Garcia v. City of Laredo, Tex.

• Citation: 702 F.3d 788
• Decision Date: 12 December 2012
• Docket Number: No. 11–41118.,11–41118.
• Parties: Fannie GARCIA, Plaintiff–Appellant, v. CITY OF LAREDO, TEXAS, A Home Rule City; Carlos Maldonado, Chief of the City of Laredo, TX Police Department, Individually and in His Official Capacity; Cynthia Collazo, Deputy City Manager of the City of Laredo, TX, Individually and in Her Official Capacity; Gilbert Navarro, Former Interim/Acting Chief of the Police Department of the City of Laredo, TX, Individually and in His Official Capacity; Gilbert Magana, Investigator, Internal Affairs Division of the Police Department of the City of Laredo, TX, Individually and in His Official Capacity; Steven Moncevais, Crime Scene Unit Investigator of the Police Department of the City of Laredo, TX, Individually and in His Official Capacity; Raquel Buenrostro, Conspirator, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

702 F.3d 788

Fannie GARCIA, Plaintiff–Appellant,

v.CITY OF LAREDO, TEXAS, A Home Rule City; Carlos Maldonado, Chief of the City of Laredo, TX Police Department, Individually and in His Official Capacity; Cynthia Collazo, Deputy City Manager of the City of Laredo, TX, Individually and in Her Official Capacity; Gilbert Navarro, Former Interim/Acting Chief of the Police Department of the City of Laredo, TX, Individually and in His Official Capacity; Gilbert Magana, Investigator, Internal Affairs Division of the Police Department of the City of Laredo, TX, Individually and in His Official Capacity; Steven Moncevais, Crime Scene Unit Investigator of the Police Department of the City of Laredo, TX, Individually and in His Official Capacity; Raquel Buenrostro, Conspirator, Defendants–Appellees.

No. 11–41118.

United States Court of Appeals, Fifth Circuit.

Dec. 12, 2012.

Bruce Wayne Cobb, Conley & Schexnaider, Beaumont, TX, Murray Edward Malakoff, Maple Plaza Law Center, Dallas, TX, for Plaintiff–Appellant.

Albert Lopez, Law Office of Albert Lopez, San Antonio, TX, for Defendants–Appellees.

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

Before DAVIS, JONES and SMITH, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

In this appeal, Plaintiff–Appellant Fannie Garcia (“Garcia”) contends the district court's interpretation of the Stored Communications Act was erroneous. Garcia alleges that the statute applies and protects all text and data stored on her personal cell phone which the Defendants accessed without Garcia's permission. We conclude that the Stored Communications Act, which prohibits accessing without authorization a facility through which an electronic communication service is provided and thereby obtaining access to an electronic communication while it is in electronic storage, does not apply to data stored in a personal cell phone. For the reasons more fully set forth below, we AFFIRM.

I.

Garcia, a former police dispatcher for the City of Laredo, claims Defendants accessed the contents of her cell phone without permission in violation of the Stored Communications Act. On November 15, 2008, a police officer's wife removed Garcia's cell phone from an unlocked locker in a substation of the Laredo Police Department, and she accessed text messages and images found on Garcia's phone. Believing she had discovered evidence of violations of a department policy, she then set up a meeting with Cynthia Collazo, the deputy assistant city manager, and Gilbert Navarro, the interim/assistant police chief. At the meeting, she utilized Garcia's cell phone to access and to share with Collazo and Navarro the text messages sent from and received by the phone and the photographs stored on the phone. Later, investigators Gilbert Magaña and Steven Moncevais successfully downloaded one video recording and thirty-two digital images from the cell phone; they were unable to download any of the text messages.

A subsequent internal investigation concluded, based in whole or in part upon images and text messages retrieved from her cell phone, that Garcia had violated police department rules and regulations and Garcia was terminated from her employment.

The district court granted summary judgment for Defendants and denied Garcia's motion for partial summary judgment on the Stored Communications Act, finding that the statute did not apply to Defendants' actions in this case.¹ We affirm.

II.

We review summary judgment rulings de novo. Rockwell v. Brown, 664 F.3d 985, 990 (5th Cir.2011). Summary judgment is appropriate when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A question of statutory interpretation is reviewed de novo. Matthews v. Remington Arms Co., 641 F.3d 635, 641 (5th Cir.2011).

III.

Garcia first argues that the district court erred in granting summary judgment for Defendants because the Stored Communications Act (“SCA”) protects all text and data stored on Garcia's cell phone which Defendants accessed without her consent.² Defendants argue the SCA does not apply to images and text messages accessed from and stored in an ordinary cell phone.

Prior to 1986, the United States Code provided no protection for stored communications in remote computing operations and large data banks that stored e-mails. United States v. Councilman, 418 F.3d 67, 80–81 (1st Cir.2005) (en banc). In response, Congress passed the SCA as part of the Electronic Communications Privacy Act to protect potential intrusions on individual privacy that the Fourth Amendment did not address. Id. at 81 (citing S. Rep. No. 99–541, at 3 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3557); Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1209–13 (2004). The SCA prohibits unauthorized access to wire and electronic communications in temporary and back-up storage and provides in relevant part:

[W]hoever—

(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 as provided in subsection (b) of this section.

18 U.S.C. § 2701(a) (2006) (emphasis added). Accordingly, for Defendants to be liable under the SCA, they must have gained unauthorized access to a facility through which electronic communication services are provided (or the access must have exceeded the scope of authority given) and must thereby have accessed electronic communications while in storage. Garcia argues that her personal cell phone is a “facility” in which electronic communication is kept in electronic storage in the form of text messages and pictures stored on the cell phone.³

While the SCA does not define the term “facility,” it does define the terms “electronic communication service” and “electronic storage.” The statute defines an “electronic communication service” (“ECS”) as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” 18 U.S.C. § 2510(15) (incorporated by reference in 18 U.S.C. § 2711(1) of the SCA). “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.” Id. § 2510(17).

Courts have interpreted the statute to apply to providers of a communication service such as telephone companies, Internet or e-mail service providers, and bulletin board services. For example, in Steve Jackson Games, Inc. v. United States Secret Service, we found that the SCA applied to cover the seizure of a computer used to operate an electronic bulletin board system. 36 F.3d 457, 462–63 (5th Cir.1994).⁴ Other circuits have applied the SCA to Internet service providers. See, e.g., Councilman, 418 F.3d at 81–82;Theofel v. Farey–Jones, 359 F.3d 1066, 1075 (9th Cir.2004).

These cases, however, are not helpful to Garcia in establishing that an individual's computer, laptop, or mobile device fits the statutory definition of a “facility through which an electronic communication service is provided.” The Eleventh Circuit's decision in United States v. Steiger provides useful guidance. 318 F.3d 1039, 1049 (11th Cir.2003). In Steiger, when a hacker accessed an individual's computer and obtained information saved to his hard drive, the court held such conduct was beyond the reach of the SCA. Id. The court found that “the SCA clearly applies ... to information stored with a phone company, Internet Service Provider (ISP), or electronic bulletin board system,” but does not, however, “appear to apply to the source's hacking into Steiger's computer to download images and identifying information stored on his hard-drive.” Id. It noted that “the SCA may apply to the extent the source accessed and retrieved any information stored with Steiger's Internet service provider.” Id. (emphasis added).

A number of district courts that have considered this question have also concluded that “the relevant ‘facilities' that the SCA is designed to protect are not computers that enable the use of an electronic communication service, but instead are facilities that are operated by electronic communication service providers and used to store and maintain electronic storage.” Freedom Banc Mortg. Servs., Inc. v. O'Harra, No. 2:11–cv–01073, 2012 WL 3862209, at *9 (S.D.Ohio Sept. 5, 2012) (emphasis added). Recently, the Northern District of California held that a class of iPhone plaintiffs had no claim under the SCA because their iPhones did not “constitute ‘facilit[ies] through which an electronic communication service is provided.’ ” In re iPhone Application Litig., 844 F.Supp.2d 1040, 1057–58 (N.D.Cal.2012).⁵

Thus these courts agree that a “home computer of an end user is not protected by the SCA.” Kerr, supra, at 1215 (footnote omitted). As explained by Orin Kerr in his widely cited law review article, the words of the statute were carefully chosen: “[T]he statute envisions a provider (the ISP or other network service provider) and a user (the individual with an account with the provider), with the user's communications in the possession of the provider.” Id. at 1215 n. 47 (emphasis added) (citation omitted).

This reading of the statute is consistent with legislative history, as “Sen. Rep. No. 99–541 (1986)'s entire discussion of [the SCA] deals only with facilities operated by electronic communications services such as ‘electronic bulletin boards' and ‘computer mail facilit[ies],’ and the risk that communications temporarily stored in these...