Gabrielli v. Insider, Inc.

Background

Jonathan Gabrielli sued Insider, Inc., individually and on behalf of similarly situated people. He alleged that, when he visited Insider’s website, the website installed a third-party tracker operated by Audiencerate. According to the complaint, the tracker sent his IP address to Audiencerate without his consent. Gabrielli alleged that the IP address could provide the general state, city, and ZIP code associated with the device and that the information was used for targeted advertising and marketing.

Gabrielli claimed that Insider violated California’s Invasion of Privacy Act, specifically California Penal Code § 638.51, which restricts installing or using a pen register without a court order. Insider moved to dismiss under Federal Rules of Civil Procedure 12(b)(1), for lack of subject-matter jurisdiction, and 12(b)(6), for failure to state a claim.

Standing and Concrete Injury

The court addressed the jurisdictional motion first. To establish standing under Article III of the Constitution, Gabrielli had to show a concrete and particularized injury that was actual or imminent, traceable to Insider’s conduct, and likely to be remedied by a court order.

The court held that Gabrielli had not alleged a concrete injury. It rejected his argument that sharing his IP address was closely related to the traditional privacy tort of public disclosure of private facts. The complaint did not allege that anyone could identify Gabrielli from the IP address, and the information allegedly revealed only the general geographic area of the device. The tracker also did not collect the contents of the information Gabrielli accessed on the website.

The court distinguished cases involving personally identifying information, the content of a person’s viewing activity, or detailed records of web browsing. It concluded that the alleged disclosure of Gabrielli’s IP address, without more, was not sufficiently similar to the traditional harm of publicly disclosing highly offensive private facts.

The court also rejected Gabrielli’s intrusion-upon-seclusion theory. It reasoned that an IP address was necessary for Gabrielli’s device to communicate with Insider’s website and that Gabrielli voluntarily provided it by accessing the website. Even apart from that point, the court found that collecting an IP address would not be an intrusion highly offensive to a reasonable person.

The court further rejected Gabrielli’s unjust-enrichment theory. It held that Insider’s alleged profit from sharing the IP address did not by itself establish a concrete injury. Gabrielli did not allege an observable loss or a legally protected privacy interest in the IP address comparable to the highly personalized information involved in another case he cited.

Finally, the court held that California Penal Code § 638.51 did not create a substantive privacy right whose violation automatically establishes standing. In the court’s view, the statute regulated the method used to collect information rather than protecting the contents of communications or giving Gabrielli a right to control his information. The alleged violation was therefore a bare procedural violation without an adequately alleged concrete harm.

Disposition

Because Gabrielli failed to establish a concrete injury, the court held that he lacked Article III standing and that the court lacked subject-matter jurisdiction. The court expressly did not decide whether Gabrielli had stated a claim under California’s privacy statute.

Gabrielli requested permission to amend his complaint. The court declined to grant leave to amend, reasoning that Gabrielli had already amended once after receiving notice of Insider’s standing arguments and that another amendment was unlikely to cure the defect. The court stated that dismissal with prejudice was warranted. It granted Insider’s motion, directed the Clerk to terminate the motion, and closed the case.

Note on dates

The supplied case metadata lists February 18, 2025, while the opinion’s concluding page states that it was dated February 18, 2024. This summary uses the supplied metadata date in the required header.