Maynard v. United States Postal Service, Office of Inspector General

Filing 4

ORDERED that plaintiff is directed to show service of his motion and statement upon the Postal Service, plus written notice of such challenge to his service provider. He is free to promptly amend his motion to show this, and in any event must do so within the 120 days afforded by Fed.R.Civ.P.4(m) or risk dismissal. Signed by Magistrate Judge G. R. Smith on 12/22/2014. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ANSEL M. MAYNARD,
Plaintiff,
v.
UNITED STATES POSTAL
SERVICE, OFFICE OF
INSPECTOR GENERAL,
Defendant.

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Case No. CV414-275

ORDER
Proceeding pro se , Ansel M. Maynard moves under 18 U.S.C. §
27041 to quash the U.S. Postal Service’s subpoena of Cricket

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It was enacted as part of Title II of the Electronic Communications Privacy Act of
1986 (ECPA), Pub. L. 99-508. Three Titles make up the ECPA, and the second is the
Stored Communications Act, 18 U.S.C. § 2701 et seq . (SCA). “The SCA sets forth the
statutory privacy rights for customers and subscribers of electronic communications
service providers.” Reynolds v. Com ., 2014 WL 2187774 at * 6 (Va. App. May 27,
2014). Basically, it is “a statute that allows the government to obtain certain
electronic communications without procuring a warrant.” United States v. Warshak ,
631 F.3d 266, 282 (6th Cir. 2010). It also “permits a governmental entity to compel a
service provider to disclose the contents of electronic communications in certain
circumstances.” Id. (quotes, cite and brackets omitted). The statutory scheme
requires subscriber notification as to all subpoenas (grand jury and
administrative) that seek accessed communications, but then allows for a court
ordered delay of notification. See 18 U.S.C.A. §§ 2703(b)(B)(i), 2705. [¶] The
ECPA does not require prior notification when a subpoena is used to obtain
basic subscriber information (e.g., local and long distance connection records,

Communications, the telecommunications provider holding his cell phone
records. Doc. 1; see also doc. 2 at 2. He argues that the subpoena -which “seeks all records pertaining to [his] cellular phone number and
account,” is vague, overbroad, and violates his Fourth Amendment
rights. Doc. 2 at 2. He claims an “expectation of privacy in my phone
records” and insists “[t]here is no nexus between the materials sought
and the postal service.” Id. And he “is not charged with any crime.” Id.
Construing Maynard’s filings liberally, West v. Peoples , 2014 WL
4852114 at * 6 (11th Cir. Oct. 1, 2014), the Court will assume that the
Postal Service’s Office of Inspector General (OIG) has provided him with
a § 2704(a)(2) “subscriber notification” ( see supra n. 1) of its intent to
records of computer sessions). See 18 U.S.C.A. § 2703(c)(2). The provision for
delaying notification is tied to the mandatory notification provision, § 2703(b),
leaving open the question of whether the government can obtain a similar
order to preclude a service provider from voluntarily informing a customer of a
subpoena to produce basic subscriber information.
WAYNE R. LAFAVE , 3 C RIM . P ROC . § 8.5(d) n. 155 (3d ed. Dec. 2014); see also In re
Application of U.S. for an Order Pursuant to 18 U.S.C. 2705(b) , 866 F. Supp. 2d 1172,
1173 (C.D. Cal. 2011) (explaining criteria where target can be given delayed notice),
cited in F ISHMAN AND M CKENNA , W IRETAPPING AND E AVESDROPPING § 7:58 (Nov.
2014); Warshak , 631 F.3d at 283 (citing government options for obtaining such data:
warrant, court order or administrative subpoena). Procedural rights turn on
whether the government resorts to a subpoena or a court order. In re Application of
the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d) , 830 F. Supp. 2d 114, 127-08
(E.D. Va. 2011). Finally, “the SCA delineates when a third-party, such as an email
service, may disclose the contents of its customers' electronic communications, such
as emails, or other record information about those communications, such as the name
of the person who owns the email account.”
Kelley v. Federal Bureau of
Investigation , ___ F. Supp. 3d ___, 2014 WL 4523650 at * 8 (D.D.C. Sept. 15, 2014).

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subpoena his stored electronic communications. Maynard, for that
matter, expressly invokes this remedy:
(b) Customer challenges.--(1) Within fourteen days after notice by
the governmental entity to the subscriber or customer . . . such
subscriber or customer may file a motion to quash such subpoena
or vacate such court order, with copies served upon the
governmental entity and with written notice of such challenge to
the service provider. A motion to vacate a court order shall be filed
in the court which issued such order. A motion to quash a subpoena
shall be filed in the appropriate United States district court or
State court. Such motion or application shall contain an affidavit or
sworn statement-(A) stating that the applicant is a customer or subscriber to
the service from which the contents of electronic
communications maintained for him have been sought; and
(B) stating the applicant's reasons for believing that the
records sought are not relevant to a legitimate law
enforcement inquiry or that there has not been substantial
compliance with the provisions of this chapter in some other
respect.
(2) Service shall be made under this section upon a governmental
entity by delivering or mailing by registered or certified mail a copy
of the papers to the person, office, or department specified in the
notice which the customer has received pursuant to this chapter.
For the purposes of this section, the term “delivery” has the
meaning given that term in the Federal Rules of Civil Procedure.
18 U.S.C. § 2704(b) (emphasis added).
Only after the plaintiff has complied with those requirements is
this Court required to act:
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(3) If the court finds that the customer has complied with
paragraphs (1) and (2) of this subsection, the court shall
order the governmental entity to file a sworn response,
which may be filed in camera if the governmental entity
includes in its response the reasons which make in camera
review appropriate. If the court is unable to determine the
motion or application on the basis of the parties' initial
allegations and response, the court may conduct such
additional proceedings as it deems appropriate. All such
proceedings shall be completed and the motion or
application decided as soon as practicable after the filing of
the governmental entity's response.

Id . This preliminary process evidently was satisfied in Millsape v. U.S.
Postal Service , 2014 WL 2772597 at * 2 (N.D. Ohio, June 18, 2014)
(Granting government’s motion to dismiss similar case because “the
Postal Service never served the subpoena on Verizon. Special Agent
Austin shows that although he was planning to issue the administrative
subpoena to obtain plaintiff's Verizon Wireles telephone records and
provided notice thereof, he never actually served the subpoena on
Verizon because he determined it was no longer necessary.”).
Maynard, who has paid the Court’s $400 filing fee, has complied
with the motion and statement requirement. 2 Doc. 2. But he has failed
to show service of his motion and statement upon the Postal Service and
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He declared his statement true under penalty of perjury, thus invoking 28 U.S.C. §
1746. While that is not an affidavit, doc. 2 at 1, the Court will accept it as a “sworn
statement.”

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“written notice of such challenge to the service provider,” Cricket. 18
U.S.C. § 2704(b)(2). He is free to promptly amend his motion to show
this, and in any event must do so within the 120 days afforded by Fed. R.
Civ. P. 4(m) or risk dismissal.

SO ORDERED , this 22nd day of December, 2014.

UNI T STATES MAGISTRATE JUDGE

SOUTHERN DISTRICT OF GEORGLL

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