Hubbard v. MySpace, Inc.

Filing 27

MEMORANDUM OPINION: #100395 MySpace's motion to dismiss the amended complaint [DI #9 ] is granted. As the Court sees no proper basis for sanctions, the motion to impose them [DI #16 ] is denied. The Clerk shall enter judgment and close the case. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 6/1/2011) (lnl) Modified on 6/6/2011 (ajc).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------x
CORY HUBBARD,
Plaintiff,

-against-

11 Civ. 0433 (LAK)

MYSPACE, INC.,
Defendant.
------------------------------------------x

MEMORANDUM OPINION
Appearances:

Robert I. Harwood
Jeffrey M. Norton
HARWOOD FEFFER LLP
Joshua A. Millican
LAW OFFICE OF JOSHUA A. MILLICAN , P.C.

Michael B. Mukasey
Matthew E. Fishbein
Jeffrey S. Jacobson
Courtney M. Dankworth
DEBEVOISE & PLIMPTON LLP
Attorneys for Defendant

Matthew C. Billips
BILLIPS & BENJAMIN LLP
Lisa T. Millican
GREENFIELD MILLICAN P.C.
Attorneys for Plaintiff

LEWIS A. KAPLAN , District Judge.
This is a purported class action against MySpace, Inc. (“MySpace”), operator of the
well known social networking website, arising out of its disclosure of members’ account information
to law enforcement. Plaintiff Cory Hubbard sues individually and on behalf of all individuals

2
similarly situated. The matter is before the Court on MySpace’s motions to dismiss the amended
complaint and for sanctions.

Facts
The allegations of the amended complaint, which do not appear to be in dispute, are
as follows.
On December 1, 2007, Georgia authorities arrested plaintiff for contributing to the
delinquency of a minor and “enticing a child for indecent purposes.” On January 29, 2008, in the
course of investigating plaintiff’s alleged crimes, the sheriff’s office of Cherokee County, Georgia,
obtained a search warrant from the Magistrate Court of Cherokee County.1 The warrant instructed
“all peace officers of the state of Georgia” to search MySpace’s custodian of records in Beverly
Hills, California, for:
“Records concerning the identity of the user with the Friend ID 79001021 consisting
of name, postal code, country, e-mail address, date of account creation, IP address
at account sign-up, logs showing IP address and date stamps for account accesses,
and the contents of any private messages in the user’s inbox and sent mail folders.”2
That same day, the sheriff’s office faxed the warrant to MySpace’s custodian of records in
California. MySpace subsequently “accessed and produced and disclosed the requested personal
and private user information, data, records and/or the contents of electronic communications to law
enforcement.”3

1

DI 11 Ex. D.
2

Id.
3

Amended Complaint (“Cpt.”) ¶ 39.

3
Plaintiff eventually entered a guilty plea. He currently is serving a sentence of 10
to 20 years in state prison.
On January 20, 2011, plaintiff brought this suit against MySpace. He asserts that
MySpace’s disclosure of records and information pertaining to his account violated the Stored
Communications Act (“SCA”), which was enacted as part of the Electronic Communications
Privacy Act of 1986 (“ECPA”). It seeks damages and other relief on behalf of plaintiff and all
others similarly situated, viz. all MySpace users whose information and records the company
allegedly has disclosed in violation of the law.

Discussion
Under the SCA, subject only to certain exceptions,
“(1) a person or entity providing an electronic communication service to the public
shall not knowingly divulge to any person or entity the contents of a communication
while in electronic storage by that service; and
“(2) a person or entity providing remote computing service to the public shall not
knowingly divulge to any person or entity the contents of any communication which
is carried or maintained on that service –
“(A) on behalf of, and received by means of electronic transmission from (or
created by means of computer processing of communications received by
means of electronic transmission from), a subscriber or customer of such
service;
“(B) solely for the purpose of providing storage or computer processing
services to such subscriber or customer, if the provider is not authorized to
access the contents of any such communications for purposes of providing
any services other than storage or computer processing; and
“(3) a provider of remote computing service or electronic communication service to
the public shall not knowingly divulge a record or other information pertaining to a
subscriber to or customer of such service (not including the contents of

4
communications covered by paragraph (1) or (2)) to any governmental entity.”4
The ECPA creates a private right of action against violators of these prohibitions:
“Except as provided in section 2703(e), any provider of electronic communication
service, subscriber, or other person aggrieved by any violation of this chapter in
which the conduct constituting the violation is engaged in with a knowing or
intentional state of mind may, in a civil action, recover from the person or entity,
other than the United States, which engaged in that violation such relief as may be
appropriate.”5
Section 2703(e), in turn, provides that:
“No cause of action shall lie in any court against any provider of wire or electronic
communication service, its officers, employees, agents, or other specified persons
for providing information, facilities, or assistance in accordance with the terms of a
court order, warrant, subpoena, statutory authorization, or certification under this
chapter.”6
The amended complaint alleges that MySpace operates an electronic communication
service and a remote computing service as defined by the ECPA.7 It claims that the company
violated the SCA by producing information and records pertaining to plaintiff’s MySpace user
account. MySpace argues that it produced these materials pursuant to the warrant that it received
and that this action therefore must be dismissed under Section 2703(e). Plaintiff counters that the
warrant that MySpace received was not sufficient under this statutory scheme. The question
therefore is whether MySpace’s production was “in accordance with the terms of a . . . warrant . .

4

18 U.S.C. § 2702(a).
5

18 U.S.C. § 2707(a).
6

18 U.S.C. § 2703(e).
7

Cpt. ¶¶ 60-63.

5
. under this chapter.”8
At the time MySpace received the Georgia warrant, 18 U.S.C. § 2703(a) provided
that:
“A governmental entity may require the disclosure by a provider of electronic
communication service of the contents of a wire or electronic communication, that
is in electronic storage in an electronic communications system for one hundred and
eighty days or less, only pursuant to 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 an equivalent State warrant.” (emphasis added).9
Plaintiff makes two arguments that the Georgia warrant did not suffice under this section.10 Before
turning to them, though, one point bears clarification.
Section 2703(a) condones two types of warrants: (1) “a warrant issued using the

8

The parties argue on the assumption that, as used in Section 2703(e), the modifier “under this
chapter” applies not only to certifications but to warrants (and, presumably, orders,
subpoenas, and authorizations) as well. See DI 10 at 12, 13; DI 15 at 2; DI 20 at 2-3. As a
matter of statutory interpretation, this point is debatable. See Allard K. Lowenstein Intern.
Human Rights Project v. Dep’t of Homeland Sec., 626 F.3d 678, 681 (2d Cir. 2010) (where
“two alternative clauses . . . are separated by a comma” but “the modifying condition at the
end of the second clause is not separated from its reference by anything at all,” “the
qualifying phrase modifies only the immediately antecedent” clause). However, as no party
has argued that “under this chapter” does not apply to warrants or how (if at all) such a
construction would affect the analysis on this motion, the Court proceeds on the parties’
assumption.
9

Effective October 19, 2009, the language “by a court with jurisdiction over the offense under
investigation or an equivalent State warrant” was amended to read “only pursuant to a
warrant issued using the procedures described in the Federal Rules of Criminal Procedure
(or, in the case of a State court, issued using State warrant procedures) by a court of
competent jurisdiction.”
10

Initially, in addition to the arguments addressed below, plaintiff contended that the warrant
was insufficient because it was served upon MySpace by fax. The argument is without
merit. Plaintiff cited no authority – regarding the ECPA or otherwise – for the proposition
that faxed warrants are invalid. DI 13 at 20-23. After making this argument in his
opposition to this motion, plaintiff did not raise it in his surreply, DI 20, or subsequent brief,
DI 24.

6
procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over
the offense under investigation” and (2) “an equivalent State warrant.” As it is undisputed that the
warrant faxed to MySpace was a state warrant, the parties focus on whether it qualified as the latter
– “an equivalent State warrant.”

I.

“Jurisdiction Over the Offense Under Investigation”
First, plaintiff contends that the warrant does not qualify as “an equivalent State

warrant” because the signing magistrate did not have “jurisdiction over the offense under
investigation.” The premise is that “an equivalent State warrant” must, like the federal warrants
described in the preceding clause to which it must be equivalent, be issued “by a court with
jurisdiction over the offense under investigation.” The Court agrees with this premise, which
MySpace does not dispute.
Plaintiff’s argument that the Georgia magistrate who signed the warrant lacked
jurisdiction over the offense under investigation is based on GA . CODE § 15-10-2(4). Under that
section, Georgia magistrates’ jurisdiction to try cases extends to “[t]he trial of charges of violations
of county ordinances and penal ordinances of state authorities.” As plaintiff was being investigated
for a serious felony, he argues, the Georgia magistrate did not have the requisite jurisdiction.
MySpace responds that “jurisdiction over the offense under investigation” does not
means jurisdiction to preside over trials, but only to issue warrants. Under GA . CODE § 15-10-2(2),
Georgia magistrates “have jurisdiction and power over the . . . [i]ssuance of warrants.” And “[w]hile
the Georgia Constitution states that superior courts have exclusive jurisdiction ‘over trials in felony
cases,’ Georgia statutes vest numerous lesser courts, including magistrate courts, with the
jurisdiction to hear applications for search warrants and issue search warrants upon a finding of

7
probable cause.”11 Georgia magistrates routinely issue search warrants for the investigation of
felonies, despite the fact that they may not preside over any subsequent prosecutions of those
crimes.12
The phrase “jurisdiction over the offense under investigation” is ambiguous inasmuch
as it could refer to jurisdiction to preside over trials or to issue warrants. But the Court concludes
that, in the context of this statutory scheme, “jurisdiction over the offense under investigation”
implicates a judicial officer’s authority to issue warrants, not to try cases.
Under FED . R. CRIM . P. 41(b), “a [federal] magistrate judge with authority in the
district . . . has authority to issue a warrant to search for and seize a person or property located
within the district[.]” This authority is not limited to certain kinds of offenses. Indeed, federal
magistrate judges routinely issue search warrants in felony investigations.13 Federal magistrate
judges’ jurisdiction to try cases, however, extends only to “misdemeanors committed within th[eir]
judicial district[s].”14 Like Georgia magistrates, then, federal magistrate judges ordinarily may issue
warrants in investigations of felonies even though they cannot preside over felony trials.
We might ask, then, whether Section 2703(a)’s requirement of “jurisdiction over the
offense under investigation” deprived federal magistrate judges of authority that they ordinarily
11

State v. Lejeune, 277 Ga. 749, 751-52, 594 S.E.2d 637, 640-41 (2004) (footnote omitted).
12

See, e.g., Adams v. State, 288 Ga. 695, 707 S.E.2d 359, 367 n.2 (2011) (Hunstein, C.J.,
concurring) (child molestation); Ginn v. State, 293 Ga. App. 757, 759, 667 S.E.2d 712, 714
(2008) (reckless conduct); State v. Richardson, 276 Ga. App. 784, 785, 625 S.E.2d 52, 53
(2005) (possession of a controlled substance with intent to distribute).
13

E.g., Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 381 (5th Cir. 2009); United States
v. 141st Street Corp. by Hersh, 911 F.2d 870, 875 (2d Cir. 1990).
14

18 U.S.C. § 3401(a). See also 28 U.S.C. § 636(a)(3).

8
enjoyed, to wit, authority to issue search warrants in the course of felony investigations. There is
no indication that Congress intended to do so. Indeed, the pertinent legislative history demonstrates
that debate over “jurisdiction over the offense under investigation” focused on the location and not
type of court that would be issuing warrants.15 Moreover, federal magistrate judges issued search
warrants implicating the ECPA in felony investigations throughout the period in which this statutory
language was in effect.16
The question here – whether the Georgia magistrate who signed the warrant faxed
to MySpace had the necessary jurisdiction – is thus straightforward. If a federal warrant would have
sufficed under Section 2703(a) despite having been issued by a magistrate judge who could not have
presided over a trial of the investigated offense, the same no doubt can be said of an “equivalent
State warrant.” The warrant at issue therefore was not insufficient merely because the Georgia
magistrate could not have presided over a criminal trial of the plaintiff.

II.

Territorial Jurisdiction
As a general rule, a Georgia “magistrate may not issue a search warrant for a location

outside of his district.”17 By issuing a warrant for a search of MySpace’s records custodian in
California, the issuing magistrate indisputably exceeded his ordinary territorial authority. Plaintiff
15

H.R. Rep. No. 107-236, pt. 1, at 300 et seq. (2001).
16

E.g., United States v. Berkos, 543 F.3d 392 (7th Cir. 2008); Warshak v. United States, 490
F.3d 455 (6th Cir. 2006).
17

State v. Kirkland, 212 Ga. App. 672, 672, 442 S.E.2d 491, 492 (1994). See also State v.
Lejeune, 277 Ga. 749, 751-52, 594 S.E.2d 637, 641 (2004) (“The authority of any judicial
officer . . . to issue a search warrant is limited to places within that court's territorial
jurisdiction.”); Allison v. State, 129 Ga. App. 364, 199 S.E.2d 587 (1973).

9
argues that the warrant served upon MySpace therefore does not qualify as “an equivalent State
warrant” for purposes of Section 2703(a).
As stated above, what constitutes “an equivalent State warrant” is not clear. In the
context of Section 2703(a), the Court understands such a warrant as being “equivalent” to one
“issued using the procedures described in the Federal Rules of Criminal Procedure by a court with
jurisdiction over the offense under investigation.” This language is ambiguous as to whether a state
or federal warrant authorizing a search beyond the ordinary territorial authority of the issuing
magistrate or judge is acceptable. Once again, though, consideration of acceptable federal warrants
under Section 2703(a) – the warrants to which acceptable state warrants must be “equivalent” –
offers guidance.
Under FED . R. CRIM . P. 41(b)(1), “a magistrate judge with authority in the district .
. . has authority to issue a warrant to search for and seize a person or property located within the
district.” This provision notwithstanding, courts repeatedly have upheld federal magistrates judges’
authority to issue warrants under Section 2703(a) while the pertinent language was in effect.18 In
light of the legislative history of this section, the Court agrees with that conclusion.
Congress made clear that, in adopting the relevant statutory language, it specifically
intended to allow federal courts to authorize searches beyond their normal territorial jurisdictions:
“Title 18 U.S.C. § 2703(a) requires a search warrant to compel service providers to
disclose unopened e-mails. This section does not affect the requirement for a search
18

These courts held that the limitation on federal magistrate judges’ territorial authority is
substantive and therefore does not apply to § 2703(a), which, the courts reasoned, requires
compliance only with procedural warrant safeguards. See, e.g., United States v. Berkos, 543
F.3d 392, 397-98 (7th Cir. 2008); United States v. Kernell, No. 3:08-CR-142, 2010 WL
1408437 (E.D. Tenn. Apr. 2, 2010). The Court need not consider this rationale, however,
as it is persuaded for the reasons described above that warrants may satisfy § 2703(a)
notwithstanding their noncompliance with territorial limitations.

10
warrant, but rather attempts to address the investigative delays caused by the
cross-jurisdictional nature of the Internet. Currently, Federal Rules of Criminal
Procedure 41 requires that the ‘warrant’ be obtained ‘within the district’ where the
property is located. An investigator, for example, located in Boston who is
investigating a suspected terrorist in that city, might have to seek a suspect's
electronic e-mail from an Internet service provide (ISP) account located in
California. The investigator would then need to coordinate with agents, prosecutors
and judges in the district in California where the ISP is located to obtain a warrant
to search. These time delays could be devastating to an investigation, especially
where additional criminal or terrorist acts are planned.
“Section 108 amends § 2703 to authorize the court with jurisdiction over the
investigation to issue the warrant directly, without requiring the intervention of its
counterpart in the district where the ISP is located.”19
Thus, even though federal magistrate judges typically may issue warrants only for searches within
their districts, extraterritorial warrants are permissible for purposes of Section 2703(a).
Plaintiff concedes as much.20 He nevertheless contends that state – as opposed to
federal – warrants do not satisfy Section 2703(a) where the issuing court exceeds its ordinary
territorial authority. The Court disagrees. If federal warrants satisfy Section 2703(a) in these
circumstances, the same ought to be true of equivalent state warrants. Indeed, Georgia law appears
to recognize the heightened territorial authority that magistrates and judges may have in issuing
warrants for purposes of the ECPA. The Georgia Code 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.”21
19

H.R. Rep. No. 107-236, pt. 1, at 57 (2001). See also In re United States, 665 F. Supp 2d
1210, 1219 (D.Or. June 23, 2009); In re Search Warrant, 362 F. Supp.2d 1298, 1304-05
(M.D. Fla. 2003), rev’d, No. 6:05-MC-168-Orl-31JGG, 2005 WL 3844032 (M.D. Fla. Feb.
13, 2006).
20

DI 13 at 21.
21

G A . C ODE § 16-11-66.1 (emphasis added).

11
It bears clarifying that Section 2703(a) does not impermissibly expand the power of
Georgia magistrates or any other courts. Although the point has never been established firmly, it
appears that the Fourth Amendment does not protect persons like plaintiff from searches such as this
one, to wit, searches of users’ information and records electronically stored with private third
parties.22 Prior to the ECPA’s enaction, then, warrants were not required to conduct such searches.
Congress filled that void to an extent. Although the ECPA provides some amount of judicial
oversight for these searches, it did not – and did not have to – import the entirety of federal and state
warrant protections. For purposes of this federal right and federal cause of action, Congress had
flexibility to define the protections it thought appropriate.
Conclusion
MySpace’s motion to dismiss the amended complaint [DI 9] is granted. As the Court
sees no proper basis for sanctions, the motion to impose them [DI 16] is denied. The Clerk shall
enter judgment and close the case.
SO ORDERED.
Dated:

June 1, 2011

22

See Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s
Guide to Amending it, 72 G EO . W ASH . L. R EV . 1208, 1210-12 (2004).