Freedman v. America Online, Inc.

• Decision Date: 11 August 2004
• Docket Number: No. 1:04CV475.,1:04CV475.
• Citation: 329 F.Supp.2d 745
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Clifton S. FREEDMAN, Plaintiff, v. AMERICA ONLINE, INC., Defendant.

329 F.Supp.2d 745

Clifton S. FREEDMAN, Plaintiff, v. AMERICA ONLINE, INC., Defendant.

No. 1:04CV475.

United States District Court, E.D. Virginia, Alexandria Division.

August 11, 2004.

Clifton S. Freedman, Pro se.

Samir Jain, Joseph James, Charles Colin Rushing, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, for Defendant.

ORDER

ELLIS, District Judge.

The matter is before the Court on defendant AOL's motion for partial reconsideration of the Court's Order granting summary judgment for plaintiff (i) as to whether AOL "knowingly divulge[d]" plaintiff's subscriber information as required by 18 U.S.C. § 2702(a)(3) and (ii) as to whether AOL acted with a "knowing or intentional state of mind" when it violated the statute as required by 18 U.S.C. § 2707(a). Because it was filed on July 22, 2004, exactly ten (10) days after entry of the Order granting plaintiff's motion for summary judgment as to these issues,¹ this motion is properly construed as a motion to alter or amend judgment pursuant to Rule 59(e), Fed.R.Civ.P.²

Although Rule 59(e) itself does not state the grounds on which district courts may grant a motion to alter or amend a judgment, the Fourth Circuit has made clear that "there are three grounds for amending an earlier judgment: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice." Pacific Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.1998). In this way, "the rule permits a district court to correct its own errors, `sparing the parties and the appellate courts the burden of unnecessary appellate proceedings.'" Id. (quoting Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir.1995)). Because defendant in this instance does not articulate an intervening change in controlling law or present new evidence not available at the time of the summary judgment hearing, it appears that defendant asserts that reconsideration is warranted to correct a clear error of law or prevent manifest injustice.

Through its motion, defendant asks for reconsideration of two aspects of the partial summary judgment ruling, namely those aspects concerning (i) whether AOL "knowingly divulge[d]" plaintiff's subscriber information in violation of the Electronic Communication Privacy Act ("ECPA"), 18 U.S.C. § 2701 et seq., as required by § 2702(a)(3), and (ii) whether AOL violated the statute with a "knowing or intentional state of mind," as required by § 2707(a), such that AOL is subject to liability in a private cause of action. More specifically, defendant argues that the ruling granting partial summary judgment for plaintiff on these issues was clearly erroneous on the ground that Jennifer Sheridan, the AOL employee who responded to the unsigned warrant application, did not know that the warrant was unsigned when she disclosed plaintiff's subscriber information.

Defendant first contends that reconsideration is warranted because plaintiff has not shown a genuine issue of fact that defendant "knowingly divulge[d]" plaintiff's subscriber information, and thus that defendant violated the statute. While defendant does not attack the Court's holding that to satisfy § 2702(a)(3)'s state of mind requirement, plaintiff must show that defendant knew all the factual circumstances that constitute the alleged offense, i.e., the ECPA violation,³ defendant nonetheless argues that the Court erred in concluding that Sheridan knew all the factual circumstances that constitute the violation because she did not know that the warrant was unsigned. Thus, defendant argues, the Court erred in awarding partial summary judgment for plaintiff.

To begin with, it is important to note that defendant did not argue in its summary judgment motion or in the course of the summary judgment hearing on June 18, 2004 that Sheridan did not "knowingly divulge" plaintiff's subscriber information and thus that AOL did not violate the statute. In fact, as the record reflects, defendant conceded at the June 18 hearing that AOL had violated the statute in disclosing plaintiff's subscriber information to the Fairfield police.⁴ Nonetheless, this state of mind issue was addressed in the Memorandum Opinion wherein the Court concluded that § 2702(a)(3)'s state of mind requirement had been satisfied and that partial summary judgment on that issue should be granted for the plaintiff.⁵ Accordingly, because the Fourth Circuit has made clear that Rule 59(e), Fed.R.Civ.P., motions may not be used "to raise arguments which could have been raised prior to the issuance of the judgment,"⁶ and because defendant conceded that a violation occurred and did not argue in its summary judgment motion or in the course of the summary judgment hearing that Sheridan did not "knowingly divulge" plaintiff's subscriber information, defendant's motion to reconsider on these grounds must be denied.

In any event, defendant is not correct that the Court erred in concluding that Sheridan "knowingly divulge[d]" plaintiff's subscriber information. Although the ECPA does not define "knowingly" as that term is used in § 2702(a)(3), pertinent legislative history provides that "knowingly means that the defendant was [(i)] aware of the nature of the conduct, [(ii)] aware of or possessing a firm belief in the existence of the requisite circumstances and [(iii)] an awareness [sic] of or a firm belief about the substantial certainty of the result." H.R.Rep. No. 99-647, at 64 (1986). The legislative history further clarifies what a plaintiff must show to establish each of these three prongs and thus show that defendant "knowingly divulge[d]" plaintiff's subscriber information. With regard to the first prong, plaintiff must show that defendant was aware of "the act of disclosure." Id. ("The conduct in question is the act of disclosure."). Moreover, with regard to the second prong, plaintiff must show that defendant was aware, or possessed a firm belief, (i) that the person or entity making the disclosure provided electronic communication services to the public and (ii) that the subscriber information disclosed related to a wire or electronic communication. See id. ("The circumstances involved are that the person involved provides electronic communication services to the public and that the contents relate to a wire or electronic communication."). And, finally with regard to the third prong, plaintiff must show that defendant was aware, or possessed a firm belief, that his act would result in the disclosure of the subscriber information to another person or entity. See id. ("The result is that the contents have been provided to another person or entity.").⁷ If a plaintiff establishes each of the three prongs, he is entitled to summary judgment on the question whether defendant "knowingly divulge[d]" his subscriber information.

This three-pronged standard, applied here, leaves no doubt that plaintiff has shown that Sheridan "knowingly divulge[d]" plaintiff's subscriber information. Sheridan was undoubtedly aware of the disclosure; she did not disclose the information inadvertently. Moreover, Sheridan clearly was aware (i) that AOL was an electronic communication service provider⁸ and (ii) that plaintiff's subscriber information related to his AOL subscription and thus electronic communications. Finally, Sheridan was aware that by faxing the subscriber information to Detective Young, this information would certainly be disclosed to Detective Young and the Fairfield Police. That Sheridan was mistaken as to whether the warrant was signed by a judge does not compel a different conclusion as to whether she "knowingly divulge[d]" the information. This is so because the invalidity of the warrant is not one of the circumstances required to establish the "knowingly divulge[d]" element of the violation; nor is the validity of the warrant relevant to other components of the "knowingly divulge[d]" requirement, namely the act or result of the disclosure.⁹ Notably, however, the invalidity of the warrant is an element of the ECPA violation. Here, of course, the parties do not dispute the invalidity of the warrant.

In sum, therefore, while the legal invalidity of the warrant is an element of an ECPA violation, it is not one of the factual circumstances Sheridan must have known to have "knowingly divulge[d]" the information to the Fairfield police. To conclude otherwise would render the ECPA impotent to reach a wide variety of circumstances where the legal invalidity of a warrant is more apparent or more subtle than it was here. Such a result, which is unsupported by the ECPA's language and legislative history, would effectively eviscerate the statute.¹⁰

Nor is the authority defendant cites in support of its contrary contention either apposite or persuasive. To begin with, none of these cases is a Title II ECPA case. Instead, the cases involve the child pornography criminal statute, 18 U.S.C. § 2252,¹¹ the Clean Water Act's criminal provision, 33 U.S.C. § 1319(c)(2)(A),¹² and Title I of the ECPA, 18 U.S.C. § 2511.¹³ Further, while it is true that in each of the cases the courts held that plaintiff must show that defendant knew of a circumstance or element of the offense to establish a violation, it is also true that in each of the cases, the statute at issue specifically identifies the factual circumstance or element that the defendant must have known to establish a criminal violation.¹⁴ Accordingly, none of these cases is either apposite or compels a conclusion different from the one reached here.¹⁵

Defendant next contends that reconsideration is warranted because plaintiff has not shown a genuine issue of fact that defendant violated the statute, assuming a violation occurred, with a "knowing or intentional state of mind," as required by § 2707(a) to establish liability in a private cause of action. In support of this contention, defenda...