Smith v. Target Corp

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

KILOH SMITH, Plaintiff/Appellant,

v.

TARGET CORPORATION, et al., Defendants/Appellees.

No. 1 CA-CV 25-0120
FILED 11-13-2025

Appeal from the Superior Court in Maricopa County
No. CV2024-025462
The Honorable M. Scott McCoy, Judge, Retired

AFFIRMED

COUNSEL

Gilbert & Sackman, a Law Corporation, Phoenix
By Gerald Barrett
Co-Counsel for Plaintiff/Appellant

Bursor & Fisher, P.A., New York, New York
By Yitzchak Kopel (Pro Hac Vice)
Co-Counsel for Plaintiff/Appellant

Jones, Skelton & Hochuli P.L.C., Phoenix
By Jefferson T. Collins, Justin M. Ackerman
Co-Counsel for Defendants/Appellees

Fredrikson & Byron, P.A., Minneapolis, Minnesota
By Leah C. Janus, Natasha T. Robinson, Sarah Theisen (Pro Hac Vice)
Co-Counsel for Defendants/Appellees
 SMITH v. TARGET CORP, et al.
Opinion of the Court

OPINION

Judge Andrew J. Becke delivered the opinion of the Court, in which
Presiding Judge David B. Gass and Judge Michael J. Brown joined.

B E C K E, Judge:

¶1 Kiloh Smith appeals the superior court’s dismissal of his claim
against Target Corporation and Target Stores, Inc. (“Target”). For reasons
that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2024, Smith filed a class action complaint in superior court
alleging a violation of A.R.S. § 44-1376.01, Arizona’s Telephone, Utility and
Communication Service Records Act (“TUCSRA”). Smith claimed Target
embedded spy pixels1 in its marketing emails that were designed to extract
email data without his consent, including when he opens the email and if
he forwards the email.

¶3 Target moved to dismiss, arguing (1) the superior court
lacked personal jurisdiction over Target; (2) Smith lacked standing; (3)
Smith failed to state a claim because A.R.S. § 44-1376.01 does not apply to
Target nor the specific facts in the complaint; and (4) Smith’s claim was
preempted by federal law, the CAN-SPAM Act. 15 U.S.C. § 7701 et seq.

¶4 After full briefing and oral argument, the court dismissed
Smith’s complaint with prejudice. The court found persuasive the United
States District Court for the District of Arizona’s analysis from Carbajal v.
Home Depot U.S.A., Inc., No. CV-24-00730-PHX-DGC, 2024 WL 5118416 (D.
Ariz. Dec. 16, 2024). Analyzing the same issues as in Carbajal, the court held:
“[i]n short, ‘sending marketing emails and collecting information through
tracking pixels—simply is not covered by the [statute].’”

1 Smith describes spy pixels as a “1x1 (one pixel high by one pixel long)

image” inserted into an email and alleges they collect certain information
about email activity.

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Opinion of the Court

¶5 Smith timely appealed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1), -2101(A)(1).

DISCUSSION

¶6 Smith raises two arguments on appeal. First, he argues the
superior court “erroneously ignored the plain text and misconstrued”
A.R.S. § 44-1376.01 and improperly dismissed his complaint for failure to
state a claim. Smith also takes issue with the court’s finding that he did not
have standing to bring his claim.

¶7 We review de novo the dismissal of a complaint under Arizona
Rule of Civil Procedure 12(b)(6). Coleman v. City of Mesa, 230 Ariz. 352, 355,
¶ 7 (2012). In doing so, we “assume the truth of all well-pleaded factual
allegations and indulge all reasonable inferences from those facts.” Id. at
356, ¶ 9. We review issues of standing, Mills v. Ariz. Bd. of Tech. Registration,
253 Ariz. 415, 420, ¶ 10 (2022), and interpret the meaning of statutes de novo,
Haag v. Steinle, 227 Ariz. 212, 214, ¶ 9 (App. 2011).

¶8 Unless directed otherwise, we interpret statutes “according to
the plain meaning of the words in their broader statutory context.” S. Ariz.
Home Builders Ass'n v. Town of Marana, 254 Ariz. 281, 286, ¶ 31 (2023).
Statutory terms must be given their “commonly accepted meanings, ‘unless
the legislature has offered its own definition of the words or it appears from
the context that a special meaning was intended.’” Planned Parenthood Ariz.,
Inc. v. Mayes, 257 Ariz. 137, 142, ¶ 16 (2024) (quoting State v. Reynolds, 170
Ariz. 233, 234 (1992)).

¶9 The relevant TUCSRA provision, A.R.S. § 44-1376.01(A)(1),
states:

A person shall not . . . [k]nowingly procure, attempt to
procure, solicit or conspire with another to procure a . . .
communication service record of any resident of this state
without the authorization of the customer to whom the record
pertains or by fraudulent, deceptive or false means.

“Communication service record” includes:

subscriber information, including name, billing or installation
address, length of service, payment method, telephone
number, electronic account identification and associated
screen names, toll bills or access logs, records of the path of

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Opinion of the Court

an electronic communication between the point of origin and
the point of delivery and the nature of the communication
service provided, such as caller identification, automatic
number identification, voice mail, electronic mail, paging or
other service features.

A.R.S. § 44-1376(1).

¶10 A brief review of Arizona’s statutory history surrounding
“communication service records” is key to analyzing TUCSRA. Seven years
before TUCSRA was passed, Arizona amended the Eavesdropping and
Communications Act (“ECA”). 2000 Ariz. Sess. Laws, ch. 189, § 22 (2nd Reg.
Sess.) (H.B. 2428). The amendment authorized prosecutors to subpoena
“communication service records” from “communication service
providers.” A.R.S. § 13-3018. Six years later, Arizona passed the Telephone
Records Act (“TRA”) which prohibited third parties from fraudulently
procuring telephone records from telephone companies. 2006 Ariz. Sess.
Laws, ch. 260, § 1 (2nd Reg. Sess.) (H.B. 2785). The next year, Arizona
amended the TRA to also protect “communication service records” and
public utility records and lifted the definition of “communication service
records” verbatim from the ECA, thus becoming TUCSRA. 2007 Ariz. Sess.
Laws, ch. 210, § 2 (1st Reg. Sess.) (H.B. 2726).

¶11 Statutes that are of the “same subject or general purpose . . .
should be read together and harmonized.” David C. v. Alexis S., 240 Ariz.
53, 55, ¶ 9 (2016). Both TUCSRA and the ECA regulate the protection of
“communication service records,” defined by identical language. Compare
A.R.S. § 13-3018(G) with A.R.S. § 44-1376(1). Because we presume “the
legislature knows the existing laws when it enacts or modifies a statute,”
Planned Parenthood Ariz., Inc., 257 Ariz. at 142, ¶ 15, we will construe
TUCSRA and the ECA together and “harmonize statutory provisions and
avoid interpretations that result in contradictory provisions,” Bekelian v. JP
Morgan Chase Bank NA, 246 Ariz. 352, 354, ¶6 (App. 2019).

¶12 The dispositive issue here is whether the information Target
allegedly extracted is a “communication service record” protected by
TUCSRA. Smith argues “access logs” include when he accesses his emails.
Specifically, Smith defines “access” to mean “to open or load” and “log” to
mean “to make a note or record of,” and argues this includes when he opens
his emails. Smith also argues the plain meaning of “records of the path of
an electronic communication” includes tracking whether an email is
forwarded. A few months after Carbajal, the Arizona federal district court
again grappled with this issue. See Williams v. Pac. Sunwear of California LLC,

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Opinion of the Court

CV-24-02015-PHX-JJT, 2025 WL 1135160 (D. Ariz. Apr. 16, 2025). We find
the analysis in both cases to be persuasive.

¶13 TUCSRA protects public utility records, telephone records,
and communication service records. A.R.S. § 44-1376.01(A)(1).
“Communication service records” include subscriber information—
indicating a relationship between the individual and a communication
service entity. See Williams, slip op. at *4; Carbajal, slip op. at *4. The “entity”
is explicitly defined in the ECA as a “communication service provider”—
any person that provides a service allowing its users “to send or receive
oral, wire or electronic communications or computer services.” A.R.S. § 13-
3001(3). Public utility records and telephone records are also defined by
their relationship—namely between the customer and the public utility or
the telephone company. See Williams, slip op. at *3; Carbajal, slip op. at *4;
A.R.S. § 44-1376(3), (4), (6), (7).

¶14 Based on this statutory language, TUCSRA is “designed to
safeguard customer records held by (1) telephone companies, (2) public
utilities, and (3) communication service providers.” Williams, slip op. at *3;
accord Carbajal, slip op. at *4. It does so by requiring these entities to
“implement reasonable measures to prevent ‘unauthorized or fraudulent
disclosure of [telephone, public utility, and communication service] records
that could result in a substantial harm or inconvenience to any customer,”
see Williams, slip op. at *3 (alteration in original) (quoting A.R.S. § 44-
1376.01(B)), and by both giving customers the ability to bring a civil action
against violators and making a violation of the statute a class 1
misdemeanor, A.R.S. §§ 44-1376.04(A), -1376.05.

¶15 TUCSRA aims to regulate entities that provide “infrastructure
and services enabling communication,” and while “any person” can violate
the statute, “this does not expand what constitutes a ‘communication
service record.’” Williams, slip op. at *4. “Communication service record”
does not merely include categories of information but rather refers to
records about subscribers maintained by communication service providers.
Id.; accord Carbajal, slip op. at *4. “The Arizona legislature could expand []
TUCSRA to cover information gathered by marketing emails . . . but it has
not done so.” Carbajal, slip op. at *4.

¶16 As for Smith’s claims regarding “access logs” and “records of
the path of an electronic communication between the point of origin and
the point of delivery,” the plain meaning within the statutory framework is
unambiguous. Divorcing “access” and “log” from their statutory context
“disregards the context that shapes the meaning of these terms within the

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Opinion of the Court

statutory framework.” Williams, slip op. at *5. Because communication
service records are held by a communication service provider, “access logs”
refers to records of when a subscriber accesses the communication
services—“not marketing metrics collected by retailers about email
engagement.” Id.

¶17 Furthermore, “records of the path of an electronic
communication between the point of origin and the point of delivery” does
not include whether Target’s marketing email is forwarded. The “point of
origin” is Target and the “point of delivery” is Smith. Any further action
post-delivery is not included in the statute’s plain meaning.

¶18 Logs of email access, logs of associated email addresses, email
client types, email path data, recipient locations, IP addresses, email
forwarding data, and device information collected from a spy pixel on a
marketing email from Target are neither “access logs” nor “records of the
path of an electronic communication between the point of origin and the
point of delivery.” And because Smith does not allege that he is subscribed
to a communication service provider nor that Target unlawfully procured
his subscriber information from a communication service provider, Smith’s
claims are not covered by TUCSRA. Thus, we need not address whether he
has standing.

CONCLUSION

¶19 We affirm the superior court’s ruling. As the successful party
on appeal, Target is entitled to recover taxable costs upon compliance with
ARCAP 21. See A.R.S. § 12-342(A).

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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