Carly Baker, Et Al, Appellant V. Seattle Childrens Hospital, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CARLY BAKER, JANSSEN RAMOS
SAVOIE, AND AMBER SHAVIES,
individually, and on behalf of those
similarly situated,
Appellants,
v.
SEATTLE CHILDREN’S HOSPITAL, a
Washington nonprofit corporation,
Respondent.
No. 86461-1-I
DIVISION ONE
UNPUBLISHED OPINION
COBURN , J. — Plaintiffs filed a putative class action lawsuit against Seattle
Children’s Hospital (SCH), alleging in part that SCH used third-party technology to
intercept their activities on SCH’s public website in violation of Washington’s privacy act,
chapter 9.73 RCW. The trial court dismissed the plaintiffs’ complaint for failure to state a
claim under CR 12(b)(6). We affirm.
FACTS
SCH owns and controls the public website www.seattlechildrens.org.1 The
website allows visitors to search for information about medical conditions, health care
providers, and services. SCH uses Meta Platforms, Inc.’s “Pixel” software code on its
1 The facts are taken from the allegations in plaintiffs’ complaint. When reviewing a trial
court’s dismissal under CR 12(b)(6), we presume that the complaint’s factual allegations are
true. Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838, 843, 347 P.3d 487 (2015).

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public website. Pixel is designed to track website user activity by capturing how visitors
interact with the website, including clicks, text searches, page views, and the webpage
addresses that the user visits. SCH uses the information to support its advertising
efforts.
Pixel, as used by SCH, also shares the tracked data with Meta. This data is often
linked with the individual website user’s Meta-owned Facebook account. “Meta uses
both first- and third-party cookies[2] in Pixel to link Facebook IDs and Facebook profiles,
and [SCH] sends these identifiers to Meta.” For example, if the website user is logged
into their Facebook account when they visit SCH’s public website, Pixel sends third-
party cookies to Meta. The cookies allow Meta to link website activity data collected by
Pixel to the user’s unique Facebook account. Even if the website user does not have a
Facebook account or is not logged in to Facebook when browsing SCH’s public
website, Pixel transmits the user’s website activity to Meta with a unique identifier
associated with a cookie that Meta can use to link the user’s activity with their current or
later-created Facebook account. After linking user’s website activity to a specific
Facebook account, Meta can use that information for its own targeted advertising
purposes.
In October 2023 plaintiffs Carly Baker, Janssen Ramos Savoie, and Amber
Shavies filed a putative class action against SCH, alleging in part that SCH violated
RCW 9.73.030(1)(a) of Washington’s privacy act by intentionally deploying Pixel on the
2 The complaint defines “cookies” as “a text file that website operators and others use to
store information on the website visitor’s device,” which can be later communicated to a server.
When a user visits one website, “third-party cookies” store and communicate data to an entirely
different website. “First-party cookies” are created by the website the user is visiting.

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hospital’s website to secretly intercept and record their sensitive health information.3
See ch. 9.73 RCW. Plaintiffs defined the intercepted and recorded website activity as
including an HTTP request, which
is an electronic communication a website visitor sends from her device’s
browser to the website’s server. … In this case, a patient’s HTTP Request
would be asking [SCH’s] Website to get certain information, such as a list
of urgent clinic locations or health care providers with a particular
specialization.
…
A [website] user’s HTTP Request essentially asks [SCH’s] Website to
retrieve certain information (such as the “Find a Provider or Researcher”
webpage). [An] HTTP Response then renders or loads the requested
information in the form of … pages, images, words, buttons, and other
features that appear on the patient’s screen as they navigate [SCH’s]
Website.
Specifically, Baker used SCH’s public website to search for medical conditions
and symptoms on behalf of her minor daughter, including using the website’s search bar
and conditions webpage. Savoie used the website to search for information on medical
conditions, symptoms, and health care providers for her minor son by using the
website’s search bar and “Find A Doctor” webpage. Shavies searched on the website
for operating hours for urgent care facilities. Plaintiffs did not expect their website
activity to be shared with third parties without their express consent. Each of the
3 Plaintiffs defined the proposed class as, “All individuals residing in Washington whose
Sensitive Information was disclosed to a third party through [SCH’s] Website without
authorization or consent during the Class Period.” The complaint defines “Sensitive Information”
as “patients’ and prospective patients’ highly sensitive Personal Health Information (‘PHI’) and
Personally Identifiable information (‘PII’).”
In their complaint, the plaintiffs collectively refer to SCH’s public website at
www.seattlechildrens.org and its “patient portal” at seattlechildrens.org/patients-
families/mychart/ as the “Website.” Plaintiffs, however, limit their appeal to the trial court’s
dismissal of their privacy act claim regarding plaintiffs’ alleged use of SCH’s public website at
www.seattlechildrens.org. We recite facts in the plaintiffs’ complaint accordingly.

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plaintiffs had a Facebook and/or Instagram4 account when they used SCH’s public
website. Some plaintiffs recall receiving health-related advertisements on Facebook
after using SCH’s website, including advertisements “related to specific symptoms
communicated to” SCH on the website.”5
SCH acknowledges the use of cookies on its website with a pop-up that appears
“upon navigating to [SCH’s] website,” which states,
By clicking ‘Accept All Cookies,’ you agree to the storing of cookies on
your device to enhance site navigation, analyze site usage and assist in
marketing efforts. For more information, see Website Privacy [link].
In January 2024 SCH moved to dismiss plaintiffs’ lawsuit for failure to state a
claim under CR 12(b)(6). Plaintiffs filed a response, to which SCH replied. After the trial
court held a hearing in February, the court granted SCH’s 12(b)(6) motion and
dismissed plaintiffs’ complaint with prejudice.6
Plaintiffs appeal.
DISCUSSION
Standard of Review
Plaintiffs argue that the trial court erred by dismissing their claim under
Washington’s privacy act, chapter 9.73 RCW. We review de novo an order granting a
motion to dismiss under CR 12(b)(6). FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp.
4 The complaint states that Instagram is a social media company owned by Meta.
5 As a result of SCH’s alleged use of Pixel in violation of the privacy act, plaintiffs
asserted that they and putative class members were injured by the “interference with their
control over their personal data, intrusion into their private affairs, the highly offensive
publication of private facts, and other losses of privacy related to the secret interception and
disclosure of their private and sensitive health information.”
6 The trial court also dismissed plaintiffs’ claims under Washington’s Consumer
Protection Act, chapter 19.86 RCW; Washington’s Uniform Healthcare Information Act, chapter
70.02 RCW; as well as plaintiffs’ invasion of privacy, breach of implied contract, conversion, and
unjust enrichment claims. Plaintiffs limit their appeal to their claim under the privacy act.

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Holdings, Inc., 180 Wn.2d 954, 962, 331 P.3d 29 (2014).
A CR 12(b)(6) motion challenges the legal sufficiency of the allegations in the
complaint. McAfee v. Select Portfolio Servicing, Inc., 193 Wn. App. 220, 226, 370 P.3d
25 (2016). The rule “weeds out complaints where, even if what the plaintiff alleges is
true, the law does not provide a remedy.” McCurry v. Chevy Chase Bank, FSB, 169
Wn.2d 96, 102, 233 P.3d 861 (2010). “Dismissal under CR 12(b)(6) is appropriate in
those cases where the plaintiff cannot prove any set of facts consistent with the
complaint that would entitle the plaintiff to relief.”7 Jackson, 186 Wn. App. at 843. In
considering a motion to dismiss under CR 12(b)(6), we take all facts alleged in the
complaint as true. FutureSelect Portfolio Mgmt., Inc., 180 Wn.2d at 962. Though we
may consider hypothetical facts, “‘[i]f a plaintiff’s claim remains legally insufficient even
under his or her proffered hypothetical facts, dismissal pursuant to CR 12(b)(6) is
appropriate.’” Id. at 963 (alteration in original) (quoting Gorman v. Garlock, Inc., 155
Wn.2d 198, 215, 118 P.3d 311 (2005)). We must determine whether the plaintiffs can
prove any set of facts, consistent with their complaint,8 that would entitle them to relief.
Orwick v. City of Seattle, 103 Wn.2d 249, 254, 692 P.2d 793 (1984).
Washington privacy act, chapter 9.73 RCW
Washington’s privacy act protects private communication and conversation.
7 A court may dismiss a petitioner’s claim under CR 12(b)(6) for “failure to state a claim
upon which relief can be granted.”
8 Plaintiffs incorrectly assert that a court must consider whether all possible facts could
sustain a claim for relief, including hypothetical facts that are not pleaded in the complaint. The
cases that plaintiff cites do not stand for this proposition. See Burton v. Lehman, 153 Wn.2d
416, 422, 103 P.3d 1230 (2005); Halvorson v. Dahl, 89 Wn.2d 673, 674-75, 574 P.2d 1190
(1978); McCurry, 169 Wn.2d at 102. While a court may consider hypothetical facts outside of
the record when ruling on a CR 12(b)(6) motion, see Haberman v. Wash. Pub. Power Supply
Sys., 109 Wn.2d 107, 120, 744 P.2d 1032 (1987), a court may generally not go beyond the face
of the pleadings. Jackson,186 Wn. App. at 844.

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RCW 9.73.030. One of the most restrictive electronic surveillance laws in the nation,
“[t]he act prohibits anyone not operating under a court order from intercepting or
recording certain communications without the consent of all parties.”9 State v. Roden,
179 Wn.2d 893, 898, 321 P.3d 1183 (2014) (citing RCW 9.73.030, .040, .090(2)); State
v. Faford, 128 Wn.2d 476, 481, 910 P.2d 447 (1996). The act provides in relevant part:
it shall be unlawful for any individual, partnership, corporation, association,
or the state of Washington, its agencies, and political subdivisions to
intercept, or record any … [p]rivate communication transmitted by
telephone, telegraph, radio, or other device between two or more
individuals … without first obtaining the consent of all the participants in
the communication[.]
RCW 9.73.030(1)(a).10 Violation of this provision may result in both civil and criminal
liability. RCW 9.73.060, .080.
A violation of the privacy act requires “(1) a private communication transmitted by
a device, which was (2) intercepted or recorded by use of (3) a device designed to
record and/or transmit (4) without the consent of all parties to the private
communication.” Roden, 179 Wn.2d at 899 (citing Christensen, 153 Wn.2d at 192)
(citing RCW 9.73.030).
Communication
Plaintiffs assert that their click-and-search activity on SCH’s public website
constitutes “private communication” under RCW 9.73.030(1)(a). Because plaintiffs’
alleged navigation of SCH’s public website is not “communication” as contemplated by
9 The Washington Supreme Court observed that “[a]rguably, the most significant piece of
evidence about the extent to which the legislature intended to restrict eavesdropping is the all-
party consent requirement.” State v. Christensen, 153 Wn.2d 186, 198 n.3, 102 P.3d 789 (2004)
(citing RCW 9.73.030).
10 This opinion cites to decisions that refer to prior versions of RCW 9.73.030.
Throughout its various amendments, the relevant language of the statute has remained the
same.

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the privacy act, we reject plaintiffs’ argument.
In determining the meaning of a statutory phrase, the fundamental goal is to give
effect to the legislature’s intent. Kadoranian v. Bellingham Police Dep’t, 119 Wn.2d 178,
185, 829 P.2d 1061 (1992). A statute’s meaning that is clear from its plain language is
not subject to judicial construction. State v. Sullivan, 143 Wn.2d 162, 175, 19 P.3d 1012
(2001). Courts may determine the plain meaning of a nontechnical statutory term that is
undefined in the statute from its dictionary definition. HomeStreet, Inc. v. Dep’t of
Revenue, 166 Wn.2d 444, 451, 210 P.3d 297 (2009); Columbia Riverkeeper v. Port of
Vancouver USA, 188 Wn.2d 421, 435, 395 P.3d 1031 (2017).
Because the privacy act does not define “private communication,” our state
Supreme Court has adopted the dictionary definition for “communication.” State v. Riley,
121 Wn.2d 22, 33, 846 P.2d 1365 (1993). Under RCW 9.73.030(1)(a), communication is
“‘the act ... of imparting or transmitting’ or ‘facts or information communicated.’” Id.
(quoting WEBSTER’S THIRD NEW I NTERNATIONAL DICTIONARY 460 (1986)).11
In Riley, the Supreme Court held that a line trap that traced computer hacking
activity to Riley’s home did not record communication under the terms of RCW
9.73.030(1)(a) because the line trap merely recorded Riley’s phone number rather than
an exchange of information from one party to another party. Id. at 32-34. The court
distinguished the information discovered by the line trap from a pen register’s discovery
of the dialing of one telephone number to another as contemplated in its decision in
11 The state Supreme Court has also interpreted the plain meaning of “private” according
to its dictionary definition of “‘belonging to oneself ... secret ... intended only for the persons
involved <a ~ conversation> ... holding a confidential relationship to something ... a secret
message: a private communication ... secretly: not open or in public.’” State v. Kipp, 179 Wn.2d
718, 729, 317 P.3d 1029 (2014) (citing W EBSTER’S THIRD NEW I NTERNATIONAL DICTIONARY 1804-
05 (1969), quoted in State v. Clark, 129 Wn.2d 211, 224-25, 916 P.2d 384 (1996)).

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State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), stating:
In Gunwall, this court held that a pen register records a “private
communication” under RCW 9.73. … Although a pen register does not
intercept spoken words, it does record an exchange of information—the
dialing from one telephone number to another. A pen register is thus
“comparable in impact to electronic eavesdropping devices in that it …
may affect other persons and can involve multiple invasions of privacy”. In
contrast, all that is learned from a tracer is the telephone number of one
party, the party dialing. A pen register may therefore be reasonably
viewed as recording a “private communication”, whereas a tracer may not.
Id. at 34 (emphasis added) (second alteration in original) (citation omitted) (quoting
Gunwall, 106 Wn.2d at 69).
In State v. Wojtyna, we applied the Riley court’s reasoning to the display of
Wojtyna’s phone number on a suspected drug dealer’s pager that Wojtyna contacted.
70 Wn. App. 689, 694-96, 855 P.2d 315 (1993). Upon the suspected dealer’s arrest,
police seized the pager and monitored it for incoming calls. Id. at 691. After the pager
received an incoming call, a detective called the phone number and arranged a meeting
with Wojtyna for an undercover drug deal. Id. Like in Riley, “all that was learned from
the pager was the telephone number of one party, the party dialing.” Id. at 695. Because
the interception of the telephone number did not affect other parties, involve multiple
invasions of privacy, or record the exchange of information, we concluded the display of
the telephone number did not establish communication under the privacy act. Id. (citing
Riley, 121 Wn.2d at 33-34).
In Roden, the Supreme Court considered whether Roden’s text messages to an
alleged drug dealer’s cell phone constituted private communications under the act. 179
Wn.2d at 896-97, 899-03. The court discussed Wojtyna and observed that “a simple
informational statement that is sent to a pager” is distinguishable from “back-and-forth”

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text messaging, which is “much more like e-mail exchanges and telephone calls” and is
plainly protected by the privacy act.12 Id. at 901; see also State v. Smith, 85 Wn.2d 840,
846, 540 P.2d 424 (1975) (“We are convinced that the events here involved do not
comprise ‘private conversation’ within the meaning of the statute. Gunfire, running,
shouting, and … screams do not constitute ‘conversation’ within that term’s ordinary
connotation of oral exchange, discourse, or discussion.”).13
Plaintiffs assert that we should broadly interpret the privacy act to include their
navigation of SCH’s public website, citing to our Supreme Court’s instruction that courts
“must interpret the privacy act in a manner that ensures that the private conversations of
this state’s residents are protected in the face of an ever-changing technological
landscape.” Christensen, 153 Wn.2d at 197. This mandate pertains to evolving
technology used to record or intercept conversation or communication protected by the
act, see Christensen, 153 Wn.2d at 197-98, as well as technology that is used to
communicate. See Faford, 128 Wn.2d at 485-86; Roden, 179 Wn.2d at 901-03.
Nonetheless, a communication must occur to support a viable claim under RCW
9.73.030(1)(a).14 Plaintiffs offer no authority to support their broader interpretation of
12 Notably, the test for determining whether “[a] communication is private” under the
privacy act indicates that a communication requires an exchange of information from one party
to another recipient party. See Kipp, 179 Wn.2d at 729. Private communication is “(1) when [the]
parties manifest a subjective intention that it be private and (2) where that expectation is
reasonable.” Id. “A communication is not private where anyone may turn out to be the recipient
of the information or the recipient may disclose the information.” Clark, 129 Wn.2d at 227 (citing
Wojtyna, 70 Wn. App. at 695-96); see also, e.g., Kadoranian, 119 Wn.2d at 189-91 (holding that
brief conversation regarding general information that was “inconsequential, non-incriminating
and made to a stranger” is “not the kind of communication that the privacy act protects”).
13 The court in Smith considered the former “private conversation” provision of the
privacy act, which is identical in wording to the current version. Compare former RCW
9.73.030(2) (1967) with RCW 9.73.030(1)(b). The same applies to the “private communication”
provision. Compare former RCW 9.73.030(1) (1967) with RCW 9.73.030(1)(a).
14 Plaintiffs also cite the rule that “[w]hen an area of the law involved is in the process of
development, courts are reluctant to dismiss an action on the pleadings alone by way of a CR

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communication under the privacy act.15 See DeHeer v. Seattle Post-Intelligencer, 60
Wn.2d 122, 126, 372 P.2d 193 (1962) (“Where no authorities are cited in support of a
proposition, the court is not required to search out authorities, but may assume that
counsel, after diligent search, has found none.”). We are otherwise controlled by the
definition that our Supreme Court adopts in Riley. State v. Gore, 101 Wn.2d 481, 487
681 P.2d 227 (1984) (stating that once the Washington Supreme Court “has decided an
issue of state law, that interpretation is binding on all lower courts until it is overruled by
[the state Supreme Court]”).
In the present case, plaintiffs’ complaint did not allege that they navigated SCH’s
public website to transmit a message to or exchange information with another party.
Rather, they merely allege to have clicked and entered search terms to retrieve publicly
displayed information and webpages. Distinguishable from “back-and-forth” messaging
that is plainly protected by the act, SCH’s alleged interception of plaintiffs’ click-and-
search activity did not affect other parties or involve multiple invasions of privacy. See
Roden, 179 Wn.2d at 901-02. Because plaintiffs do not plead facts to establish that
communication occurred on SCH’s public website under the plain terms of RCW
12(b)(6) motion.” Haberman, 109 Wn.2d at 120. Plaintiffs cite to Bravo v. Dolsen Cos., 125
Wn.2d 745, 751, 888 P.2d 147 (1995), wherein the court held that dismissal under CR 12(b)(6)
was “inappropriate … because there is no prior state court decision setting forth the elements of
[the claim].” Because the elements of a privacy act claim are well-established, Bravo is
inapposite. See, e.g., Roden, 179 Wn.2d at 899-906 (discussing elements).
15 Plaintiffs cite federal and foreign state court decisions for discussions of the federal
wiretap statute, 18 U.S.C. §§ 2510-2522, and other state privacy acts or wiretap statutes. We do
not find these non-binding decisions persuasive on this issue of Washington law. See Brown v.
Old Navy, LLC, No. 102592-1, slip op. at 5 (Wash. Apr. 17, 2025),
https://www.courts.wa.gov/opinions/pdf/1025921.pdf; West v. Thurston County, 168 Wn. App.
162, 183 n.22, 275 P.3d 1200 (2012) (citing State v. Lord, 161 Wn.2d 276, 289, 165 P.3d 1251
(2007)); see also Gore, 101 Wn.2d at 487 (stating that once our state Supreme Court “decide[s]
an issue of state law, that interpretation is binding on all lower courts until it is overruled by [the
Washington Supreme Court].”).

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9.73.030(1)(a), we conclude their claim must fail.
We acknowledge plaintiffs’ concern regarding the privacy of health-related
internet activity and privacy concerns related to web-based communications. Indeed,
our sister division recently observed “that the laws in Washington demonstrate a public
policy that recognizes there is value in the security of our personal information” and
cites various statutes that regulate the handling of personal and health care information.
Nunley v. Chelan-Douglas Health Dist., 32 Wn. App. 2d 700, 723-24, 558 P.3d 513
(2024). This includes the Washington My Health My Data Act, chapter 19.373 RCW,
that requires “additional disclosures and consumer consent regarding the collection,
sharing, and use of [health data].” RCW 19.373.005(3). But the issue before us is a
narrow one related only to our state’s privacy act. Further, our holding should not be
read to definitively construe the application of the term “private communication” for all
cases involving website or internet use. We confine our holding to the facts of this case
and decide that the plaintiffs’ alleged click-and-search navigation of SCH’s public
website does not fall within the statutory prohibition of RCW 9.73.030(1)(a).16
We affirm.
WE CONCUR:
16 Because our holding is dispositive, we need not address other arguments raised by
the parties that could be pertinent if the complaint involved a private communication.