Bruce et al v. McDonald et al

Filing 69

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,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
JOSHUA McDONALD, an
individual; et al.,
Defendants.

CIVIL ACTION NO.
3:13cv221-MHT
(WO)

OPINION
Plaintiffs Michael and Tanya Bruce filed this lawsuit
against defendants Joshua McDonald, James R. McKoon, Jr.,
and

Melissa

B.

interception,

Thomas

and

disclosure,

her
and

law

firm,

asserting

use

of

electronic

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).

Currently

pending before the court are the parties’ various crossmotions
concludes

for

summary

that

there

judgment.
has

been

Because
no

the

court

“interception”

as

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.

The court

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.”
Fed.

R.

Civ.

P.

56(a).

The

court

must

view

the

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).

II. BACKGROUND
This case, like so many civil suits alleging the
unauthorized access of personal electronic information,

2

arises out of a contentions divorce and child-custody
dispute.

Tanya Bruce and Joshua McDonald used to be

married.1

They were separated in 2009 and divorced in

2010.

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.
evidence

that

Mrs.

Bruce

may

The record contains

have

logged

into

her

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.
3

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
no

permission

individual

to

read

account,

printing the tickets.

the

with

emails

the

in

possible

Mrs.

Bruce’s

exception

of

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.

He

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.

The

2. There is no allegation that Mr. McDonald used a
key-logging program or any similar means of gaining the
login information.
A professional examination of the
Bruces’ computers found no improper software.
4

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
three accounts.

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.
The

documents

Mr.

McDonald

obtained

and

printed

relate to mostly the Bruces’, within their committed
relationship,

engaging

in

sexual

conduct

with

other

individuals, commonly referred to as “swinging.”
documents and photos are very sexually explicit.

The
A

packet of the documents was anonymously sent to the
Alabama Board of Pharmacy and allegedly played a role in
adverse
license.
20.

action

regarding

Mrs.

Bruce’s

pharmacist’s

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
was

disclosed

to

other

individuals,

5

including

Mr.

McDonald’s co-workers and current wife; the defendants
dispute

this.

It

is,

however,

undisputed

that

Mr.

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.

Ms. Thomas,

in turn, engaged another attorney, James R. McKoon, Jr.,
as co-counsel.
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
state matter.

The parties obtained a protective order

from the state-court judge governing the use of the
documents.

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.

The
This

agreement resulted in increased custody time for Mr.

6

McDonald, specific limitations on Mrs. Bruce’s sexual
activities, and other terms benefitting Mr. McDonald.
The Bruces then brought this lawsuit, alleging that
Mr.

McDonald

illegally

intercepted

their

electronic

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.

III. DISCUSSION
In 1986, Congress amended the Wiretap Act of 1968 to
protect electronic communications as well as traditional
wire

communications

amended

by

Title

(such

I

of

as

the

telephone

Electronic

calls).3

As

Communications

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 ...
any

...

electronic

communication.”

18

U.S.C.

3. The Act is formally known as Title III of the
Omnibus Crime Control and Safe Streets Act of 1968.
7

§ 2511(1)(a).
any
§

person

The Wiretap Act also imposes liability on

who

2511(1)(c),

“intentionally
or

discloses,”

“intentionally

uses,”

18
18

U.S.C.
U.S.C.

§ 2511(1)(d), the contents of an electronic communication
“knowing or having reason to know” the communication was
intercepted

in

violation

the

Wiretap

Act.

Thus,

“interception” is a necessary element for each type of
violation.
The Bruces have alleged violations of all three
sections.

In essence, they argue that Mr. McDonald

“intercepted” their personal emails and AFF messages by
logging

into

authorization.

the

three

accounts

without

their

The defendants all argue that there has

been no interception within the meaning of the Wiretap
Act.

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.”

8

18 U.S.C.

§

2510(4).

However,

the

Eleventh

Circuit

Court

of

Appeals has adopted a “narrow reading” of “interception”
in the context of electronic communications.

United

States v. Steiger, 318 F.3d 1039, 1050 (11th Cir. 2003).
In

the

Steiger,

appellate

court

concluded

that

to

constitute an interception, the electronic communications
must have been acquired “contemporaneously with their
transmission.”

Id. at 1049; see also id. at 1048-49 (“we

hold

contemporaneous

that

a

interception--i.e.,

an

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
hacker

had

obtained

without

permission

from

the

defendant’s computer and subsequently had provided to the
police.4

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
(continued...)
9

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
electronic
communications
while
in
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
tortious,
does
not
constitute
an
interception
of
electronic
communications in violation of the
Wiretap Act.”
Id. at 1050.
The

Bruces

argue

that

Steiger

distinguishable from the instant case.

is

factually

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
of time.

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.”

4(...continued)
the Act’s suppression provision, 18 U.S.C. § 2515.
10

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
the

“interception”

provision

of

the

Wiretap

Act

for

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.

The

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
matter,

that

indicated

this

that

was

the

not

email

so;

indeed,

server,

the

rather

evidence
than

supervisor’s computer, duplicated each message.

the

But the

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
11

of the messages for Szymuszkiewicz
within a second of each message’s
arrival
and
assembly;
if
both
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
standard.”
Id. at 706.
The Bruces argue that, because Mr. McDonald had
access to the email accounts on a continuous basis, he
could have

viewed any given message sent or received by

those accounts as soon as it hit the inbox (or the sentmail

folder).

McDonald]

and

Thus,
[Mrs.

hypothetically,
Bruce]

were

“if

both

sitting

at

[Mr.
their

computers at the same time, they would have received each
message with no more than an eyeblink in between.”

Id.

But this argument ignores the critical distinction: in
Szymuszkiewicz,
actually

was

the

evidence

forwarded

to

showed
the

that

each

defendant’s

contemporaneously with its transmission.

email

account

In this case,

the Bruces argue that Mr. McDonald had access to the

12

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
did so.

Cf. Pure Power Boot Camp v. Warrior Fitness Boot

Camp, 587 F. Supp. 2d 548, 557 (S.D.N.Y. 2008) (Katz, J.)
(“[T]here

is

no

evidence

that

the

...

e-mails

were

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
turn

was

a

quotation

from

a

law

review

article,

suggesting that “‘a duplicate of all of an employee’s
messages [being] automatically sent to the employee’s
boss’” would constitute interception.
at

1050

(quoting

Jarrod

J.

White,

Steiger, 318 F.3d
E–Mail

@Work.com:

Employer Monitoring of Employee E–Mail, 48 Ala. L. Rev.
1079,

1083

(1997))

(alteration

in

original).

Unfortunately for the Bruces, the full quotation points

13

to exactly the distinction between actual forwarding and
mere access described above:
“‘[T]here is only a narrow window during
which
an
E-mail
interception
may
occur--the
seconds
or
mili-seconds
before which a newly composed message is
saved
to
any
temporary
location
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).

In other

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
less persuasive.

In re Pharmatrak, Inc., 329 F.3d 9, 22

(1st Cir. 2003), involved code implanted on the computers

14

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
email

forwarding

example

in

Steiger.

Because

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.
2005).

In that case, the plaintiff had sued his internet

service

provider

under

the

Wiretap

Act

for

having

continued to receive emails sent to his email address
after the provider had cancelled his account.

The court

held that the provider was exempt from liability under a
statutory exception for conduct by such a provider in the
ordinary

course

of

its

business;

this

obviously not at issue in the instant case.

exception

is

In the cited

footnote, the court in dicta rejected a separate argument

15

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
receive,

it

received

actually

contemporaneously to its transmission.
Hall

court

had

found

an

that

message

Thus, even if the

interception

under

those

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
interception.

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);

16

Global Policy Partners, LLC v. Yessin, 686 F. Supp. 2d
631, 639 (E.D. Va. 2009) (Ellis, J.) (allegations that
husband

accessed

authorization

wife’s

email

insufficient

to

account
state

without

claim

of

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
accessed

wife’s

web-based

email

accounts

without

authorization).
Indeed, one of those cases, Bailey, echos this case
in nearly every respect.
obtained

his

wife’s

The defendant in that case had

login

information

without

any

authorization, through the use of a device that logs
every keystroke on a computer.

17

He then monitored her

web-based email addresses for months, eventually sharing
information

he

obtained

from

her

accounts

with

his

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
ex-husband

and

his

attorney

under

the

Wiretap

Act.

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
apply.”

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
electronic

communications

must

be

contemporaneously with their transmission.

acquired
Logging into

and acquiring messages from another individual’s email
account does not necessarily happen contemporaneously
with

their

transmission.

Rather,

18

it

almost

always

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
cite

finding

duplication.

interception

in

For

latter

in

the

case

of

cases,

automatic
but

not

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
its

transmission,

interception.

they

might

be

able

to

show

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
(continued...)
19

“Rather,

the

evidence

indicates

that

[Mr.

McDonald]

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

That is

insufficient to establish an interception.
The

defendants

have

raised

a

number

of

arguments against liability in this case.7
because

the

court

has

determined

that

there

other

However,
was

no

5(...continued)
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
Wiretap Act.
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.
20

interception within the meaning of the Wiretap Act, it
need not reach these other issues.
***
Accordingly, for the above reasons, summary judgment
will

be

entered

in

favor

of

Mr.

McDonald,

Attorney

McKoon, and Attorney Thomas and her law firm and against
the Bruces.

An appropriate judgment will be entered.

DONE, this the 10th day of March, 2014.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE