to the vehicle question, the first argument, and they're also right about the affirmative defense issue with respect to consent, then it's still going to have a massive practical effect. [00:20:54] Speaker 03: Because any plaintiff is going to be able to file a lawsuit and survive 12b6 without having to say anything about consent. [00:21:01] Speaker 00: And so there may be litigation costs like until this, yes, there may be litigation costs. [00:21:06] Speaker 03: Which are very significant. [00:21:06] Speaker 00: But that's not going to end the industry. [00:21:08] Speaker 00: You could have a litigation that talks about what's in the manual and you'll get an answer at some point. [00:21:12] Speaker 03: But when you're talking about the kind of liability that's at issue here, and again, with my client, it's literally a $10 billion case that they're alleging because they say there are millions of cars and it's $5,000 per car. [00:21:22] Speaker 03: I mean, that is, even if we're just talking about people filing lawsuits and getting passed a motion to dismiss, that's a big deal. [00:21:28] Speaker 01: And alternatively, isn't this also the sort of where I think the legislature would come in if it in fact intended not to have such a sweeping broad statute that criminalized this conduct? [00:21:40] Speaker 01: Wouldn't it respond by saying, wait a minute, our plain language might not have been exactly what we intended it to be? [00:21:46] Speaker 03: I think that the idea of the legislature coming in is a consideration that supports us. [00:21:50] Speaker 03: for two reasons. [00:21:51] Speaker 03: Number one, this statute was passed a long time ago before this kind of technology was as ubiquitous as it is today. [00:21:58] Speaker 03: There's no reason to think that the legislature actually wanted this result. [00:22:02] Speaker 03: And I think in a context in which the consequences of their reading is going to expand liability, including criminal liability, we think that the legislature should speak first if they want to go in that direction instead of having to correct a decision. [00:22:14] Speaker 03: And the second thing is we're operating now against the background. [00:22:17] Speaker 01: Well, how do they do that given that we have ongoing litigation? [00:22:20] Speaker 03: Well, I think what they could do is they could pass a statute along the lines of what my friend on the other side was suggesting. [00:22:26] Speaker 03: This legislature is well aware of privacy issues. [00:22:28] Speaker 03: They're debating legislation that operates in this general sphere, so they could clarify what regime they want to apply to the new regime of technology. [00:22:36] Speaker 03: I think the other thing, though, with respect to the legislative backdrop and with respect to certification is the backdrop that we're operating under now, and there's no case that's directly on point [00:22:46] Speaker 03: except maybe the Shapiro case, which I think is pretty good for us, although it's not 100% on point. [00:22:51] Speaker 03: But the train of decisions in the privacy space all support us here. [00:22:55] Speaker 03: I mean, Shapiro is a decision that adopts essentially our reading of the attached to a vehicle requirement, and it says that if the thing that's being alleged to be the tracking device is part and parcel of the vehicle, then it doesn't count as attached to the vehicle. [00:23:10] Speaker 03: So you already, and that's a California trial court decision, not binding, but I think informative about how the California courts are looking at this. [00:23:17] Speaker 03: It also sends a signal to the legislature. [00:23:19] Speaker 03: If the legislature didn't like this, they could have overturned it. [00:23:22] Speaker 03: We also have other cases, not quite as directly on point as Shapiro is. [00:23:27] Speaker 03: We have other cases that are helpful where privacy statutes are being construed in this kind of context, and they're being construed in a limited way to avoid the kind of runaway liability, civil liability and criminal liability that I've been talking about. [00:23:41] Speaker 03: So I think for those reasons, I think that suggests, number one, that if the legislature is going to come into play here, I think they're kind of on notice that these statutes are being read relatively narrowly. [00:23:52] Speaker 03: And if they want to expand that, they should act. [00:23:54] Speaker 03: And number two, with respect to certification, [00:23:56] Speaker 03: I do think that the backdrop here is that if you agree with us, you're not going to upend the status quo. [00:24:01] Speaker 03: If you agree with them, it's going to be a very significant upending of the status quo. [00:24:05] Speaker 03: So if you decide, and I hope you don't decide this, that they have the better view on your take of the statute, I think that would push you to certify. [00:24:13] Speaker 03: And that's why it's a little self-serving, but I think it's self-serving for a reason that's defensible under the discretionary criteria that the court applies when it's thinking about things like certification. [00:24:25] Speaker 03: I'd love to say a little bit more about the electronic tracking device issue, just to make sure that I get all the key points out. [00:24:32] Speaker 03: The legal point is really this distinction between the vehicle and something separate that is attached to the vehicle. [00:24:37] Speaker 03: And as I was explaining earlier, I think the something separate sort of aspect of this comes right out of the text of the statute. [00:24:44] Speaker 03: Here, I don't think there's any real dispute that this is a built-in component of the vehicle. [00:24:51] Speaker 03: If you look at what they said below, [00:24:53] Speaker 03: And I'd point you to SCR nine and SCR 14 SCR nine. [00:24:58] Speaker 03: is their reply brief below, and I'm quoting here, the ordinary BMW driver does not know where the TCU is located, they say that, and then they say that that ordinary BMW driver wouldn't be comfortable removing the truck lining, locating the TCU underneath the trunk, and disconnecting the TCUs from the car's battery. [00:25:18] Speaker 03: Then they would also have to unscrew it. [00:25:19] Speaker 03: So this is like a component of your car that is inscrutable, [00:25:24] Speaker 03: to normal people like me who wouldn't know how to go about disconnecting. [00:25:28] Speaker 03: It'd probably be dangerous. [00:25:29] Speaker 03: It's connected to the battery as well, one of the other components of the vehicle. [00:25:33] Speaker 03: And so there's no question this is a built-in component of the device. [00:25:36] Speaker 03: A lot of these TCU devices today, this is outside the record, but just as a matter of common sense, common knowledge, they sort of operate as the brain of the car. [00:25:44] Speaker 03: And they control not just the signals that are being sent that can be used for tracking, [00:25:48] Speaker 03: but other aspects of the car's electronic system. [00:25:52] Speaker 03: So it's very clearly built in. [00:25:54] Speaker 01: So you would agree with me that the legislative history for this particular statute was at least included discussion about private investigators who were hired probably in domestic violence and other situations the legislature is trying to prevent from people tracking whoever, other people, correct? [00:26:15] Speaker 01: Okay, so if a PI were to either through vehicles at a car shop or elsewhere, put the device as part of the battery or connected in some component of the vehicle, would they then come outside the purview of the statute? [00:26:35] Speaker 03: I think if a PI were to sneak into the repair shop and take like a tracking device, [00:26:39] Speaker 03: and open up the hood and attach it to the battery, maybe in the similar place where this is attached to the battery, it would still be a separate device that's attached to the vehicle. [00:26:49] Speaker 03: And no one would think that it's a built-in component of the vehicle. [00:26:52] Speaker 03: When you have a factory-installed component that's built into the car, and you buy it, and it comes with the car, it is part of the car. [00:26:59] Speaker 02: What if you replace that component itself? [00:27:02] Speaker 03: And if you replace it, I think if you replace the engine on a car with a new engine, it's still part of the car. [00:27:07] Speaker 03: It's still built into the car, even if it's like a later replacement. [00:27:11] Speaker 03: So I don't think that changes the analysis. [00:27:13] Speaker 00: Is the issue whether it happens at the factory? [00:27:16] Speaker 00: Where's the line? [00:27:18] Speaker 00: You can get fancy floor mats. [00:27:20] Speaker 00: I mean, fancy floor mats. [00:27:21] Speaker 00: Like, are they part of the car or not part of the car? [00:27:23] Speaker 03: I think the floor mat question is, I would think of a floor mat as being part of the vehicle because it comes out of the factory. [00:27:30] Speaker 03: I think that's arguably a harder question because it's much more common to swap out the floor mat and get your special fancy format later. [00:27:37] Speaker 03: Maybe you can buy it on Amazon or something. [00:27:39] Speaker 03: This is, I think, quite different from that. [00:27:40] Speaker 03: This is a much easier case. [00:27:43] Speaker 03: I think with respect to the TCU, [00:27:46] Speaker 03: It is not the kind of thing where some consumer is going and buying a new TCU, opening up the trunk of the car and sort of like swapping it out. [00:27:53] Speaker 03: I think this is just very, it's squarely in the heartland of a built-in component of the vehicle. [00:28:00] Speaker 01: If we adopt your interpretation, then it seems to me to be fairly easy for people to get around the intent, as articulated by the legislative history, for there to be tracking devices inserted as components of a vehicle, which I think everybody agrees was part of the contemplation in passing this legislation. [00:28:22] Speaker 03: Respectfully, Your Honor, I don't think so, because I do think that what the legislature was really focused on was the kind of very targeted tracking of specific people [00:28:30] Speaker 03: usually by private investigators. [00:28:32] Speaker 03: And as I explained in my answer to your earlier question, if you have like a private investigator who is trying to like track a specific person and sneaks into your car and puts the device like this in, that's very different from a built-in component, factory installed component of the device. [00:28:46] Speaker 02: So I think that we would absolutely- Oh Council, you're thinking floor mats are part of the car too. [00:28:50] Speaker 03: I think so, but I think the formats, if we had to analyze that, I think it might be a harder question. [00:28:57] Speaker 03: This one is obviously part of the car, given where it is, given how hard it is to remove, given that it's not supposed to be removed, given that it's not regularly removed. [00:29:05] Speaker 03: I think everyone would think of this as being built in. [00:29:07] Speaker 00: And so your position is the only way the private investigator doesn't get captured is if the private investigator actually [00:29:12] Speaker 00: goes to the factory and puts this in all of them or something? [00:29:16] Speaker 03: Even if the private investigator goes to the factory, it's not a built-in component of the car that's intended to be there. [00:29:22] Speaker 03: I mean, the PI sneaks into the factory and secretly attaches the device, and no one knows about it. [00:29:28] Speaker 03: I mean, that's a completely different scenario from this being part and parcel of the vehicle in the way that the Shapiro case described, where this is intended to be there. [00:29:36] Speaker 03: And frankly, people know that it's there, because everyone knows that they have GPS navigation, that they have roadside assistance, et cetera. [00:29:42] Speaker 03: So I just think it's very different. [00:29:44] Speaker 03: And going back to the intent of the statute, I think when you realize that the intent of the statute is focused on this very targeted problem of tracking and especially tracking by PIs, our interpretation doesn't interfere with that. [00:29:56] Speaker 03: If the California legislature wants to take account of the new environment with respect to technology, [00:30:02] Speaker 03: If they want to update their privacy statutes to address these problems, then I think they can do that. [00:30:08] Speaker 03: And the evidence sort of suggests to me, at least, that there's no pressing need to do that, or they don't see a pressing need to do that, because you have this train of decisions that have interpreted this statute and similar statutes, and they haven't yet acted. [00:30:19] Speaker 03: So I think this court should be cognizant of that fact and should not take what would, I think, be a fairly extreme step of interpreting this statute to impose criminal liability and billions and billions of dollars of civil liability on car manufacturers and people like my clients. [00:30:35] Speaker 00: We've taken you over your time. [00:30:36] Speaker 00: Thank you. [00:30:36] Speaker 03: Thank you, Your Honors. [00:30:43] Speaker 00: I think we should add a couple minutes because we gave him a couple extra minutes. [00:30:45] Speaker 00: Let's go to four minutes, please. [00:30:47] Speaker 04: I appreciate that. [00:30:48] Speaker 04: First, I want to echo my colleague here. [00:30:50] Speaker 04: If you are leaning in their direction, you should definitely sign the California Supreme Court. [00:30:56] Speaker 04: Just a few points. [00:31:01] Speaker 04: First of all, let's talk about the rule of lenity. [00:31:05] Speaker 04: I think actually if this court is in a position where it thinks the rule of lenity is relevant, [00:31:09] Speaker 04: that actually strengthens the case for certification. [00:31:11] Speaker 04: Because in that instance, you have, as the California cases tell us, you have two equally reasonable readings of the statute and no real way to choose between them. [00:31:18] Speaker 04: And I think in that instance, the body that should be selecting between them is probably the California Supreme Court. [00:31:25] Speaker 01: Can you talk about Shapiro? [00:31:26] Speaker 01: Because I'm interested to know why we wouldn't look at Shapiro as essentially some articulation of the scope [00:31:38] Speaker 01: of the statute that would basically render certification unnecessary. [00:31:43] Speaker 01: We would just follow that. [00:31:44] Speaker 01: The Supreme Court has not taken Shapiro up to interpret the statute differently. [00:31:52] Speaker 01: So what's your position on that? [00:31:55] Speaker 04: Sorry to interrupt. [00:31:55] Speaker 01: No. [00:31:56] Speaker 04: Our read of Shapiro is that it fits with the Moreno case and the Google case. [00:32:00] Speaker 04: That case is about software. [00:32:01] Speaker 04: Also, it wasn't appealed, so the California Supreme Court didn't have the chance to take it. [00:32:05] Speaker 04: The word software appears in the brief in the sort of parenthetical after the Shapiro site in the defendant's brief. [00:32:12] Speaker 04: So we think it is factually distinguishable. [00:32:15] Speaker 04: My friend has described a train of decisions. [00:32:17] Speaker 04: I mean, we're talking about four that all come from trial courts. [00:32:20] Speaker 04: And the California Supreme Court, and really California Courts of Appeal, haven't had a whole lot of opportunities to interpret this statute. [00:32:26] Speaker 01: But the legislature also hasn't done anything in response to Shapiro. [00:32:29] Speaker 04: That is true. [00:32:30] Speaker 04: That is true. [00:32:30] Speaker 04: I have to concede that point. [00:32:32] Speaker 04: But I do think they are considering these issues [00:32:35] Speaker 04: But to that point, my friend makes a point about the status quo and you would be upsetting it. [00:32:40] Speaker 04: I mean, let's talk about what the status quo is. [00:32:43] Speaker 04: The status quo that he describes exists because companies figured out in about 2018 when we had 4G for the first time that they could do this sort of thing. [00:32:52] Speaker 04: And they just barged into this space and started generating and collecting this data. [00:32:56] Speaker 04: And no one knew about it for several years. [00:32:58] Speaker 04: We sued in 2020. [00:33:00] Speaker 04: This was not a widely known thing then. [00:33:02] Speaker 04: The New York Times article that came out just a few months ago [00:33:06] Speaker 04: also is met with a bit of an uproar because people were rightly concerned that this sort of data generation and sharing was occurring. [00:33:13] Speaker 04: And in fact, there was a lawsuit filed in the wake of that in the central district of California, which cites, among other things, section 637.7. [00:33:22] Speaker 04: So they've barged into this space and are now sort of throwing a tantrum that someone's noticed what they're doing and said, hey, you know the law might actually already apply to this behavior. [00:33:31] Speaker 04: I don't really put a lot of stock in these complaints about the status quo or upsetting the status quo, because I think the status quo is that this kind of conduct is unlawful unless you're getting consent. [00:33:42] Speaker 04: And that is, I think, the answer to a lot of these concerns, is that all you have to do is get consent. [00:33:47] Speaker 04: That's what the statute says. [00:33:51] Speaker 04: protects against a huge swath of the problems that are imagined here. [00:33:56] Speaker 00: So how do you, so I mean, what is your response to my question to the other side then about this about it seems like there's a lot that could be known about consent that's either going to upset this industry or not. [00:34:06] Speaker 00: And we don't know at this point because we're only in your complaint. [00:34:10] Speaker 00: So you think there's not a big risk of letting it go forward and tell what they say even with this much liability, even getting past the motion dismisses a huge issue. [00:34:19] Speaker 04: Well, I mean, I think that's a pretty common refrain from defendants. [00:34:23] Speaker 04: On the liability issue, a couple of other things I would say. [00:34:26] Speaker 02: This court has said- But in this case, true, isn't it, though? [00:34:29] Speaker 04: I don't think we know that yet. [00:34:32] Speaker 04: District courts have tools, the tools that they need to rein in verdicts like the ones that are being imagined here, if they think they are beyond the pale, if they're beyond what due process allows. [00:34:43] Speaker 04: So those tools exist. [00:34:45] Speaker 04: I think there are already constraints in the law. [00:34:49] Speaker 04: And back to the rule of lenity point, and this is the last thing I'll say before I wrap up. [00:34:54] Speaker 04: The California Supreme Court has said we don't apply the rule of lenity in civil cases even when they consider the concern the penal code. [00:35:01] Speaker 00: I think the case you cited about that was not about the rule of lenity. [00:35:05] Speaker 00: It was about a different kind of constitutional problem with a criminal [00:35:10] Speaker 00: statute and they said, we're not going to view that criminal question about whether you can extend beyond the state in the civil question about that statute. [00:35:17] Speaker 00: So I don't know if you have a case that says we don't look at the rule of vanity. [00:35:20] Speaker 04: Well, I will say that one of the things that I apologize if I've misrepresented that decision, but it does say we recognize that criminal prosecutions present different concerns that are not present in civil cases. [00:35:33] Speaker 00: It does say that, but not in a rule of lenity context, so I'm not sure that we know what California does with the rule of lenity. [00:35:38] Speaker 04: Well, and we may not, but I think the point I think is that [00:35:44] Speaker 04: All of these concerns about criminal liability, we don't necessarily, we can't say right now that they are really present in this civil case, you know, despite the protestations of the defendant here. [00:35:56] Speaker 04: And actually, one other thing that I want to say before I sit down, I apologize for misrepresenting that. [00:36:03] Speaker 04: I think there was a line here that we don't have an account of what the car is. [00:36:08] Speaker 04: And to be frank, I don't really think we need one, right? [00:36:10] Speaker 04: Put the TCU to one side. [00:36:12] Speaker 04: Imagine a regular car component. [00:36:13] Speaker 04: manufacturer comes up with a headrest that is location enabled, and a third party can use it to track you or I as we're driving around San Francisco. [00:36:21] Speaker 04: I absolutely think that this statute would require that person to get our consent before they tracked us. [00:36:26] Speaker 04: I don't think that is crazy at all. [00:36:29] Speaker 04: I don't think that's anomalous at all. [00:36:30] Speaker 04: And I think this contrary rule sort of invites what Your Honor got into, this sort of car of thesius analysis. [00:36:36] Speaker 04: And I really think there's no reason to go down that rabbit hole. [00:36:39] Speaker 04: This thing is attached, right? [00:36:40] Speaker 04: It's screwed on, it's attached, and that's really the end of the matter on that point. [00:36:43] Speaker 00: And do you think the steering wheel is attached? [00:36:46] Speaker 00: Yeah. [00:36:48] Speaker 00: So for you, there's no real definition of the vehicle. [00:36:51] Speaker 00: Any part of the vehicle could be attached to the vehicle. [00:36:53] Speaker 00: You just totally disagree with this concept that there's something that's the vehicle. [00:36:58] Speaker 04: Yeah. [00:36:58] Speaker 04: As I said in my opening argument, I think attached is distinguishing between basically devices that stay with you, that go with your car, your bike, or your briefcase, something like that. [00:37:07] Speaker 02: But what's the car? [00:37:08] Speaker 02: The block? [00:37:09] Speaker 02: What's the car? [00:37:10] Speaker 04: Well, the car is what's left after you detach the TCU. [00:37:13] Speaker 04: I think it's still there. [00:37:17] Speaker 00: But how do you have a car without a steering wheel? [00:37:20] Speaker 00: How do you still have a vehicle if you don't have the steering wheel? [00:37:23] Speaker 04: Well, I think my brother has an old truck that doesn't have a steering wheel. [00:37:25] Speaker 04: I think it's still a truck. [00:37:27] Speaker 04: I think this sort of line drawing gets us into some really weird places. [00:37:32] Speaker 04: And there's just no need to do it, because we know this thing is attached under various security measures. [00:37:36] Speaker 02: Council, we're in the business of line drawing. [00:37:39] Speaker 04: I know, I know, and I'm telling you, I think there's a different line to be drawn here than the one that has been proposed by the defendant. [00:37:44] Speaker 00: That's my only... Sorry, but now I don't understand what your line is. [00:37:47] Speaker 00: The car doesn't need to drive under your line. [00:37:50] Speaker 04: Well, not necessarily, but it would be difficult to track someone's movements if the car couldn't drive. [00:37:56] Speaker 04: But the line is between things that are attached, things that stick with the person, and things that are not attached, right? [00:38:02] Speaker 04: Like stingrays or thermal imaging devices, things that could be used to track you [00:38:06] Speaker 04: that are not attached to a vehicle or other movable object, right? [00:38:09] Speaker 04: Because the things that are attached represent a unique threat to privacy. [00:38:14] Speaker 04: I think that's the reason we have this statute. [00:38:16] Speaker 01: You can build- I've got a drone that could identify every BMW from the air that's tracking where the BMWs are going and the drivers are going. [00:38:24] Speaker 01: that would not come under the purview of the statute. [00:38:27] Speaker 04: That's a closer case. [00:38:28] Speaker 04: I mean that the drone is obviously a movable object. [00:38:30] Speaker 01: I think it's a closer case, but how would it possibly be attached to the vehicle? [00:38:33] Speaker 04: Well, it's okay. [00:38:34] Speaker 04: It's not attached to a vehicle, but the thing that is doing the tracking might be attached to the drone is my point. [00:38:39] Speaker 04: But I don't think I think that's a closer case, but no, I don't think that is that is that comes under the statute. [00:38:45] Speaker 04: I think the legislature recognized that these other devices represent a far more unique threat to privacy, and that's why they're regulated in the way they are. [00:38:51] Speaker 04: Thank you. [00:38:52] Speaker 04: You've given me way too much time, and I appreciate it very much. [00:38:55] Speaker 01: Nobody ever said that. [00:38:59] Speaker 00: This case is submitted.