Matthew Alexander v. Verizon Wireless Services, LLC
PUBLISHED OPINION FILED. [16-31227 Affirmed] Judge: TMR, Judge: JWE, Judge: LHS. Mandate issue date is 12/05/2017; granting motion for judicial notice filed by Appellee Verizon Wireless Services, L.L.C. [8475397-2] [16-31227]
Date Filed: 11/13/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
November 13, 2017
MATTHEW EDWARD ALEXANDER,
Lyle W. Cayce
Plaintiff – Appellant,
VERIZON WIRELESS SERVICES, L.L.C.,
Defendant – Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
Matthew Edward Alexander appeals the district court’s judgment
dismissing his complaint for failure to state a claim against Verizon Wireless
Services, L.L.C. under the Stored Communications Act, 18 U.S.C. §§ 2701–
The district court adopted the magistrate judge’s report and
recommendation stating that Verizon is entitled to statutory immunity and a
complete defense because it relied in “good faith” on an officer’s representations
regarding the existence of an emergency. Because we likewise conclude that
Verizon acted in good faith, we AFFIRM.
Date Filed: 11/13/2017
In August 2014, around 6:30 a.m., a fire took place at Illie Ray and
Christine 1 Nixon’s home in West Monroe, Louisiana. 2 The Nixons put out the
fire. Around 8:45 a.m., the Nixons called the police to report the fire as an
A detective from the Ouachita Parish Sheriff’s Department, Gary
Gilley, arrived at their home an hour later. The Nixons told Detective Gilley
that they believed Matthew Edward Alexander, a former employee of Mr.
Nixon’s telecommunications company and someone who had previously
brought suit against the company, was responsible for the fire. Mr. Nixon gave
Detective Gilley the make, model, and license plate number of Alexander’s car,
Alexander’s home address, and Alexander’s cell phone number, all of which
Mr. Nixon had from when his company employed Alexander.
Later that day, at 3:00 p.m., Detective Gilley contacted the Law
Enforcement Resource Team at Verizon Wireless Services, L.L.C., the service
provider for the cell phone number that Mr. Nixon gave Detective Gilley.
Detective Gilley spoke with Andrea Cole, a Verizon representative. During the
conversation, Detective Gilley told Cole that he needed to know where the
subscriber to whom the number belonged had been that day, but not the
subscriber’s current location. 3 He also mentioned that he was investigating a
fire that had been discovered at 6:30 a.m. and that the individual to whom the
The magistrate judge’s report and recommendation identifies the Nixons as “Ray
and Christina Nixon.” The complaint, however, identifies the Nixons as “Illie Ray and
“Christine.” Assuming this was a simple oversight, we use the names provided in the
2 Unless otherwise noted, all the facts in this opinion come from Alexander’s complaint
and are undisputed.
3 Detective Gilley testified to this effect and gave additional details regarding his
conversation with Cole at a suppression hearing held in a later criminal proceeding against
Alexander. Specifically, according to Alexander, Detective Gilley testified that he told Cole
that he “needed to know not where (the suspect/Plaintiff) is right now, but where he had been
Date Filed: 11/13/2017
number belonged was his main lead. Cole told Detective Gilley that, after
discussing the alleged arson, she believed the situation met Verizon’s
guidelines for releasing the information he requested and that she would fax
him the appropriate paperwork.
Cole sent Detective Gilley an “Emergency Situation Disclosure” form,
which Detective Gilley filled out and returned to her. 4 The form includes a
question asking whether the request “potentially involve[s] the danger of death
or serious physical injury to a person, necessitating the immediate release of
information relating to the emergency.” In response, Detective Gilley checked
the box next to “yes.” In a box for additional comments, Detective Gilley wrote:
“This case is in connection with an Arson, House was set on fire with victims
Detective Gilley included his name, badge number, contact
information, and title as a “Senior Investigator” with the Ouachita Parish
Sheriff’s Department. Moreover, he signed the form under a certification
stating as follows: “I certify that the foregoing is true and correct and
understand that Verizon Wireless may rely upon this form to make an
The “Emergency Situation Disclosure” form was not attached to Alexander’s
complaint but was instead submitted to the district court as an exhibit to Verizon’s motion to
dismiss and then used by Alexander as an exhibit to his response to the motion to dismiss.
In her report and recommendation, the magistrate judge considered the completed form,
which had been cited by both parties. Neither party objected to the court’s consideration of
the form. Typically, at the 12(b)(6) stage, the court is confined to the complaint. See Fed. R.
Civ. P. 12(d). Nonetheless, because the form was repeatedly referenced in Alexander’s
complaint, is central to Alexander’s claims, and was submitted to the court by both parties,
it was appropriate for the magistrate judge to consider it, and we do the same here. See
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (“Documents that
a defendant attaches to a motion to dismiss are considered part of the pleadings if they are
referred to in the plaintiff’s complaint and are central to [the] claim.”); see also In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (“[B]ecause the defendants attached
the contracts to their motions to dismiss, the contracts were referred to in the complaints,
and the contracts are central to the plaintiffs’ claims, we may consider the terms of the
contracts in assessing the motions to dismiss.”).
Date Filed: 11/13/2017
emergency disclosure to my law enforcement agency or governmental entity
pursuant to 18 U.S.C. § 2702(b)(8) and § 2702(c)(4).”
After receiving the completed form, Verizon provided Detective Gilley
with the requested information. This included the identity of the subscriber,
location information, incoming and outgoing call details, and SMS 5 details.
The time period spanned by these records was, as requested by Detective
Gilley, from three days before the date of the incident to the “present time,”
which was interpreted by Verizon as the time the records were sent around
4:15 p.m. that day. All of the information received from Verizon was noncontent information. 6
Based in part on the information from Verizon, Alexander was arrested
and charged with aggravated arson and two counts of attempted second degree
murder. 7 In the criminal proceeding, Alexander moved to suppress the cell
phone records obtained from Verizon. A state trial judge granted Alexander’s
motion, finding that there were no exigent circumstances justifying Detective
SMS is an acronym for “short message service.” Peter DiCola & David Touve,
Licensing in the Shadow of Copyright, 17 Stan. Tech. L. Rev. 397, 421 (2014). SMS is the
way in which a text message is typically transmitted. See generally John Naughton, Now 4
Billion People Know the Joy of Txt, Guardian (May 5, 2012), https://www.theguardian.com/
6 Non-content information includes “a record or other information pertaining to a
subscriber to or customer of [an electronic communication] service” but does not include the
contents of any communications. 18 U.S.C. § 2702(a)(3), (c); see also 18 U.S.C. § 2703(c). We
have held, for example, that cell-site information is non-content information, while the
contents of an email or a call is content information. See In re U.S. for Historical Cell Site
Data, 724 F.3d 600, 607, 611–12 (5th Cir. 2013) (“[T]he historical cell site information reveals
his location information for addressing purposes, not the contents of his calls.”).
7 The exact offenses with which Alexander was charged and the fact that Alexander
also filed a civil lawsuit against Detective Gilley and two other officials from the Ouachita
Parish Sheriff’s Department were included in Alexander’s disclosure of collateral proceedings
pursuant to local rule 3.1 of the Local Rules for the United States District Court for the
Western District of Louisiana. See W.D. La. L.R. 3.1. This disclosure was filed with
Alexander’s complaint. See id.
Date Filed: 11/13/2017
Gilley’s actions in obtaining the records without a warrant.
criminal proceeding is ongoing. 8
Proceeding pro se, Alexander filed a lawsuit against Verizon in federal
district court, alleging various violations of the Stored Communications Act
(SCA), 18 U.S.C §§ 2701–2711, and seeking $5,000,000 in damages. Verizon
filed a motion to dismiss for failure to state a claim upon which relief can be
granted. The motion was referred by the district court to a magistrate judge.
After the motion was fully briefed, the magistrate judge issued a report and
recommendation in which the judge recommended that the motion be granted.
The magistrate judge concluded that, taking all of the facts in Alexander’s
complaint as true, Alexander’s complaint establishes on its face that Verizon
is statutorily immune from liability and further entitled to a “good faith
reliance” affirmative defense. As such, the magistrate judge concluded that
dismissal was proper. The report and recommendation also warned in bolded
all caps that a party’s failure to timely object to the report would bar that party,
except on grounds of plain error, from attacking any unobjected-to portions of
the report accepted by the district judge on appeal. Alexander did not file any
written objections, and the district court dismissed Alexander’s lawsuit with
prejudice. Alexander timely appealed the district court’s judgment. 9
We hereby grant Verizon’s request that we take judicial notice, pursuant to Federal
Rule of Evidence 201, of a copy of the docket in Alexander’s criminal proceeding and a motion
he filed in that proceeding. Alexander does not oppose Verizon’s request. These two
documents, however, do not affect our analysis.
9 Alexander also filed a motion for relief from judgment under rule 60 of the Federal
Rules of Civil Procedure, which the district court construed as a motion to alter or amend the
judgment under rule 59(e). The district court denied Alexander’s motion, and Alexander did
not appeal the district court’s ruling.
Date Filed: 11/13/2017
When a party who is warned of the requirement to file timely objections
to a magistrate judge’s report and recommendation fails to file any such
objections, and the magistrate judge’s factual findings and legal conclusions
are accepted by the district court, our review is for plain error. Douglass v.
United Servs. Auto Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc),
superseded on other grounds by 28 U.S.C. § 636(b)(1). When, however, the
district court undertakes an independent review of the record, our review is de
novo, despite any lack of objection. Guillory v. PPG Indus., Inc., 434 F.3d 303,
308 (5th Cir. 2005).
“This exception to the usual plain-error standard is
especially relevant in the context of pro se cases.” 10 Fogarty v. USA Truck, Inc.,
242 F. App’x 152, 154 (5th Cir. 2007) (unpublished) 11 (citing Douglass, 79 F.3d
The district court here stated in its judgment that it found the
magistrate judge’s report and recommendation to be “supported by the law and
the record in this matter.”
We have held that similar statements, while
potentially “judicial boilerplate,” indicate that the district court conducted an
independent review of the record. Guillory, 434 F.3d at 308 n.5 (reviewing the
district court’s decision de novo where it stated: “Alternatively, an independent
review of the record has led this court to conclude that the proposed findings
and conclusions are entirely correct.”); see also Hatcher v. Bement, 676 F. App’x
238, 241–42 (5th Cir. 2017) (unpublished) (“The district court explicitly stated
While we construe briefs of pro se litigants liberally and apply less stringent
standards to pro se litigants, “pro se parties must still brief the issues and reasonably comply
with the standards of [Federal Rule of Appellate Procedure 28].” Grant v. Cuellar, 59 F.3d
523, 524 (5th Cir. 1995).
11 Pursuant to Fifth Circuit Rule 47.5.4, unpublished opinions issued on or after
January 1, 1996 generally are not precedent, although they may be cited as persuasive
authority pursuant to Federal Rule of Appellate Procedure 32.1(a).
Date Filed: 11/13/2017
that it had made ‘an independent review of the pleadings, files, and records in
this case,’ and, accordingly, even if [the party whose motion was denied] did
not file specific written objections, we review the district court’s decision de
novo.”). As such, our review here is de novo.
When considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), we apply the same standard as does the district court: A
claim will not be dismissed unless the plaintiff cannot prove any set of facts in
support of his claim that would entitle him to relief. EPCO Carbon Dioxide
Prods., Inc. v. JP Morgan Chase Bank, NA, 467 F.3d 466, 469 (5th Cir. 2006).
We take all factual allegations as true and construe the facts in the light most
favorable to the plaintiff. Kelly v. Nichamoff, 868 F.3d 371, 374 (5th Cir. 2017).
“Although dismissal under rule 12(b)(6) may be appropriate based on a
successful affirmative defense, that defense must appear on the face of the
complaint.” Id. (quoting EPCO Carbon Dioxide, 467 F.3d at 470).
This case does not concern whether the information obtained by
Detective Gilley from Verizon can be used against Alexander in any criminal
proceeding against him. The state trial court already resolved that question
in Alexander’s favor. Instead, we are faced with the question of whether
Alexander can recover against Verizon through a civil lawsuit under the SCA.
The SCA governs the privacy of stored electronic (also referred to as
Internet 12) communications in the United States. See In re U.S. for Historical
Although many style guides, such as the Chicago Manual of Style, and news sources,
such as the Associated Press, no longer instruct writers to capitalize “Internet,” we decline
to follow this trend. See, e.g., The Chicago Manual of Style Online § 7.80 (17th ed. 2017); AP
Stylebook (@APStylebook), Twitter (Apr. 2, 2016, 8:00 AM), https://twitter.com/apstylebook
/status/716279065888563200?lang=en (“We will lowercase internet effective June 1, when
the 2016 Stylebook launches.”). For many, such as the New York Times, the reason for the
change to “internet” is simple: others were doing it, so they thought they should, too. Philip
B. Corbett, It’s Official: The ‘Internet’ Is Over, N.Y. Times (June 1, 2016), https://www.nytimes
Date Filed: 11/13/2017
Cell Site Data, 724 F.3d 600, 606 (5th Cir. 2013) (“The SCA regulates disclosure
of stored electronic communications by service providers.”); Orin S. Kerr, A
User’s Guide to the Stored Communications Act, and a Legislator’s Guide to
Amending It, 72 Geo. Wash. L. Rev. 1208, 1208 (2004) (“The privacy of stored
Internet communications in the United States is governed by a federal statute
known as the Stored Communications Act (‘SCA’).”). Congress passed the SCA
as part of the Electronic Communications Privacy Act (ECPA). Kerr, supra, at
Generally, the SCA (1) prohibits unauthorized access to certain
electronic communications, see 18 U.S.C. § 2701; (2) restricts service providers
from voluntarily disclosing the contents of customer communications or
records to certain entities and individuals, see id. § 2702; and (3) permits a
governmental entity to compel a service provider to disclose customer
communications or records in certain circumstances, see id. § 2703.
Section 2707(a) creates a cause of action for any person aggrieved by a
violation of the SCA. Id. § 2707(a). Section 2707(a) states:
Except as provided in section 2703(e), any provider of electronic
communication service, subscriber, or other person aggrieved by
any violation of [the SCA] in which the conduct constituting the
violation is engaged in with a knowing or intentional state of mind
may, in a civil action, recover from the person or entity, other than
the United States, which engaged in that violation such relief as
may be appropriate.
.com/2016/06/02/insider/now-it-is-official-the-internet-is-over.html. “Internet,” however, was
originally capitalized to distinguish the global network from other internets—short for “internetworks”—which are collections of smaller networks that communicate using the same
protocols. Adam Nathaniel Peck, Stop Capitalizing the Word Internet, New Republic (July
28, 2015), https://newrepublic.com/article/122384/stop-capitalizing-word-internet. In our
view, this still makes the word a proper noun, regardless of how often people refer to other
internets. Furthermore, to the extent “decapitalizing [I]nternet is part of a universal
linguistic tendency to reduce the amount of effort required to produce and process commonlyused words,” we reject the tasks of striking an additional key or reading over a capital “I” as
persuasive reasons to alter a word. Susan C. Herring, Should You Be Capitalizing the Word
‘Internet’?, Wired (Oct. 19, 2015), https://www.wired.com/2015/10/should-you-be-capitalizingthe-word-internet/.
Date Filed: 11/13/2017
Id. Section 2703(e), the exception referenced at the beginning of § 2707(a),
No cause of action shall lie in any court against any provider of
wire or electronic communication service . . . for providing
information, facilities or assistance in accordance with the terms
of a . . . statutory authorization . . . under [the SCA].
Id. § 2703(e). Thus, § 2703(e) provides immunity to a service provider when it
makes a disclosure in accordance with a provision of the SCA. See In re a
Warrant to Search a Certain E-Mail Account Controlled & Maintained by
Microsoft Corp., 855 F.3d 53, 55 n.2 (2d Cir. 2017) (“[Section 2703(e)] gives a
provider immunity from civil liability for a voluntary production . . . made ‘in
accordance with a statutory authorization under [the SCA].’” (quoting 18
U.S.C. § 2703(e))); Sams v. Yahoo! Inc., 713 F.3d 1175, 1180 (9th Cir. 2013)
(“[W]here a provider . . . discloses basic subscriber information to the
government ‘in accordance with the terms of a subpoena’ . . . the provider is
immune from suit.” (quoting 18 U.S.C. § 2703(e))).
A second provision of the SCA provides additional protection to service
providers who follow the terms of a statutory authorization in the form of a
complete defense. Section 2707(e) states:
A good faith reliance on (1) a court warrant or order, a grand jury
subpoena, a legislative authorization, or a statutory authorization
. . . is a complete defense to any civil or criminal action brought
under [the SCA] or any other law.
18 U.S.C. § 2707(e) (emphasis added). One such statutory authorization—the
one relevant in this case—states:
A [service] provider . . . may divulge a record or other information
pertaining to a subscriber to or customer of such service (not
including the contents of communications covered by subsection
(a)(1) or (a)(2) . . . to a governmental entity, if the provider, in good
faith, believes that an emergency involving danger of death or
serious physical injury to any person requires disclosure without
delay of information relating to the emergency . . . .
Date Filed: 11/13/2017
Id. § 2702(c). We refer to this as the “emergency exception.”
Here, Alexander challenges the district court’s determination that
Verizon is protected from liability under sections 2703(e) and 2707(e) based on
the emergency exception. 13 Alexander argues generally that the information
provided by Detective Gilley to Verizon regarding the alleged emergency
lacked enough specificity for Verizon’s reliance on it to be in good faith.
Alexander also faults Verizon for failing to take additional steps to challenge
Detective Gilley’s assessment of the situation as an “emergency.” The fact that
Detective Gilley successfully filled out a form, in Alexander’s view, is not
In Verizon’s view, the SCA allowed Verizon to rely in good faith on
Detective Gilley’s written representations, and Alexander has no factual
allegations that could plausibly show Verizon acted in bad faith. Verizon also
argues that asking its representatives to question the emergency assessments
of police officers is inconsistent with the statute and its design.
The term “good faith” appears twice in the provisions relevant to this
First, for a provider to qualify under the emergency exception, the
provider must “in good faith, believe that an emergency involving danger of
Alexander raises a total of five issues on appeal: (1) whether § 2702(c)(4) is
unconstitutionally broad; (2) whether application of § 2702(c)(4) in this case violates the
Fourth Amendment; (3) whether § 2703(e) and § 2707(e)(1) violate Alexander’s due process
rights; (4) whether the services providers referenced in § 2703(e) and § 2707(e)(1) should be
afforded absolute immunity from civil lawsuits; and (5) whether a member of a service
provider can be subject to suit under 42 U.S.C. § 1983. Only the fourth of these issues was
raised in the district court, and it is therefore the only issue we now consider. See Lyles v.
Medtronic Sofamor Danek, USA, Inc., 871 F.3d 305, 310 (5th Cir. 2017) (“Although . . . the
record is reviewed de novo, this court will not consider evidence or arguments that were not
presented to the district court for its consideration in ruling on the motion.”); New Orleans
Depot Servs., Inc. v. Dir., Office of Worker’s Comp. Programs, 718 F.3d 384, 387 (5th Cir.
2013) (“Generally, we do not consider issues on appeal that were not presented and argued
before the lower court.”); see also Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the
general rule, of course, that a federal appellate court does not consider an issue not passed
Date Filed: 11/13/2017
death or serious physical injury to any person requires disclosure without
delay of information relating to the emergency.”
18 U.S.C. § 2702(c)(4)
(emphasis added). A good faith belief in the existence of an emergency is
therefore required for § 2702(c)(4) to qualify as the “statutory authorization”
for § 2703(e)’s grant of immunity.
Second, “good faith reliance” on this
statutory authorization is required to trigger § 2707(e)’s “complete defense”—
insulating the emergency exception in a second analytical layer of “good faith.”
Id § 2707(e).
“Good faith” is not defined by the SCA. Moreover, courts examining
§ 2707(e) have differed on whether “good faith” should be determined using an
objective or a subjective test. See generally Robert D. Brownstone & Tyler G.
Newby, Data Sec. & Privacy Law § 9:30 (2017). Only three circuits have
weighed in on the issue: the Seventh, Ninth, and Tenth Circuits. See Sams,
713 F.3d at 1180; McCready v. eBay, Inc., 453 F.3d 882, 892 (7th Cir. 2006);
Davis v. Gracey, 111 F.3d 1472, 1484 (10th Cir. 1997). As such, this is an issue
of first impression in our circuit.
The Seventh and Tenth Circuits, on the one hand, have supported an
In McCready, the Seventh Circuit looked only to the
subpoena at issue to determine that eBay’s compliance with the subpoena was
in good faith. 453 F.3d at 892. Similarly, in Davis, the Tenth Circuit held that
“[t]o be in good faith, the officers’ reliance must have been objectively
111 F.3d at 1484.
Because the warrant was valid and
encompassed the seized equipment, the court concluded that the officers’
reliance was objectively reasonable. Id.
The Ninth Circuit, on the other hand, more recently examined § 2707(e)’s
“good faith reliance” defense and determined that it “should contain both an
objective and subjective element.” Sams, 713 F.3d at 1180. In so holding, the
court agreed with the general approach taken by the federal district court in
Date Filed: 11/13/2017
Freedman v. America Online, Inc., 325 F. Supp. 2d 638, 647–48 (E.D. Va. 2004),
but created its own test. 14 Id. at 1180–81. In Freedman, the district court
noted that the available authority at that time supported an objective test for
§ 2707(e), yet concluded that the more appropriate test was a two-pronged
standard used in cases interpreting a “nearly identical” provision under the
ECPA: 18 U.S.C. § 2520(d). 325 F. Supp. 2d at 647–49; see also Fox v. CoxCom
Inc., 2012 WL 6019016, at *3 (D. Ariz. Dec. 3, 2012) (also applying the § 2520(d)
Section 2520(d), which is housed in a chapter of Title 18 dealing with
wire and electronic communications interception, establishes, in nearly
identical fashion to § 2707(e), that “[a] good faith reliance on . . . a statutory
authorization . . . is a complete defense against any civil or criminal action
brought under this chapter or any other law.” 18 U.S.C. § 2520(d). The
Freedman court turned to the Ninth Circuit’s decision in Jacobson v. Rose, 592
F.2d 515 (9th Cir. 1978), for the § 2520(d) “good faith” standard. 325 F. Supp.
2d at 647–48. In Jacobson, the Ninth Circuit acknowledged that § 2520 does
not define “good faith” and, with guidance from the Senate Report on the
unamended version of § 2520, applied the good faith defense allowed in 42
U.S.C. § 1983 cases to the § 2520 context. 592 F.2d at 523. Applying that
formula, the Ninth Circuit held that “a defendant may invoke the defense of
good faith reliance on a court order only if he can demonstrate (1) that he had
a subjective good faith belief that he acted legally pursuant to a court order;
The Ninth Circuit held that “the good faith defense under 18 U.S.C. § 2707(e) is met
when the defendant complies with a subpoena (or other process detailed in § 2707(e) of the
SCA) that appears valid on its face, in the absence of any indication of irregularity sufficient
to put the defendant on notice that the subpoena may be invalid or contrary to applicable
law. A defendant may not benefit from the good faith defense, however, if the defendant
actually knew that the subpoena (or other process) was invalid under the applicable law.”
Sams, 713 F.3d at 1180–81.
Date Filed: 11/13/2017
and (2) that this belief was reasonable.” Id. This was the standard applied by
the Freedman court and modified in Sams. See Sams, 713 F.3d at 1180–81;
Freedman, 325 F. Supp. 2d at 648.
Looking to the Seventh and Tenth Circuits’ decisions or to the history
behind the Ninth Circuit’s decision in Sams leads us to the same conclusion—
an objective standard should be used in determining “good faith” under
§ 2702(c)(4) and § 2707(e) of the SCA. Although the Ninth Circuit in Sams did
not adopt the Freedman court’s articulation of the good faith test, it agreed
with the Freedman court that the test should contain both an objective and a
subjective element. 713 F.3d at 1180. The Freedman court, in turn, looked to
the § 2520 good faith test, which the Ninth Circuit had previously defined as
the § 1983 good faith test. 325 F. Supp. 2d at 647–48. Indeed, at that time,
the good faith test applied in § 1983 cases was a combined objective plus
subjective standard. See Pierson v. Ray, 386 U.S. 547, 557 (1967) (holding that
a good faith defense applies if the defendant held a subjective belief that was
objectively reasonable that he was acting legally). This, however, is no longer
the case. See Anderson v. Creighton, 483 U.S. 635, 641 (1987) (holding that the
relevant question in § 1983 cases is an objective one, in which “subjective
beliefs . . . are irrelevant”). Consequently, this line of reasoning for an objective
plus subjective approach in the context of the SCA lacks support and, in fact,
points towards an objective approach.
We have held that the “qualified” or “good faith” immunity that public
officials whose positions entail the exercise of discretion enjoy is axiomatic in
§ 1983 cases. Saldana v. Garza, 684 F.2d 1159, 1162–63 (5th Cir. 1982). The
qualified immunity doctrine originally was developed to protect law
Date Filed: 11/13/2017
enforcement officials against civil suits stemming from either a Bivens 15 or a
§ 1983 claim.
John D. Kirby, Note, Qualified Immunity for Civil Rights
Violations: Refining the Standard, 75 Cornell L. Rev. 462, 462 (1990). In both
contexts, the standard we apply is an objective one. See Harlow v. Fitzgerald,
457 U.S. 800, 814–15 (1982); Anderson, 483 U.S. at 641. The reason for this,
as the Supreme Court has explained, is that it strikes the right balance
between competing values: providing a recourse for the vindication of
constitutional guarantees while minimizing social costs, “including the risk
that fear of personal monetary liability and harassing litigation will unduly
inhibit officials in the discharge of their duties.” Anderson, 483 U.S. at 638.
Similarly, in the Fourth Amendment context, the Supreme Court has
created good faith exceptions to the exclusionary rule. “The exclusionary rule
is a judicially fashioned remedy whose focus is not on restoring the victim to
his rightful position but on deterring police officers from knowingly violating
the Constitution.” United States v. Wallace, 866 F.3d 605, 609 (5th Cir. 2017)
(quoting United States v. Allen, 625 F.3d 830, 836 (5th Cir. 2010)). “As such,
courts have carved out exceptions for police conduct ‘pursued in complete good
faith’ because the rule’s ‘deterrence rationale loses much of its force’ in such
circumstances.” Id. (quoting United States v. Leon, 468 U.S. 897, 919 (1984)).
Two such exceptions are when an officer relies in “good faith” on a statute or
on a warrant. See Illinois v. Krull, 480 U.S. 340, 349 (1987); Leon, 468 U.S. at
922. In both circumstances, the good faith test is purely an objective one.
Illinois, 480 U.S. at 355.
In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), the Supreme Court held that an individual whose right to freedom from unreasonable
search and seizure is violated by federal agents has a private cause of action against those
agents. 403 U.S. at 396–97.
Date Filed: 11/13/2017
Accordingly, we apply an objective standard to the good faith
requirements found in § 2702(c)(4) and § 2707(e)(1) of the SCA and ask if
Verizon’s conduct was objectively reasonable. We find that this approach is
consistent with the opinion of two other circuits and finds support in the
reasoning of the third circuit to have considered the issue thus far.
Furthermore, this approach strikes the right balance between providing a
recourse for subscribers whose rights under the SCA have been violated and
minimizing social costs, including the risk that fear of monetary liability and
harassing litigation will unduly inhibit the willingness of Internet service
providers voluntarily to help government officials in times of emergency.
Here, taking all factual allegations as true and construing the facts in
the light most favorable to Alexander, Verizon acted in an objectively
reasonable manner. 16 It is undisputed that Verizon only released the noncontent information tied to Alexander’s cell phone number after it received a
signed and certified form indicating that the request involved: (1) “the danger
of death or serious physical injury to a person, necessitating the immediate
release of information relating to that emergency,” (2) an alleged arson, and
(3) victims who were within the home when it was set on fire. Moreover, the
government official who submitted the form, Detective Gilley, listed
identifying information, such as his badge number and title as a senior
investigator with the Ouachita Parish Sherriff’s Department, making it
reasonable for Verizon to rely on its contents.
Equipped with this form,
Verizon acted reasonably in concluding that there was “an emergency
involving danger of death or serious physical injury to [a] person” that required
We note that, even if we were to incorporate a combined objective and subjective
approach to the good faith determination in this case, we would reach the same conclusion
that Verizon is statutorily immune from liability.
Date Filed: 11/13/2017
Verizon to act without delay, in satisfaction of § 2702(c)(4). An affirmative
defense is therefore established on the face of Alexander’s complaint.
We also do not find persuasive any argument that Detective Gilley’s
conversation with Cole made Verizon’s subsequent reliance on the form
unreasonable. First, although Detective Gilley did state that he did not need
the subscriber’s current location and that the fire had occurred several hours
earlier, these statements in themselves, even assuming Cole ultimately
released the records or communicated this information to the person who did,
do not preclude the fact that the situation was an emergency. See, e.g., Registe
v. State, 734 S.E.2d 19, 21 (Ga. 2012) (concluding that a provider believed in
good faith that disclosure under § 2702(c)(4) was appropriate where the
provider “received information directly from police that its records could help
identify an at-large suspect of a double homicide committed within a day of the
request and that the suspect presented a present and immediate danger”).
Second, with respect to Cole’s comment that Detective Gilley’s initial
statements met Verizon’s “guidelines,” this statement has little effect on the
analysis, since it is undisputed that no records were actually released until
after Verizon received the completed “Emergency Situation Disclosure” form.
Third, and most important, the situation could have changed between the time
Detective Gilley spoke with Cole and the time when he submitted the form to
Verizon. Verizon was not required to verify Detective Gilley’s representations,
certified as “true and correct,” in order to release Alexander’s records under
§ 2702(c)(4). As a result, Verizon is protected from liability under the SCA or
any other law for releasing Alexander’s records both by the immunity provided
by § 2703(e) and the complete defense created by § 2707(e)(1).
As a final note, we address Verizon’s argument that Alexander has not
sufficiently pleaded bad faith, a supposed “element of the cause of action under
section 2707(a).” Verizon seems to support the existence of a bad faith element
Date Filed: 11/13/2017
to Alexander’s cause of action with a recitation of the subjective component of
the Ninth Circuit’s good faith test in Sams. As already discussed, however, the
test we adopt today does not have a subjective component, nor do we agree that
bad faith is an element of the cause of action under § 2707(a).
Along the same lines, Verizon argues that Alexander failed to plead facts
“to show why Verizon had a motive to violate the statute.” Again, this is not a
requirement. The plain language of § 2707(a) requires, to establish a claim,
that “the conduct constituting the violation is engaged in with a knowing or
intentional state of mind.” 18 U.S.C. § 2707(a) (emphasis added). Verizon
argues, under §2707(a), that “the violation, not just the act of the disclosure,
[needs to] be knowing and intentional” and cites to Long v. Insight
Communications of Central Ohio, LLC, 804 F.3d 791 (6th Cir. 2015), in
In Long, while the Sixth Circuit acknowledged that it is “the conduct
constituting the violation” that must have been knowing or intentional, it
defined the relevant conduct as the violation itself—“that [the provider]
‘knowingly’ divulged plaintiffs’ subscriber information without authorization”
in violation of 18 U.S.C. § 2702. 804 F.3d at 797; see also 18 U.S.C. § 2702(a)(3)
(prohibiting providers from “knowingly” divulging records or other information
pertaining to a subscriber to a governmental entity). According to the Sixth
Circuit, the most natural reading of § 2707(a) “requires a showing that the
provider knew not only that it was divulging information (i.e., that the act of
disclosure was not inadvertent), but also what information was being divulged
(i.e., the facts that made the disclosure unauthorized).” Long, 804 F.3d at 797
(emphasis added). The Sixth Circuit thus essentially collapsed the phrase “the
conduct constituting the violation” into two words: the violation.
Nonetheless, as the Freedman court noted with respect to § 2702, “to
make a disclosure violation turn on whether [the provider] acted with a bad
Date Filed: 11/13/2017
faith intent to violate the statute would render the statute’s good faith defense
provision superfluous, an impermissible result under the well-established rule
‘that a statute ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous, void, or
insignificant.’” 325 F. Supp. 2d at 646–47 (footnote omitted) (citing TRW, Inc.
v. Andrews, 534 U.S. 19, 31 (2001)).
We agree with the Freedman court that to make a disclosure violation
turn on whether the provider knew they were acting “without authorization”
would render § 2707(e)’s “good faith reliance on a statutory authorization”
defense superfluous. This is an unacceptable result. See United States v.
Butler, 297 U.S. 1, 65 (1936) (“These words cannot be meaningless, else they
would not have been used.”); see also Corley v. United States, 556 U.S. 303, 314
(2009) (recognizing that “one of the most basic interpretive canons” is that a
“statute should be construed so that effect is given to all its provisions, so that
no part will be inoperative or superfluous, void or insignificant”); Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174
(2012) (“If possible, every word and every provision is to be given effect (verba
cum effectu sunt accipienda). None should be ignored. None should needlessly
be given an interpretation that causes it to duplicate another provision or to
have no consequence.” (footnote omitted)). Thus, with respect to the SCA, a
provider acts “knowingly” if it has knowledge of the factual circumstances (i.e.,
divulging records or other information pertaining to a subscriber to a
governmental entity) that constitute the alleged offense and “intentionally” if
its acts are not inadvertent. See, e.g., Freedman, 325 F. Supp. 2d at 645–46.
On the above grounds, we AFFIRM the district court’s judgment
dismissing Alexander’s lawsuit against Verizon Wireless Services, L.L.C. with
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?