Bruce et al v. McDonald et al
OPINION: Summary Judgment will be entered in favor of Mr. McDonald, Attorney McKoon, and Attorney Thomas and her law firm and against the Bruces as further set out in the opinion. An appropriate judgment will be entered. Signed by Honorable Judge Myron H. Thompson on 3/10/2014. (dmn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
MICHAEL BRUCE, an
individual; and TANYA
BRUCE, an individual,
JOSHUA McDONALD, an
individual; et al.,
CIVIL ACTION NO.
Plaintiffs Michael and Tanya Bruce filed this lawsuit
against defendants Joshua McDonald, James R. McKoon, Jr.,
communications in violation of the Wiretap Act of 1968,
as amended, 18 U.S.C. § 2511.
Jurisdiction is proper
under 28 U.S.C. § 1331 (federal question).
pending before the court are the parties’ various crossmotions
required under § 2511, summary judgment will be entered
in favor of the defendants and against the plaintiffs.
I. SUMMARY-JUDGMENT STANDARD
“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought.
shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
admissible evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in
favor of that party.
Matsushita Elec. Indus. Co. Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
This case, like so many civil suits alleging the
unauthorized access of personal electronic information,
arises out of a contentions divorce and child-custody
Tanya Bruce and Joshua McDonald used to be
They were separated in 2009 and divorced in
At that time, they were awarded evenly split
custody of their only child.
Mrs. Bruce began dating and
later married Michael Bruce.
At issue in this case is Mr. McDonald’s access to
three electronic accounts: first, Mrs. Bruce’s individual
email account hosted by Yahoo.com; second, the joint
email account the Bruces shared; and third, a joint
account the Bruces shared on a website called “Adult
Friend Finder” (or “AFF”).
Mr. McDonald first gained access to Mrs. Bruce’s
individual Yahoo account.
There is some dispute about
how, exactly, Mr. McDonald did so.
The record contains
individual account on Mr. McDonald’s computer and failed
1. Mrs. Bruce’s prior married name was Tanya
McDonald. She initially filed this lawsuit under that
name, but with the parties’ consent the docket was
amended to reflect her new married name.
to log out; or that Mr. McDonald may have observed her
enter her password for that account; or that Mrs. Bruce
may have given Mr. McDonald the login information for
that account on one occasion for the limited purpose of
printing tickets for a joint activity with their child.2
In any event, Mr. McDonald has acknowledged that he had
printing the tickets.
Dep. of Joshua McDonald (Doc. No.
45-12) at 49.
Mr. McDonald later also gained access to the joint
Yahoo account and the AFF account.
He located an email
from Mr. Bruce to Mrs. Bruce, in her individual account,
which contained their joint AFF login information.
used that information to access private messages in the
AFF system (which functions in a similar way as email,
but only among AFF users). Id. at 71-72, 75-77.
2. There is no allegation that Mr. McDonald used a
key-logging program or any similar means of gaining the
A professional examination of the
Bruces’ computers found no improper software.
record does not clearly indicate how Mr. McDonald gained
access to the joint Yahoo account.
However, that he
accessed all three accounts is clear because he printed
out hundreds of pages of emails and documents from the
See, e.g., Emails (Doc. No. 45-18); id.
(Doc. No. 45-19) at 10-12; AFF Documents (Doc. No. 45-21)
at 92; id. (Doc. No. 45-22) at 59-74.
relate to mostly the Bruces’, within their committed
individuals, commonly referred to as “swinging.”
documents and photos are very sexually explicit.
packet of the documents was anonymously sent to the
Alabama Board of Pharmacy and allegedly played a role in
See Dep. of Tanya Bruce (Doc. No. 45-5) at 119-
The Bruces believe that Mr. McDonald sent the packet
and also that information about their sexual lifestyle
McDonald’s co-workers and current wife; the defendants
McDonald provided copies of all the documents to his
attorney in the child-custody case, Melissa B. Thomas,
who is the principal of the Thomas law firm.
in turn, engaged another attorney, James R. McKoon, Jr.,
The attorneys concluded that they could lawfully use
that evidence in the custody case.
Ms. Thomas produced
the documents to Mrs. Bruce’s counsel in discovery in the
The parties obtained a protective order
from the state-court judge governing the use of the
Ms. Thomas marked and referred to some of the
documents as exhibits at Mrs. Bruce’s deposition in that
case and alluded to the information contained in them in
argument to the state judge; she may have also disclosed
them to the mediator during the course of mediation.
parties reached a new agreement as to custody.
agreement resulted in increased custody time for Mr.
McDonald, specific limitations on Mrs. Bruce’s sexual
activities, and other terms benefitting Mr. McDonald.
The Bruces then brought this lawsuit, alleging that
communications and that Mr. McDonald, Attorney McKoon,
and Attorney Thomas and her law firm illegally disclosed
and used those communications.
All parties seek summary
judgment on all the claims.
In 1986, Congress amended the Wiretap Act of 1968 to
protect electronic communications as well as traditional
Privacy Act of 1986, Pub. L. No. 99–508, 100 Stat. 1848
(1986), the Wiretap Act now imposes criminal and civil
liability on any person who “intentionally intercepts ...
3. The Act is formally known as Title III of the
Omnibus Crime Control and Safe Streets Act of 1968.
The Wiretap Act also imposes liability on
§ 2511(1)(d), the contents of an electronic communication
“knowing or having reason to know” the communication was
“interception” is a necessary element for each type of
The Bruces have alleged violations of all three
In essence, they argue that Mr. McDonald
“intercepted” their personal emails and AFF messages by
The defendants all argue that there has
been no interception within the meaning of the Wiretap
The court agrees with the defendants.
The Wiretap Act defines “intercept” broadly, as “the
aural or other acquisition of the contents of any wire,
electronic, or oral communication through the use of any
electronic, mechanical, or other device.”
Appeals has adopted a “narrow reading” of “interception”
in the context of electronic communications.
States v. Steiger, 318 F.3d 1039, 1050 (11th Cir. 2003).
constitute an interception, the electronic communications
must have been acquired “contemporaneously with their
Id. at 1049; see also id. at 1048-49 (“we
acquisition during ‘flight’--is required to implicate the
Wiretap Act with respect to electronic communications”).
In Steiger, a criminal case, the court rejected a
motion to suppress certain documents and information a
defendant’s computer and subsequently had provided to the
Applying the “contemporaneous” test to those
4. The Wiretap Act is implicated in a variety of
cases: civil litigation for damages under the Act, such
as this case; criminal charges for violations of the Act;
and motions to suppress evidence obtained by the
government in other kinds of criminal cases pursuant to
facts, the court found no interception:
“In this case, there is nothing to
suggest that any of the information
provided [by the hacker] was obtained
through contemporaneous acquisition of
flight. Rather, the evidence shows that
the source used a Trojan Horse virus
that enabled him to access and download
information stored on Steiger’s personal
computer. This conduct, while possibly
communications in violation of the
Id. at 1050.
distinguishable from the instant case.
In this case,
they note, Mr. McDonald was not accessing files stored on
the Bruces’ computers, but was repeatedly accessing their
web-based email and AFF accounts over an extended period
The Bruces point to three out-of-circuit cases,
along with dicta in Steiger, to support their view that
this conduct is enough to establish “interception.”
the Act’s suppression provision, 18 U.S.C. § 2515.
The strongest support for the Bruces’ position comes
from United States v. Szymuszkiewicz, 622 F.3d 701, 706
(7th Cir. 2010).
In Szymuszkiewicz, the Seventh Circuit
Court of Appeals upheld the defendant’s conviction under
setting up a process whereby the defendant’s supervisor’s
emails were automatically forwarded to the defendant’s
email account for an extended period of time.
defendant had argued that there was no “interception”
because the forwarding happened only after each email
arrived in the supervisor’s inbox.
The court found,
first, that the jury could have concluded, as a factual
supervisor’s computer, duplicated each message.
court went on to find that even if the supervisor’s
computer did copy each message, that would not change the
outcome of the case:
“Either the server in Kansas City or
[the supervisor’s] computer made copies
of the messages for Szymuszkiewicz
within a second of each message’s
Szymuszkiewicz and [the supervisor] were
sitting at their computers at the same
time, they would have received each
message with no more than an eyeblink in
between. That’s contemporaneous by any
Id. at 706.
The Bruces argue that, because Mr. McDonald had
access to the email accounts on a continuous basis, he
viewed any given message sent or received by
those accounts as soon as it hit the inbox (or the sentmail
computers at the same time, they would have received each
message with no more than an eyeblink in between.”
But this argument ignores the critical distinction: in
contemporaneously with its transmission.
In this case,
the Bruces argue that Mr. McDonald had access to the
accounts and could have accessed some particular email
contemporaneously with transmission.
But there is no
evidence in the record to indicate that he ever actually
Cf. Pure Power Boot Camp v. Warrior Fitness Boot
Camp, 587 F. Supp. 2d 548, 557 (S.D.N.Y. 2008) (Katz, J.)
intercepted at the same time that they were delivered.
Rather, the evidence indicates that Brenner periodically
accessed Fell’s e-mail accounts and printed e-mails after
they had been delivered.”).
The Bruces also point to dicta in Steiger, which in
suggesting that “‘a duplicate of all of an employee’s
messages [being] automatically sent to the employee’s
boss’” would constitute interception.
Steiger, 318 F.3d
Employer Monitoring of Employee E–Mail, 48 Ala. L. Rev.
Unfortunately for the Bruces, the full quotation points
to exactly the distinction between actual forwarding and
mere access described above:
“‘[T]here is only a narrow window during
before which a newly composed message is
following a send command. Therefore,
unless some type of automatic routing
software is used (for example, a
duplicate of all of an employee's
messages are automatically sent to the
employee's boss), interception of E-mail
within the prohibition of [the Wiretap
Act] is virtually impossible.’”
Id. (alternation in original, emphasis added).
words, even assuming that the Eleventh Circuit really
intended to endorse the particular scenario described in
the law review article as an instance of interception,
that scenario explicitly contemplated actual automatic
forwarding, such as was the case in Szymuszkiewicz, not
mere access, as is the case here.
The other cases to which the Bruces cite are even
In re Pharmatrak, Inc., 329 F.3d 9, 22
(1st Cir. 2003), involved code implanted on the computers
of visitors to pharmacy websites that “automatically
duplicated” information and sent it to the defendant, a
third-party marketing firm, as well as the pharmacies.
The court found interception, in part by analogy to the
duplication in Pharmatrak, like the forwarding rule in
Szymuszkiewicz, was automatically contemporaneous, it is
likewise distinguishable from this case.
Finally, the Bruces point to a footnote in Hall v.
EarthLink Network, Inc., 396 F.3d 500, 503 n.1 (2d Cir.
In that case, the plaintiff had sued his internet
continued to receive emails sent to his email address
after the provider had cancelled his account.
held that the provider was exempt from liability under a
statutory exception for conduct by such a provider in the
obviously not at issue in the instant case.
In the cited
footnote, the court in dicta rejected a separate argument
made by the provider that an interception could occur
only while messages were in transit.
The court noted
that this argument failed because the allegation in that
case was of continued receipt of messages rather than
acquisition of stored messages.
This court is admittedly
somewhat perplexed by the phrasing of this footnote, but
in any event the difference between that case and this
one is clear: for each message the provider continued to
contemporaneously to its transmission.
Thus, even if the
circumstances, which it did not, that case would not
imply that an interception exists here.
On the contrary, in a consistent string of cases
courts have held time and again that unauthorized access
to an email account, standing alone, does not constitute
See Fraser v. Nationwide Mut. Ins. Co.,
352 F.3d 107, 114 (3d Cir. 2003) (no interception where
company searched employee’s email without authorization);
Global Policy Partners, LLC v. Yessin, 686 F. Supp. 2d
631, 639 (E.D. Va. 2009) (Ellis, J.) (allegations that
interception); Pure Power Boot Camp, 587 F. Supp. 2d at
558 (no interception where ex-employer accessed three of
ex-employee’s personal, web-based email accounts without
authorization); Cardinal Health 414, Inc. v. Adams, 582
F. Supp. 2d 967, 981 (M.D. Tenn. 2008) (Trauger, J.)
(continued access of work email system by ex-employee not
interception); Bailey v. Bailey, 2008 WL 324156 (E.D.
Mich. 2008) (Cox, J.) (no interception where husband
Indeed, one of those cases, Bailey, echos this case
in nearly every respect.
The defendant in that case had
authorization, through the use of a device that logs
every keystroke on a computer.
He then monitored her
web-based email addresses for months, eventually sharing
attorney in child-custody proceedings. The attorney used
the information during the course of those proceedings.
The plaintiff lost custody and thereafter sued both her
Despite continuous access to the accounts, the Bailey
court’s conclusion was clear: “Defendant Bailey did not
obtain the emails or messages contemporaneously with
their transmission, and thus, the Wiretap Act does not
Bailey, 2008 WL 324156 at * 5.
The court finds this long and consistent string of
cases entirely persuasive.
The Eleventh Circuit has
adopted a construction of “interception” requiring that
contemporaneously with their transmission.
and acquiring messages from another individual’s email
account does not necessarily happen contemporaneously
happens after the transmission of those messages, whether
by minutes or by days or by years.
Thus the cases cited
above which found no interception in the case of email
access are entirely consistent with the cases the Bruces
necessarily in the former, there was evidence of actual
acquisition contemporaneous with transmission.
This is not to say that mere access, without some
duplication device, could never amount to interception.
If the Bruces could establish that Mr. McDonald had
actually acquired even one message contemporaneously with
That question is not before the court
because there is simply no such evidence in this case.5
5. Nor is there any evidence that Mr. McDonald
acquired any particular message before Mrs. Bruce had
read that same message. Thus the court need not reach
the question of whether that conduct, if proven would
constitute interception. Cf. Steve Jackson Games, Inc.
v. U.S. Secret Serv., 36 F.3d 457, 460 (5th Cir. 1994)
(finding that seizure of still-unread messages on
periodically accessed [the] accounts and printed e-mails
[and other documents] after they had been delivered.”
Pure Power Boot Camp, 587 F. Supp. 2d at 557.6
insufficient to establish an interception.
arguments against liability in this case.7
electronic bulletin board was not an interception).
6. The court also need not reach the question of
whether Mr. McDonald’s conduct was “tortious,” Steiger,
318 F.3d at 1050, or violated Title II of the Electronic
Communications Privacy Act, also known as the Stored
Communications Act. See 18 U.S.C. § 2701. The Bruces
have asserted no claims apart from those under the
7. Specifically, some or all of the defendants raise
the following arguments, among others: the Wiretap Act’s
statute of limitations, 18 U.S.C. § 2520(e); that this
case is foreclosed by the settlement agreement in the
custody matter; and that any use in court was sanctioned
by the state court’s protective order. The parties agree
that an additional argument, based on Rooker/Feldman
doctrine, is now moot.
interception within the meaning of the Wiretap Act, it
need not reach these other issues.
Accordingly, for the above reasons, summary judgment
McKoon, and Attorney Thomas and her law firm and against
An appropriate judgment will be entered.
DONE, this the 10th day of March, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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?