Tucker v. Waddell

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CORA D. TUCKER,

Plaintiff-Appellant,

v.

D. W. WADDELL, both individually

and in his official capacity as a

police officer for the City of

Durham, North Carolina; TERRY

MANGUM, both individually and in

No. 95-2080

his official capacity as a police

officer for the City of Durham,

North Carolina; GEORGE B. HARE,

both individually and in his official

capacity as a police officer for the

City of Durham, North Carolina;

CITY OF DURHAM, NORTH CAROLINA,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

Richard C. Erwin, Senior District Judge.

(CA-94-5-1)

Argued: March 5, 1996

Decided: May 20, 1996

Before MURNAGHAN and MOTZ, Circuit Judges, and YOUNG,

Senior United States District Judge for the District of Maryland,

sitting by designation.

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Vacated and remanded by published opinion. Judge Motz wrote the

opinion, in which Judge Murnaghan and Senior Judge Young joined.

COUNSEL

ARGUED: Mark Alexander Charns, Durham, North Carolina;

Thomas Franklin Loflin, III, Durham, North Carolina, for Appellant.

Reginald B. Gillespie, Jr., FAISON & FLETCHER, Durham, North

Carolina, for Appellees. ON BRIEF: Ann F. Loflin, Durham, North

Carolina; William G. Goldston, Durham, North Carolina, for Appel-

lant. Keith D. Burns, FAISON & FLETCHER, Durham, North Caro-

lina, for Appellees.

_________________________________________________________________

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

This case involves alleged violations of Title II of the Electronic

Communications Privacy Act of 1986, 18 U.S.C. § 2701 et seq., by

appellee, the City of Durham, North Carolina, and certain officials in

its police department.1 Appellant, Cora Tucker, sued the City of Dur-

ham pursuant to 18 U.S.C. § 2707, which allows a private right of

action for persons aggrieved by knowing or intentional violations of

the Act. Her complaint alleged that the City, through its police offi-

cers, violated 18 U.S.C. § 2703(c) when the officers obtained sub-

scriber information regarding her telephone service from GTE South,

Incorporated, through the use of two improper subpoenas.

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1 Tucker sued the police officials in their individual and official capaci-

ties. The district court dismissed all claims against the officers in their

individual capacities on the theory that 18 U.S.C.§ 2703(c)(1)(A)

expressly permits disclosure of records to "any person other than a gov-

ernmental entity," and thus the officers in their individual capacities

could not violate the statute. Tucker noted an appeal of this ruling but did

not address it in any way in her appellate briefs or at oral argument.

Accordingly, we deem any claim as to liability of the defendants in their

individual capacities to have been abandoned. See 11126 Baltimore

Blvd., Inc. v. Prince George's County, 58 F.3d 988, 993 n.7 (4th Cir.)

(issues not briefed or argued are deemed abandoned), cert. denied, --

U.S. --, 116 S. Ct. 567 (1995). Tucker's claim against the officers in

their official capacities is identical to the claim against the city itself and

is so treated in this opinion.

2

The district court granted summary judgment to Tucker with regard

to the first such subpoena, dated November 8, 1991. The City of Dur-

ham initially appealed this order, but subsequently withdrew its

appeal; thus, a claim that the November 8 subpoena was proper is not

now before us. The district court also found the second subpoena,

dated December 11, 1991, to be improper. However, the court granted

summary judgment to the City on this claim because, since all infor-

mation obtained pursuant to that subpoena was publicly available, no

violation of the Act occurred with respect to that subpoena. Tucker

appeals this order, as well as the district court's denial of her claim

for injunctive relief with respect to the "fruits" of the November 8,

1991 subpoena. Because we conclude that the complaint did not state

a claim upon which relief can be granted, we must vacate the district

court's orders and remand for entry of a judgment of dismissal.

I.

The City of Durham argues that § 2703(c) does not create a cause

of action against governmental entities.2 Of course, in Tucker's com-

plaint the asserted basis for jurisdiction was § 2707, not § 2703(c).

Section 2707 provides in pertinent part:

Except as provided in section 2703(e) [exempting providers

of communication services from liability when they disclose

information pursuant to court order, subpoena, etc.], any

provider of electronic communication service, subscriber, or

customer aggrieved by any violation of this chapter in which

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2 Tucker's only response is that the City waived this defense when it

withdrew its appeal of the district court's grant of summary judgment

with respect to the November 8 subpoena. That argument is meritless.

First, it is not at all clear that the City's decision to abandon its appeal

constituted a waiver of this argument in Tucker's appeal. In any event,

the City's argument is at heart an assertion that the complaint failed to

state a claim upon which relief can be granted. If the City is correct, then

there is no basis for federal jurisdiction here and lack of subject matter

jurisdiction "cannot be waived by the parties." United States v. Griffin,

303 U.S. 226, 229 (1938); Farouki v. Emirates Bank Int'l, Ltd., 14 F.3d

244, 247 n.7 (4th Cir. 1994); Kenrose Mfg. Co. v. Fred Whitaker Co.,

512 F.2d 890, 895 n.13 (4th Cir. 1972).

3

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 which engaged in that vio-

lation such relief as may be appropriate.

18 U.S.C. § 2707(a) (1988) (emphasis added). The term "person"

refers not only to individuals, including agents and employees of gov-

ernmental entities, but also to business entities such as partnerships,

associations, and corporations. See 18 U.S.C. § 2510(6), incorporated

by reference in 18 U.S.C. § 2711 (1994). Thus, the inclusion of the

words "or entity" in § 2707 strongly suggests that Congress intended

to include governmental entities within the scope of the section; to

interpret it otherwise would render that language mere surplusage. See

Gustafson v. Alloyd Co., -- U.S. --, 115 S. Ct. 1061, 1069 (1995) (in

construing a statute, "the Court will avoid a reading which renders

some words altogether redundant"); Crestar Bank v. Neal (In re

Kitchin Equip. Co.), 960 F.2d 1242, 1247 (4th Cir. 1992) ("It is an

axiom of statutory construction that courts are obliged to give effect,

if possible, to every word used by the legislature.")

The legislative history of the Electronic Communications Privacy

Act provides further support for the conclusion that§ 2707 creates a

private cause of action for violations of the Act by"persons and gov-

ernmental entities". In summarizing the proposed legislation, the Sen-

ate Committee Report indicates that providers, subscribers, or

customers aggrieved by violations of the chapter"may recover from

any person or entity--including governmental entities--who know-

ingly or intentionally violated this chapter." S. Rep. No. 541, 99th

Cong., 2d Sess. 43 (1986), reprinted in 1986 U.S.C.C.A.N. 3555,

3597 (emphasis added). The House Committee Report is equally clear

on this issue: "[r]ecovery may be had under[§ 2707] against a person

or entity who violated the provisions of this chapter. This includes

governmental entities who have violated the provisions of this chap-

ter." H.R. Rep. No. 647, 99th Cong., 2d Sess. 74 (1986) (emphasis

added).

In sum, the plain language of § 2707, particularly when considered

in light of its legislative history, compels the holding that the statute

authorizes a private cause of action against governmental entities that

violate the Electronic Communications Privacy Act.

4

II.

This holding does not, however, end our inquiry. Persons aggrieved

by violations of the Act can only assert a cause of action against the

person or entity that "engaged in that violation." 18 U.S.C. § 2707(a).

The only statute which Tucker alleges that the City violated is 18

U.S.C. § 2703(c).3 Accordingly, in order for Tucker to have a cause

of action and a basis for federal jurisdiction in this case, the police

department must have "engaged in" a violation of § 2703(c). The lan-

guage of § 2703(c) does not expressly proscribe any action by gov-

ernmental entities or their employees. Rather, § 2703(c) only

prohibits the actions of providers of electronic communication ser-

vices and remote computing services:

A provider of electronic communication service or remote

computing service shall disclose a record or other informa-

tion pertaining to a subscriber to or customer of such service

(not including the contents of communications covered by

subsection (a) or (b) of this section) to a governmental entity

only when the governmental entity--

(i) uses an administrative subpoena authorized by a

Federal or State statute, or a Federal or State grand jury or

trial subpoena;

(ii) obtains a warrant issued under the Federal Rules of

Criminal Procedure or equivalent State warrant;

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3 In contrast, in Brown v. Waddell, 50 F.3d 285 (4th Cir. 1995), one of

Tucker's co-workers, Jamie B. Brown, asserted that appellee Waddell

violated a provision of Title I of the Electronic Communications Privacy

Act, 18 U.S.C. § 2511. We held that Brown's allegations that Waddell

used "a duplicate or clone, digital display pager" to "intercept numeric

transmissions to Brown's digital display pagers" stated a cause of action

under § 2511. However, § 2511, unlike the statute at issue here, prohibits

not just "providers" of communications services but "any person" from

intentionally violating its provisions. (Brown also alleged a claim under

§ 2701 but the precise contours of that claim and whether it stated a

cause of action were not addressed by the trial or appellate courts. 50

F.3d at 294.)

5

(iii) obtains a court order for such disclosure under sub-

section (d) of this section; or

(iv) has the consent of the subscriber or customer to

such disclosure.

18 U.S.C. § 2703(c)(1)(B) (1988)4 (emphasis added). To be sure, this

section discusses different courses of action available to governmental

entities wishing to obtain customer information, but only in the con-

text of limiting the circumstances under which providers may disclose

such information.

Tucker's sole support for her argument that § 2703(c) prohibits

governmental entities and their employees from obtaining subscriber

telephone records is the following statement from a handbook on law

enforcement search and investigation techniques:"An officer who

obtains a customer's telephone information by violating this federal

law [§ 2703 (c)] is subject to civil damages to the customer of at least

$1,000." Robert L. Farb, Arrest, Search, and Investigation in North

Carolina, 2d ed. (Institute of Government, The University of North

Carolina at Chapel Hill, 1992), at 86. The author cites no authority for

this proposition, and we have found none.

The Electronic Communications Privacy Act was "modeled after

the Right to Financial Privacy Act, 12 U.S.C. 3401 et. seq." S. Rep.

No. 541 at 3, 1986 U.C.C.A.N. at 3557. Examination of the Right to

Financial Privacy Act indicates that Congress there recognized a dis-

tinction between limiting disclosure of information and limiting

access to information. The Right to Financial Privacy Act, like the

Electronic Communications Privacy Act at issue here, contains a sec-

tion limiting the circumstances under which customer records may be

disclosed to governmental authorities (by financial institutions rather

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4 This section was amended in 1994, but the original version, quoted

above, was in effect at the time of the disclosures complained of in this

case. The amendment struck out clause (i) in subpart (c)(1)(B), and

added new subpart (c)(1)(C), which designated certain information that

providers may disclose in response to administrative, trial or grand jury

subpoenas. See 18 U.S.C. § 2703(c) (1994). Our analysis here is

unchanged by the amendment.

6

than by communications service providers). 12 U.S.C.§ 3403 (1994).5

However, the Right to Financial Privacy Act, unlike the statute

involved here, also contains a "companion" section limiting the cir-

cumstances under which governmental authorities may obtain access

to customer records from the financial institutions. 12 U.S.C. § 3402

(1994). Customers aggrieved by the improper disclosure of their

records have a private right of action against the governmental author-

ity that obtained the records and the financial institution that

disclosed the records. 12 U.S.C. § 3417(a). Civil actions against gov-

ernmental authorities for improperly obtaining information allege vio-

lations of § 3402, while actions against financial institutions for

improper disclosure allege violations of § 3403. Compare Duncan v.

Belcher, 813 F.2d 1335 (4th Cir. 1987) (action based on § 3402); with

Waye v. First Citizen's Nat'l Bank, 846 F. Supp. 310 (M.D. Pa.)

(action based on § 3403), aff'd, 31 F.3d 1175 (3d Cir. 1994).

Thus, in enacting the Right to Financial Privacy Act, Congress lim-

ited both the disclosure of customer records by financial institutions

and the acquisition of such information by governmental entities. It

did so by enacting two "companion" sections, one directed at the

actions of governmental entities, and the other directed at the actions

of financial institutions. Although Congress modeled the statute

invoked here, the Electronic Communications Privacy Act, on the

Right to Financial Privacy Act and fashioned a similar prohibition

against disclosure of customer information held by electronic commu-

nications service providers, Congress did not incorporate in the statute

relied on in this case any similar bar to acquisition of information by

governmental entities. The absence of a "companion" section limiting

the access of customer information by governmental entities indicates

that Congress did not intend to authorize civil suits against govern-

mental entities for improperly obtaining customer records.

Furthermore, even within § 2703 itself, the distinction between

limiting disclosure and limiting access is apparent. While subsection

(c) focuses on the conduct of the service providers, subsections (a)

_________________________________________________________________

5 The Right to Financial Privacy Act has undergone some minor

amendments since the time when the Electronic Communications Pri-

vacy Act was "modeled after" it. See 12 U.S.C. § 3401 et seq. (1994).

None of the amendments are relevant for our purposes in this case.

7

and (b) focus on the conduct of governmental entities. For example,

subsection (a) provides:

A governmental entity may require the disclosure by a pro-

vider of electronic communication service of the contents of

an 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 under

the Federal Rules of Criminal Procedure or equivalent State

warrant. A governmental entity may require the disclosure

by a provider of electronic communications services of the

contents of an electronic communication that has been in

electronic storage in an electronic communications system

for more than one hundred and eighty days by the means

available under subsection (b) of this section.

18 U.S.C. § 2703(a) (1988) (emphasis added). Subsection (b) is simi-

larly focused on the conduct of the government, describing when and

how "[a] governmental entity may require a provider of remote com-

puting service to disclose the contents of an electronic communica-

tion." 18 U.S.C. § 2703(b). The inclusion, within the same section, of

two subsections limiting governmental access to information and one

subsection limiting provider disclosure of information makes the dis-

tinction between the two eminently clear.

A governmental entity that violates the dictates of§ 2703(a) or (b)

may be held civilly liable for such violation. See Steve Jackson

Games, Inc. v. United States Secret Service, 816 F. Supp. 432, 442-43

(W.D. Tex. 1993) (holding Secret Service liable under § 2707 for vio-

lation of § 2703(b)), aff'd, 36 F.3d 457 (5th Cir. 1994); Organizacion

JD Ltda. v. United States Dep't. of Justice, 18 F.3d 91, 94-95 (2d

Cir.) (discussing "the government's possible liability under

§ 2707(a)," concluding that the government may be held liable if the

district court finds that the government did not comply with the

requirements of § 2703(a)), cert. denied , ___ U.S. ___, 114 S. Ct.

2679 (1994). In contrast, the language of § 2703(c) does not prohibit

any governmental conduct, and thus a governmental entity may not

violate that subsection by simply accessing information improperly.6

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6 Arguably, it might be possible for a governmental entity to violate

§ 2703(c) by aiding and abetting or conspiring in the provider's viola-

tion. Tucker's complaint, however, does not allege either of these theo-

ries, and thus we need not reach these questions here.

8

Consequently, § 2707 does not authorize a private cause of action

against the City of Durham or its officers in this case.

III.

Having concluded that the ECPA does not authorize a civil suit

against the City for "violating" § 2703(c), we cannot address the mer-

its of this appeal. Thus, we do not reach the question of whether the

information obtained by the City, through its police department, was

in the public domain. Instead because the complaint failed to state a

claim upon which relief can be granted, we vacate the orders of the

district court and remand the case for entry of an order of dismissal

on that ground.

VACATED AND REMANDED

9