Theofel v. Farey Jones
| Decision Date | 28 August 2003 |
| Docket Number | No. 02-15742.,No. 03-15301.,02-15742.,03-15301. |
| Citation | 341 F.3d 978 |
| Parties | George THEOFEL; Howard Teig; David Kelley; Integrated Capital Associates, Inc., A Delaware Corporation; Nancy Rilett; Ryan Tam; Claudia English; Teresa Patterson; Tanya Young; Roberto Marsella; Regina Ovenden; Emil Pesiri; Eric Sullivan; Douglas H. Wolf; Richard Buckingham, Plaintiffs-Appellants, v. Alwyn FAREY-JONES; Iryna A. Kwasny, Defendants-Appellees. George Theofel; Howard Teig; David Kelley; Integrated Capital Associates, Inc., A Delaware Corporation; Nancy Rilett; Ryan Tam; Claudia English; Teresa Patterson; Tanya Young; Roberto Marsella; Regina Ovenden; Emil Pesiri; Eric Sullivan; Douglas H. Wolf; Richard Buckingham, Plaintiffs-Appellants, v. Alwyn Farey-Jones; Iryna A. Kwasny, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Pamela Urueta, Kerr & Wagstaffe LLP, San Francisco, California, argued for appellants. James M. Wagstaffe, Kerr & Wagstaffe LLP, and Richard Idell and Jennifer Marone, Idell, Berman & Seitel, joined her on the brief.
Robert E. White, San Francisco, California, argued for appellees. Susan C. Rushakoff joined him on the brief.
Appeal from the United States District Court for the Northern District of California; Maxine M. Chesney, District Judge, Presiding. D.C. No. CV-01-04166-MMC.
Before: Betty B. Fletcher, Alex Kozinski and Stephen S. Trott, Circuit Judges.
We consider whether defendants violated federal electronic privacy and computer fraud statutes when they used a "patently unlawful" subpoena to gain access to e-mail stored by plaintiffs' Internet service provider.
Plaintiffs Wolf and Buckingham, officers of Integrated Capital Associates, Inc. (ICA), are embroiled in commercial litigation in New York against defendant Farey-Jones. In the course of discovery, Farey-Jones sought access to ICA's e-mail. He told his lawyer Iryna Kwasny to subpoena ICA's ISP, NetGate.
Under the Federal Rules, Kwasny was supposed to "take reasonable steps to avoid imposing undue burden or expense" on NetGate. Fed.R.Civ.P. 45(c)(1). One might have thought, then, that the subpoena would request only e-mail related to the subject matter of the litigation, or maybe messages sent during some relevant time period, or at the very least those sent to or from employees in some way connected to the litigation. But Kwasny ordered production of "[a]ll copies of emails sent or received by anyone" at ICA, with no limitation as to time or scope.
NetGate, which apparently was not represented by counsel, explained that the amount of e-mail covered by the subpoena was substantial. But defendants did not relent. NetGate then took what might be described as the "Baskin-Robbins" approach to subpoena compliance and offered defendants a "free sample" consisting of 339 messages. It posted copies of the messages to a NetGate website where, without notifying opposing counsel, Kwasny and Farey-Jones read them. Most were unrelated to the litigation, and many were privileged or personal.
When Wolf and Buckingham found out what had happened, they asked the court to quash the subpoena and award sanctions. Magistrate Judge Wayne Brazil soundly roasted Farey-Jones and Kwasny for their conduct, finding that "the subpoena, on its face, was massively overbroad" and "patently unlawful," that it "transparently and egregiously" violated the Federal Rules, and that defendants "acted in bad faith" and showed "at least gross negligence in the crafting of the subpoena." He granted the motion to quash and socked defendants with over $9000 in sanctions to cover Wolf and Buckingham's legal fees. Defendants did not appeal that award.
Wolf, Buckingham and other ICA employees whose e-mail was included in the sample also filed this civil suit against Farey-Jones and Kwasny. They claim defendants violated the Stored Communications Act, 18 U.S.C. § 2701 et seq., the Wiretap Act, 18 U.S.C. § 2511 et seq., and the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, as well as various state laws. The district court held that none of the federal statutes applied, and dismissed the claims without leave to amend. It declined jurisdiction over the state law claims under 28 U.S.C. § 1367(c)(3). Plaintiffs now appeal.
1. The Stored Communications Act provides a cause of action against anyone who "intentionally accesses without authorization a facility through which an electronic communication service is provided... and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage." 18 U.S.C. §§ 2701(a)(1), 2707(a). "[E]lectronic storage" means either "temporary, intermediate storage ... incidental to ... electronic transmission," or "storage ... for purposes of backup protection." Id. § 2510(17). The Act exempts, inter alia, conduct "authorized ... by the person or entity providing a wire or electronic communications service," id. § 2701(c)(1), or "by a user of that service with respect to a communication of or intended for that user," id. § 2701(c)(2).
The district court dismissed on the ground that NetGate had authorized defendants' access. It held that this consent was not coerced, because the subpoena itself informed NetGate of its right to object. Plaintiffs contend that NetGate's authorization was nonetheless invalid because the subpoena was patently unlawful. Their claim turns on the meaning of the word "authorized" in section 2701. We have previously reserved judgment on this question, see Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 879 n. 8 (9th Cir.2002), while other circuits have considered related issues, see, e.g., EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 582 n. 10 (1st Cir.2001) (); United States v. Morris, 928 F.2d 504, 510 (2d Cir.1991) ().
We interpret federal statutes in light of the common law. See Beck v. Prupis, 529 U.S. 494, 500-01, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000). Especially relevant here is the common law of trespass. Like the tort of trespass, the Stored Communications Act protects individuals' privacy and proprietary interests. The Act reflects Congress's judgment that users have a legitimate interest in the confidentiality of communications in electronic storage at a communications facility. Just as trespass protects those who rent space from a commercial storage facility to hold sensitive documents, cf. Prosser and Keeton on the Law of Torts § 13, at 78 (W. Page Keeton ed., 5th ed.1984), the Act protects users whose electronic communications are in electronic storage with an ISP or other electronic communications facility.
A defendant is not liable for trespass if the plaintiff authorized his entry. See Prosser & Keeton § 13, at 70. But "an overt manifestation of assent or willingness would not be effective ... if the defendant knew, or probably if he ought to have known in the exercise of reasonable care, that the plaintiff was mistaken as to the nature and quality of the invasion intended." Id. § 18, at 119; cf. Restatement (Second) of Torts §§ 173, 892B(2). Thus, the busybody who gets permission to come inside by posing as a meter reader is a trespasser. J.H. Desnick, M.D., Eye Servs., Ltd. v. ABC, 44 F.3d 1345, 1352 (7th Cir.1995). So too is the police officer who, invited into a home, conceals a recording device for the media. Cf. Berger v. Hanlon, 129 F.3d 505, 516-17 (9th Cir. 1997), vacated, 526 U.S. 808, 119 S.Ct. 1706, 143 L.Ed.2d 978 (1999), reinstated in relevant part, 188 F.3d 1155, 1157 (9th Cir.1999).
Not all deceit vitiates consent. "[T]he mistake must extend to the essential character of the act itself, which is to say that which makes it harmful or offensive, rather than to some collateral matter which merely operates as an inducement." Prosser & Keeton § 18, at 120 (footnote omitted). In other words, it must be a "substantial mistake[] ... concerning the nature of the invasion or the extent of the harm." Restatement (Second) of Torts § 892B(2) cmt. g. Unlike the phony meter reader, the restaurant critic who poses as an ordinary customer is not liable for trespass, Desnick, 44 F.3d at 1351; nor, unlike the wired cop, is the invitee who conceals only an intent to repeat what he hears, cf. Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir.1971) (). These results hold even if admission would have been refused had all the facts been known.
These are fine and sometimes incoherent distinctions. See Med. Lab. Mgmt. Consultants v. ABC, 30 F.Supp.2d 1182, 1201-04 (D.Ariz.1998), aff'd, 306 F.3d 806 (9th Cir.2002). But the theory is that some invited mistakes go to the essential nature of the invasion while others are merely collateral. Classification depends on the extent to which the intrusion trenches on "the specific interests that the tort of trespass seeks to protect." Desnick, 44 F.3d at 1352; see also Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 517-18 (4th Cir.1999).
We construe section 2701 in light of these doctrines. Permission to access a stored communication does not constitute valid authorization if it would not defeat a trespass claim in analogous circumstances. Section 2701(c)(1) therefore provides no refuge for a defendant who procures consent by exploiting a known mistake that relates to the essential nature of his access.
Under this standard, plaintiffs have alleged facts that vitiate NetGate's consent. NetGate disclosed the...
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