LaRocca v. LaRocca

Filing 47

ORDER AND REASONS denying 44 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle on 1/22/2015. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ELOISA C. LAROCCA

CIVIL ACTION

VERSUS

NO. 13-4748

JOSEPH R. LAROCCA AND
DANIEL J. SENSEBE

SECTION "B"(4)
ORDER AND REASONS

I.

NATURE OF THE MOTION AND RELIEF SOUGHT
Before the Court is Defendant, Joseph R. LaRocca’s, Motion

for Summary Judgment.1 Plaintiff, Eloisa C. LaRocca has filed an
opposition.2 The motion, set for submission January 21, 2015, is
before the Court without oral argument. Accordingly, and for the
reasons enumerated below,
IT IS ORDERED that the Motion for Summary Judgment (Rec.
Doc. No. 44) is DENIED.
II.

FACTS AND PROCEDURAL HISTORY
On June 7, 2013, Plaintiff, Eloisa C. LaRocca (hereinafter

“Plaintiff”),

filed

suit

for

damages

from

Joseph

LaRocca3

(hereinafter “Defendant”) under 18 U.S.C. § 2510, et seq., the
federal Wiretap Act, as amended by the Electronic Communications
Privacy Act (ECPA).4 Mrs. LaRocca and Mr. LaRocca formerly were

1

Rec. Doc. No. 44.
Rec. Doc. No. 46.
3
Plaintiff has voluntarily dismissed Daniel J. Sensebe as a Defendant. Rec. Doc. No. 34.
4
Rec. Doc. No. 1..
2

1

married

as

husband

wife.5

and

In

or

about

May

2011,

while

residing together, Defendant filed for divorce.6 In the original
complaint,
spyware

Plaintiff

program,

alleges

the

that,

“Defendant

by

use

of

unlawfully

the

eBlaster

intercepted

and

transferred the private communications and computer activities”
of Plaintiff to an email address, in violation of the ECPA.7
III.

LAW AND ANALYSIS
Defendant

moves

for

summary

judgment,

arguing

that

Plaintiff “cannot demonstrate with sufficient summary judgment
evidence
Defendant

that

the

software

continuously

installed

on

transmitted

her
any

computer

by

intercepted

communications as required to state a claim” under the ECPA.8
Defendant

contends

that

unless

the

eBlaster

spyware,

which

indicated that reports would be sent every sixty (60) minutes,
also “created a concurrent report with each communication, then
it

would

have

been

created

from

stored

communications

and

therefore use of the eBlaster software would fall outside the
purview of the ECPA.”9

5

Rec. Doc. No. 1 at 2.
Rec. Doc. No. 1 at 2.
7
Rec. Doc. No. 1 at 6.
8
Rec. Doc. No. 1 at 1.
9
Rec. Doc. No. 44-1 at 2.
6

2

A. Summary Judgment Standard of Review
Summary

judgment

is

appropriate

only

if

“the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits show that there is no genuine issue
as to any material fact and the movant is entitled to judgment
as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 749 (5th
Cir. 2002). The proponent of the motion bears the burden of
showing a lack of evidence to support his opponent’s case. Fed.
R. Civ. P. 56(c); Stauffer v. Gearhart, 741 F.3d 574, 582 (5th
Cir. 2014).
A

genuine

dispute

of

material

fact

exists

when

the

“evidence is such that a reasonable jury could return a verdict
for

the

L.L.C.,
“defeat

nonmoving
736

F.3d

summary

party.”
396,

400

Royal
(5th

judgment

v.

CCC

Cir.

with

&

R.

2013).

A

conclusory

Tres

Arboles,

party

cannot

allegations,

unsubstantial assertions, or ‘only a scintilla of evidence.’”
Celtic Marine Corp. v. James C. Justice Companies, Inc., 760
F.3d 477, 481 (5th Cir. 2014); TIG Ins. Co., 276 F.3d at 759.
B. The Wiretap Act and Title I of the ECPA
In

1986,

Congress

passed

the

Electronic

Communications

Privacy Act (ECPA), Pub.L. No. 99-508, 100 Stat. 1848. Konop v.
Hawaiian Airlines, Inc., 302 F.3d 868,

874 (9th Cir. 2002).

3

Title I of the ECPA (“Title I”) amended the federal Wiretap Act,
which previously addressed only wire and oral communications, to
“address the interception of... electronic communications.”10
The Wiretap Act, 18 U.S.C. § 2511(1)(a)(“Act”), proscribes
“intentionally

intercept[ing]...any

communication,”
order

or

unless

other

the

wire,

intercept

exceptions.

An

is

oral,

or

authorized

“electronic

electronic
by

court

communication”

is

defined as “any transfer of signs, signals, writing, images,
sounds, data, or intelligence of any nature transmitted in whole
or

in

party

by

a

wire...system.”

18

U.S.C.

§

2510(12).

“Intercept” is defined 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. Id. §
2510(4).
In

Steve

Jackson

Games,

Inc.

v.

United

States

Secret

Service, 36 F.3d 457 (5th Cir. 1994), the Fifth Circuit held
that the government’s acquisition of email messages stored on an
electronic bulletin board system, but not yet retrieved by the
intended recipients, was not an “interception” under the Wiretap
Act.
The
describe
10

court
the

noted

exact

that

same

the

conduct

word
with

“intercept”
respect

to

could

not

wire

and

Sen Rep. No. 99-541. 99th Cong., 2d Sess. at 1, reprinted in 1986 U.S.C.C.A.N. 3555.

4

electronic

communications,

communications

were

Specifically,
include

the

storage

because

defined

term
of

and

differently

“wire

the

wire
in

communication”

communication,

electronic

the
was

while

statute.

defined

to

“electronic

communication” was not. Id. at 461.
Thus,
evidenced

the

court

Congress’

“intercept”

a

concluded

that

understanding

wire

communication

this

that,
in

textual
although

storage,

difference
one

one

could

could

not

“intercept” an electronic communication in electronic storage.
Id.

at

462.11

By

including

the

electronic

storage

of

wire

communications within the definition of such communications but
declining to do the same for electronic communications, Congress
sufficiently

evinced

its

intent

to

make

acquisitions

of

electronic communications unlawful under the Wiretap Act only if
they occur contemporaneously with their transmission.” Id. at
463-64;

Wesley Coll. V. Pitts, 974 F.Supp. 375, 386 (D.Del.

1997), aff’d, 172 F.3d 861 (3d Cir. 1998); see United States v.
Reyes, 922 F.Supp. 818, 836 (S.D.N.Y. 1996); Bohach v. City of

11

“Electronic storage” is defined as: (A) any temporary, intermediate storage of a wire or electronic
communication incidental to the electronic transmission therefore; and (b) any storage of such communication by
an electronic communication service for purpose of backup protection of such communication. 18 U.S.C. §
2510(17).

5

Reno,

932

F.Supp.

1232,

1236-37

(D.Nev.

1996)(requiring

acquisition during transmission).12
The

narrow

issue

before

the

Court

is:

whether

the

unauthorized installation of spyware, which collects and reports
email

and

activity

on

Plaintiff’s

computer,

constitutes

an

‘interception’ of an electronic communication as prohibited by
18 U.S.C. § 2511(1)(a).
Whether Plaintiff’s Emails and Computer Activity may have been
Intercepted by the eBlaster Spyware within the Meaning of Title
I of the ECPA
As

the

preceding

exercise

in

ECPA

interpretation

demonstrates, Plaintiff can only receive a favorable judgment
against

Defendant

under

Title

I,

if

she

can

show

that

the

eBlaster spyware program contemporaneously acquired her emails
and other computer activity during transmission and before they
were

placed

in

electronic

storage,

i.e.

with

the

intended

recipients. Steve Jackson Games, Inc., 36 F.3d at 463; Wesley
College, 974 F.Supp. at 389.
Defendant urges an even narrower definition than the Fifth
Circuit’s understanding of the term ‘intercept.’ It is clear
that the use of a device such as eBlaster to acquire electronic
12

Congress has since amended the Wiretap Act to eliminate “storage” from the definition of “wire
communication.” See USA PATRIOT ACT § 209, 115 Stat. at 283, such that the textual distinction relied upon by the
Fifth and Ninth Circuits no longer exists. However, the amendment leaves the Fifth Circuit’s conclusion on
12
electronic communications intact. Acquisition of email messages stored on an electronic system, but not yet
retrieved by the intended recipients, is not an interception under the Wiretap Act. Konop, 302 F.3d at 876.

6

information is within the scope of Title I and the Wiretap Act.
18 U.S.C. § 2510(4). The focus of whether acquisition via such
device constitutes an “interception” within the meaning of the
Act is on the acquisition itself and the timing. The creation of
a simultaneous report with every communication is not required
under

the

Act;

a

violation

of

Title

I

can

occur

where

one

acquires an electronic communication at or around transmission.
Steve Jackson Games, Inc., 36 F.3d at 463. Thus, the fact that
summary reports were set by Defendant to occur every hour is
irrelevant to the inquiry. The Court views the contemporaneous
collection of the information alone, as falling squarely within
the meaning of the statute. This is supported by the fact that
Defendant’s
data

argument

through

forwarding

collapses,

eBlaster,

of

each

if

Defendant

email

and

in

addition

also

received

communication,

to

collecting

an

immediate

which

Plaintiff

claims he could and did receive.13
On the summary judgment record before the Court, the Court
hesitates

to

conclusively

or

prematurely

determine

the

full

capabilities of the eBlaster program as allegedly employed in
this

case.

However,

it

appears

to

the

Court,

that

it

is

undisputed that the spyware program can collect data. Further,
accordingly

to

Plaintiff,

the

eBlaster

spyware

“does

not

retrieve anything from storage. Rather, it works by continuously
13

Rec. Doc. No. 46 at 2.

7

and contemporaneously capturing incoming and outgoing emails,
chat and instant messages, keystrokes typed, websites, visited,
programs launched and peer-to-peer (P2P) files downloaded,” an
assertion Plaintiff bases on the eBlaster product description.14
Thus, the Court declines to enter summary judgment in favor of
Defendant.

IV.

CONCLUSION
Accordingly, and for the reasons enumerated above,
IT IS ORDERED that the Motion for Summary Judgment (Rec.

Doc. No. 44) is DENIED.
New Orleans, Louisiana, this 22nd day of January, 2015.

____________________________
UNITED STATES DISTRICT JUDGE

14

Rec. Doc. No. 46-1 at 1-7 (“Exhibit 1”).

8