Lopez et al v. Pena et al

Filing 46

MEMORANDUM AND ORDER - Pena's motion to dismiss the Section 2701 claim is granted with prejudice. Pena's motion to dismiss the Section 2703 claim is denied. (Ordered by Judge Mary Lou Robinson on 5/22/2013) (plh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
ROLANDO CRUZLOPEZ and
JAMES FOXE,

$
$
$

Plaintiffs,

$

V.

$
$

ALEJANDRO PENA, individually;
UNITED STATES CUSTOMS AND
BORDER PROTECTION; LINITED
STATES DEPARTMENT OF
HOMELAND SECURITY

No. 2-12-CV-165-J

$
$
$
$
$
$

Defendants.

$

MEMORANDUM AND ORDER
Before the Court is Defendant Alejandro Pena's Motion to Dismiss Count
Amended Complaint, filed

April4, 2013. In Count II

as amended, pro se

II of the

Plaintiff Rolando Cruz

Lopez claims that Pena, in his individual capacity as a Customs and Border Protection (CBP)
agent, violated the Stored Communications Act (SCA), 18 U.S.C. $$ 2701(a) and 2703, by
accessing CruzLopez's Yahoo! email account. Pena asserts that qualified immunity precludes

these claims because his alleged access
established right in the

of Cruz Lopez's account did not violate any clearly

SCA. Pena's motion will be granted

as

to $ 2701(a) but denied as to

$ 2703.

BncrcnouNn
Count

ll-the

only count remaining against Pena-stems from an August 8-9,2009

incident at the Dallas/Fort Worth International Airport during which Pena and other CBP officers
detained Cruz Lopez en route to visit Plaintiff James Foxe in Amarillo. Pena allegedly found
usernames and passwords in Cruz Lopez's wallet and then accessed Cruz Lopez's online bank
account, Yahoo! email account, and possibly his Hotmail account. Pena executed an expedited

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removal order against Cruz Lopez for supposedly working

in the United

States as Foxe's

employee in violation of visa restrictions.

Cruz Lopez claims that he discovered, in a January 2012 FOIA disclosure, that Pena had
accessed at least six emails from his Yahoo! account: (1) a message sent

to CruzLopez by an

acquaintance on May 8,2009; (2) and (3) Cruz Lopez's May 15 responses to the May 8 message;

(4) the acquaintance's May 18 response to at least one of Cruz Lopez's May 15 responses;
(5) Cruz Lopez's June 27 response to the acquaintance's May 18 response; and (6) CruzLopez's
July 4 response to the acquaintance's May 18 response. CruzLopez also alleges that Pena may
have accessed other emails, including unopened messages.

The Court dismissed CruzLopez's original Count II but granted leave to amend. Docket

#37. Cruz Lopez now claims that Pena violated $2701(a) of the SCA by

accessing, without

permission, emails that were in electronic storage. He also claims that Pena violated $ 2703 by

compelling the disclosure
subpoena, or court
are made

of

electronic communications from Yahoo! without

a

warrant,

order. He seeks actual and punitive damages, fees and costs. These sections

civilly actionable by $ 2707.
Lnc.Lr, SrlNo.lRD

A motion to dismiss based on qualified immunity is generally evaluated under the Rule
12(bX6)rubric. SeeCollinsv.Ainsworth,382F.3d529,536(5thCir.2004);Bakerv.Putnal,T5
F.3d 190, 197 (5th Cir. 1996); Richard v. Capps,2007 WL 2428928, at *2 n.6 (N.D. Tex. Aug.
28,2007).

In determining motions for failure to state a claim, the Court first identifies allegations
not entitled to the assumption of truth due to their lack of factual support and then assumes the
veracity of the remaining non-fanciful alleged facts. Ashuoft v. Iqbal,556 U.S. 662,664 (2009).

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The Court then denies the motion to dismiss

if

the complaint "contain[s] sufficient factual

matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Iqbal,556 U.S.

at678 (quoting Twombly,550 U.S. at570).
When an official is sued in his individual capacity, however, a modification to the basic

Rule 12(b)(6) standard applies. The official's qualified immunity defense fails only

if the

complaint, with "factual detail and particularity," states facts plausibly alleging that the official,
engaging in objectively unreasonable conduct, (1) violated a constitutional or statutory right that
(2) was at the time, and still is, clearly established. Anderson v. Pasadena Indep. Sch,

Dist.,I84

F.3d 439,443 (5th Cir. 1999) (citing Jaclcson v. Widnall,99 F.3d 710,715-16 (5th Cir. 1996));
see

Morgan v. Swanson,659 F.3d 359, 371-72 (5th Cir. 20lI).

Qu.a.urrnr lvrpruNrrv
Craz Lopez's $ 2701(a) Cluim
Section 270I(a)
storage and is made

of the SCA

protects electronic communications while

in electronic

civilly actionable by $ 2707.

Testing qualified immunity, the Court asks whether the complaint contains sufficient
facts to plausibly show that, by objectively unreasonable conduct, (1) Pena violated a right in
$ 2701(a) that

(2) was clearly established in August 2009 and still

is.

See

Morgan, 659 F.3d at

37I-73; Kipps v. Caillier, 197 F.3d 765,768 (1999); Bazan ex rel. Bazan v. Hidalgo County,
246 F.3d 481, 490 (5th Cir. 2001).
Section 2701(a) creates a right against anyone who "(1) intentionally accesses without

authorization a facility through which an electronic communication service is provided; or
(2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or

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prevents authorized access to a wire or electronic communication while it is in electronic storage

in such system." 18 U.S.C. g 2701(a).
'oElectronic storage" is defined as

"(A) any temporary, intermediate storage of a wire or

electronic communication incidental to the electronic transmission thereof; and (B) any storage

of such communication by an electronic

communication service

for

purposes

of

backup

protection of such communication." 18 U.S.C. $ 2510(17).

CruzLopez argues that some of the six emails Pena allegedly accessed were in electronic
storage incident to transmission. Emails not yet opened by the intended recipient are

storage. See Order, Docket #37

at6-7.

in

such

But none of the six emails Cruz Lopez accuses Pena of

accessing were unopened: Cruz Lopez must have opened the frrst email because he responded to

rt; he sent the second and third emails, and it is not clearly established that sent communications

are in electronic storage when accessed from the sender's account, see, e.g., United States

v.

Weever,636 F. Supp. 2d769,769-70 (C.D. Ill. 2009) (enforcing subpoena that called sent mail
'ocommunications

not in electronic storage"); he obviously opened the fourth because he

responded to it; and the fifth and sixth have the same problem as the second and third. None

of

the emails is adequately alleged to have been in electronic storage on August 8-9,2009.

Cruz Lopez's allegation that Pena might have accessed unopened emails either in Cruz
Lopez's Yahoo! or Hotmail account is unavailing. Its bare equivocation falls short of the factual
detail and particularity necessary to overcome qualified immunity. Anderson,l84 F.3d at 443.
Because the allegations
Wiclcs

in the complaint are inadequate, discovery is inappropriate.

See

v. Miss. State Employment Servs.,41 F.3d 99I, 994 (5th Cir. 1995). Cruz Lopez's

$ 2701(a) claim is dismissed.

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Cruz Lopez's $ 2703 Cluim

"A governmental entity may require a provider" of a remote computing

service or

electronic communication service "to disclose the contents of any . . . electronic communication"

if

the governmental entity obtains a warrant, subpoena, or court order, depending on

the

circumstance. 18 U.S.C. 52703.

Is

it

clearly established that a govemmental entity violates 5 2703 by hacking into

a

user's online email account instead of seeking a wanant, subpoena, or court order? Pena notes

that no Fifth Circuit or Supreme Court case addresses this question. Cruz Lopez is correct,
however, that the standard to determine clearly established law is whether 'oin the light of preexisting law the unlawfulness [is] apparent," Hope v. Pelzer,536 U.S. 730,73940 (2002), not
whether a prior case is directly on point. A statute might be sufficiently unambiguous to prove
apparent unlawfulness on its own, without a court's prior say-so. The SCA is famous for its lack

of clarity, but what Pena allegedly did obviously violates 5 2703.

"[T]he only procedure available to flaw enforcement] to obtain'disclosure' of

the

contents of electronic communications [i]s to comply with this statute." Steve Jaclrson Games,

Inc, v. U.S. Secret Serv.,816 F. Supp. 432,443 (W.D.Tex. 1993),dff'd,36 F.3d 457 (5thCir.
1994) (emphasis added). Under 5270I, law enforcement officers are nonnally barred from
accessing a user's electronic communications that are

authorized

to

access those communications.

in electronic storage because they are not

As noted above, $ 2701 provides no

recourse

against someone accessing communications that are not in electronic storage. Section 2703, on
the other hand, procedurally safeguards all electronic communications in a provider's possession.

Unless authorized, a law enforcement officer must follow $ 2703 procedures to get a user's
electronic communications from the provider.

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Yahoo! is a provider under 52703 and Yahoo! automatically disclosed the emails when
Pena logged on, so Pena is

left arguing that

$ 2703

is inapplicable as it applies only to required

disclosure (what he calls compelled disclosure), and he did not require Yahoo! to do anything
because Yahoo!

following

5

willingly provided

2703

access

to the account. It is true thata governmental entity

"^ay require" a provider to disclose electronic communications. But it is not

true that an officer can ignore 52703 procedures, hack into an account, and then claim that
$ 2703

is inapplicable because the provider thought that the officer was the user. Cf, Freedman

v. Am. Online, lnc.,303 F. Supp. 2d

l2l,

5 2703 even though provider complied

with invalid warrant).

127 (D. Conn. 2004) (holding that officers violated

The most common definition of require is "to claim or ask for by right and authority."

Merriam Webster's Collegiate Dictionary

(Ilth

ed. 2003). Cruz Lopez's complaint sufficiently

alleges that Pena, posing as one with the right and authority to do so, sought disclosure of Cruz

Lopez's emails by entering the correct username and password and clicking "sign
actions apparently required Yahoo!

to

disclose whatever messages were

in

in."

Pena's

Craz Lopez's

account, contrary to Pena's argument that he did not require disclosure but merely accessed
Yahoo!'s facility.

To the extent that require means to compel against one's will, Pena cannot say that
Yahoo! willingly turned over Cruz Lopez's emails to law enforcement. Pena's posing as Cruz

Lopez shows, at best, that

if

Pena did not compel Yahoo!

to unwillingly disclose to law

enforcement, he is at least alleged to have tricked Yahoo! to unwittingly disclose.

An officer violates 5 2703 by

seeking that section's ends without following its

procedures. That is what Cruz Lopez alleges: Pena wanted to find some basis for expedited
removal

of Cruz Lopez but was not authorized to log onto Cruz Lopez's Yahoo! account, so,

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instead of following $ 2703, he hacked in and took what he wanted. Pena points out that he did

not interact with Yahoo! personnel by submitting a paper request for particular communications,
but that is Cruz Lopez's point:

if

$

2703 is violated when an officer uses an incomplete warrant

application to seek disclosure, see Freedman, 303 F. Supp. 2d at I27 , then $ 2703 is even more

clearly violated when an officer requires the provider to give up communications without any
subpoena, warrant, or court order. Pena is adequately alleged to have violated $ 2703's clear
mandate that an officer not require a provider

to disclose communications without statutory

process.

Coxcr,usroN
Pena's motion to dismiss the $ 2701 claim is GRANTED with prejudice. Pena's motion

to dismiss the $ 2703 claim is DENIED.

It is SO ORDERED.
Signedthisthe

JKOurof

May, 2013.

MARY
ATES DISTRICT JUDGE

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