Long v. Insight Communications of Central Ohio, LLC et al
Filing
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Memorandum of Opinion and Order: Defendants' Motion to Dismiss is granted. Judge Patricia A. Gaughan on 9/8/14. (LC,S) re 3
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
William Long, et al.,
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Plaintiffs,
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vs.
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Insight Communications of Central Ohio )
LLC dba Time Warner Cable, et al.,
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Defendants.
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CASE NO. 1:14 CV 1096
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
Introduction
This matter is before the Court upon defendants’ Motion to Dismiss (Doc. 3). This case
arises out of a search of plaintiffs’ home resulting from the defendants providing plaintiffs’ name
to law enforcement officials. For the following reasons, the motion is GRANTED.
Facts
Plaintiffs William Long (individually and on behalf of a minor son), Barbara Long
(individually and on behalf of a minor son), Jonathan Long, and Melissa Long filed this
Complaint in the Geauga County Court of Common Pleas against defendants Insight
Communications of Central Ohio, LLC dba Time Warner Cable and Insight Communications of
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Central Ohio, LLC (collectively referred to hereafter as TWC).1 Defendants removed the case to
this Court on the basis of federal question and diversity of citizenship. Plaintiffs state that an
Amended Complaint was filed in the state court, prior to removal, which did not change the
substance of the averments. This Court has not been provided a copy of the Amended
Complaint.
The Complaint alleges the following. Plaintiffs entered into a service agreement with
TWC in 2008 for internet and cable services wherein TWC was required not to disclose personal
information it collected in providing services to its customers. On March 27, 2012, Special
Agent Richard Warner of the Bureau of Criminal Investigation (BCI), Investigation Division in
the Computer Crimes Unit, was conducting an online internet investigation to identify
individuals possessing and sharing child pornography. An internet protocol address, known as
an IP address, is a code of numbers that identifies a particular computer on the internet. Internet
Service Providers (ISP), such as TWP, assign their customers IP addresses. While conducting his
investigation, Agent Warner located a suspect using a public IP address of 173.88.218.170 (the
.170 address) and found several hundred image and movie files titled consistent with child
pornography. The IP address of plaintiffs’ computers at that time was 173.88.218.70 (the .70
address).
Agent Warner downloaded the questionable material and determined that it was stored on
the computer assigned the .170 address. On April 4, 2012, Agent Warner requested that Geauga
County Prosecutors’ Office issue a Grand Jury subpoena requiring TWC to provide subscriber
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The parties seem to agree that the proper entity is Time Warner Cable Midwest,
LLC.
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information for the .170 address. A subpoena was issued by the Prosecutors’ Office and served
on TWC requesting the information. TWC responded to the subpoena on April 11, 2012 and
indicated that the .170 address was assigned to plaintiff Barbara Long. Based on this
information, BCI obtained a search warrant for plaintiffs’ residence. On April 20, 2012, BCI and
local law enforcement personnel executed the search warrant on plaintiffs’ residence. While
searching the residence, the BCI agents determined that the IP address assigned to plaintiffs’
TWC account was the .70 address and not the .170 address, as requested from TWC. The search
was terminated and Agent Warner explained to plaintiffs that a mistake had been made by TWC.
Agent Warner was later advised by TWC that it had “run the wrong IP address.”
The Complaint sets forth five claims. Count One alleges a violation of the Electronic
Communications Privacy Act (18 U.S.C. § 2701, et seq.) Count Two alleges negligent
disclosure of private information. Count Three alleges invasion of privacy. Count Four alleges
intentional infliction of emotional distress. Count Five alleges breach of contract.
This matter is now before the Court upon defendants’ Motion to Dismiss.
Standard of Review
“Dismissal is appropriate when a plaintiff fails to state a claim upon which relief can be
granted. Fed.R.Civ.P. 12(b)(6). We assume the factual allegations in the complaint are true and
construe the complaint in the light most favorable to the plaintiff.” Comtide Holdings, LLC v.
Booth Creek Management Corp., 2009 WL 1884445 (6th Cir. July 2, 2009) (citing Bassett v.
Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir.2008) ). In construing the complaint
in the light most favorable to the non-moving party, “the court does not accept the bare assertion
of legal conclusions as enough, nor does it accept as true unwarranted factual inferences.”
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Gritton v. Disponett, 2009 WL 1505256 (6th Cir. May 27, 2009) (citing In re Sofamor Danek
Group, Inc., 123 F.3d 394, 400 (6th Cir.1997). As outlined by the Sixth Circuit:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the
claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the
statement need only give the defendant fair notice of what the ... claim is and the grounds
upon which it rests.”Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, “[f]actual allegations must be
enough to raise a right to relief above the speculative level” and to “state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 555, 570. A plaintiff must “plead[ ]
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir.2012). Thus, Twombly and Iqbal require that
the complaint contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face based on factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.. Twombly, 550 U.S. at 570;
Iqbal, 556 U.S. at 678. The complaint must contain “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
Discussion
TWC argues that it is entitled to dismissal because the ECPA bars any civil action arising
out of the good faith compliance with a grand jury subpoena.
Title II of the Electronic Communications Privacy Act (ECPA) “regulates the disclosure
of electronic communications and subscriber information. 18 U.S.C. §2701- 2711.” Guest v.
Leis, 255 F.3d 325 (6th Cir. 2001). §2702(a)(3) states that “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 ... to any
governmental entity.” §2703 permits a governmental entity to require the disclosure of contents
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of electronic communications by a provider. §2703(e) states that there is no cause of action
against a provider “for providing information... in accordance with the terms of a... subpoena...”
§2707(a) establishes a civil cause of action against a person who is “aggrieved by any violation
of this chapter.” But, that same section provides a statutory good faith defense, i.e., a defendant's
“good faith reliance on ... a grand jury subpoena ” provides “a complete defense to any civil or
criminal action brought under this chapter or any other law.Ӥ 2707(e).
TWC contends that as it merely provided information to law enforcement authorities in
response to a grand jury subpoena as it was required to do by law, it is immune from the claims
asserted against it despite its good faith mistake in responding to the subpoena. Plaintiffs argue
that §2703(e) does not apply because TWC did not provide information “in accordance with the
terms of a subpoena” when it disclosed plaintiffs’ personal information rather than the
information requested in the subpoena, i.e., the personal information associated with the .170
address. This Court finds that according to the plain meaning of “in accordance with the terms,”
a civil cause of action may lie where an ISP provides information for which the subpoena does
not request- here, the personal information associated with a different ISP address than that
identified in the subpoena.
But, § 2707(e), the good faith reliance defense, does not require that the information be
provided “in accordance with the terms” of the subpoena. The Court agrees with TWC that the
omission of this language shows that Congress intended a broader scope for this section. See
Russello v. United States, 464 U.S. 16, 23 (1983) (“Where Congress includes particular language
in one section of a statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the disparate inclusion or
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exclusion.”). A defendant may invoke the good faith defense “if he can demonstrate (1) that he
had a subjective good faith belief that he acted legally pursuant to a court order; and (2) that this
belief was reasonable.” Freedman v. Am. Online, Inc., 325 F. Supp. 2d 638, 645-47 (E.D. Va.
2004) (quoting Jacobson v. Rose, 592 F.2d 515, 523 (9th Cir. 1978) (interpreting § 2520(d) of
the ECPA which is nearly identical to § 2707(e)). Although the Complaint alleges that TWC’s
conduct was “knowing, intentional, willful, wanton, malicious, and fraudulent,” the Complaint
alleges that Agent Warner “explained to plaintiffs that a mistake had been made by the ISP
TWC” and that “Agent Warner was later advised by defendant TWC that they had ‘run the
wrong IP address.’ ” Therefore, the allegations of the Complaint show that TWC made a
mistake, a typographical error, in responding to the subpoena. Given that § 2707(e) omits the
language “in accordance with the terms of the subpoena,” the intent of the statute was to provide
a defense where a provider responds to a subpoena with a good faith belief that it was acting
pursuant to that subpoena although a mistake was made in so responding. To find otherwise
would render the omission of the language meaningless. To conclude that a mistake could
negate the good faith defense would discourage the cooperation with law enforcement in
providing information sought by a grand jury subpoena which public policy favors. In effect, a
person could be punished for performing his legal duty in so cooperating. This would be
contrary to the purpose of the ECPA which is designed to address wrongful violations done
intentionally.
For these reasons, the claims against TWC are dismissed. Sams v. Yahoo! Inc., 713 F.3d
1175 (9th Cir. 2013) (The court affirmed dismissal of federal and state law claims finding that
Yahoo! was statutorily immune from suit.) and Bansal v. Server Beach, 285 Fed.Appx. 890 (3d
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Cir. 2008) (same).
Even assuming the good faith reliance defense did not bar plaintiffs’ state law claims,
they fail on the merits.
Count Two alleges negligent disclosure of private information. Plaintiffs’ brief states
that the claim is based on Ohio Revised Code § 1347.10 which provides a civil cause of action
for the intentional disclosure of personal information in a manner prohibited by law. For the
same reasons stated above, the Complaint fails to establish that TWC acted intentionally in
wrongfully disclosing plaintiffs’ personal information.
Count Three alleges invasion of privacy which requires that the intrusion into private
activities “be wrongful as well as done in such manner as to outrage or cause mental suffering,
shame or humiliation to a person of ordinary sensibilities.” Strutner v. Dispatch Printing Co., 2
Ohio App.3d 377 (10th Dist. 1982). The Complaint’s allegations regarding TWC’s mistake fail
to state a claim for wrongful conduct meant to cause outrage or mental suffering.
Count Four alleges intentional infliction of emotional distress which requires, at a
minimum, that “the actor either intended to cause emotional distress or knew or should have
known that actions taken would result in serious emotional distress to plaintiff.” Cotten v. Ohio
Dept. of Rehab. & Corr., 2014 WL 2781751 (Ohio App. 10th Dist. June 17, 2014) (citations
omitted). Again, the Complaint’s factual allegations fall short of pleading the requisite
intentional conduct.
Count Five alleges breach of contract based on plaintiffs’ agreement with TWC. This
claim fails for the same reason the ECPA claim fails given that the agreement gives TWC the
authority to cooperate with law enforcement authorities. (Compl. Ex. 1 at ¶ 11(d), Ex. 2 at ¶ 3)
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Conclusion
For the foregoing reasons, defendants’ Motion to Dismiss is granted.
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 9/8/14
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