Freedman v. America Online, Inc.

• Citation: 325 F.Supp.2d 638
• Decision Date: 12 July 2004
• Docket Number: No. 1:04CV475.,1:04CV475.
• Parties: Clifton S. FREEDMAN, Plaintiff, v. AMERICA ONLINE, INC., Defendant.
• Court: U.S. District Court — Eastern District of Virginia

325 F.Supp.2d 638

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

No. 1:04CV475.

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

July 12, 2004.

COPYRIGHT MATERIAL OMITTED

Clifton S. Freedman, Pro se.

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

MEMORANDUM OPINION

ELLIS, District Judge.

In this transferred diversity action, plaintiff brings claims under Title II of the Electronic Communication Privacy Act ("ECPA"), 18 U.S.C. § 2701 et seq., and the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. St. § 42-110a et seq., on the ground that defendant, an internet service provider ("ISP"), wrongfully disclosed plaintiff's subscriber information to a Connecticut law enforcement officer in response to a warrant application that had not been signed by a judge. At issue on cross motions for summary judgment are the following questions:

(i) whether the "knowing or intentional state of mind" necessary to establish an ISP's liability in a civil action for an ECPA disclosure violation requires a showing of specific intent and knowledge or merely a showing that the disclosure was intentional, not inadvertent,

Or, in terms specific to this case,

Whether plaintiff here must show that the AOL employee who made the disclosure did so with knowledge that the warrant was unsigned or merely that the employee intended to make the disclosure and did not do so inadvertently;

(ii) whether AOL is entitled to the statutory good faith defense where, as here, it appears that the warrant was unsigned, but AOL's employee mistakenly thought otherwise; and

(iii) whether plaintiff may assert a Connecticut statutory claim against AOL given that this matter was transferred from the United States District Court for the District of Connecticut on the ground that the parties' contract contained a forum selection clause stating that Virginia courts would have exclusive jurisdiction over all disputes between the parties and that Virginia law would govern disputes pertaining to the parties' contract and plaintiff's AOL membership.

I.

Plaintiff Clifton Freedman, a Connecticut resident, is a subscriber of defendant America Online, Inc. ("AOL")'s Internet service. AOL is a Delaware corporation with its principal place of business in Dulles, Virginia. It is a wholly-owned subsidiary of AOL Time Warner, Inc., and the world's largest Internet Service Provider ("ISP"), with more than 30 million subscribers, or "members," worldwide.

The relationship between AOL and each of its subscribing members is governed by the Terms of Service ("TOS"), which includes the Member Agreement, the Community Guidelines, and the Privacy Policy. AOL's Privacy Policy, distributed to each subscriber with the Member Agreement, states that AOL will not disclose a subscriber's telephone numbers, credit information, or screen names, unless authorized by the subscriber to do so, except in response to "valid legal process such as a search warrant, subpoena or court order...." And while AOL alleges it makes every effort to abide by the terms of the Privacy Policy, the Member Agreement is plainly aspirational only, as it makes unmistakably clear that the Privacy Policy does not and is not intended to confer any rights and remedies upon the subscriber and that it, the Member Agreement, "represents [the subscriber's] entire agreement with AOL." Also of note here is that the Member Agreement contains (i) a forum selection clause stating that Virginia courts have "exclusive jurisdiction [over] any claim or dispute with AOL or relating in any way to [the subscriber's] membership or use of AOL" and (ii) a choice-of-law provision stating that "[t]he laws of the Commonwealth of Virginia, excluding its conflicts-of-law rules, govern this Agreement and your membership."

While not directly relevant to the issues at bar, it is worth noting that this dispute has its genesis in the 2001 campaign for First Selectman in the Town of Fairfield, Connecticut. During that campaign, a Fairfield fireman popularized a political slogan, "Go John Go Away," that was widely displayed on bumper stickers, balloons, and other campaign paraphernalia throughout Fairfield and intended to encourage voters not to vote for John Metsopoulous, the Republican candidate. Mary Carol Mirylees, who was defeated by Metsopoulous in the Republican primary, and several of her supporters, including Sandy Mulligan, Dee Dee Brandt, Kathy Siano, and Vincent Biondi, allegedly used the "Go John Go Away" slogan in their campaign to defeat Metsopoulous.

Mirylees decided to run again in the 2003 Republican primary for First Selectman. On March 31, 2003, plaintiff, an active member of the Republican party in Fairfield and a candidate for a position on the Fairfield Board of Education, sent an e-mail to approximately ten individuals, including Mulligan, Brandt, and Siano, managers of Mirylees' 2003 campaign, under the screen name "GoMaryGoAway@aol.com," which stated "The end is near." On April 1, 2003, Mulligan and Brandt, unaware that plaintiff had sent the e-mail and concerned about their security, filed a report with the Fairfield Police Department.

That same day, Detectives William Young and David Bensey of the Fairfield Police Department, concerned about the harassing nature of the e-mail, executed a State of Connecticut Superior Court Search and Seizure Warrant Application ("Warrant Application") seeking the disclosure by AOL of the identity of the person using the "GoMaryGoAway" screen name as well as other subscriber information relating to that person. After he and Detective Bensey signed the application under oath, but without first obtaining the signature of a judge, Detective Young faxed the warrant application to AOL's law enforcement help line.

In the five-page warrant application, Detectives Young and Bensey stated that they had probable cause to believe that the individual who had sent the allegedly harassing e-mail was responsible for harassment in the second degree in violation of Connecticut law and that they based this belief on the statements of Mulligan and Brandt. The warrant application was properly signed by both Detectives Young and Bensey on pages two, three, and four. Although Detective Bensey signed, arguably illegibly, on a line reserved for the signature of the affiant, his signature in fact appears on a line just above the words "Signed (Judge of the Superior Court)." The juxtaposition of these words and Detective Bensey's signature might lead a reader to assume, incorrectly, that Detective Bensey's signature is that of a judge. But careful review of the form discloses that there is a line below the words "Signed (Judge of the Superior Court)" that is meant for the judge's signature and this line is blank. Nor is the form signed anywhere else by a judge. Moreover, no signature, including that of Detectives Young and Bensey, appears on page five, even though the warrant appears to require the signature of a judge on that page.

When AOL received the warrant application fax, it was forwarded to AOL's legal department, which is responsible for AOL's compliance with warrants. Worth noting in this regard, is that AOL typically responds to approximately 1000 warrants per month from authorities all over the country. On April 7, 2003, Jennifer Sheridan, an AOL compliance and fraud investigator responsible for responding to warrants and court orders, concluded the warrant was valid and faxed plaintiff's subscriber information to Detective Young in response to the warrant application. The six-page fax included (i) one page that set forth plaintiff's name and address, phone numbers, account status and type, membership start date, software information, billing and account information, and screen names and (ii) a five-page list of plaintiff's session times and activity.

Detective Young subsequently disclosed this information to Mulligan and Brandt. Thereafter, on April 11, 2003, Biondi, a political advisor and campaign manager for Mirylees who had become aware that plaintiff had sent the e-mail, told plaintiff that he, Biondi, would ensure that the information concerning plaintiff's e-mail would not appear in the newspaper provided plaintiff drop out of the 2003 election for a position on the Fairfield Board of Education and resign his position as the District Leader of District 7 of the Republican Town Committee. Although it is not clear from the record whether plaintiff in fact dropped out of the election or resigned his position, plaintiff nonetheless alleges that he has suffered public ridicule, injury to his reputation, emotional distress, and loss of business as a consequence of the release of his subscriber information.

On June 12, 2003, plaintiff filed a complaint in the United States District Court for the District of Connecticut alleging eleven counts against AOL, Detective Young, Detective Bensey, and the Town of Fairfield. Of the eleven counts, three counts were asserted against AOL: (i) violation of the Electronic Communication Privacy Act, 18 U.S.C. § 2701 et seq. (Count I); (ii) breach of contract (Count II); and (iii) violation of the Connecticut Unfair Trade Practices Act, Conn. Gen. St. § 42-110a et seq. (Count III).¹ On November 20, in that district, plaintiff filed a partial motion for summary judgment as to Count I against AOL, Young, and Bensey and Counts X and XI against the Town of Fairfield and on November 21, AOL filed a motion to dismiss on the ground that the parties' Member Agreement forum selection clause provided that Virginia courts had exclusive jurisdiction over the three claims brought against AOL. On December 5, 2003, the United States District Court for the District of Connecticut granted AOL's motion to dismiss all claims against it on this ground. See Freedman v. America Online, Inc., et al., Civil Action No. 03-1048-A (D.Conn. Dec. 5,...