Hubbard v. MySpace, Inc.

Filing 24

RESPONSE in Opposition re: #9 MOTION to Dismiss the Amended Complaint. Post-Hearing Memo of Law. Document filed by Cory Hubbard. (Norton, Jeffrey)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

CORY HUBBARD, individually, and on
behalf of a class of all others similarly
situated,

Index No.: 11-cv-00433 (LAK)

ECF CASE
Plaintiff,
v.
MYSPACE, INC.,
Defendant.

PLAINTIFF’S POST-HEARING MEMORANDUM IN FURTHER SUPPORT OF
PLAINTIFF’S OPPOSITION OF DEFENDANT’S MOTION TO DISMISS

I.

INTRODUCTION
Following the oral argument held on May 19, 2010 (the “Hearing”) on Defendant’s

Motion to Dismiss (the “Motion”), Plaintiff was granted leave to submit a memorandum
addressing an issue raised by the Court concerning the import of legislative history of the 2001
amendment to 18 U.S.C. § 2703; specifically, the Court’s focus on language indicating that
“jurisdiction” means jurisdiction “over the investigation” rather than, as Plaintiff submits and the
statute provides, jurisdiction “over the offense under investigation.” For the reasons set forth
herein, Plaintiff submits that the legislative history, to the extent it needs to be considered, does
not support such an interpretation.
The difference between jurisdiction over the offense under investigation and jurisdiction
over the investigation is significant and defining in this context. Whereas the former means that
the warrant-issuing court must have jurisdiction to adjudicate the criminal offense, the latter
carries no such qualification. Although, as the Court pointed out, the term “jurisdiction” can
have many meanings, Plaintiff submits that so far as the SCA is concerned, the term is well
defined by the statute and by relevant case law and is therefore unambiguous.
After a thorough review of legal precedent, including the hierarchy of binding and
persuasive authority, as well as the full legislative history of the relevant sections of the USA
PATRIOT Act of 2001, which, inter alia, amended 18 U.S.C. § 2703, Plaintiff confirmed that
the applicable definition of jurisdiction remains a “courts’ statutory or constitutional power to
adjudicate the case.” United States v. Cotton, 535 U.S. 625, 630 (2002).

As set forth in

Plaintiff’s prior filings1, because the Cherokee County Magistrate in the State of Georgia is a
court of limited jurisdiction that does not have the power to adjudicate a felony criminal matter,

1

See Plaintiff’s Memorandum of Law in Response and Opposition to MySpace, Inc.’s
Motion to Dismiss (Doc. 13) and Plaintiff’s Surreply Memorandum of Law in Response and
Opposition to MySpace, Inc.’s Motion to Dismiss (Doc. 20)

the warrant at issue in the instant matter was invalid on its face and MySpace’s disclosure in
response thereto violated the SCA.
II.

ARGUMENT
Although the Court was correct that the language “jurisdiction over the investigation”

does appear in the legislative history of 18 U.S.C. § 2703, that language was the result of a
mistake that was expressly corrected and clarified in committee because of its vastly different
meaning from “jurisdiction over the offense under investigation.”

Notwithstanding, it is

Plaintiff’s position that the Court need not go as far as the legislative history to resolve the issue
because the statute, controlling case law, and Georgia state law provide sufficient clarity.2
A.

“Jurisdiction Over the Investigation” is Not Contained in the Statute

Section 2703 states unambiguously that warrants may only be issued by courts “with
jurisdiction over the offense under investigation or equivalent State warrant.” (Emphasis added).
Because the plain language of the statute is clear, the inquiry need not go further. See Lamie v.
U.S. Trustee, 540 U.S. 526, 534 (2004) (“starting point in discerning congressional intent is the
existing statutory text.”)(citing Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999)).
“The preeminent canon of [federal] statutory interpretation requires [a court] to ‘presume that
[the] legislature says in a statute what it means and means in a statute what it says there.’ “
BedRoc Ltd. v. United States, 541 U.S. 176, 183 (2004) (quoting Conn. Nat'l Bank v. Germain,
503 U.S. 249, 253-54 (1992)). Therefore, a court’s “inquiry begins with the statutory text, and
ends there as well if the text is unambiguous.” Id. (citing Lamie, 540 U.S. at 534).
Plaintiff concedes that if the statute read instead, “jurisdiction over the investigation,”
the result here might be different. Indeed, as Plaintiff’s counsel conceded at the Hearing,

2

Legislative history should be looked to “only to the extent [it] shed[s] a reliable light on
the enacting Legislature’s understanding of otherwise ambiguous terms.” Exxon Mobil Corp. v.
Allapattah Serv., Inc., 545 U.S. 546, 568-69 (2005).
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magistrate courts in the State of Georgia, while limited territorially to their respective counties,
may issue criminal warrants even where they would not otherwise have the power to adjudicate
the underlying criminal offense. However, because the SCA specifies that jurisdiction is limited
to courts with jurisdiction “over the offense,” the result is necessarily different. As stated
previously, only the Georgia Superior Courts have jurisdiction to adjudicate felony offenses such
as the ones Plaintiff was under investigation for. See O.C.G.A. § 15-6-8; Ga. Const. art. VI, §
IV, para. I (“… superior courts shall have jurisdiction in all cases, except as otherwise provided
in this Constitution. They shall have exclusive jurisdiction over trial in felony cases, except in the
case of juvenile offenders as provided by law…”); see also, State v. Lejeune, 277 Ga. 749, 594
S.E.2d 637 (Ga. 2004) (emphasis added).3
Georgia also maintains a specific statute providing that the Magistrate Court does not have
authority to issue the type of warrant issued in Plaintiff’s criminal case. O.C.G.A. § 16-1166.1(c) provides that “[s]earch warrants for production of stored wire or electronic
communications and transactional records pertaining thereto shall have state-wide application or
application as provided by the laws of the United States when issued by a judge with jurisdiction
over the criminal offense under investigation and to which such records relate.” Like the SCA,
Georgia plainly requires the issuing court to have jurisdiction over the criminal offense, not
simply the jurisdiction over the investigation (i.e., the authority to issue search warrants and
nothing else).
Plaintiff submits that the plain language of the SCA, read in conjunction with the grant of
authority under Georgia law, make it clear that while the Cherokee County Magistrate Court may
or may not have had jurisdiction over the investigation in this case, it did not, in fact, have
3

Further to this concession, Plaintiff submits that the claims in this action should be
limited to state magistrate courts and the like that do not have authority to adjudicate the offenses
under investigation. As currently plead, the claims relate to all state courts, including those that
have jurisdiction to adjudicate the offenses under investigation. Accordingly, Plaintiff
respectfully seeks leave to amend the complaint to narrow his claims.
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jurisdiction over the offense under investigation. Accordingly, the warrant issued by that court
was invalid on its face and MySpace violated the SCA by responding to it.
B.

The Supreme Court Has Defined Jurisdiction in the Relevant Context

Even if there were any ambiguity in the plain language of the statute, something Plaintiff
does not concede, the Supreme Court has clarified jurisdiction in this context. In U.S. v. Cotton,
535 U.S. at 630, the Supreme Court, in determining whether the court adjudicating over the
criminal charges had jurisdiction when the offense was not properly charged in the indictment,
defined jurisdiction clearly as “the courts’ statutory or constitutional power to adjudicate the
case.” As noted above, the Cherokee County Magistrate Court’s jurisdiction was limited in that
it neither had the power to adjudicate the criminal offense for which Plaintiff was being
investigated nor the authority to issue the warrant it issued. See Ga. Const. art. VI, § III, para. I;
O.C.G.A. § 15-10-2; O.C.G.A. § 16-11-66.1(c).
C.

Federal Case Law Further Supports Plaintiff’s Interpretation
of the SCA’s Jurisdictional Limitations

A handful of federal district courts have also already interpreted the very definition
debated at the Hearing. For example, in In re Search Warrant, 2005 WL 3844032, at * 3 (M.D.
Fla. Feb. 13, 2006), the court discussed the exact phrase “a court with jurisdiction over the
offense” as set forth in 18 U.S.C. § 2703(a). In doing so, that district court started, appropriately,
with the Supreme Court interpretation of “jurisdiction” provided in U.S. v. Cotton. Therein, the
court explained that “jurisdiction” could not mean subject matter jurisdiction because that
definition would render the other pertinent language in the statute irrelevant and statutory
interpretation must not adopt a statutory construction which renders a word superfluous, void or
insignificant. Id. at * 4 (citing TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001). By the same token,
simply ignoring the words “offense under” would violate the rules of statutory construction.

-4-

Statutory interpretation begins with the statute’s plain language. In the Matter of the
Application of the United States of America for a Search Warrant, 665 F. Supp. 2d 1210 (D. Or.
2009) (finding that H.R. Rep. No. 107-236, pt. 1, at 57 (2001) (see also 147 Cong. Rec. H719798 (2001) permits the court having jurisdiction over the offense to issue a search warrant;
notably failing to mention jurisdiction over the investigation of the offense whatsoever).
“Absent clearly expressed Congressional intent to the contrary, the plain language should be
conclusive... [(citation omitted)]. The language and design of the statute as a whole may also
provide guidance in determining the plain meaning of its provisions.” United States v. Berkos,
543 F.3d 392, 396-397 (7th Cir. 2008) (citations omitted)(emphasis added) (not holding,
discussing, mentioning or suggesting that jurisdiction over the offense means jurisdiction over
the investigation of the offense); see also In re Search Warrant, 2005 WL 3844032, at * 3
(same).
Accordingly, the SCA must be interpreted as it is plainly written. Here, that means that if
the Cherokee County Magistrate Court did not have “jurisdiction over the offense under
investigation,” any warrant issued by that court was facially invalid for the purposes of the SCA.
Plaintiff submits that is the case here.
D.

The Legislative History Supports Plaintiff’s Interpretation of the SCA

Even if the Court had to go as far as the legislative history to interpret the statute, a step
Plaintiff respectfully submits is unnecessary, the result would be the same. At the Hearing, the
Court appeared to rely on the House of Representatives’ legislative staff summary of H.R. 2975,
which inaccurately summarized Section 108 of the bill by stating that 18 U.S.C. § 2703 would be
amended to “authorize the court with jurisdiction over the investigation to issue the warrant
directly.” See H.R. Rep. No. 107-236, pt. 1, at 57 (2001). What the summary should have said
was that the bill would be amended to “authorize the court with jurisdiction over the offense
under investigation to issue the warrant directly.”
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This error in the summary prepared by the legislative staff was pointed out by
Congressman Berman when he stated that “[t]he summary of 108 put out by the staff says that
the court with jurisdiction over the investigation, is the court to issue the warrant directly. That
of course doesn’t appear in the language in section 108…” H.R. Rep. No. 107-236, pt. 1, at 300
(2001). Mr. Berman thereafter acknowledged that the proposed statute was unambiguously
worded as requiring a court with jurisdiction over the offense or more aptly, a court of competent
jurisdiction. H.R. Rep. No. 107-236, pt. 1, pp. 300-301 (2001). More importantly, Mr. Berman
continued, “Okay. Well, then, all right. That is very different language than the summary…”
H.R. Rep. No. 107-236, pt. 1 at 300-301 (2001) (emphasis added).
Additional discussions further evidenced the intent to ensure that only courts with
jurisdiction “over the offense” had the authority to issue the warrants, and in fact it was made
clear that the amendment was not changing anything about State jurisdiction.
Mr. Frank. “The “or” is the State jurisdiction and here is what comes after the
“or.” It is 3127(2)(B). The “or” is a court of general criminal jurisdiction of a
State authorized by the law of that State to enter orders authorizing the use of a
pen register, et cetera, and we are leaving the current statute with regard to State
jurisdiction unchanged.” H.R. Rep. No. 107-236, pt. 1 at 303 (2001).
Mr. Scott, “Mr. Chairman, I have two questions, one on the amendment involving
the jurisdiction over the offense being investigated. The jurisdiction and venue are
sometimes used interchangeably. Is it the legislative intent, Mr. Chairman, that
the word “jurisdiction” would include venue?” H.R. Rep. No. 107-236, pt. 1 at
344 (2001).
Chairman Sensenbrenner “The gentleman from Texas I believe has the answer.”
H.R. Rep. No. 107-236, pt. 1 at 344 (2001).
Mr. Smith “Thank you, Mr. Scott. I will try to provide an answer to you. First of
all, I am looking at the language under definitions C-1, court of competent
jurisdiction, A, where it says any District Court in the United States, including the
Magistrate Court or any United States Court of Appeals having jurisdiction over
the offense being investigated. That is a narrowing of the definition of venue just
to the jurisdiction of the offense, and so in other words venue is not as broad as I
think you may think it is.” H.R. Rep. No. 107-236, pt. 1 at 344 (2001).
Additionally, the error in the legislative summary was further clarified by Chairman
Sensenbrenner when he indicated, “I believe that section 101 defines court of competent
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jurisdiction, and 108 references back to that.” H.R. Rep. No. 107-236, pt. 1, at 300 (2001).

By

addressing the interplay between Sections 101 and 108, Chairman Sensenbrenner clarified that a
court with jurisdiction of the offense refers to a court of competent jurisdiction, which as newly
defined in 18 U.S.C. § 2711(3), “court of competent jurisdiction” has the meaning given that
term in section 3127, which included and includes any Federal court within that definition,
without geographic limitation. 18 U.S.C. § 3127(2)(B) defines a “court of competent
jurisdiction" as “a court of general criminal jurisdiction of a State authorized by the law of that
State to enter orders authorizing the use of a pen register or a trap and trace device…”
Moreover, the Congressional Record for both the House of Representatives and the
Senate each provide an accurate analysis of the applicable section of the final reconciled bill
concerning what is meant by “jurisdiction”. On October 23, 2001, the House Congressional
Record indicated that Section 220, “[p]ermits a single court having jurisdiction over the offense to
issue a search warrant for e-mail that would be valid in [sic] anywhere in the United States.” 147
Cong. Rec. H7197-98 (2001). On October 25, 2001 in its summary of Section 220 of the final bill

the Senate Congressional Record provided, “[b]oth the House and Senate bills included this
provision to amend 18 U.S.C. § 2703(a) to authorize courts with jurisdiction over the offense to
issue search warrants for electronic communications in electronic storage anywhere in the United
States…” 147 Cong. Rec. S11007 (2001). Finally, from the Senate’s FINAL COUNTERTERRORISM BILL SECTION-BY-SECTION ANALYSIS, “[Section 220] [p]ermits courts to
issue search warrants for communications stored by providers anywhere in the country; court
must have jurisdiction over the offense.” 147 Cong. Rec. S11057 (2001).
Again, because the Georgia Magistrate Court is not a court of general criminal
jurisdiction (nor a court of competent jurisdiction), but instead is only a court of limited
jurisdiction without authority to adjudicate a felony or issue an 18 U.S.C. § 2703 warrant (see,
e.g., O.C.G.A. § 16-11-64(c) and 16-11.64.1), the warrant it issued was facially invalid. As the
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warrant was facially invalid, the Court must again address the issue of fact as to whether
MySpace can avail itself of the good faith defense. Plaintiff submits that this issue cannot be
decided as a matter of law.
III.

CONCLUSION
For the foregoing reasons and for those set forth in Plaintiff’s filings in opposition of

Defendant’s Motion, Plaintiff respectfully requests that Defendant’s Motion be denied.
Alternatively, Plaintiff respectfully seeks leave to replead to narrow the claims as specified
above in footnote 3.
Dated: May 26, 2011
Respectfully submitted,
HARWOOD FEFFER LLP
s/ Jeffrey M . Norton
Robert I. Harwood
Jeffrey M. Norton
488 Madison Ave.
New York, NY 10022
[phone]
[e-mail]
[e-mail]
LAW OFFICE OF JOSHUA A. MILLICAN, P.C.
Joshua A. Millican
The Grant Building, Suite 607
44 Broad Street, N.W.
Atlanta, Georgia 30303
[phone]
[e-mail]
BILLIPS & BENJAMIN LLP
Matthew C. Billips
One Tower Creek
3101 Towercreek Parkway, Suite 190
Atlanta, Georgia 30339
[phone]
[e-mail]

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GREENFIELD MILLICAN P.C.
Lisa T. Millican
607 The Grant Building
44 Broad Street, N.W.
Atlanta, Georgia 30303
[phone]
[e-mail]
Counsel for Plaintiff

-9-

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

CORY HUBBARD, individually, and on
behalf of a class of all others similarly
situated,

Index No.: 11-cv-00433 (LAK)

ECF CASE
Plaintiff,
v.
MYSPACE, INC.,
Defendant.

CERTIFICATE OF SERVICE
The undersigned hereby certifies that this day, I electronically filed PLAINTIFF’S
POST-HEARING

MEMORANDUM

IN

FURTHER

SUPPORT

OF

PLAINTIFF’S

OPPOSITION OF DEFENDANT’S MOTION TO DISMISS with the Clerk of Court in the
United States District Court, for the Southern District of New York, using the CM/ECF system,
which will automatically send email notification of such filing to all attorneys of record.
Dated: May 26, 2011
s/ Jeffrey M . Norton
Jeffrey M. Norton
HARWOOD FEFFER LLP
488 Madison Ave.
New York, NY 10022
[phone]
[e-mail]