Yesterday, Judge Kaplan of the Southern District of New York dismissed the complaint in Hubbard v. Myspace. Hubbard is the latest case to reject the claim that a social network violated the Stored Communications Act (“SCA”) by disclosing certain user information pursuant to law enforcement demands. Last month, this firm won a similar case, obtaining a dismissal in Sams v. Yahoo!. While the Sams case involved a subpoena for user records, the Hubbard case involved a Georgia search warrant for records and communications content.
Hubbard, who had been arrested and sentenced in his underlying criminal case, claimed that Myspace should not have provided any records or communications to investigators. Myspace pointed to a search warrant it received from the Magistrate Court of Cherokee County in Georgia, which compelled production of those documents.
Under the SCA, electronic communication service providers may not disclose the contents of user communications, except to law enforcement with a valid warrant. Specifically, Section 2703(e) provides that:
“No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification under this chapter.”
Despite the existence of legal process, Hubbard argued that Myspace’s production of his records was not “in accordance with the terms of a . . . warrant . . . under this chapter.” As a threshold matter, the court rejected the argument that was central to the plaintiff (represented by some of the same attorneys as the plaintiff in Sams), that faxed legal process is invalid. Next, Hubbard argued that a sufficient warrant under the SCA must be issued by a judge with authority to try the offense under investigation. In the federal system, and in Georgia, magistrates may issue warrants even where they are not authorized to try felony cases. Judge Kaplan held that the language and history of the SCA supported the conclusion that the signing magistrate does not need to be an official with jurisdiction to try the case, but only one with jurisdiction to issue warrants.
The Plaintiff further argued that the warrant was invalid because a Georgia magistrate cannot issue a warrant for a search of MySpace’s records custodian in California. The Court agreed that the issuing magistrate exceeded his ordinary territorial authority, but held that in the context of the SCA, courts may authorize searches beyond their normal territorial jurisdictions:
“’Section 108 amends § 2703 to authorize the court with jurisdiction over the investigation to issue the warrant directly, without requiring the intervention of its counterpart in the district where the ISP is located.’ H.R. Rep. No. 107-236, pt. 1, at 57 (2001). See also In re United States, 665 F. Supp 2d 1210, 1219 (D.Or. June 23, 2009); In re Search Warrant, 362 F. Supp.2d 1298, 1304-05 (M.D. Fla. 2003), rev’d, No. 6:05-MC-168-Orl-31JGG, 2005 WL 3844032 (M.D. Fla. Feb. 13, 2006).”
Finally, the Court opined that allowing extraterritorial enforcement of the warrant did not violate the plaintiff’s constitutional rights under the Fourth Amendment either.
“Although the point has never been established firmly, it appears that the Fourth Amendment does not protect persons like plaintiff from searches such as this one, to wit, searches of users’ information and records electronically stored with private third parties. Prior to the ECPA’s enaction, then, warrants were not required to conduct such searches. Congress filled that void to an extent. Although the ECPA provides some amount of judicial oversight for these searches, it did not – and did not have to – import the entirety of federal and state warrant protections. For purposes of this federal right and federal cause of action, Congress had flexibility to define the protections it thought appropriate.”
Judge Kaplan’s offhand conclusion, presented without citation, is directly in contravention to the Sixth Circuit opinion in United States v. Warshak, 490 F.3d 455 (6th Cir. 2007) and the better view of communications privacy, which is that stored content _is_ Fourth Amendment protected. I wonder whether Kaplan needed this paragraph in the opinion. It is not clear, however, that the Fourth Amendment does prohibit extra-territorial execution of warrants. For a discussion of that topic, please see Orin Kerr.
With the dismissal of Sams, Hubbard and the Facebook privacy litigation, it’s been a bad summer for class action plaintiffs and their lawyers and a good summer for service providers handling user data. Next up will be motions to dismiss in the Zynga and iPhone privacy litigation cases.