ZG Win Affirms ECPA Immunity for Providers Complying with Grand Jury Subpoenas Even If Document Production Function Is Out-of-State
Yesterday, in Fayelynn Sams v. Yahoo! Inc., No. 10-cv-05897 (N.D. Cal. 2011), Zwillinger Genetski obtained a dismissal of a class action lawsuit from the Northern District of California for its client Yahoo!. The Court dismissed Plaintiff Sams’ class action alleging claims under the Electronic Communications Privacy Act (ECPA), the Stored Communications Act (SCA), California’s unfair competition laws, breach of contract, and breach of the duty of good faith and fair dealing, after finding that Yahoo! was entitled to immunity under Section 2703(e) of ECPA. In doing so, the Court established that an Internet Service Provider (ISP) is entitled to immunity under the statute when producing user account information in response to subpoenas issued by a Court in which they are subject to personal jurisdiction, even if the documents are produced from a foreign jurisdiction.
In the decision, the Court first determined that it was appropriate to consider 2703(e) immunity on a motion to dismiss, stating “an affirmative defense properly may be considered on a motion to dismiss where the defense is ‘apparent from the face of the [c]omplaint.’” As support for this, the Court cited Goddard v. Google Inc.., where the Northern District had previously dismissed a complaint based on application of the immunity provisions in Section 230 of the Communications Decency Act.
The Court then turned to application of ECPA’s immunity provision which states, “[n]o 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. . . in accordance with a court order, warrant, subpoena, statutory authorization, or certification under this chapter,” 18 U.S.C. 2703(e). The parties both agreed that Yahoo! qualified as a “provider” under the statute. However Sams disputed that Yahoo!’s production of her account information was “in accordance” with a subpoena. She argued that the subpoenas, which were issued by the Superior Court of Lowndes County, Georgia, were invalid on their face because law enforcement had failed to domesticate the subpoenas in California under the Uniform Act to Secure the Attendance of Witness from Without a State in Criminal Proceedings prior to faxing them to Yahoo!’s Sunnyvale, California office. The Court disagreed, finding that the subpoenas issued by the Georgia Court were valid, and that because Yahoo! had offices in Georgia and it was therefore subject to personal jurisdiction there it was subject to the subpoenas even though compliance was generally handled by employees in California. The Court found that Yahoo! “is ‘one entity’ and the location of the documents or duties of employees at particular regional offices is irrelevant to its obligation to produce documents sought by subpoena.”
The Court also dismissed plaintiff’s argument that Yahoo! failed to comply with the terms of the subpoena because it did not hand deliver the documents to the Grand Jury. The Court found that “Yahoo! appropriately elected to produce the documents before the deadline in order to reduce the likelihood that its representatives would need to appear in person.”
Finally, the Court dismissed as “conclusory and devoid of support,” Sams’ allegation that Yahoo! did not appropriately respond to the subpoenas because it produced “content” without notifying Sams. In making this argument Sams focused on an outdated definition of “content” which was revised by ECPA in 1986 to exclude email headers and IP addresses. Further, the Court pointed out that Sams alleged “no actual facts tending to show that Yahoo! disclosed any information other than the non-content based information sought by the subpoenas at issue,” and “[w]hile the Court must ‘take all factual allegations in the complaint as true,’ it is not required to accept a ‘legal conclusion couched as a factual allegation’.”
Accordingly, the Court found that Yahoo! had produced Sams account information “in accordance” with valid subpoenas and was therefore entitled to immunity under 2703(e) of ECPA. As such, the Court dismissed Sams’ claims a whole, but did allow leave to amend if plaintiff could allege facts supporting a claim that Yahoo! impermissibly disclosed content as it is defined under current law.