Hubbard v. MySpace, Inc.

Filing 22

RESPONSE re: #20 Memorandum of Law in Opposition to Motion, #9 MOTION to Dismiss the Amended Complaint. /MySpace's Response to Plaintiff's Surreply Memorandum. Document filed by MySpace, Inc.. (Mukasey, Michael)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
––––––––––––––––––––––––––––––––––––––––––––––––x
CORY HUBBARD,
)
)
Plaintiff,
)
)
vs.
)
)
)
MYSPACE, INC.,
)
)
Defendant.
)
––––––––––––––––––––––––––––––––––––––––––––––––x

11-cv-00433 (LAK)
ECF Case

MYSPACE’S RESPONSE TO PLAINTIFF’S SURREPLY MEMORANDUM

Michael B. Mukasey
Matthew E. Fishbein
Jeffrey S. Jacobson
Courtney M. Dankworth
DEBEVOISE & PLIMPTON LLP
919 Third Avenue
New York, NY 10022
[phone] (phone)
[phone] (fax)

Attorneys for Defendant
MySpace, Inc.

April 11, 2011

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ARGUMENT
Cory Hubbard’s surreply memo demonstrates that the parties agree on both issues as to
which the Court’s Order of March 28, 2011 sought supplemental briefing. Hubbard admits that
in January 2008, when MySpace received the search warrant in Hubbard’s case, Congress had
not yet adopted the current language in 18 U.S.C. § 2703(a). He further admits that the thengoverning language in § 2703(a) allowed law enforcement officials to obtain electronic
information from service providers by means of “a warrant issued using the procedures described
in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under
investigation or equivalent State warrant.” The parties agree also that Hubbard’s felony case
could be tried only in Georgia Superior Court.

MySpace never contended otherwise; its

argument was (and is) that Georgia magistrate judges possess authority under state law to issue
search and arrest warrants in felony cases, such as the one MySpace received.
Having conceded that he cited the wrong, non-governing statutory language in his
complaint, Hubbard still argues in his surreply that, under the version of § 2703(a) in effect in
2008, the Cherokee County Magistrate Court lacked authority to issue an “equivalent state
warrant.” Even were Hubbard correct in his assertion about the Magistrate Court’s authority,
MySpace still would be immune from Hubbard’s suit. Hubbard’s assertion, however, is not
correct. The Magistrate Court’s authority to have issued the warrant to MySpace for Hubbard’s
electronic information, under both the current and prior legal standards, is quite clear.
The Georgia statute governing magistrates’ authority, Ga. Stat. Ann. § 15-10-2(1), states
simply and plainly that magistrates “shall have jurisdiction and power over the hearing of
applications for and the issuance of arrest and search warrants.” The power is not limited to
misdemeanor cases that could be tried in the Magistrate Court. Although felony cases must be

tried in Superior Court, magistrates have the authority to issue warrants in felony cases,
including those involving child molestation. See, e.g., Adams v. State, __ S.E.2d __, 2011 WL
364979, at *8 n.2 (Ga. Feb. 7, 2011) (noting that magistrate issued arrest warrant in molestation
case); Ginn v. State, 667 S.E.2d 712 (Ga. App. 2008) (same, crime of reckless conduct); State v.
Richardson, 625 S.E.2d 52 (Ga. App. 2005) (same, possession of controlled substance with
intent to distribute). See also Penaranda v. Cato, 740 F. Supp. 1578, 1579 (S.D. Ga. 1990)
(immunizing magistrate from civil rights claim arising from issuance of a warrant for arrest of an
alleged child molester). Magistrates’ authority to issue search warrants, which arises from the
same statutory clause, must be, and is, coextensive. The Rules of the Magistrate Court, available
at http://www.georgiacourts.org/councils/magistrate/B1%20URMC.pdf, beginning with Rule 22,
discuss magistrates’ handling of search warrant applications alongside their work on arrest
warrants and bail matters, both of which explicitly apply to felony cases.
As an alternative to his futile insistence that magistrates lack authority to issue warrants
in felony cases, Hubbard’s surreply brief also contends that yet another and previously uncited
Georgia statute, Ga. Code Ann. § 16-11-66.1, requires Georgia warrants seeking electronic
information to issue from Superior Court. He is wrong about that, too. This statute, which says
no such thing, begins by providing that “[a] law enforcement officer, a prosecuting attorney, or
the Attorney General may require the disclosure of stored wire or electronic communications, as
well as transactional records pertaining thereto, to the extent and under the procedures and
conditions provided for by the laws of the United States.” Ga. Code Ann. § 16-11-66.1(a). It
then requires custodians of this information to provide it “when a requesting law enforcement
officer, a prosecuting attorney, or the Attorney General complies with the provisions for access
thereto set forth by the laws of the United States.” Id. § 16-11-66.1(b). When a warrant for this

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information is “issued by a judge with jurisdiction over the criminal offense under investigation
and to which such records relate,” the warrant is given “state-wide application or application as
provided by the laws of the United States,” id. § 16-11-66.1(c).
Magistrate judges have “jurisdiction over the criminal offense under investigation” in
their counties for the purpose of issuing search and arrest warrants, as shown above.
“Jurisdiction over” does not mean “jurisdiction to adjudicate.” Hubbard has cited no contrary
authority, and none exists. Even were Hubbard correct that the recipient of a magistrate’s
warrant faxed to a recipient outside Georgia might have defenses to compliance based on
territorial jurisdiction, nothing in this section of Georgia law (or any other) precludes the
recipient from waiving those defenses, as occurred in the many cases MySpace has cited
dismissing claims like Hubbard’s as frivolous.
In sum, no case supports Hubbard’s claim that the Cherokee County Magistrate Court
lacked jurisdiction to issue the search warrant in his case. Numerous cases, and the plain
language of each statute, show that it did. Moreover, even were the court’s statutory authority to
have issued the warrant in doubt — and it is not — Hubbard does not and cannot charge
MySpace with knowledge of any authority putting in doubt the propriety of MySpace’s
compliance with the warrant, because no such authority exists. Indeed, the very purpose of
statutory immunity for electronic data custodians under 18 U.S.C. §§ 2703(e) and 2707(e) is to
shield them from post hoc challenges like Hubbard’s.
None of the cases Hubbard cited in his opposition memo, and stresses again in his
surreply, supports his assertion that the territorial jurisdiction of an issuing court may provide a
basis for overcoming this statutory immunity from suits like his. In United States v. Berkos, 543
F.3d 392, 398 (7th Cir. 2008), the Seventh Circuit held that the requirements of Fed. R. Crim. P.

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41(b) do not apply to warrants for electronic information issued under 18 U.S.C. § 2703(a), and
refused a criminal defendant’s request to suppress evidence taken from his internet service
provider (ISP). The court in United States v. Kernell, No. 3:08-CR-142, 2010 WL 1408437, at
*4 (E.D. Tenn. Apr. 2, 2010), agreed, finding that a magistrate from the district where the crime
occurred can issue a search warrant to an out-of-state custodian, and finding that “all the cases”
on this point held the same way. See also In re Search of Yahoo, Inc., No. 07-3194-MB, 2007
WL 1539971, at *3-*4 (D. Ariz. May 21, 2007) (same, noting that Congress’ purpose in
allowing nationwide service under § 2703(a) “was to alleviate the burden placed on federal
district courts in the Eastern District of Virginia and the Northern District of California where
major [ISPs] AOL and Yahoo, respectively, are located”).
Hubbard’s discussion of federal magistrate judges’ territorial authority misses the point.
The cases he cites stand for the unremarkable proposition that only a magistrate judge from the
district where the alleged offense under investigation occurred — and not any magistrate judge
in the country — may issue a warrant to be served extraterritorially on a custodian of electronic
information. That point is not in dispute. The offense for which Hubbard has been jailed
indisputably occurred within Cherokee County, Georgia, from which the search warrant issued.
No case has held that a judge issuing a warrant for electronic information must have territorial
jurisdiction over the recipient of the warrant if the recipient waives jurisdictional defenses, and
MySpace’s opening and reply briefs demonstrated that every court to have considered the issue
has found custodians immune from suit when they have complied with warrants.
CONCLUSION
This case presents a moving and shrinking target. It started with six baseless claims, five
of which Hubbard dropped as soon as MySpace indicated its intent to seek sanctions for

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frivolous litigation. His amended complaint, still pleaded in behalf of a putative class, asserts
that MySpace’s compliance with any state court warrant served by fax violates the Stored
Communications Act. That broad and baseless claim, too, seems to have gone glimmering,
along with Hubbard’s purported status as an adequate and typical class representative with a
common claim. All Hubbard appears to be pressing now is the assertion, unique to him, that the
Georgia magistrate who issued the search warrant in his criminal case lacked authority to do so,
such that the resulting warrant was, he argues, as “facially invalid” as one without a judge’s
signature. Because, for the reasons explained above and in MySpace’s prior submissions, he is
wrong about that too, what remains of this case should be dismissed under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, for failure of the complaint to state a claim.
Dated: New York, New York
April 11, 2011
DEBEVOISE & PLIMPTON LLP
By:
/s/ Michael B. Mukasey
Michael B. Mukasey
Michael B. Mukasey
[e-mail]
Matthew E. Fishbein
[e-mail]
Jeffrey S. Jacobson
[e-mail]
Courtney M. Dankworth
[e-mail]
DEBEVOISE & PLIMPTON LLP
919 Third Avenue
New York, NY 10022
[phone] (phone)
[phone] (fax)
Attorneys for Defendant
MySpace, Inc.

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