Court Finds Element of SCA Defense is Question of Law – Dismisses Action Against ISP
A federal district court recently held that an internet service provider’s objective reasonableness in disclosing information in response to a search warrant (an element of an ISP’s defense under the Stored Communications Act), is a question of law for the court to decide. (Fox v. CoxCom Inc., D. Ariz., 11-cv-594).
Plaintiff, a former Captain in the Maricopa County Sheriff’s Department, had been under investigation for campaign finance violations by the Arizona Attorney General’s Office. Defendant Cox Communications first received a subpoena for subscriber information, then a preservation request, and finally a search warrant for content from email accounts associated with plaintiff’s Cox account. As it turns out, the preservation request was, at least arguably, broader than the search warrant (asking for preservation of the contents of several email accounts, while the search warrant specifically called for the search and seizure of only one, although it referenced and attached the preservation request). Plaintiff sued Cox under the civil action provisions of the SCA for disclosing information beyond the single email account.
Cox moved for summary judgment, arguing that under the Stored Communications Act, an ISP who discloses information in good faith reliance on a warrant has a complete defense (see 18 USC §2707(e)(1)). The court first noted that there is a dearth of case law interpreting the “good faith reliance” defense under the SCA and looked to Jacobson v Rose, a case interpreting virtually the same language under the Wiretap Act. The court followed Jacobson, finding that the elements of the defense were (1) that the defendant had a good faith belief that he was complying with the warrant; and (2) that the belief was reasonable under the circumstances. As to the first element, Cox submitted the affidavit of the Subpoena Compliance Supervisor at Cox. In the affidavit, the supervisor stated “that she followed Cox’s established procedures in responding to the warrant, and that she believed that the warrant required her to disclose all of the information that she did.” Plaintiff, on the other hand (who, I should note, was acting pro se), submitted no evidence to controvert the supervisor’s statement, and merely argued in his brief that because the disclosure “unreasonably exceeded” the scope of the warrant, the good faith defense must fail. The court held that the uncontroverted evidence from the supervisor met the first element.
As to the second element, plaintiff argued that objective reasonableness was a question of fact for a jury. The court disagreed, holding that the court could decide this as a matter of law. While it noted that one district court had found the question to be one for a jury (Freedman v. America Online, Inc., 325 F.Supp.2d 638, 649 (E.D. Va., 2004)), it instead relied on the Seventh Circuit’s opinion in McCready v. eBay, Inc., 453 F.3d 882, 891-92 (7th Cir., 2006), which resolved a good faith issue on a motion to dismiss on the pleadings. The court went on to find that Cox acted reasonably in producing the information about all of the accounts because the preservation request was referenced in the warrant and requested preservation of all accounts. The court went on to comment that, even if the reasonableness of Cox’s reliance was one for a jury, “Cox offers uncontroverted evidence showing that it reasonably interpreted the warrant to require disclosure of all information regarding the related addresses, such as [another] e-mail address also registered to Plaintiff’s Cox account. Because Plaintiff offers no substantive evidence whatsoever in support of his claim to the contrary, there is no evidence by which a reasonable jury could find that Cox acted unreasonably.”
The Court’s holding that it can resolve the objective reasonableness of an ISP’s response to a warrant is a welcome outcome and will be good precedent for convincing courts to jettison vexatious suits early on.
I also should note that Cox did not raise the more straightforward absolute immunity defense in 2703(e), which applies without regard to any good faith inquiry when a provider complies with the terms of a search warrant or subpoena. Here, Cox likely didn’t raise it because the production of information arguably exceeded the four corners of what was called for by the warrant. Otherwise, a 2703(e) defense likely would have disposed of this matter on a motion to dismiss.