359 F.3d 1066 (9th Cir. 2003), 02-15742, Theofel v. Farey-Jones

Docket Nº:02-15742, 03-15301.
Citation:359 F.3d 1066
Party Name: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-Ap
Case Date:August 28, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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359 F.3d 1066 (9th Cir. 2003)

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,


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,


Alwyn Farey-Jones; Iryna A. Kwasny, Defendants-Appellees.

Nos. 02-15742, 03-15301.

United States Court of Appeals, Ninth Circuit

August 28, 2003

Argued and Submitted April 2, 2003.

Amended Feb. 17, 2004.

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Pamela Urueta, Kerr & Wagstaffe LLP, San Francisco, CA, 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, CA, 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: B. FLETCHER, KOZINSKI and TROTT, Circuit Judges.


The opinion filed on August 28, 2003, 341 F.3d 978, shall be amended as follows.

Replace footnote 2, 341 F.3d at 984, with:

Prosser and Keeton say that a plaintiff's consent is probably invalid if the defendant "ought to have known in the exercise of reasonable care" about the mistake. Prosser & Keeton § 18, at 119. Because the Stored Communications Act defines a criminal offense and includes an explicit mens rea requirement, see 18 U.S.C. § 2701(a)(1), we do not think a defendant can be charged with constructive knowledge on a showing of mere negligence. Rather, the defendant must have consciously procured consent through improper means. In this case, the magistrate found that defendants had acted in bad faith. That is enough to charge them with knowledge of NetGate's mistake. See Black's Law Dictionary 139 (6th ed.1990) (defining "bad faith" as "not simply bad judgment or negligence, but ... conscious doing of a wrong because of dishonest purpose or moral obliquity").

Replace the fourth full paragraph, 341 F.3d at 985, with:

The United States, as amicus curiae, disputes our interpretation. It first argues that, because subsection (B) refers to "any storage of such communication," it applies only to backup copies of messages that are themselves in temporary, intermediate storage under subsection (A). The text of the statute, however, does not support this reading. Subsection (A) identifies a type of communication ("a wire or electronic communication") and a type of storage ("temporary, intermediate storage ... incidental to the electronic transmission thereof"). The phrase "such communication" in subsection (B) does not, as a matter of grammar, reference attributes of the type of storage defined in subsection (A). The government's argument would be correct if subsection (B) referred to "a communication in such storage," or if subsection (A) referred to a communication in temporary, intermediate storage rather than temporary, intermediate storage of a communication. However, as the statute is written, "such communication" is nothing more than shorthand for "a wire or electronic communication."

The government's contrary interpretation suffers from the same flaw as Fraser 's: It drains subsection (B) of independent content because virtually any backup of a subsection (A) message will itself qualify as a message in temporary,

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intermediate storage. The government counters that the statute requires only that the underlying message be temporary, not the backup. But the lifespan of a backup is necessarily tied to that of the underlying message. Where the underlying message has expired in the normal course, any copy is no longer performing any backup function. An ISP that kept permanent copies of temporary messages could not fairly be described as "backing up" those messages.

The United States also argues that we upset the structure of the Act by defining "electronic storage" so broadly as to be superfluous and by rendering irrelevant certain other provisions dealing with remote computing services. The first claim relies on the argument that any copy of a message necessarily serves as a backup to the user, the service or both. But the mere fact that a copy could serve as a backup does not mean it is stored for that purpose. We see many instances where an ISP could hold messages not in electronic storage--for example, e-mail sent to or from the ISP's staff, or messages a user has flagged for deletion from the server. In both cases, the messages are not in temporary, intermediate storage, nor are they kept for any backup purpose.

Our interpretation also does not render irrelevant the more liberal access standards governing messages stored by remote computing services. See 18 U.S.C. §§ 2702(a)(2), 2703(b). The government's premise is that a message stored by a remote computing service "solely for the purpose of providing storage or computer processing services to [the] subscriber," id. §§ 2702(a)(2)(B), 2703(b)(2)(B), would also necessarily be stored for purposes of backup protection under section 2510(17)(B), and thus would be subject to the more stringent rules governing electronic storage. But not all remote computing services are also electronic communications services and, as to those that are not, section 2510(17)(B) is by its own terms inapplicable. The government notes that remote computing services and electronic communications services are "often the same entities," but "often" is not good enough to make the government's point. Even as to remote computing services that are also electronic communications services, not all storage covered by sections 2702(a)(2)(B) and 2703(b)(2)(B) is also covered by section 2510(17)(B). A remote computing service might be the only place a user stores his messages; in that case, the messages are not stored for backup purposes.

Finally, the government invokes legislative history. It cites a passage from a 1986 report indicating that a committee intended that messages stored by a remote computing service would "continue to be covered by section 2702(a)(2)" if left on the server after user access. H.R.Rep. No. 647, 99th Cong., at 65 (1986). The cited discussion addresses provisions relating to remote computing services. We do not read it to address whether the electronic storage provisions also apply. See id. at 64-65. The committee's statement that section 2702(a)(2) would "continue" to cover e-mail upon access supports our reading. If section 2702(a)(2) applies to e-mail even before access, the committee could not have been identifying an exclusive source of protection, since even the government concedes that unopened e-mail is protected by the electronic storage provisions.

The government also points to a subsequent, rejected amendment that would have made explicit the electronic storage definition's coverage of opened e-mail. See H.R.Rep. No. 932, 106th Cong., at 7 (2000). This sort of legislative history has very little probative value; Congress

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might have rejected the amendment precisely because it thought the definition already applied.

Finally, the government points to a passing reference in another recent report. H.R.Rep. No. 236(I), 107th Cong., at 57 (2001). The discussion addresses an unrelated issue and merely assumes that the definition only applies to unopened e-mail. This assumption was natural given that Fraser had recently been decided.

We acknowledge that our interpretation of the Act differs from the government's and do not lightly conclude that the government's reading is erroneous. Nonetheless, for the reasons above, we think that prior access is irrelevant to whether the messages at issue were in electronic storage. Because plaintiff's e-mail messages were in electronic storage regardless of whether they had been previously delivered, the district court's decision cannot be affirmed on this alternative ground.4

4 Defendants urge us to affirm on the additional ground that the complaint at one point alleges they "access[ed] ... Plaintiffs' computer systems through which electronic communications systems are provided." Resp. Br. of Def./Appellee at 16 (emphasis added). Plaintiffs' computers, they note, are not "facilities" covered by 18 U.S.C. § 2701(a)(1). Id. at 15. We construe complaints liberally, however, see Lynn v. Sheet Metal Workers' Int'l Ass'n, 804 F.2d 1472, 1482 (9th Cir. 1986), and the substance of plaintiffs' claims is that defendants improperly accessed NetGate's servers.

The petition for rehearing and rehearing en banc is otherwise DENIED. See Fed. R.App. P. 35; Fed. R.App. P. 40. No further petitions will be accepted.


KOZINSKI, Circuit Judge:

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...

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