Long ex rel. J.L. v. Insight Commc'ns of Cent. Ohio, LLC

Decision Date23 October 2015
Docket NumberNo. 14–3996.,14–3996.
PartiesWilliam LONG, individually and on behalf of J.L.; Barbara Long, individually and on behalf of J.L.; Jonathan Long ; Melissa Long, Plaintiffs–Appellants, v. INSIGHT COMMUNICATIONS OF CENTRAL OHIO, LLC, Defendant–Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED:Matthew D. Greenwell, Charles V. Longo, Co., L.P.A., Beachwood, Ohio, for Appellants. Jeffrey J. Jones, Jones Day, Columbus, Ohio, for Appellee. ON BRIEF:Matthew D. Greenwell, Charles V. Longo, Co., L.P.A., Beachwood, Ohio, for Appellants.Jeffrey J. Jones, Matthew J. Chisman, Jones Day, Columbus, Ohio, for Appellee.

Before: GUY, GIBBONS, and ROGERS, Circuit Judges.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Plaintiffs appeal the dismissal of their claims against defendant Insight Communications of Central Ohio, d/b/a Time Warner Cable (“TWC”), arising out of TWC's mistaken disclosure of plaintiffs' basic subscriber information in response to a grand jury subpoena. Reviewing the dismissal de novo, we find that plaintiffs failed to state a claim upon which relief may be granted either for violation of the Stored Communications Act (“SCA”) (18 U.S.C. § 2707(a) ), or for invasion of privacy, intentional disclosure of private information, intentional infliction of emotional distress, or breach of contract under Ohio law. Accordingly, the district court's judgment in favor of TWC is affirmed.

I.

PlaintiffsWilliam Long, Barbara Long, Jonathan Long, Melissa Long, and JL (a minor)—alleged that they resided at 14064 Chardon Windsor Road, Chardon, Ohio, in early 2012. At that time, TWC provided internet and cable services to plaintiffs' residence pursuant to a Subscriber Agreement and incorporated Privacy Notice. The pertinent allegations were accurately recounted by the district court as follows:

On March 27, 2012, Special Agent Richard Warner of the Bureau of Criminal Investigation (BCI), Investigation Division in the Computer Crimes Unit, was conducting an online internet investigation to identify individuals possessing and sharing child pornography. An internet protocol address, known as an IP address, is a code of numbers that identifies a particular computer on the internet. Internet Service Providers (ISP), such as [TWC], assign their customers IP addresses. While conducting his investigation, Agent Warner located a suspect using a public IP address of 173.88.218.170 (the .170 address) and found several hundred images and movie files titled consistent with child pornography. The IP address of plaintiffs' computers at that time was 173.88.218.70 (the .70 address). [In other words, there was a difference of one digit between the two IP addresses.]
Agent Warner downloaded the questionable material and determined that it was stored on the computer assigned the .170 address. On April 4, 2012, Agent Warner requested that [the] Geauga County Prosecutors' Office issue a Grand Jury subpoena requiring TWC to provide subscriber information for the .170 address. A subpoena was issued by the Prosecutors' Office and served on TWC requesting the information. TWC responded to the subpoena on April 11, 2012 [,] and indicated that the .170 address was assigned to plaintiff Barbara Long. Based on this information, BCI obtained a search warrant for plaintiffs' residence. On April 20, 2012, BCI and local law enforcement personnel executed the search warrant on plaintiffs' residence. While searching the residence, the BCI agents determined that the IP address assigned to plaintiffs' TWC account was the .70 address and not the .170 address, as requested from TWC. The search was terminated and Agent Warner explained to plaintiffs that a mistake had been made by TWC. Agent Warner was later advised by TWC that it had “run the wrong IP address.”

Long v. Insight Commc'ns of Cent. Ohio, LLC, No. 1:14–cv–1096, 2014 WL 4425738 at *1 (N.D.Ohio Sept. 8, 2014). Plaintiffs alleged that the search (which is not separately challenged here) was “extensive, destructive, and in plain sight of all of [their] neighbors.” The search was terminated once the error was discovered, and no evidence of criminal activity was found.

Plaintiffs did not allege any defect with respect to the grand jury subpoena—only that TWC misidentified Barbara Long as the subscriber assigned the .170 IP address because TWC had “run the wrong IP address.” Specifically, TWC was alleged to have disclosed Barbara Long's name, “home address, telephone numbers, and length of service.” Without providing any further factual basis, plaintiffs asserted that “TWC's conduct was knowing, intentional, willful, wanton, malicious, and fraudulent.”1

Plaintiffs' complaint alleged a federal claim for disclosure of their subscriber information without authorization in violation of the SCA (18 U.S.C. § 2707(a) ) (Count I), and state-law claims for “Negligent Disclosure of Private Information,” “Invasion of Privacy,” “Intentional Infliction of Emotional Distress,” and “Breach of Contract” (Counts II–V). TWC moved to dismiss these claims on a number of alternative grounds, including that the claims were barred under one or more defenses provided by the SCA; that TWC was protected by qualified privilege under Ohio common law; and that plaintiffs failed to state a claim on the merits under either the SCA or Ohio law. See Fed.R.Civ.P. 12(b)(6).

The district court rejected TWC's claim of immunity under § 2703(e), but found that § 2707(e)'s “good faith reliance” defense barred all of plaintiffs' claims. See 18 U.S.C. §§ 2703(e) and 2707(e). The district court also concluded that the state-law claims failed on the merits because the factual allegations were insufficient to establish that TWC disclosed the information intentionally, wrongfully, or in breach of contract. Long, 2014 WL 4425738, at *3–4. Judgment was entered accordingly, and this appeal followed.

II.

This court reviews a district court's dismissal for failure to state a claim de novo. Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 629 (6th Cir.2009). In doing so, we also may affirm the judgment on any ground supported by the record. Wausau Underwriters Ins. Co. v. Vulcan Dev., Inc., 323 F.3d 396, 403–04 (6th Cir.2003).

To survive a 12(b)(6) motion, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In evaluating the complaint, the court must take the well-pleaded facts as true but is ‘not bound to accept as true a legal conclusion couched as a factual allegation.’ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). Indeed, although state of mind may be alleged generally, “the plaintiff still must plead facts about the defendant's mental state, which, accepted as true, make the state-of-mind-allegation ‘plausible on its face.’ Republic Bank & Trust Co. v. Bear Stearns & Co., 683 F.3d 239, 247 (6th Cir.2012) (citation omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ; see also 16630 Southfield Ltd., P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir.2013) ; Estate of Barney v. PNC Bank, N.A., 714 F.3d 920, 924–25 (6th Cir.2013).

III.

Title II of the Electronic Communications Privacy Act of 1986 (ECPA), commonly referred to as the Stored Communications Act (SCA) (codified as amended at 18 U.S.C. §§ 2701 –2712 ), governs the various circumstances under which a service provider may divulge the contents of certain electronic communications or disclose other subscriber or customer records and information.See 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 (2004) (outlining the structure of the SCA). This case, however, involves only the provisions governing a service provider's disclosure of basic subscriber information to a governmental entity in response to a grand jury subpoena.2

A. Unauthorized Disclosure

The SCA dictates that—except as otherwise permitted—a service provider “shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service ... to any governmental entity.” 18 U.S.C. § 2702(a)(3). But, the exceptions that follow expressly permit a provider to divulge such records or information when, among other things, it is “otherwise authorized in section 2703.” 18 U.S.C. § 2702(c)(1) ; see also id. at § 2702(c)(2)-(6) (other exceptions). As amended, § 2703 provides, in relevant part, that a governmental entity may require a service provider to disclose a subset of basic subscriber or customer information—including name, address, phone number, and length of service—“when the governmental entity uses [1] an administrative subpoena authorized by a Federal or State statute or [2] a Federal or State grand jury or trial subpoena [.] 18 U.S.C. § 2703(c)(2) (as amended).

Reading these provisions together, and given that no defect was alleged with respect to the grand jury subpoena in this case, we assume that TWC would have been authorized to disclose the basic subscriber information associated with the .170 IP address in response to that subpoena. As plaintiffs alleged, however, TWC mistakenly disclosed the subscriber information associated with plaintiffs' .70 IP address instead. TWC's error was allegedly made in the course of retrieving the information to be disclosed (i.e., “running the IP address”). Notably, plaintiffs have not alleged any facts (or argued that there are any facts) to suggest that TWC was aware of the error at the time of the disclosure. The district court found plaintiffs had alleged that “TWC made a mistake, a typographical error, in responding to the subpoena.” Long, 2014 WL...

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