Freedman v. American Online, Inc.

• Decision Date: 09 August 2005
• Docket Number: No. 3:03 CV 1048 PCD.,3:03 CV 1048 PCD.
• Parties: Clifton S. FREEDMAN, Plaintiff, v. AMERICA ONLINE, INC., et al. Defendants.
• Court: U.S. District Court — District of Connecticut

412 F.Supp.2d 174

Clifton S. FREEDMAN, Plaintiff, v. AMERICA ONLINE, INC., et al. Defendants.

No. 3:03 CV 1048 PCD.

United States District Court, D. Connecticut.

August 9, 2005.

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Daniel J. Klau, Pepe & Hazard, Hartford, CT, Calvin Kin-Meng Woo, Pepe & Hazard, Southport, CT, for Plaintiff.

Thomas M. Murtha, Mark A. Perkins, Walter A. Shalvoy, Jr., Maher & Murtha, Bridgeport, CT, for Defendants.

RULING ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

DORSEY, District Judge.

I. Introduction

Defendants, Town of Fairfield, William Young, and David Bensey move [Doc. No. 61], pursuant to Rule 56 of the Federal Rules of Civil Procedure, for partial summary judgment as to Counts Four, Five, Six, Seven, Eight, Nine, and Eleven of Plaintiffs Complaint. For the reasons that follow, Defendants' Motion is granted in part and denied in part.

II. Background

In September 2001, Mary Carol-Mirylees ("Carol-Mirylees") ran against incumbent John Metsopoulous ("Metsopoulous") in the 2001 Republican primary for the position of First Selectman in the town of Fairfield, Connecticut. (Pls.' Opp. Defs.' Mot. Partial Summ. J. at 2.) Carol-Mirylees' campaign used the phrase "Run Mary Run," and bumper stickers containing the phrase were circulated during the summer of 2001. (Id.) After losing the primary, Carol-Mirylees and some of her campaign supporters, including Sandy Mulligan and her campaign manager, Glendine Brandt, assisted the local Democratic party in its efforts to elect Ken Flatto, a Democrat, and not Metsopoulous, during the general election campaign for First Selectman in November 2001. (Id.)

During the 2001 general election, the campaign against Metsopoulous circulated bumper stickers and other political paraphernalia bearing the slogans "Go John Go Away, Your Days Are Numbered" and "Anybody But John." (Id.) On at least one occasion, an airplane, trailing a banner that read "Go John Go Away," flew over the town of Fairfield. (Id.) In addition, a website address of anythingbutjohn.com was created. (Id.) Local newspapers, including the Fairfield Citizen and the Bridgeport Post, published reports about the campaign. (Id.)

Plaintiff, Clifton Freedman, was an active member of the Fairfield Republican Party and a member of the Fairfield Republican Town Committee from 1999 to 2003. (Id. at 4.) Plaintiff also supported incumbent Metsopoulous. (Id.) On March 31, 2003, Plaintiff, using the screen name GoMaryGoAway, sent an email, stating that "The End is Near," to Sandra Mulligan ("Mulligan") and Dee Dee Brandt ("Brandt"). (Defs' Mem. Support Mot. Summ. J. at 1-2.) Plaintiffs identity was not discernable from the email.

After receiving the email, Brandt or Mulligan informed Carol-Mirylees, who had been a Fairfield Police Commissioner since 2001. (Id. at 5.) Carol-Mirylees then called Joseph Sambrook, Chief of Police of the Fairfield Police Department, and explained that "some friends of hers had received an email which they felt [was] threatening." (Id.) In response, Sambrook advised Carol-Mirylees that Brandt and Mulligan should file an incident report.

On March 31, 2003, Mulligan filed with the Fairfield Police Department a complaint based upon her receipt of Plaintiff's email. (Id. at 2.) On April 1, 2003, Mulligan and Brandt, after meeting with Detective William Young ("Young"), signed an Internet/Computer Harassment Statement Form, alleging that they had received a harassing and/or obscene email message. (Id.) Young then completed, and Officer David Bensey ("Bensey") signed as coaffiant, an Affidavit and Connecticut Superior Court Application for Search and Seizure Warrant ("the Application"), detailing the facts presented by Mulligan and Brandt. (Id.) Without submitting the Application to the Connecticut State Attorney's office or to a Judge, Young faxed a copy of it to AOL's legal department. (Id.) On April 7, 2003, AOL responded to the Application by faxing Plaintiffs subscriber information to Young. (Id. at 3.) This information included Plaintiff's name, address, phone numbers, account status, membership information, software information, billing and account information, and his other AOL screen names. (Id.) Based upon the information that Sheridan had provided, Young advised Mulligan and Brandt that Plaintiff had sent the email. (Id.) Young thereafter met Plaintiff at his residence, at which time Plaintiff admitted that he had sent the email, but stated that he had sent it as a harmless joke to his political colleagues. (Id.) No charges were filed against Plaintiff. On June 12, 2003, Plaintiff filed the present action against Young, Bensey, the Town of Fairfield, and AOL.¹ (Id.)

III. Standard of Review

A party moving for summary judgment must establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A party opposing a properly brought motion for summary judgment bears the burden of going beyond the pleadings, and'designating specific facts showing that there is a genuine issue for trial.'" Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir.2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In determining whether a genuine issue has been raised, all ambiguities are resolved and all reasonable inferences are drawn against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). Summary judgment is proper when reasonable minds could not differ as to the import of evidence. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). "Conclusory allegations will not suffice to create a genuine issue." Delaware & Hudson Railway Co. v. Consolidated Rail, 902 F.2d 174, 178 (2d Cir.1990). Determinations as to the weight to accord evidence or credibility assessments of witnesses are improper on a motion for summary judgment as such are within the sole province of the jury. Hayes v. N.Y. City Dep't of Corr., 84 F.3d 614, 619 (2d Cir.1996).

IV. Discussion

Defendants move for partial summary judgment as to Counts Four, Five, Six, Seven, Eight, Nine, and Eleven of Plaintiff's Complaint. Defendants argue that summary judgment should be granted with respect to: Count Four because Plaintiff did not have an objectively reasonable expectation of privacy in his subscriber information and, thus, they could not have violated his Fourth Amendment rights; Counts Five and Six because Plaintiff's right to free speech under the First Amendment to the United States Constitution and article first, § 4 to Constitution of Connecticut do not preempt Defendants' compelling interest in investigating a potential threat of physical harm to several of its residents; Count Seven because Plaintiff did not have an objectively reasonable expectation of privacy in his subscriber information for purposes of article first, § 7 of the Constitution of Connecticut; Count Eight because the information that Defendants obtained and recorded in the police report was of legitimate public concern and, thus, they could not have invaded Plaintiff's privacy; Count Nine because there is no evidence to support Plaintiffs claim that the Town failed to train its officers and was deliberately indifferent to the rights of the residents and visitors to the Town; and Count Eleven because there is no genuine issue of material fact in dispute as to the fact that the Town did not have a policy that directed its officers to submit search and seizure warrant applications to internet service providers without first obtaining a judge's signature. These arguments are addressed in turn.

A. Fourth Amendment

Defendants move for summary judgment on Count Four of Plaintiff's complaint on the grounds that Plaintiff did not have a reasonable expectation of privacy in his subscriber information and, thus, they could not have violated his Fourth Amendment rights. Plaintiff counters that Defendants violated his Fourth Amendment rights because they were required to obtain a valid search warrant prior to obtaining his identity from AOL because he reasonably believed that AOL would not disclose his identity.

A two-part test is utilized to determine whether an intrusion into an individual's privacy violated the Fourth Amendment. A court must examine whether the individual has established a subjective expectation of privacy and, if so, whether society would recognize this expectation as objectively reasonable. Florida v. Riley, 488 U.S. 445, 449, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989). Both criteria must be satisfied to implicate a privacy interest protected by the Fourth Amendment. Only a few cases have considered whether, for purposes of the Fourth Amendment, society would consider reasonable an internet subscriber's expectation in non-content information provided to an ISP to receive internet service. See, e.g., United States v. Hambrick, 55 F.Supp.2d 504 (W.D.Va. 1999), aff'd 225 F.3d 656 (4th Cir.2000), cert. denied, 531 U.S. 1099, 121 S.Ct. 832, 148 L.Ed.2d 714 (2001); United States v. Kennedy, 81 F.Supp.2d 1103 (D.Kan.2000).

In the cases in which the issue has been considered, courts have universally found that, for purposes of the Fourth Amendment, a subscriber does not maintain a reasonable expectation of privacy with respect to his subscriber information. In reaching this conclusion, courts have emphasized: (1) the distinction between the content of electronic communications, which is protected, and non-content information, including a subscriber's screen name and corresponding identity, which is not; (2) the language of the Electronic Communications Privacy Act of 1986 ("ECPA"), 18 U.S.C. 2701 et seq., which...