No. 93-8661.
United States Court of Appeals,
Fifth Circuit.
Oct. 31, 1994.

Peter D. Kennedy, R. James George, Jr., George, Donaldson &
Ford, Austin, TX, for appellants.

Sharon Steele, Washington, DC, for amicus curiae Electronic
Frontier Foundation.

Scott McIntosh, Barbara Herwig, U.S. Dept. of Justice,
Washington, DC, for appellees.

Appeal from the United States District Court for the Western
District of Texas.

Before HIGGINBOTHAM, JONES and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The narrow issue before us is whether the seizure of a computer, used to operate an electronic bulletin board system, and containing private electronic mail which had been sent to (stored on) the bulletin board, but not read (retrieved) by the intended recipients, constitutes an unlawful intercept under the Federal Wiretap Act, 18 U.S.C. s 2510, et seq., as amended by Title I of the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, Title I, 100 Stat. 1848 (1986). We hold that it is not,
and therefore AFFIRM.

I.

The district court’s findings of fact are not in dispute. See Steve Jackson Games, Inc. v. United States Secret Service, 816 F.Supp. 432 (W.D.Tex.1993). Appellant Steve Jackson Games, Incorporated (SJG), publishes books, magazines, role-playing games, and related products. Starting in the mid-1980s, SJG operated an electronic bulletin board system, called “Illuminati” (BBS), from one of its computers. SJG used the BBS to post public information about its business, games, publications, and the role-playing hobby; to facilitate play-testing of games being developed; and to communicate with its customers and free-lance writers by electronic mail (E- mail).

Central to the issue before us, the BBS also offered customers the ability to send and receive private E-mail. Private E-mail was stored on the BBS computer’s hard disk drive temporarily, until the addressees “called” the BBS (using their computers and modems) and read their mail. After reading their E- mail, the recipients could choose to either store it on the BBS computer’s hard drive or delete it. In February 1990, there were 365 BBS users. Among other uses, appellants Steve Jackson, Elizabeth McCoy, William Milliken, and Steffan O’Sullivan used the BBS for communication by private E-mail.

In October 1988, Henry Kluepfel, Director of Network Security Technology (an affiliate Bell Company), began investigating the unauthorized duplication and distribution of a computerized text file, containing information about Bell’s emergency call system. In July 1989, Kluepfel informed Secret Service Agent Foley and an Assistant United States Attorney in Chicago about the unauthorized distribution. In early February 1990, Kluepfel learned that the document was available on the “Phoenix Project” computer bulletin board, which was operated by Loyd Blankenship in Austin, Texas;
that Blankenship was an SJG employee; and that, as a co-systems operator of the BBS, Blankenship had the ability to review and, perhaps, delete any data on the BBS.

On February 28, 1990, Agent Foley applied for a warrant to search SJG’s premises and Blankenship’s residence for evidence of violations of 18 U.S.C. ss 1030 (proscribes interstate transportation of computer access information) and 2314 (proscribes interstate transportation of stolen property). A search warrant for SJG was issued that same day, authorizing the seizure of, inter alia,

[c]omputer hardware … and computer software … and … documents relating to the use of the computer system …, and
financial documents and licensing documentation relative to the computer programs and equipment at … [SJG] ..which
constitute evidence … of federal crimes…. This warrant is for the seizure of the above described computer and computer data and for the authorization to read information stored and contained on the above described computer and computer data.

The next day, March 1, the warrant was executed by the Secret Service, including Agents Foley and Golden. Among the items seized was the computer which operated the BBS. At the time of the seizure, 162 items of unread, private E-mail were stored on the BBS, including items addressed to the individual appellants. Despite the Secret Service’s denial, the district court found that Secret Service personnel or delegates read and deleted the private E-mail stored on the BBS.

Appellants filed suit in May 1991 against, among others, the Secret Service and the United States, claiming, inter alia, violations of the Privacy Protection Act, 42 U.S.C. s 2000aa, et seq. [FN1]; the Federal Wiretap Act, as amended by Title I of the Electronic Communications Privacy Act (ECPA), 18 U.S.C. ss 2510-2521 (proscribes, inter alia, the intentional interception of electronic communications); and Title II of the ECPA, 18 U.S.C. ss 2701-2711 (proscribes, inter alia, intentional access, without authorization, to stored electronic communications). [FN2]

The district court held that the Secret Service violated the Privacy Protection Act, and awarded actual damages of $51,040 to SJG; and that it violated Title II of the ECPA by seizing stored electronic communications without complying with the statutory provisions, and awarded the statutory damages of $1,000 to each of the individual appellants. And, it awarded appellants $195,000 in attorneys’ fees and approximately $57,000 in costs. But, it held that the Secret Service did not “intercept” the E-mail in violation of Title I of the ECPA, 18 U.S.C. s 2511(1)(a), because its acquisition of the contents of the electronic communications was not contemporaneous with the transmission of those communications.

II.

As stated, the sole issue is a very narrow one: whether the seizure of a computer on which is stored private E-mail that has been sent to an electronic bulletin board, but not yet read (retrieved) by the recipients, constitutes an “intercept” proscribed by 18 U.S.C. s 2511(1)(a). [FN3] Section 2511 was enacted in 1968 as part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, often referred to as the Federal Wiretap Act. Prior to the 1986 amendment by Title I of the ECPA, it covered only wire and oral communications. Title I of the ECPA extended that coverage to electronic communications. [FN4] In relevant part, s 2511(1) (a) proscribes “intentionally intercept[ing] … any wire, oral, or electronic communication”, unless the intercept is authorized by court order or by other exceptions not relevant here. Section 2520 authorizes, inter alia, persons whose electronic communications are intercepted in violation of s 2511 to bring a civil action against the interceptor for actual damages, or for statutory damages of $10,000 per violation or $100 per day of the violation, whichever is greater.
18 U.S.C. s 2520. [FN5]

The Act defines “intercept” as “the aural or other acquisition of the contents of any wire, electronic, or oral communication
through the use of any electronic, mechanical, or other device.” 18 U.S.C. s 2510(4). The district court, relying on our court’s interpretation of intercept in United States v. Turk, 526 F.2d 654 (5th Cir.), cert. denied, 429 U.S. 823, 97 S.Ct. 74, 50 L.Ed.2d 84 (1976), held that the Secret Service did not intercept the communications, because its acquisition of the contents of those communications was not contemporaneous with their transmission. In Turk, the government seized from a suspect’s vehicle an audio tape of a prior conversation between the suspect and Turk. (Restated, when the conversation took place, it was not recorded contemporaneously by the government.) Our court held that replaying the previously recorded conversation was not an “intercept”, because an intercept “require[s] participation by the one charged with an ‘interception’ in the contemporaneous acquisition of the communication through the use of the device”. Id. at 658.

Appellants agree with Turk’s holding, but contend that it is not applicable, because it “says nothing about government action that both acquires the communication prior to its delivery, and prevents that delivery.” (Emphasis by appellants.) Along that line, appellants note correctly that Turk’s interpretation of “intercept” predates the ECPA, and assert, in essence, that the information stored on the BBS could still be “intercepted” under the Act, even though it was not in transit. They maintain that to hold otherwise does violence to Congress’ purpose in enacting the ECPA, to include providing protection for E-mail and bulletin boards. For the most part, appellants fail to even discuss the pertinent provisions of the Act, much less address their application. Instead, they point simply to Congress’ intent in enacting the ECPA and appeal to logic (i.e., to seize something before it is received is to intercept it).

But, obviously, the language of the Act controls. In that regard, appellees counter that “Title II, not Title I, … governs the seizure of stored electronic communications such as unread e-mail messages”, and note that appellants have recovered damages under Title II. Understanding the Act requires understanding and applying its many technical terms as defined by the Act, as well as engaging in painstaking, methodical analysis. As appellees note, the issue is not whether E-mail can be “intercepted”; it can. Instead, at issue is what constitutes an “intercept”.

Prior to the 1986 amendment by the ECPA, the Wiretap Act defined “intercept” as the “aural acquisition” of the contents of wire or oral communications through the use of a device. 18 U.S.C. s 2510(4) (1968). The ECPA amended this definition to include the “aural or other acquisition of the contents of … wire, electronic, or oral communications….” 18 U.S.C. s 2510(4) (1986) (emphasis added for new terms). The significance of the addition of the words “or other” in the 1986 amendment to the definition of “intercept” becomes clear when the definitions of “aural” and “electronic communication” are examined; electronic communications (which include the non- voice portions of wire communications), as defined by the Act, cannot be acquired aurally.

Webster’s Third New International Dictionary (1986) defines “aural” as “of or relating to the ear” or “of or relating to the
sense of hearing”. Id. at 144. And, the Act defines “aural transfer” as “a transfer containing the human voice at any point
between and including the point of origin and the point of reception.” 18 U.S.C. s 2510(18). This definition is extremely
important for purposes of understanding the definition of a “wire communication”, which is defined by the Act as

Any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid
of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such
connection in a switching station) … and such term includes any electronic storage of such communication.

18 U.S.C. s 2510(1) (emphasis added). In contrast, as noted, an “electronic communication” is defined as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic or photooptical system … but does not include … any wire or oral communication….” 18 U.S.C. s 2510(12) (emphasis added).

Critical to the issue before us is the fact that, unlike the definition of “wire communication”, the definition of “electronic communication” does not include electronic storage of such communications. See 18 U.S.C. s 2510(12). See note 4, supra. [FN6] “Electronic storage” is defined as

(A) Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and

(B) Any storage of such communication by an electronic communication service for purposes of backup protection of such communication….

18 U.S.C. s 2510(17) (emphasis added). The E-mail in issue was in “electronic storage”. Congress’ use of the word “transfer” in the definition of “electronic communication”, and its omission in that definition of the phrase “any electronic storage of such communication” (part of the definition of “wire communication”) reflects that Congress did not intend for “intercept” to apply to “electronic communications” when those communications are in “electronic storage”. [FN7]

We could stop here, because “[i]ndisputably, the goal of statutory construction is to ascertain legislative intent through the plain language of a statute–without looking to legislative history or other extraneous sources”. Stone v. Caplan (Matter of Stone), 10 F.3d 285, 289 (5th Cir.1994). But, when interpreting a statute as complex as the Wiretap Act, which is famous (if not infamous) for its lack of clarity, see, e.g., Forsyth v. Barr, 19 F.3d 1527, 1542-43 (5th Cir.), cert. denied, — U.S. —-, — S.Ct. —-, — L.Ed.2d —- (1994), we consider it appropriate to note the legislative history for confirmation of our understanding of Congress’ intent. See id. at 1544.

As the district court noted, the ECPA’s legislative history makes it crystal clear that Congress did not intend to change the
definition of “intercept” as it existed at the time of the amendment. See 816 F.Supp. at 442 (citing S.Rep. No. 99-541, 99th Cong., 2d Sess. 13 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3567). The Senate Report explains: Section 101(a)(3) of the [ECPA] amends the definition of the term “intercept” in current section 2510(4) of title 18 to cover electronic communications. The definition of “intercept” under current law is retained with respect to wire and oral communications except that the term “or other” is inserted after “aural.” This amendment clarifies that it is illegal to intercept the nonvoice portion of a wire communication. For example, it is illegal to intercept the data or digitized portion of a voice communication. 1986 U.S.C.C.A.N. at 3567.

Our conclusion is reinforced further by consideration of the fact that Title II of the ECPA clearly applies to the conduct of
the Secret Service in this case. Needless to say, when construing a statute, we do not confine our interpretation to the one portion at issue but, instead, consider the statute as a whole. See, e.g., United States v. McCord, — F.3d —-, —-, 1994 WL 523211, at *6 (5th Cir.1994) (citing N. Singer, 2A Sutherland Statutory Construction, s 46.05, at 103 (5th ed. 1992)). Title II generally proscribes unauthorized access to stored wire or electronic communications. Section 2701(a) provides:

Except as provided in subsection (c) of this section whoever–

(1) Intentionally accesses without authorization a facility through which an electronic communication service is provided;
or

(2) Intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished….

18 U.S.C. s 2701(a) (emphasis added).

As stated, the district court found that the Secret Service violated s 2701 when it intentionally accesses[d] without authorization a facility [the computer] through which an electronic communication service [the BBS] is provided … and thereby obtain[ed] [and] prevent[ed] authorized access [by appellants] to a[n] … electronic communication while it is in electronic storage in such system. 18 U.S.C. s 2701(a). The Secret Service does not challenge this ruling.

We find no indication in either the Act or its legislative history that Congress intended for conduct that is clearly prohibited by Title II to furnish the basis for a civil remedy under Title I as well. Indeed, there are persuasive indications that it had no such intention.

First, the substantive and procedural requirements for authorization to intercept electronic communications are quite different from those for accessing stored electronic communications. For example, a governmental entity may gain access
to the contents of electronic communications that have been in electronic storage for less than 180 days by obtaining a warrant. See 18 U.S.C. s 2703(a). But there are more stringent, complicated requirements for the interception of electronic communications; a court order is required. See 18 U.S.C. s 2518.

Second, other requirements applicable to the interception of electronic communications, such as those governing minimization, duration, and the types of crimes that may be investigated, are not imposed when the communications at issue are not in the process of being transmitted at the moment of seizure, but instead are in electronic storage. For example, a court order authorizing interception of electronic communications is required to include a directive that the order shall be executed “in such a way as to minimize the interception of communications not otherwise subject to interception”. 18 U.S.C. s 2518(5). Title II of the ECPA does not contain this requirement for warrants authorizing access to stored electronic communications. The purpose of the minimization requirement is to implement “the constitutional obligation of avoiding, to the greatest possible extent, seizure of conversations which have no relationship to the crimes being investigated or the purpose for which electronic surveillance has been authorized”.
James G. Carr, The Law of Electronic Surveillance, s 5.7(a) at 5-28 (1994).

Obviously, when intercepting electronic communications, law enforcement officers cannot know in advance which, if any, of the intercepted communications will be relevant to the crime under investigation, and often will have to obtain access to the contents of the communications in order to make such a determination. Interception thus poses a significant risk that officers will obtain access to communications which have no relevance to the investigation they are conducting. That risk is present to a lesser degree, and can be controlled more easily, in the context of stored electronic communications, because, as the Secret Service advised the district court, technology exists by which relevant communications can be located without the necessity of reviewing the entire contents of all of the stored communications. For example, the Secret Service claimed (although the district court found otherwise) that it reviewed the private E-mail on the BBS by use of key word searches.

Next, as noted, court orders authorizing an intercept of electronic communications are subject to strict requirements as to
duration. An intercept may not be authorized “for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days”. 18 U.S.C. s 2518(5). There is no such requirement for access to stored communications.

Finally, as also noted, the limitations as to the types of crimes that may be investigated through an intercept see 18 U.S.C.
s 2516, have no counterpart in Title II of the ECPA. See, e.g., 18 U.S.C. s 2703(d) (court may order a provider of electronic communication service or remote computing service to disclose to a governmental entity the contents of a stored electronic communication on a showing that the information sought is “relevant to a legitimate law enforcement inquiry”).

In light of the substantial differences between the statutory procedures and requirements for obtaining authorization to intercept electronic communications, on the one hand, and to gain access to the contents of stored electronic communications, on the other, it is most unlikely that Congress intended to require law enforcement officers to satisfy the more stringent requirements for an intercept in order to gain access to the contents of stored electronic communications. [FN8]

At oral argument, appellants contended (for the first time) that Title II’s reference in s 2701(c) to s 2518 (which sets forth
the procedures for the authorized interception of wire, oral, or electronic communications) reflects that Congress intended
considerable overlap between Titles I and II of the ECPA. [FN9] As stated, s 2701(a) prohibits unauthorized access to stored wire or electronic communications. Subsection (c) of s 2701 sets forth the exceptions to liability under subsection (a), which include conduct authorized:

(1) by the person or entity providing a wire or electronic communications service;

(2) by a user of that service with respect to a communication of or intended for that user; or

(3) in section 2703, 2704 or 2518 of this title.

18 U.S.C. s 2701(c) (emphasis added). [FN10]

Appellants overemphasize the significance of this reference to s 2518. As discussed in notes 6-7, supra, it is clear that Congress intended to treat wire communications differently from electronic communications. Access to stored electronic communications may be obtained pursuant to a search warrant, 18 U.S.C. s 2703; but, access to stored wire communications requires a court order pursuant to s 2518. Because s 2701 covers both stored wire and electronic communications, it was necessary in subsection (c) to refer to the different provisions authorizing access to each.

III.

For the foregoing reasons, the judgment is AFFIRMED.

FN1. Section 2000aa (a) provides that it is unlawful for a government officer or employee, in connection with the investigation … of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication…. Among the items seized was a draft of GURPS Cyberpunk, a book intended by SJG for immediate publication. It was one of a series of fantasy role-playing game books SJG published. “GURPS” is an acronym for SJG’s “Generic Universal Roleplaying System”. “Cyberpunk” refers to a science fiction literary genre which became popular in the 1980s, which is characterized by the fictional interaction of humans with technology and the fictional struggle for power between individuals, corporations, and government.

FN2. Kluepfel, the Assistant United States Attorney, and Agents Foley and Golden were also sued. In addition to the statutory claims, appellants also claimed violations of the First and Fourth Amendments to the United States Constitution. And, in September 1992, they added state law claims for conversion and invasion of privacy. Prior to trial, the claims against the individuals were dismissed, and appellants withdrew their constitutional and state law claims.

FN3. Appellants raised two other issues regarding damages, but later advised that they have been settled. And, prior to briefing, the Secret Service dismissed its cross-appeal.

FN4. An “electronic communication” is defined as: any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include– (A) the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit; (B) any wire or oral communication; (C) any communication made through a tone-only paging device; or (D) any communication from a tracking device (as defined in section 3117 of this title)…. 18 U.S.C. s 2510(12).

FN5. Title I of the ECPA increased the statutory damages for unlawful interception from $1,000 to $10,000. See Bess v. Bess, 929 F.2d 1332, 1334 (8th Cir.1991). On the other hand, as noted, Title II authorizes an award of “the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case … less than the sum of $1000″. 18 U.S.C. s 2707(c). As discussed, the individual appellants each received Title II statutory damages of $1,000.

FN6. Wire and electronic communications are subject to different treatment under the Wiretap Act. The Act’s exclusionary rule, 18 U.S.C. s 2515, applies to the interception of wire communications, including such communications in electronic storage, see 18 U.S.C. s 2510(1), but not to the interception of electronic communications. See 18 U.S.C. s 2518(10)(a); United States v. Meriwether, 917 F.2d 955, 960 (6th Cir.1990); S.Rep. No. 99-541, 99th Cong., 2d Sess. 23 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3577. And, the types of crimes that may be investigated by means of surveillance directed at electronic communications, 18 U.S.C. s 2516(3) (“any federal felony”), are not as limited as those that may be investigated by means of surveillance directed at wire or oral communications. See 18 U.S.C. s 2516(1) (specifically listed felonies).

FN7. Stored wire communications are subject to different treatment than stored electronic communications. Generally, a search warrant, rather than a court order, is required to obtain access to the contents of a stored electronic communication. See 18 U.S.C. s 2703(a). But, compliance with the more stringent requirements of s 2518, including obtaining a court order, is necessary to obtain access to a stored wire communication, because s 2703 expressly applies only to stored electronic communications, not to stored wire communications. See James G. Carr, The Law of Electronic Surveillance, s 4.10, at 4-126–4-127 (1994) (citing H.R.Rep. No. 99-647, 99th Cong., 2d Sess. 67-68 (1986)).

FN8. The ECPA legislative history’s explanation of the prohibitions regarding disclosure also persuades us of the soundness of Turk’s interpretation of “intercept” and our understanding of the distinctions Congress intended to draw between communications being transmitted and communications in electronic storage. In describing Title II’s prohibitions against disclosure of the contents of stored communications, the Senate Report points out that s 2702(a) (part of Title II) “generally prohibits the provider of a wire or electronic communication service to the public from knowingly divulging the contents of any communication while in electronic storage by that service to any person other than the addressee or intended recipient.” S.Rep. No. 99-541, 97th Cong. 2nd Sess. 37, 1986 U.S.C.C.A.N. 3555, 3591 (emphasis added).
It then goes on to state that s 2511(3) of the Wiretap Act, as amended by Title I of the ECPA, “prohibits such a provider from divulging the contents of a communication while it is in transmission”. Id. (emphasis added).

FN9. It goes without saying that we generally will not consider issues raised for the first time at oral argument. For this rare exception, the parties, as ordered, filed supplemental briefs on this point.

FN10. Section 2703 sets forth the requirements for governmental access to the contents of electronic (but not wire) communications. For electronic communications that have been in electronic storage for 180 days or less, the government can gain access to the contents pursuant to a federal or state warrant. 18 U.S.C. s 2703(a). For communications that are maintained by a remote computing service and that have been in storage for more than 180 days, the government can gain access by obtaining a warrant, by administrative or grand jury subpoena, or by obtaining a court order pursuant to s 2703(d). 18 U.S.C. s 2703(b). Section 2704 also deals only with electronic communications; it provides, inter alia, that a governmental entity may include in its subpoena or court order a requirement that the service provider create and maintain a duplicate of the contents of the electronic communications sought. 18 U.S.C. s 2704.

626 N.Y.S.2d 694, Supreme Court, New York County, April 20, 1995.

Phillips, Nizer, Benjamin, Krim, & Ballon by Michael J. Silverberg, for plaintiff.
Squadron, Ellenoff, Plesent, Sheinfeld & Sorkin by Slade R. Metcalf, for defendant.
EMILY JANE GOODMAN, Justice.

BACKGROUND AND FACTS

This case involves state-of-the-art electronic communication and public figures.

Howard Stern (“Stern” or “Plaintiff”), a controversial radio talk show celebrity and heavily promoted public figure, announced his candidacy for the office of Governor of the State of New York in the Spring of 1994. Defendant Delphi Internet Services Corporation (“Delphi” or “Defendant”) provides access to paid subscribers to the vast electronic “information super highway,” known as the Internet. Stern brought this lawsuit because his photograph was used without his permission in an advertisement for the on-line bulletin board service Delphi had set up to debate Stern’s own political candidacy. There is no allegation that the defendant obtained the outlandish, bare buttock photo unlawfully or improperly. It is clear that plaintiff posed for the picture, but he does not object on grounds of its lewdness.

Delphi, as an on-line computer network, offers three types of information services to its subscribers: (1) “hard information”, such as news stories, stock quotes, or reference material; (2) computer games; (3) user interaction, meaning electronic mail, on-line conferences or bulletin board messages. Delphi has been operating for eleven years and currently has over 100,000 subscribers who pay “on-line time” for access.

Delphi set up on its on-line electronic bulletin board, a subscriber-participation debate on the merits of Stern’s candidacy. A June 1994 full page advertisement in New York Magazine and the New York Post featured the flamboyant photograph of Stern in leather pants which largely exposed his buttocks. The ad caption read “Should this man be the next governor of New York?” and continued: You’ve heard him. You’ve seen him. You’ve been exposed to his Private Parts. Now he’s stumping to be governor. Maybe it’s time to tell the world exactly what you think. The Internet’s the one frontier even the King of (Almost) All Media hasn’t conquered. And Delphi’s where you get aboard. The online service that “leads the way in Internet access.” With Delphi, navigating the Net is as easy as falling down. Assistance is available at every turn. From help files, guides and books, to hundreds of online experts, including Wald Howe, Delphi’s resident Internet guru and all around smart guy. So whether you think Howard-the-Aspiring-Governor should be crowned King of the Empire State, or just greased up and sent face-first down a water slide, don’t put a cork in it. Sit down, jack in, and be heard.

In this action Stern alleges that defendant’s use of his name and photograph violates Sections 50 and 51 of the New York Civil Rights Law (the “CRL”). Stern does not deny that it is his picture and buttocks that appear in the advertisement, nor does Delphi.

Defendants have moved to dismiss the complaint, pursuant to CPLR 3211(a)(7), (c).

DISCUSSION

Section 50 of the New York Civil Rights Law makes commercial misappropriation of a person’s name or likeness a misdemeanor. It provides in relevant part: a person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without first having obtained the written consent of such person … is guilty of a misdemeanor. N.Y. Civ. Rights Law [[section]]50 (McKinney 1992). Section 51 of the Civil Rights Law also authorizes a civil action for injunctive relief and damages against a party who violates Section 50. See N.Y. Civ. Rights Law Section 50 (McKinney 1992). Cohen v. Herbal Concepts, Inc., 63 N.Y.2d 379, 383, 482 N.Y.S.2d 457, 459, 472 N.E.2d 307, 309 (1984). These provisions must be construed narrowly, Rand v. Hearst Corp., 31 A.D.2d 406, 298 N.Y.S.2d 405, 410 (1st Dept.1969), aff’d, 26 N.Y.2d 806, 309 N.Y.S.2d 348, 257 N.E.2d 895 (1970), and constitute the only available relief in New York for the so-called “invasion of privacy” torts recognized at common law. See Howell v. New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350, 354, 612 N.E.2d 699, 703 (1993); Cohen, 482 N.Y.S.2d at 459, 472 N.E.2d at 309.

To state a claim under [[section]]51, plaintiff must show that: (1) defendant used his name, portrait or picture, (2) for purposes of trade or advertising, (3) without his written consent. Cohen, 482 N.Y.S.2d at 459, 472 N.E.2d at 309. It is undisputed that Delphi used Stern’s name and picture without his permission, and that both were used “for advertising purposes” within the meaning of the statute since it “appeared in a publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service.” Beverley v. Choices Women’s Medical Center, 78 N.Y.2d 745, 579 N.Y.S.2d 637, 640, 587 N.E.2d 275, 278 (1991).

Defendants contends, however, that its use of Stern’s name and photograph falls within the scope of the “incidental use exception” to Sections 50 and 51.[FN1]

[FN1. The Court need not reach the issue of the newsworthiness exception as the Court finds that the incidental use exception applies.]  The incidental use exception was first adopted in Humiston v. Universal Film Mfg. Co., 189 A.D. 467, 178 N.Y.S. 752 (1st Dept.1919). The court there held that a news disseminator was entitled to display the name and photograph of a woman who was the subject of the defendant’s newsreel for purposes of attracting and selling the film. The court reasoned: If it be held that they cannot be used under the statute for purposes of advertising these motion pictures, then it is clear that they cannot advertise the motion pictures at all, because they cannot be fully advertised, at least, without giving the name of the parties represented … [T]he use of the plaintiff’s name or picture in the approach to the theater and upon the billboard in from, as advertising what was to appear upon the screen, is … incidental to the exhibition of the film itself. Humiston, supra, 178 N.Y.S. at 758.

Here we are presented with the novel issues of whether Delphi’s electronic bulletin board service is to be treated as a news disseminator, whether the incidental use exception is applicable, and defendant’s entitlement to First Amendment protections.

Although only paid subscribers may access Delphi’s on-line information services from their computers or terminals, this service is analogous to that of a news vendor or bookstore, or a letters-to-the-editor column of a newspaper, which require purchase of their materials for the public to actually gain access to the information carried. As Judge Leisure of the United States District Court, Southern District of New York, has noted, “a computerized database is the functional equivalent of a more traditional news vendor, and the inconsistent application of a lower standard of liability to an electronic news distributor … than that which is applied to a public library, bookstore or newsstand would impose an undue burden on the free flow of information.” Cubby, Inc. v. CompuServe, Inc., 776 F.Supp. 135, 140 (S.D.N.Y.1991). In Cubby, Judge Leisure found that Compuserve, a computer service company that provides service similar to Delphi, was in essence “an electronic, for-profit library” which is afforded the same First Amendment protections as distributors of publications. Similarly, here it is evident that Delphi’s on-line service must be analogized to distributors such as news vendors, bookstores and libraries. (It is unnecessary to discuss Delphi’s function as a media news organization disseminating “hard news”.

New York courts have consistently held that the incidental advertising exception applies to all “news disseminators,” not just newspapers and magazines. See Booth v. Curtis Publishing Co., 15 A.D.2d 343, 223 N.Y.S.2d 737, 741 (1st Dept.), aff’d, 11 N.Y.2d 907, 228 N.Y.S.2d 468, 182 N.E.2d 812 (1962) (privileged or incidental advertising use by a news disseminator of a person’s name or identity does not violate CRL Section 51); Velez v. VV Pub. Corp., 135 A.D.2d 47, 50, 524 N.Y.S.2d 186, 187 (1st Dept.), appeal denied, 72 N.Y.2d 808, 533 N.Y.S.2d 57, 529 N.E.2d 425 (1988) (“[T]he incidental use in an advertisement by a news disseminator of a person’s name or identity does not violate the statutory proscription, if it had previously published the item exhibited as a matter of public interest.” (emphases supplied).

Plaintiff concedes that on-line computer services engage, on occasion, in activities similar to those of news vendors. Plaintiff also does not dispute that Delphi’s services include dissemination of news and that the service for which Stern’s likeness was exploited was a newsworthy service similar to a letters-to-the-editor column in a news publication.

Defendant concedes that if the advertisements at issue used plaintiff’s name and likeness to advertise products unrelated to news dissemination, plaintiff would have stated a claim for relief under CRL Section 51. However, since the advertisements were for a service related to news dissemination (in this case plaintiff’s very candidacy for public office), defendant argues they are protected by the incidental use exception. Thus it is defendant’s position that the use of the likeness determines the applicability of the exception, not whether a defendant is solely or even predominantly engaged in the dissemination of news.

The New York courts are consistently cautioned that the protections of CRL Sections 50-51 shall be construed narrowly “so as not to apply to publications concerning newsworthy events or matters of public interest.” Creel v. Crown Publishers, Inc., 115 A.D.2d 414, 415, 496 N.Y.S.2d 219 (1st Dept.1985). The First Amendment, of course, is construed broadly. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). It is well established that “the constitutional guarantees of freedom of speech and of the press stand in the way of imposing” strict liability on distributors for the content of the reading materials they carry. Smith v. California, 361 U.S. 147, 152-53, 80 S.Ct. 215, 218-219, 4 L.Ed.2d 205 (1959). In Smith, the Court struck down an ordinance that imposed liability on a bookseller for possession of obscene books, regardless of whether the bookseller had knowledge of the books’ contents. The Court reasoned that if First Amendment protections are not afforded to booksellers, “the bookseller’s burden would become the public’s burden, for by restricting him the public’s access to reading matter would be restricted.” Id. at 153, 80 S.Ct. at 219. Other courts have noted that “First Amendment guarantees have long been recognized as protecting distributors of publications … obviously, the national distributor of hundreds of periodicals has no duty to monitor each issue of every periodical it distributes. Such a rule would be an impermissible burden on the First Amendment.” Lerman v. Flynt Distributing Co., 745 F.2d 123, 139 (2d Cir.1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); see also Daniel v. Dow Jones & Co., 137 Misc.2d 94, 102, 520 N.Y.S.2d 334, 340 (Civ.Ct.1987) (computerized database service “is one of the modern, technologically interesting alternative ways the public may obtain up to the minute news” and “is entitled to the same protection as more established means of news distribution”). Affording protection to on-line computer services when they are engaged in traditional news dissemination, such as in this case, is the desirable and required result.

The proper analogy is to a television network. As a quantitative, though not qualitative assessment, there can be no question that a television network engages both in dissemination of news and entertainment, and that in the former situation “it should be entitled to the same privilege accorded other such media where the statutory right to privacy … is at issue.” Delan by Delan v. CBS, Inc., 91 A.D.2d 255, 260, 458 N.Y.S.2d 608 (2nd Dept.1983). Because Stern’s name was used by Delphi to elicit public debate on Stern’s candidacy, logically the subsequent use of Stern’s name and likeness in the advertisement is afforded the same protection as would be afforded a more traditional news disseminator engaged in the advertisement of a newsworthy product.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
January 18, 1996, Decided
January 23, 1996, FILED

For MICHAEL A. SMYTH, PLAINTIFF: HYMAN LOVITZ, SIDNEY L. GOLD, LOVITZ & GOLD, P.C., PHILA, PA.

For THE PILLSBURY COMPANY, DEFENDANT: STEVEN R. WALL, MORGAN, LEWIS & BOCKIUS, PHILA, PA.

MEMORANDUM OPINION AND ORDER

WEINER, J.
JANUARY 18, 1996

In this diversity action, plaintiff, an at-will employee, claims he was wrongfully discharged from his position as a regional operations manager by the defendant. Presently before the court is the motion of the defendant to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons which follow, the motion is granted.

A claim may be dismissed under Fed.R.Civ.P. 12(b)(6) only if the plaintiff can prove no set of facts in support of the claim that would entitle him to relief. ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994). The reviewing court must consider only those facts alleged in the Complaint and accept all of the allegations as true. Id. Applying this standard, we find that plaintiff has failed to state a claim upon which relief can be granted.

Defendant maintained an electronic mail communication system (“e-mail”) in order to promote internal corporate communications between its employees. Complaint at P 8. Defendant repeatedly assured its employees, including plaintiff, that all e-mail communications would remain confidential and privileged. Complaint at P 9. Defendant further assured its employees, including plaintiff, that e-mail communications could not be intercepted and used by defendant against its employees as grounds for termination or reprimand. Complaint at P 10.

In October 1994, plaintiff received certain e-mail communications from his supervisor over defendant’s e-mail system on his computer at home. Complaint at P 11. In reliance on defendant’s assurances regarding defendant’s e-mail system, plaintiff responded and exchanged e-mails with his supervisor. Id. At some later date, contrary to the assurances of confidentiality made by defendant, defendant, acting through its agents, servants and employees, intercepted plaintiffs private e-mail messages made in October 1994. Complaint at P 12. On January 17, 1995, defendant notified plaintiff that it was terminating his employment effective February 1, 1995, for transmitting what it deemed to be inappropriate and unprofessional comments [FN1] over defendant’s e-mail system in October, 1994. Complaint at PP 13, 14.

As a general rule, Pennsylvania law does not provide a common law cause of action for the wrongful discharge of an at-will employee such as plaintiff. Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 614 (3d Cir. 1992); Paul v. Lankenau Hospital, 524 Pa. 90, 93, 569 A.2d 346, 348 (1990); Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). Pennsylvania is an employment at-will jurisdiction and an employer “may discharge an employee with or without cause, at pleasure, unless restrained by some contract.” Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 297, 21 A. 157, 157 (1891). See also, Johnson v. Resources for Human Development, Inc., 843 F. Supp. 974, 979 (E.D. Pa. 1994); Brown v. Hammond, 810 F. Supp. 644, 645 (E.D. Pa. 1993) (An employer’s right to terminate an at-will employee is “virtually absolute”.); Yetter v. Ward Trucking Corp., 401 Pa. Super. 467, 585 A.2d 1022 (1991).

However, in the most limited of circumstances, exceptions have been recognized where discharge of an at-will employee threatens or violates a clear mandate of public policy. Borse, 963 F.2d at 614; Clay v. Advanced Computer Applications, 522 Pa. 86, 88, 559 A.2d 917, 918 (1989) (If discharge of at-will employee threatens clear mandates of public policy, there is a cause of action against the employer.); Geary, supra. A “clear mandate” of public policy must be of a type that “strikes at the heart of a citizen’s social right, duties and responsibilities.” Novosel v. Nationwide Insurance Co., 721 F.2d 894, 899 (3d Cir. 1983). This recognized public policy exception is an especially narrow one. Burkholder v. Hutchinson, 403 Pa. Super. 498, 589 A.2d 721, 724 (1991). To date, the Pennsylvania Superior Court has only recognized three such exceptions.

First, an employee may not be fired for serving on jury duty. Reuther v. Fowler & Williams, Inc., 255 Pa. Super. 28, 386 A.2d 119 (1978). The Reuther court cited the Pennsylvania constitution as well as the Pennsylvania statutes in concluding that “the necessity of having citizens freely available for jury service is just the sort of ‘recognized facet of public policy’ alluded to by our Supreme Court in Geary.” 386 A.2d at 121.

Second, an employer may not deny employment to a person with a prior conviction. Hunter v. Port Authority of Allegheny County, 277 Pa. Super. 4, 419 A.2d 631 (1980). The Hunter court relied on federal court decisions as well as Pennsylvania statutes and Pennsylvania court decisions before concluding that the defendant violated the Pennsylvania constitution and “the deeply ingrained public policy of this State . . . to avoid unwarranted stigmatization of and unreasonable restrictions upon former offenders.” 419 A.2d at 636, n.5.

And finally, an employee may not be fired for reporting violations of federal regulations to the Nuclear Regulatory Commission. Field v. Philadelphia Electric Company, 388 Pa. Super. 400, 565 A.2d 1170, 1180 (1989). That court held that the alleged discharge was against public policy because federal law required the employee to report violations and he was an expert in the area and there was no evidence that he bypassed any internal chain of command. 565 A.2d at 1180.

As evidenced above, a public policy exception must be clearly defined. See also, McGonagle v. Union Fidelity Corp., 383 Pa. Super. 223, 556 A.2d 878, 885 (1989), appeal denied, 525 Pa. 584, 575 A.2d 114 (1990) (“Unless an employee identifies a ’specific’ expression of public policy violated by his discharge, it will not be labelled as wrongful and within the sphere of public policy”). The sources of public policy can be found in “legislation, administrative rules, regulation, or decision; and judicial decisions . . . Absent legislation, the judiciary must define the cause of action in case by case determinations.” Borse, 963 F.2d at 619, n.6 (3d Cir. 1992) quoting Cisco v. United Parcel Services, Inc., 328 Pa. Super. 300, 306, 476 A.2d 1340, 1343 (1984); Krajsa v. Keypunch, Inc., 424 Pa. Super. 230, 622 A.2d 355, 358 (1993); see also, Smith v. Calgon Carbon Corp., 917 F.2d 1338, 1344 (3d Cir. 1990), cert. denied, 499 U.S. 966, 113 L. Ed. 2d 660, 111 S. Ct. 1597 (1991) (“[A] ‘clear mandate of public policy’ [is] embodied in a constitutionally or legislatively established prohibition, requirement, or privilege.”). Whitney v. Xerox, C.A.No. 94-3852, 1994 U.S. Dist. LEXIS 10845, 1994 WL 412429 (E.D.Pa. August 2, 1994) slip op. at 3-4.

Plaintiff claims that his termination was in violation of “public policy which precludes an employer from terminating an employee in violation of the employee’s right to privacy as embodied in Pennsylvania common law.” Complaint at P 15. [FN2] In support for this proposition, plaintiff directs our attention to a decision by our Court of Appeals in Borse v. Piece Goods Shop, Inc., 963 F.2d 611 (3d Cir. 1992). In Borse, the plaintiff sued her employer alleging wrongful discharge as a result of her refusal to submit to urinalysis screening and personal property searches at her work place pursuant to the employer’s drug and alcohol policy. After rejecting plaintiff’s argument that the employer’s drug and alcohol program violated public policy encompassed in the United States and Pennsylvania Constitutions, our Court of Appeals stated “our review of Pennsylvania law reveals other evidence of a public policy that may, under certain circumstances, give rise to a wrongful discharge action related to urinalysis or to personal property searches. Specifically, we refer to the Pennsylvania common law regarding tortious invasion of privacy.” Id. at 620.

The Court of Appeals in Borse, observed that one of the torts which Pennsylvania recognizes as encompassing an action for invasion of privacy is the tort of “intrusion upon seclusion.” As noted by the Court of Appeals, the Restatement (Second) of Torts defines the tort as follows:
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. Restatement (Second) of Torts @ 652B.

Liability only attaches when the “intrusion is substantial and would be highly offensive to the ‘ordinary reasonable person.’” Borse, 963 F.2d at 621 (citation omitted). Although the Court of Appeals in Borse observed that “the Pennsylvania courts have not had occasion to consider whether a discharge related to an employer’s tortious invasion of an employee’s privacy violates public policy”, the Court of Appeals predicted that in any claim where the employee claimed that his discharge related to an invasion of his privacy “the Pennsylvania Supreme Court would examine the facts and circumstances surrounding the alleged invasion of privacy. If the court determined that the discharge was related to a substantial and highly offensive invasion of the employee’s privacy, believe that it would conclude that the discharge violated public policy.” Id. at 622. In determining whether an alleged invasion of privacy is substantial and highly offensive to a reasonable person, the Court of Appeals predicted that Pennsylvania would adopt a balancing test which balances the employee’s privacy interest against the employer’s interest in maintaining a drug-free workplace. Id. at 625. Because the Court of Appeals in Borse could “envision at least two ways in which an employer’s drug and alcohol program might violate the public policy protecting individuals from tortious invasion of privacy by private actors” id. at 626, the Court vacated the district court’s order dismissing the plaintiff’s complaint and remanded the case to the district court with directions to grant Borse leave to amend the Compliant to allege how the defendant’s drug and alcohol program violates her right to privacy.

Applying the Restatement definition of the tort of intrusion upon seclusion to the facts and circumstances of the case sub judice, we find that plaintiff has failed to state a claim upon which relief can be granted. In the first instance, unlike urinalysis and personal property searches, we do not find a reasonable expectation of privacy in e-mail communications voluntarily made by an employee to his supervisor over the company e-mail system notwithstanding any assurances that such communications would not be intercepted by management. Once plaintiff communicated the alleged unprofessional comments to a second person (his supervisor) over an e-mail system which was apparently utilized by the entire company, any reasonable expectation of privacy was lost. Significantly, the defendant did not require plaintiff, as in the case of an urinalysis or personal property search to disclose any personal information about himself. Rather, plaintiff voluntarily communicated the alleged unprofessional comments over the company e-mail system. We find no privacy interests in such communications.

In the second instance, even if we found that an employee had a reasonable expectation of privacy in the contents of his e-mail communications over the company e-mail system, we do not find that a reasonable person would consider the defendant’s interception of these communications to be a substantial and highly offensive invasion of his privacy. Again, we note that by intercepting such communications, the company is not, as in the case of urinalysis or personal property searches, requiring the employee to disclose any personal information about himself or invading the employee’s person or personal effects. Moreover, the company’s interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system outweighs any privacy interest the employee may have in those comments.

In sum, we find that the defendant’s actions did not tortiously invade the plaintiff’s privacy and, therefore, did not violate public policy. As a result, the motion to dismiss is granted.

ORDER

The motion of the defendant to dismiss is GRANTED.

The Complaint is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

CHARLES R. WEINER

FOOTNOTES

FN1. Defendant alleges in its motion to dismiss that the e-mails concerned sales management and contained threats to “kill the backstabbing bastards” and referred to the planned Holiday party as the ” Jim Jones Koolaid affair.”

FN2. Although plaintiff does not affirmatively allege so in his Complaint or in his memorandum of law in opposition to defendant’s motion to dismiss, the allegations in the Complaint might suggest that plaintiff is alleging an exception to the at-will employment rule based on estoppel, i.e. that defendant repeatedly assured plaintiff and others that it would not intercept e-mail communications and reprimand or terminate based on the contents thereof and plaintiff relied on these assurances to his detriment when he made the “inappropriate and unprofessional” e-mail communications in October 1994. The law of Pennsylvania is clear, however, that an employer may not be estopped from firing an employee based upon a promise, even when reliance is demonstrated. Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990).

Index No. 97-386
RJI 45-1-97-0189
1997 NYSLIPOP 97573

APPEARANCES:
BOND, SCHOENECK & KING, L. L. P., Albany, for petitioner.
EDWARD LINDNER, Saratoga Springs, for respondent.

OPINION by KENIRY, J.:

In a case of first impression, petitioner corporation seeks to compel pre-litigation disclosure of the names of certain of its employees whom it suspects have misappropriated corporate computer resources. Quad Graphics, Inc. is a major national commercial printing company. Its headquarters is in Wisconsin. It maintains a large plant (1,000 employees) in Saratoga Springs, New York. Petitioner uses computers extensively in its business. Examination of relatively high long-distance telephone bills led the corporation to suspect that its computers were being misused.

The respondent in the case is Southern Adirondack Library System (SALS). SALS is a cooperative system composed of 30 member libraries located in four upstate New York counties. Respondent operates, from its headquarters in Saratoga Springs, New York, an electronic information service known as “Library Without Walls”. Users of “Library Without Walls” (LWW) possessing a valid library card and a personal identification number issued by any one of SALS’ participating libraries, may access the “Internet”. A library-based computer or a personally-owned computer can be used to log online. Access is free for 30 minute periods.

Quad Graphics employees are prohibited from using Quad Graphics computers for personal purposes. Petitioner’s Saratoga computer terminals do not have the capability of directly accessing outside telephone lines. However a computer operator in the Saratoga Springs plant may log into the company’s mainframe computer located in Wisconsin. The terminal user can cause the mainframe by the use of a Quad Graphics password to access long distance. Then by telephoning the library in Saratoga Springs and providing a correct library password the employee-caller accomplishes a hook up with the LWW (third party) computer network.

Petitioner contends that a cadre of its Saratoga Springs-based employees employed the library feature during working hours to effect the hookup and explore the “Internet” for personal purposes. Petitioner, after examining its long distance telephone billing records, asserts that unauthorized use between April 1995 and December 1996 has resulted in petitioner incurring over $23,000 in long distance telephone charges to the “LWW” telephone line and in petitioner losing 1,770 Saratoga Springs employee manhours in devotion to personal use of the “Internet”. Petitioner, through internal investigative techniques, has been able to decipher nine distinct 13-digit identification numbers which were used to access “LWW” from its computer system.

Petitioner, in an effort to learn the identity of the individuals to whom those nine identification numbers were issued, made a request under the Freedom of Information Law (Public Officers Law, art.6) to the Saratoga Springs Public Library for such information. Petitioner’s request was rejected by the library on the basis that such information is confidential and may not be voluntarily disclosed.[1]

In this application petitioner contends that SALS as a quasi-municipal agency is subject to and bound by the Freedom of Information Law and is required to disclose the names it seeks.

SALS contends that under CPLR 4509 the identities are required to be kept confidential.

Section 4509 of the Civil Practice Law and Rules, first enacted in 1982 (L. 1982, ch. 14) and broadened in 1988 (L. 1988, ch.112), provides as follows:

Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute.
The court has reviewed the legislative history of CPLR 4509 as contained in the bill jackets for the original enactment and the subsequent amendment. The supporting memorandum issued by the Assembly of the State of New York when the law was enacted, states:
The New York State Legislature has a strong interest in protecting the right to read and think of the people of this State. The library, as the unique sanctuary of the widest possible spectrum of ideas, must protect the confidentiality of its records in order to insure its readers’ right to read anything they wish, free from the fear that someone might see what they read and use this as a way to intimidate them. Records must be protected from the self-appointed guardians of public and private morality and from officials who might overreach their constitutional prerogatives. Without such protection, there would be a chilling effect on our library users as inquiring minds turn away from exploring varied avenues of thought because they fear the potentiality of others knowing their reading history.
Enactment of ‘4509 in 1982 was supported by the New York Civil Liberties Union, the New York Public Library and the New York County Lawyers’ Association. The State Education Department and State University of New York raised no objection to the bill.

In 1988, the Law Revision Commission of the State of New York, acting on a request by library staff and faculty of State University of New York at Buffalo and its Law School, recommended that ‘4509 be broadened to protect additional library records. The statute as originally enacted protected only a library’s circulation records. An amendment enacted in 1988 protected records relating to computer database searches, interlibrary loan transactions, reference inquiries, photocopy requests, title reserve requests and audio-visual materials, films and records usage information. The New York Library Association, the State Education Department, and the New York Civil Liberties Union supported broadening ‘4509’s reach.

It is clear that ‘4509 does not grant an absolute privilege prohibiting the disclosure of library records. The law is intended to allow limited disclosure pursuant to court order. A court order is precisely what petitioner seeks. The salient issue is whether or not petitioner’s expressed desire to learn the identity of individuals who are alleged to have misused its computer system and misappropriated its property, in order to initiate civil legal proceedings, is a proper basis for release of the library system’s records.

It is the court’s determination that disclosure of the information sought should not be permitted. Petitioner certainly has an internal security problem involving the unauthorized use of its computer equipment and resources. However a criminal complaint is not before this court and apparently has not been made. Were this application to be granted, the door would be open to other similar requests made, for example, by a parent who wishes to learn what a child is reading or viewing on the “Internet” via “LWW” or by a spouse to learn what type of information his or her mate is reviewing at the public library.
The court recognizes the significance of the problem that petitioner faces and the difficulty that petitioner has encountered in trying to identify the users. The Legislature has expressed, in rather direct and unequivocal fashion, a public policy that the confidentiality of a library’s records should not be routinely breached and this court, in denying the petitioner’s request, is following the clearly expressed legislative purpose of CPLR 4509.
One of the petitioner’s other arguments deserves brief comment. Petitioner contends that disclosure of the records sought is required under ‘4509 since it, as the owner of the computer equipment and telephone lines utilized to access the Internet, should be considered the “user” of “LWW” and thus it is entitled to the information as a matter of right. The argument is specious. The operation of a computer is controlled by the person who gives it commands. The users in this case are the individuals who actually operated the computers guiding them through the “Internet”.

Petitioner’s application is denied without costs.

Dated: September 30, 1997, Ballston Spa, New York

FOOTNOTES:

1. The Saratoga Springs Public Library was originally named as the respondent in this proceeding. An order, based upon a written stipulation, was made and entered substituting SALS as respondent since “LWW” was and is a program of SALS and not of the Saratoga Springs Public Library.

CIVIL ACTION NO. 98-116

MEMORANDUM OPINION

Judge Stanley Sporkin:

This matter comes before the Court on Plaintiff’s Motion for a Preliminary Injunction. Plaintiff Timothy R. McVeigh, who bears no relation to the Oklahoma City bombing defendant, seeks to enjoin the United States Navy from discharging him under the statutory policy colloquially known as “Don’t Ask, Don’t Tell, Don’t Pursue.” See 10 U.S.C. Section 654 (“new policy”). In the course of investigating his sexual orientation, the Plaintiff contends that the Defendants violated his rights under the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C Section 2701 et seq., the Administrative Procedure Act (“APA”) 5 U.S.C. Section 706, the Department’s own policy, and the Fourth and Fifth Amendments of the U.S. Constitution. Absent an injunction, the Plaintiff avers that he will suffer irreparable injury from the discharge, even if he were ultimately to prevail on the merits of his claims.

STATEMENT OF FACTS

The Plaintiff, Senior Chief Timothy R. McVeigh, is a highly decorated seventeen-year veteran of the United States Navy who has served honorably and continuously since he was nineteen years old. At the time of the Navy’s decision to discharge him, he was the senior-most enlisted man aboard the United States nuclear submarine U.S.S. Chicago.

On September 2, 1997, Ms. Helen Hajne, a civilian Navy volunteer, received an electronic mail (“e-mail”) message through the America Online Service (“AOL”) regarding the toy-drive that she was coordinating for the Chicago crew members’ children. The message box stated that it came from the alias “boysrch,” but the text of the email was signed by a “Tim,” Administrative Record (“AR”) at 110. Through an option available to AOL subscribers, the volunteer searched through the “member profile directory” to find the member profile for this sender. The directory specified that “boysrch” was an AOL subscriber named Tim who lived in Honolulu, Hawaii, worked in the military, and identified his marital status as “gay.” See AR at 111. Although the profile included some telling interests such as “collecting pics of other young studs” and “boy watching,” it did not include any further identifying information such as full name, address or phone number. However, on other occasions, Hajne had communicated with the Plaintiff about his participation in the drive.

Ms. Hajne proceeded to forward the email and directory profile to her husband, who, like Plaintiff, was also a noncommisioned Officer aboard the U.S.S. Chicago. The material eventually found its way to Commander John Mickey, the captain of the ship and Plaintiff’s commanding officer. In turn, Lieutenant Karin S. Morean, the ship’s principal legal adviser and a member of the Judge Advocate General’s (“JAG”) Corps was called in to investigate the matter. By this point, the Navy suspected the “Tim” who authored the email might be Senior Chief Timothy McVeigh. Before she spoke to the Plaintiff and without a warrant or court order, Lieutenant Morean requested a Navy paralegal on her staff, Legalman First Class Joseph M. Kaiser, to contact AOL and obtain information from the service that could “connect” the screen name “boysrch” and accompanying user profile to McVeigh. See AR at 13. Legalman Kaiser called AOL’s toll-free customer service number and talked to a representative at technical services. Legalman Kaiser did not identify himself as a Naval serviceman. According to his testimony at the administrative hearing, he stated that he was “a third party in receipt of a fact sheet and wanted to confirm a profile sheet, [and] who it belonged to.” AR at 14. The AOL representative affirmatively identified Timothy R. McVeigh as the customer in question. See id. at 11-15.

Upon verification from AOL, Lieutenant Morean notified Senior Chief McVeigh that the Navy had obtained “some indication that he made a statement of homosexuality” in violation of Section 654(b)(2) of “Don’t Ask, Don’t Tell.” AR at 27-28. In light of the Uniform Code of Military Justice prohibition of sodomy and indecent acts, she then advised him of his rights to remain silent.[FN1] See id. at 28, 30. Shortly thereafter, in a memorandum dated September 22, 1997, the Navy advised Plaintiff that it was commencing an administrative discharge proceeding (termed by the Navy as an “administrative separation”) against him. The reason stated was for “homosexual conduct, as evidenced by your statement that you are a homosexual.” AR at 107.

On November 7, 1997, the Navy conducted an administrative discharge hearing before a three-member board. At the hearing, the Plaintiff made an unsworn oral statement that explained the substance of his email to Ms. Hajne, and thus by inference confirmed his authorship of the correspondence. See AR at 84. The Plaintiff presented evidence of a prior engagement to a woman and several other heterosexual relationships to rebut the presumption of homosexuality, pursuant to Section 654(b)(2). See AR at 82-84. This evidence was rejected by the Board. At the conclusion of the administrative hearing, the board held that the government had sufficiently shown by a preponderance of the evidence that Senior Chief McVeigh had engaged in “homosexual conduct,” a dischargeable offense.

The Navy accelerated Plaintiff’s separation to take effect at 5:00 a.m. EST on Friday, January 16, 1998. On January 15, Plaintiff commenced this lawsuit and the government postponed his separation until Wednesday, January 20. This Court held a hearing on that Wednesday morning. There, the Navy initially declined to honor this Court’s request for an additional amount of time to consider the matter. The Plaintiff was scheduled to be discharged on Friday, January 23. However, on January 22, the Navy extended the time for this Court to render a decision until Tuesday, January 27, when Plaintiff is now scheduled to be discharged barring relief from this Court.

ANALYSIS

STANDARD FOR PRELIMINARY INJUNCTION

To prevail on a request for preliminary injunction, the plaintiff must demonstrate 1) a substantial likelihood of success on the merits; 2) irreparable harm or injury absent an injunction; 3) less harm or injury to the other parties involved; and 4) the service of the public interest. See Dendy v. Washington Home Center, 581 F.2d 990, 992 (D.C. Cir. 1978) (footnote omitted); Washington Metro Area Transit v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). For the reasons set forth below, this Court concludes that the Plaintiff is entitled to the relief that he seeks at this time, a preliminary injunction barring his discharge.
I. Substantial Likelihood of Success on the Merits
Plaintiff in this case demonstrates a likely success to prevail on the merits. As its core, the Plaintiff’s complaint is with the Navy’s compliance, or lack thereof, with its new regulations under the “Don’t Ask, Don’t Tell, Don’t Pursue” policy. Plaintiff contends that he did not “tell,” as prescribed by the statue, but that nonetheless, the Navy impermissibly “asked” and zealously “pursued.”

In short, this case raises the central issue of whether there is really a place for gay officers in the military under the new policy, “Don’t Ask, Don’t Tell, Don’t Pursue.” Although there have been a series of challenges to the constitutionality of the statute that codifies the policy, see e.g. Phillips v. Perry, 106 F.3d 1420 (9th Cir. 1997); Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996), cert. denied, 117 S.Ct. 358 (1996); Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996), cert. denied, 118 S.Ct. 45 (1996); Able v. United States, 88 F.3d 1280 (2nd Cir. 1996), civil courts thus far have not interpreted the requirements of the statute assuming its constitutionality. The limits on the Navy’s right to investigate sexual orientation and the restrictions on an officer’s right to be a gay man or woman in the military– i.e., what it practically means not to ask, not to tell, and not to pursue– have yet to be litigated in the courts.

In 1993, leaders of Congress and the President reached a compromise designed to recognize the important role that officers who happen to be gay play in the defense of our nation. See Policy Concerning Homosexuality in the Armed Forces: Hearings Before the Senate Committee on Armed Services, 103d Cong. 595 et. seq. (1993) (statements of General Colin Powell, Chair of the Joint Chiefs of Staff, Admiral David Jeremiah, Navy and General Merrill McPeak, Air Force). While the heads of the Armed Forces expressed fear that unit cohesion and military preparedness would be compromised by openly gay conduct, they acknowledged that homosexuality itself was not necessarily incompatible with military service. The statute that came to embody this position, “Don’t Ask, Don’t Tell, Don’t Pursue,” was specifically drafted to allow members of the military to live private lives as gay men and women, so long as their sexual orientation remained unspoken.

The facts as stated above clearly demonstrate that the Plaintiff did not openly express his homosexuality in a way that compromised this “Don’t Ask, Don’t Tell” policy. Suggestions of sexual orientation in a private, anonymous email account did not give the Navy a sufficient reason to investigate to determine whether to commence with discharge proceedings. In its actions, the Navy violated its own regulations. See Guidelines for Fact-Finding Inquiries Into Homosexual Conduct, Department of Defense Directive No. 1332.14 (“Guidelines”). An investigation into sexual orientation may be initiated “only when (a commander) has received credible information that there is a basis for discharge,” such as when an officer “has said that he or she is a homosexual or bisexual, or made some other statement that indicates a propensity or intent to engage in homosexual acts.” Id. Yet in this case, there was no such credible information that Senior Chief McVeigh had made such a statement. Under the Guidelines, “credible information” requires more than “just a belief or suspicion” that a Service member has engaged in homosexual conduct. Id. In the example provided, the Guidelines state that “credible information” would exist in this case only if “a reliable person” stated that he or she directly observed or heard a Service member make an oral or written statement that “a reasonable, person would believe was intended to convey the fact that he or she engages in or has a propensity or intent to engage in homosexual acts.” Id.

Clearly, the facts as stated above in this case demonstrate that there was no such “credible information.” All that the Navy has was an email message and user profile that it suspected was authored by the Plaintiff. Under the military regulation, that information alone should not have triggered any sort of investigation. When the Navy affirmatively took steps to confirm the identity of the email responders, it violated the very essence of “Don’t Ask, Don’t Pursue” by launching a search and destroy mission. Even if the Navy had a factual basis to believe that the email message and profile were written by Plaintiff, it was unreasonable to infer that they were necessarily intended to convey a propensity or intent to engage in homosexual conduct. Particularly in the context of cyberspace, a medium of “virtual reality” that invites fantasy and affords anonymity, the comments attributed to McVeigh do not by definition amount to a declaration of homosexuality. At most, they express “an abstract preference or desire to engage in homosexual acts.” See Guidelines. Yet the regulations specify that a statement professing homosexuality so as to warrant investigation must declare “more than an abstract preference or desire”; they must indicate a likelihood actually to carry out homosexual acts. Id.

The subsequent steps taken by the Navy in its “pursuit” of the Plaintiff were not only unauthorized under its policy, but likely illegal under the Electronic Communications Privacy Act of 1996 (“ECPA”). The ECPA, enacted by Congress to address privacy concerns on the Internet, allows the government to obtain information from an online service provider– as the Navy did in this instance from AOL– but only if a) it obtains a warrant issued under the Federal Rules of Criminal Procedure or state equivalent; or b) it gives prior notice to the online subscriber and then issues a subpoena or receives a court order authorizing disclosure of the information in question. See 18 U.S.C. Section 2073 (b)(A)-(B), (c)(1)(B).

In soliciting and obtaining over the phone personal information about the Plaintiff from AOL, his private on-line service provider, the government in this case invoked neither of these provisions and thus failed to comply with the ECPA. From the record, it is undisputed that the Navy directly solicited by phone information from AOL. Lieutenant Karin S. Morean, the ship’s principal legal counsel and a member of the JAG corp, personally requested Legalman Kaiser to contact AOL and obtain the identity of the subscriber. See AR at 13. Without this information, Plaintiff credibly contends that the Navy could not have made the necessary connection between him and the user profile which was the sole basis on which to commence discharge proceedings.

The government, in its defense, contends that the Plaintiff cannot succeed on his ECPA claim. It argues that the substantive provision of the statute that Plaintiff cites, 18 U.S.C. Section 2703 (c)(1)(B), puts the obligation on the online service provider to withhold information from the government, and not vice versa. In support of its position, Defendants cite to the Fourth Circuit opinion in Tucker v. Waddell, 83 F.3d 688 (4th Cir. 1996), which held that Section 2703(c)(1)(B) only prohibits the actions of online providers, not the government. Accordingly, Defendants allege that Plaintiff has no cause of action against the government on the basis of the ECPA.

Under the circumstances of this case, it is unlikely that the government will prevail on this argument. Section 2703(c)(1)(B) must be read in the context of the statute as a whole. In comparison, Section 2703 (a) and (b) imposes on the government a reciprocal obligation to obtain a warrant or the like before requiring disclosure. It appears from the face of the statute that all of the subsections of Section 2703 were intended to work in tandem to protect consumer privacy. Even if, however, the government ultimately proves to be right in its assessment of Section 2703(c)(1)(B), the Plaintiff has plead Section 2703 (a) and (b) as alternative grounds for relief. In his claim that the government, at the least, solicited a violation of the ECPA by AOL, the Court finds that there is likely success on the merits with regard to this issue. The government knew, or should have known, that by turning over the information without a warrant, AOL was breaking the law. Yet the Navy, in this case, directly solicited the information anyway. What is most telling is that the Naval investigator did not identify himself when he made his request. While the government makes much of the fact that Section 2703(c)(1)(B) does not provide a cause of action against the government, it is elementary that information obtained improperly can be suppressed where an indivdual’s rights have been violated. In these days of “big brother,” where through technology and otherwise the privacy interests of individuals from all walks of life are being ignored or marginalized, it is imperative that statues explicitly protecting these rights be strictly observed.

The government has produced no evidence that would indicate that it would have proceeded without this information from AOL affirmatively linking the email to Senior Chief McVeigh. That the Plaintiff may have made incriminating statements at the subsequent administrative hearing does not bootstrap the Navy out of its legal dilemna of not only violating its own policy, but also a federal statue in its attempt to charge the Plaintiff with homosexuality.

In Plaintiff’s case, this Court finds that the Navy has gone too far. The “Don’t Ask, Don’t Tell, Don’t Pursue” policy was clearly aimed at accommodating gay men and women in the military. In effect, it was intended to bring our nation’s armed forces in line with the rest of society, which finds discrimination of virtually every form intolerable. It is self-evident that a person’s sexual orientation does not affect that individual’s performance in the workplace. At this point in history, our society should not be deprived of the many accomplishments provided by the people who happen to be gay. The “Don’t Ask, Don’t Tell, Don’t Pursue” policy was a bow to society’s growing recognition of this fact. For the policy to be effective, it has to be implemented in a sensitive, balanced manner. Under the policy as it stands today, gay service members must be permitted to serve their country honorably, so long as they are discrete in pursuing their personal lives.

In this case, the Plaintiff has had an exemplary service record for some seventeen years. Indeed, he has risen in the ranks to become the most senior non-commissioned officer on his ship. His evaluations have been of the highest order. Nothing has been produced before this Court which would in any way suggest that his sexual orientation has adversely affected his job performance. Senior Chief McVeigh’s place in the Navy might even be characterized by some to be the very essence of what was hoped to be achieved by those who conceived the policy. The Plaintiff is no less an officer today than he was on January 5, 1998, the day before he was told of his imminent discharge from the Navy because of his sexual orientation.

As this Court stated in Elzie v. Aspin, 897 F. Supp 1,3 (1995), it cannot understand why the Navy would seek to discharge an officer who has served his country in a distinguished manner just because he might be gay. Plaintiff’s case “vividly underscores the folly of a policy that systematically excludes a whole class of persons who have served this country proudly and in the highest tradition of excellence.” Id at 4. Although this case specifically does not reach any of the constitutional issues underscoring the “Don’t Ask, Don’t Tell, Don’t Pursue” policy, see Able v. United States, 968 F. Supp. 850 (1997), the Court must note that the defenses mounted against gays in the military have been tried before in our nation’s history– against blacks and women. See Elzi v. Aspin, 841 F. Supp 439, 443 (1993). Surely, it is time to move beyond this vestige of discrimination and misconception of gay men and women.

II. Irreparable Harm

Without this Court’s immediate intervention, the Plaintiff will lose his job, income, pension, health and life insurance and all other benefits attendant with being a Naval officer. Having served honorably for the last seventeen years, Plaintiff will be separated from a position which is central to his life on the sole ground that he has been labeled a “homosexual,” and thus by definition unfit for service. The stigma that attaches to such an accusation without substantiation is significant enough that this Court believes it must grant the injunctive relief sought. In cases nearly identical to this, courts have accordingly granted a preliminary injunction, see Elzia v. Aspin, 841 F. Supp. 439, 443 (D.D.C. 1993) (loss of benefits and “rights as a Marine” constitute irreparable harm); May v. Gray, 708 F. Supp. 716, 719 (E.D.N.C. 1988) (same); see also Saunders v. George Washington University, 768 F. Supp. 843, 845 (D.D.C. 1991); Huvah v. Carlucci, 679 F. Supp. 61, 67 (D.D.C. 1988).

III. Harm to other Parties

In contrast to the serious injury that Plaintiff immediately faces if discharged, there is no appreciable harm to the Navy if Senior Chief McVeigh is permitted to remain in active service. Indeed, the Navy will only be enhanced by being able to retain the Plaintiff’s seventeen years of service experience.

IV. Public Interest

Certainly, the public has an inherent interest in the preservation of privacy rights as advanced by Plaintiff in this case. With literally the entire world on the world-wide web, enforcement of the ECPA is of great concern to those who bare the most personal information about their lives in private accounts through the Internet. In this case in particular, where the government may well have violated a federal statute in its zeal to brand the Plaintiff a homosexual, the actions of the Navy must be more closely scrutinized by this Court. It is disputed in the record exactly as to how the Navy represented itself to AOL when it requested information about the Plaintiff. The Defendants contend that Legalman Kaiser merely asked for confirmation of a fax sheet bearing Plaintiff’s account. Plaintiff contends, and AOL confirms, however, that the Naval officer “mislead” AOL’s representative by “both failing to disclose the identity and purpose [of his request] and by portraying himself as a friend or acquaintance of Senior Chief McVeigh’s.” See AOL Statement on the Matter of Timothy McVeigh, Ct. Ex. 1. At the final injunction hearing, this issue should be fully explored.

The Court believes that when this case is finally determined, it will become clear that the case will be able to be disposed on the basis of the “Don’t Ask, Don’t Tell, Don’t Pursue” policy. This provision draws a fine balance between the interests of gay service members and the Armed Forces. It is a way of permitting gay women and men to serve in the Armed Forces, a right that the military did not provide them prior to the adoption of “Don’t Ask, Don’t Tell, Don’t Pursue.”

To make the policy work requires each of the parties to refrain from taking certain actions. Under the provisions of the policy, if the gay member agrees to remain silent about his or her sexual orientation, he or she is permitted to serve. For its part under the policy, the military is required to refrain from asking any of its members about their sexual orientation or pursuing an inquiry into a member’s sexual orientation without a reasonable basis in fact. So far, pursuant to the record developed in this case, while Plaintiff complied with the requirements imposed upon him under “Don’t Ask, Don’t Tell, Don’t Pursue,” the Defendant went further than the policy permits. Although Officer McVeigh did not publicly announce his sexual orientation, the Navy nonetheless impermissibly embarked on a search and “outing” mission. Therefore, when this case is finally heard, if the record remains as it is now, the Plaintiff will likely prevail. It is accordingly for this reason that a preliminary injunction will issue. An appropriate order follows.

Date: 1/26/98

/s/Stanley Sporkin
United States District Judge

FOOTNOTES:

1. Plaintiff suggests that Lieutenant Morean acted inappropriately somehow when she advised Plaintiff of his rights at this time. The Court finds no merit to this claim. Given the state of the investigation against the Plaintiff, it was appropriate in all respects for Lieutenant Morean to have given Plaintiff a warning.

ORDER

For the reasons set forth in the opinion above, it is hereby

ORDERED that good cause having been shown pursuant to Rule 65 of the Federal Rules of Civil Procedure that immediate and irreparable injury and damage will result to Plaintiff before a trial on the merits can be heard and decided, that Plaintiff’s Motion for a Preliminary Injunction is GRANTED; and it is

FURTHER ORDERED that Defendants, their officers, agents, servants, employees, and attorneys and t hose persons in active concert or participation with them who receive actual notice of the Order by personal service or otherwise, shall be preliminarily enjoined from taking any adverse action against Plaintiff, including discharging Plaintiff from the United States Navy or otherwise hindering Plaintiff’s Naval Service, on the basis of his alleged sexual orientation pending final resolution of Plaintiff’s Complaint; and it is

FURTHER ORDERED that the parties shall appear before this Court on January 29, 1998 at 10:00 in Courtroom 6 for a status conference, at which time a briefing schedule and date for a hearing on final injunctive relief will be determined.

Date: 1/26/98
/s/Stanley Sporkin
United States District Judge

Case No. 97 C 5501 Filed Jan. 23, 1998

MEMORANDUM OPINION AND ORDER

Plaintiff, Andersen Consulting LLP (“Andersen”), brought an eight count complaint against the defendants, UOP and its counsel, the law firm of Bickel & Brewer. In Count I, Andersen alleges that the defendants knowingly divulged, or caused to be divulged, the contents of Andersen’s e-mail messages in violation of the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §2701 et seq. In the remaining seven counts, Andersen raises related state law claims against the defendants. The defendants move to dismiss all counts of the complaint. For the reasons set forth below, the defendants’ motion to dismiss is granted.

Background

UOP hired Andersen to perform a systems integration project in 1992. During the project, Andersen employees had access to and used UOP’s internal e-mail system to communicated with each other, with UOP, and with third parties.

Dissatisfied with Andersen’s performance, UOP terminated the project in December 1993. Subsequently UOP hired Bickel and Brewer and brought suit in Connecticut state court charging Andersen with breach of contract, negligence, and fraud. Andersen countersued in two different suits for defamation.

While these three cases were pending, UOP and Bickel and Brewer divulged the contents of Andersen’s e-mail messages on UOP’s e-mail system to the Wall Street Journal. The Journal published and article on June 19, 1997 titled “E-Mail Trail Could Haunt Consultant in Court.” The article excerpted some of Andersen’s e-mail messages made during the course of its assignment at UOP. This disclosure of the e-mail messages and their subsequent publication is the basis of this suit.

ECPA Claim

18 U.S.C. §2702(a)(1) states that “a person or entity providing and electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.” Andersen claims that the defendants violated this section by knowingly divulging the contents of its e-mail message to the Wall Street Journal.

To be liable for the disclosure of Andersen’s e-mail messages, UOP must fall under the purview of the Act: UOP must provide “electronic communication service to the public.” 18 U.S.C. §2702(a)(1). The statute defines “electronic communication service” as “any service which provides to users there of the ability to send or receive wire or electronic communications.” 18 U.S.C. §2510(15). The statute does not define “public.” [FN1] The word “public,” however, is unambiguous. Public means the “aggregate of the citizens” or “everybody” or “the people at large” or “the community at large.” Black’s Law Dictionary 1227 (6th ed. 1990). Thus, the statute covers any entity that provides electronic communication service (e.g., e-mail) to the community at large.

Andersen attempts to render the phrase “to the public” superfluous by arguing that the statutory language indicates that the term “public” means something other than the community at large. It claims that if Congress wanted public to mean the community at large, it would have used the term “general public.” However, the fact that Congress used both “public” and “general public” in the same statute does not lead to the conclusion that Congress intended §2511(2)(g) (using the term “general public”) with id. §§2511(2)(a)(i), (3)(a), (3)(b), (4)(o)(ii) (using the term “public”).

Andersen argues that the legislative history indicates that a provider of electronic communication services is subject to Section 2702 even if that provider maintains the system primarily for its own use and does not provide services to the general public. This legislative history argument is misguided. “A court’s starting point to determine the intent of Congress is the language of the statute itself.” United States v. Hayward, 6 F.3d 1241, 1245 (7th Cir. 1993). If the language is “clear and unambiguous,” the court must give effect to the plain meaning of the statute. Id. Since the meaning of “public” is clear, there is no need to resort to legislative history.

Even if the language was somehow ambiguous, the legislative history does not support Andersen’s interpretation. The legislative history indicates that there is a distinction between public and proprietary. In describing electronic mail,” the legislative history stated that “[e]lectronic mail systems may be available for public use or may be proprietary, such as systems operated by private companies for internal correspondence.” S.Rep. No. 99-541, at 8 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3562. Thus, Andersen must show that UOP’s electronic mail system was available for public use.

In its complaint, Andersen alleges that UOP “is a general partnership which licenses process technologies and supplies catalysts, specialty chemicals, and other products to the petroleum refining, petrochemical, and gas processing industries.” Complaint 3. UOP is not in the business of providing electronic communication services. It does, however, have an e-mail system for internal communication as e-mail is a necessary tool for almost any business today. See State Wide Photocopy v. Tokai Fin. Serv., Inc., 909 F.Supp. 137, 145 (S.D.N.Y. 1995) (finding that defendant was in the business of financing and that the mere use of fax machines and computers, as necessary tools of business, did not make it an electronic communication service provider).

UOP hired Andersen to provide services in connection with the integration of certain computer systems. As part of the project, “UOP provided an electronic communication service for Andersen to use. That electronic communication service could be used, and was used by Andersen and UOP personnel, to electronically communicate with (i.e., send e-mail messages to, and receive e-mail messages from) other Andersen personnel, UOP personnel, third-party vendors and other third-parties both in and outside of Illinois.” Complaint 10.

Based on these allegations, Andersen claims that UOP provides an electronic communication service to the public. However, giving Andersen access to its e-mail system is not equivalent to providing e-mail to the public. Andersen was hired by UOP to do a project and as such, was given access to UOP’s e-mail system similar to UOP employees. Andersen was not any member of the community at large, but a hired contractor.

Further, the fact that Andersen could communicate to third-parties over the internet and that third-parties could communicate with it did not mean that UOP provided an electronic communication service to the public. UOP’s internal e-mail system is separate from the internet. UOP must purchase internet access from an electronic communication service provider like any other consumer; it does not independently provide internet services.

State Law Claims

Once Andersen’s ECPA claim is dismissed from the case, this court no longer has subject matter jurisdiction over the remaining state law claims. “[T]he general rule is that, when all federal claims are dismissed before trial, the district court should relinquish jurisdiction over pendent state-law claims rather than resolving them on the merits.” Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251 (7th Cir. 1994). Thus, the remaining state law claims in Counts II through VIII are dismissed.

Conclusion

Defendants’ motion to dismiss all counts of Andersen’s complaint is granted.

ENTER ORDER:

/s/ Elaine E. Bucklo
United States District Judge
January 23, 1998

FOOTNOTES:

1. Further, there is no case law interpreting the word “public” as used in the ECPA.

CIVIL ACTION 1:96-cv-2475-MHS

ORDER

This action is before the Court on plaintiffs’ motion for preliminary injunction and defendants’ motion to dismiss. For the reasons stated below, the Court grants plaintiffs’ motion and denies defendants’ motion.

Factual Background

Plaintiffs bring this action for declaratory and injunctive relief challenging the constitutionality of Act No. 1029, Ga. Laws 1996, p. 1505, codified at O.C.G.A. § 16-9-93.1 (“act” or “statute”). The act makes it a crime for any person . . . knowingly to transmit any data through a computer network . . . for the purpose of setting up, maintaining, operating, or exchanging data with an electronic mailbox, home page, or any other electronic information storage bank or point of access to electronic information if such data uses any individual name . . . to falsely identify the person . . . and for any person . . . knowingly to transmit any data through a computer network . . . if such data uses any . . . trade name, registered trademark, logo, legal or official seal, or copyrighted symbol . . . which would falsely state or imply that such person . . . has permission or is legally authorized to use [it] for such purpose when such permission or authorization has not been obtained.

The parties vigorously dispute the scope of the act. Plaintiffs, a group of individuals and organization members who communicate over the Internet, interpret it as imposing unconstitutional content-based restrictions on their right to communicate anonymously and pseudonymously over the internet, as well as on their right to use trade names, logos, and other graphics in a manner held to be constitutional in other contexts.

Plaintiffs argue that the act has tremendous implications for internet users, many of whom “falsely identify” themselves on a regular basis for the purpose of communicating about sensitive topics without subjecting themselves to ostracism or embarrassment. Plaintiffs further contend that the trade name and logo restriction frustrates one of the Internet’s unique features–the “links”[1] that connect web pages on the World Wide Web and enable users to browse easily from topic to topic through the computer network system. Plaintiffs claim that the act’s broad language is further damaging in that it allows for selective prosecution of persons communicating about controversial topics.

Defendants contend that the act prohibits a much narrower class of communications. They interpret it as forbidding only fraudulent transmissions or the appropriation of the identity of another person or entity for some improper purpose. Defendants ask the Court to abstain from exercising jurisdiction in this case in order to give the Georgia Supreme Court an opportunity to definitively interpret the act.

Motion for Preliminary Injunction

In order to prevail on a preliminary injunction motion, plaintiffs must establish 1) a substantial likelihood of success on the merits; 2) a substantial threat of irreparable injury if the injunction is not granted; 3) that the threatened injury to the plaintiffs outweighs the harm an injunction may cause defendants; and 4) that granting the injunction would not disserve the public interest. Teper v. Miller, 82 F.3d 989, 992-93 n.3 (11th Cir. 1996). The Court concludes that plaintiffs have satisfied each of these requirements and are thus entitled to injunctive relief.

1. Likelihood of Success on the Merits[2]

In their motion to dismiss, defendants assert two affirmative defenses which, if persuasive, would make plaintiffs’ success on the merits unlikely. First, defendants argue that because plaintiffs have not been prosecuted or threatened with prosecution under the act, no live controversy exists and plaintiffs therefore lack standing to bring this action. The Court concludes, however, that plaintiffs do have standing because “a credible threat of prosecution” exists. Graham v. Butterworth, 5 F.3d 496, 499 (11th Cir. 1993). When plaintiffs filed this action “they intended to engage in arguably protected conduct, which the statute seemed to proscribe.” Id. at 499. Furthermore, the rules of standing are relaxed in the first amendment context where “the statute’s alleged danger is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution.” Virginia v. American Booksellers Ass’n, 484 U.S. 383, 384 (1988).

Defendants also ask the Court to abstain from exercising jurisdiction over this case on the grounds that the law is ambiguous and in need of state court interpretation.[3] However, abstention should rarely be invoked in cases involving facial challenges to statutes allegedly violative of the first amendment. Dombrowski v. Pfister, 380 U.S. 479, 489-90 (1965) (holding abstention “inappropriate for cases [where] . . . statutes are justifiably attacked on their face as abridging free expression”). The reluctance to abstain in first amendment cases recognizes that the delay abstention imposes has a further chilling effect on speech. Zwickler v. Koota, 389 U.S. 241, 252 (1967).

The correct inquiry, when asked to abstain in a case involving a facial statutory challenge, is whether the statute is “fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question.” City of Houston v. Hill, 482 U.S. 451, 468 (1987). “If the statute is not obviously susceptible of a limiting construction, then even if the statute has never [been] interpreted by a state court tribunal . . . it is the duty of the federal court to exercise its properly invoked jurisdiction.” Id. The Court finds, as set forth below, that O.C.G.A. § 16-9-93.1 is not fairly subject to a limiting construction which would obviate its constitutional problems. Moreover, abstention would impose great costs on plaintiffs by further chilling their expression while they wait for an interpretation of the act by the Georgia Supreme Court or by forcing them to risk prosecution if they choose not to wait. Therefore, the Court finds that abstention is inappropriate in this case.

Having addressed defendants’ affirmative defenses, the Court concludes that plaintiffs are likely to prevail on the merits of their claim. It appears from the record that plaintiffs are likely to prove that the statute imposes content-based restrictions which are not narrowly tailored to achieve the state’s purported compelling interest. Furthermore, plaintiffs are likely to show that the statute is overbroad and void for vagueness.

First, because “the identity of the speaker is no different from other components of [a] document’s contents that the author is free to include or exclude,” McIntyre v. Ohio Elections Comm’n, 115 S. Ct. 1511, 1516 (1995), the statute’s prohibition of Internet transmissions which “falsely identify” the sender constitutes a presumptively invalid content-based restriction. See R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992). The state may impose content-based restrictions only to promote a “compelling state interest” and only through use of “the least restrictive means to further the articulated interest.” Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989). Thus, in order to overcome the presumption of invalidity, defendants must demonstrate that the statute furthers a compelling state interest and is narrowly tailored to achieve it.

Defendants allege that the statute’s purpose is fraud prevention, which the Court agrees is a compelling state interest. However, the statute is not narrowly tailored to achieve that end and instead sweeps innocent, protected speech within its scope. Specifically, by its plain language the criminal prohibition applies regardless of whether a speaker has any intent to deceive or whether deception actually occurs. Therefore, it could apply to a wide range of transmissions which “falsely identify” the sender, but are not “fraudulent” within the specific meaning of the criminal code.

Defendants respond that the Act does not mean what it says and that, instead, a variety of limiting concepts should be engrafted onto it. First, defendants propose to add an element of fraud, or a specific intent requirement of “intent to defraud” or “intent to deceive” to the act.[4] None of these terms or phrases appears in the statute, however, although they are expressly included in other Georgia criminal statutes which require proof of specific intent. See, e.g., O.C.G.A. §§ 10-1-453, 16-9-1(a), 16-9-2, and 16-8-3.

Second, defendants contend that the Act applies only to persons who misappropriate the identity of another specific entity or person. Again, there is nothing in the language of the act from which a reasonable person would infer such a requirement, and the General Assembly has specifically included analogous elements when it meant to do so. See O.C.G.A. § 10-1-453.

Third, defendants seek to limit the restriction on use of trade names, marks, and seals by collapsing the Act’s two clauses–suggesting that “use” of a mark is prohibited only when it would “falsely identify” the user. Without explanation, this construction borrows the “false identification” portion of the first clause and applies it to the second. In addition to not making sense grammatically, the interpretation also imports into the second clause all of the previously discussed interpretive problems with the phrase “falsely identify.”[5]

In construing a statute, the Court must “follow the literal language of the statute ‘unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else.’” Telecom*USA, Inc. v. Collins, 260 Ga. 362, 363 (1990) (citing Department of Trans. v. City of Atlanta, 255 Ga. 124, 137 (1985)). Only if a statute is “readily susceptible to a narrowing construction” may such an interpretation be applied to save a questionable law. American Booksellers Ass’n, 484 U.S. at 397. The words and phrases defendants seek to add to the Act appear nowhere in it. Moreover, defendants’ attempt to interpret the act is so confusing and contradictory that it could not possibly constitute grounds for rejecting the Act’s plain language. Even if the Court could impose a limiting construction on the Act, defendants’ brief provides no real guidance on what that construction should be, but instead offers a variety of very different possible interpretations in hopes that the Court will select one. The Court concludes, therefore, that the Act is not readily susceptible to a limiting construction and that its plain language is not narrowly tailored to promote a compelling state interest.

For similar reasons, plaintiffs are likely to succeed on their overbreadth claim because the statute “sweeps protected activity within its proscription.” M.S. News Co. v. Casado, 721 F.2d 1281, 1287 (10th Cir. 1983) (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-13 (1975)). In the first amendment context, the overbreadth doctrine, which invalidates overbroad statutes even when some of their applications are valid, United States v. Salerno, 481 U.S. 739, 745 (1987), is based on the recognition that “the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the Court.” Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992).

The Court concludes that the statute was not drafted with the precision necessary for laws regulating speech. On its face, the Act prohibits such protected speech as the use of false identification to avoid social ostracism, to prevent discrimination and harassment, and to protect privacy, as well as the use of trade names or logos in non-commercial educational speech, news, and commentary–a prohibition with well-recognized first amendment problems.[6] Therefore, even if the statute could constitutionally be used to prosecute persons who intentionally “falsely identify” themselves in order to deceive or defraud the public, or to persons whose commercial use of trade names and logos creates a substantial likelihood of confusion or the dilution of a famous mark, the statute is nevertheless overbroad because it operates unconstitutionally for a substantial category of the speakers it covers. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634 (1980).

Finally, plaintiffs are likely to succeed on their claim that the statute is unconstitutionally vague. The void-for-vagueness doctrine requires a criminal statute to “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). Like the overbreadth doctrine, the policies underlying the vagueness rule apply with special force where the statute at issue restricts speech. ACLU v. Reno, 929 F. Supp. 824, 860 (E.D. Pa. 1996). The Court concludes that plaintiffs are likely to prove that the statute is void for vagueness because it 1) does not give fair notice of the scope of conduct it proscribes; 2) is conducive to arbitrary enforcement; and 3) infringes upon plaintiffs’ free expression. See Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).

First, the Act fails to give fair notice of proscribed conduct to computer network users by failing to define the following terms and phrases: “falsely identify,” “use,” “falsely imply,” and “point of access to electronic information.” These undefined terms provide inadequate notice of the scope of proscribed conduct to persons of ordinary intelligence and thus void the act for vagueness.

The statute criminalizes computer transmissions which “falsely identify” the sender, yet fails to state whether or not proof of specific intent to deceive, or proof of actual deception, is required. Plaintiffs’ affidavits demonstrate that, although they have no intent to deceive when sending transmissions which may “falsely identify” them and, indeed, have many legitimate and important reasons for concealing their identity, they cannot determine whether or not their conduct violates the act.

Similarly, the portion of the Act relating to trade names and logos fails to define or adequately limit the word “use.” Other statutes protecting intellectual property expressly limit the definition of “use” to use in a commercial context. See, e.g., 15 U.S.C. § 1125 (federal trademark infringement law); O.C.G.A. § 10-1-440 (b) (1994) (defining “use” within the meaning of Georgia trademark infringement laws); O.C.G.A. § 10-1-450 (1994) (Georgia trademark infringement law). In contrast, the only limiting concept of “use” in the Act is that such use must “falsely imply” that permission to use the mark has been obtained. This restriction, which is also undefined and suffers from the same vagueness problems as the term “falsely identify,” fails to provide sufficiently specific notice of proscribed conduct.

Finally, the Act fails to explain the phrase “any data . . . over the transmission facilities or through the network facilities of a local telephone network for the purpose of . . . exchanging data with . . . a point of access to electronic information.” Plaintiffs contend that this phrase could mean that the act applies not only to computer transmissions per se, but also to transmissions by telephone, fax machine, answering machine, voice mail system, pager, or any other electronic device which might be connected to computer network facilities. The act provides no guidance about these potential applications.

Second, the Act’s vague provisions create a risk of arbitrary and discriminatory enforcement. As plaintiffs point out, not only does the Act fail to notify potential defendants of proscribed conduct, but it also fails to notify law enforcement officials of what exactly is prohibited. The Act’s failure to specifically articulate proscribed conduct affords prosecutors and police officers substantial room for selective prosecution of persons who express minority viewpoints.

Third, the Act’s vagueness is particularly harmful because it chills protected expression. Plaintiffs’ affidavits indicate that they have already altered what they believe to be innocent and legitimate behavior because of their inability to discern what exactly the Act proscribes. Without court intervention, this self-censorship will continue until the act is amended, revoked, or definitively interpreted by the state supreme court.

For all of these reasons, the Court concludes that plaintiffs are likely to succeed on their claim that the Act is void for vagueness, overbroad, and not narrowly tailored to promote a compelling state interest.

2. Substantial threat of irreparable injury

Plaintiffs have also demonstrated a substantial threat of irreparable injury in the absence of a preliminary injunction. The Supreme Court has held that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). As described above, the act has already induced self-censorship. The Court concludes, therefore, that failure to enjoin enforcement of the act will force plaintiffs either to continue self-censorship or to risk criminal prosecution. Thus, plaintiffs have demonstrated a substantial threat of irreparable injury unless a preliminary injunction is issued.

3. Balance of hardships

The balance of hardships weighs heavily in plaintiffs’ favor. As stated above, plaintiffs will suffer irreparable injury if prosecution under the statute is not enjoined. In contrast, Georgia already has in place many less restrictive means to address fraud and misrepresentation–the interests defendants claim the act at issue promotes. See, e.g., O.C.G.A. § 16-8-3 (1996) (theft by deception); O.C.G.A. § 16-9-93(a)(2) (1996) (computer theft by deception); O.C.G.A. § 10-1-453 (1994) (unauthorized and deceitful use of name or seal of another); O.C.G.A. § 10-1-393 (Supp. 1996) (unfair and deceptive consumer trade practices). Defendants contend that these statutes do not fully reach problematic behavior over the internet, but they fail adequately to explain why. If the Act prevents some ill-defined category of fraud or deception not covered by existing laws, defendants do not articulate why they have a compelling interest in preventing that conduct on the Internet but have done nothing to prevent the same practices in the print media. Therefore, the Court concludes that plaintiffs face substantially greater harms if the Act is allowed to stand than defendants face if its enforcement is enjoined.

4. Promotion of the Public Interest

Finally, for all the reasons set forth above, a preliminary injunction will advance the public interest. “No long string of citations is necessary to find that the public interest weighs in favor of having access to a free flow of constitutionally protected speech.” Reno, 929 F. Supp. at 851.

5. Conclusion

For the foregoing reasons, the Court DENIES defendants’ motion to dismiss [#11-1], GRANTS plaintiffs’ motion for preliminary injunction [#3-1], and enjoins defendants from enforcing O.C.G.A. § 16-9-93.1 pending a final determination on the merits of plaintiffs’ complaint.
IT IS SO ORDERED, this ____ day of 630m, 1997.
____________________________

Marvin H. Shoob, Senior Judge, United States District Court
Northern District of Georgia

FOOTNOTES:

FN1. Links are often graphics or logos which, if “clicked on” by the user with a computer mouse, will transport the user to a different web page covering a new topic of information.

FN2. In this section of the order, the Court will also address arguments advanced in defendants’ motion to dismiss.

FN3. Significantly, this argument contradicts defendants’ contention that the statute is sufficiently clear to avoid vagueness and overbreadth challenges.

FN4. The terms “fraud,” “intent to defraud,” and “intent to deceive,” although used interchangeably by defendants, are not synonymous in the criminal code. See, e.g., United States v. Godwin, 566 F.2d 975, 976 (5th Cir. 1978). Each term requires proof of different elements, and by using the terms interchangeably, defendants fail to explain which of the distinct elements should be applied to the statute.
Also, the word “falsely”–the only term which actually does appear in the statute–is synonymous with none of the above terms defendants seek to add. “Falsely” means merely “wrongly,” “incorrectly,” or “not truthfully.” Webster’s Third New Int’l Dictionary 819 (1976).

FN5. To further confuse the matter, defendants suggest elsewhere in their brief that the second clause actually does mean what it says and prohibits all uses of marks which would imply permission for that use which has not been obtained. A fair reading of the clause, as written, is that it prohibits the current use of web page links. The linking function requires publishers of web pages to include symbols designating other web pages which may be of interest to a user. This means that an entity or person’s seal may appear on hundreds or thousands of other web pages, just for the purpose of enabling the linking system. The appearance of the seal, although completely innocuous, would definitely “imply” to many users that permission for use had been obtained. Defendants have articulated no compelling state interest that would be furthered by restricting the linking function in this way.

FN6. Congress acknowledged the first amendment problems with banning non-commercial use of trademarks by limiting the scope of the new Federal Trademark Dilution Act to apply to commercial use only. See 15 U.S.C. § 1125(c)(4); H.R. No. 104-374 (1995).