Long v. Insight Communications of Central Ohio, LLC

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 15a0253p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

WILLIAM LONG, individually and on behalf of J.L.; ┐

BARBARA LONG, individually and on behalf of J.L.; │

JONATHAN LONG; MELISSA LONG, │

│ No. 14-3996

Plaintiffs-Appellants,

│

>

│

v.

│

│

INSIGHT COMMUNICATIONS OF CENTRAL OHIO, │

LLC, │

Defendant-Appellee. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:14-cv-01096—Patricia A. Gaughan, District Judge.

Argued: June 17, 2015

Decided and Filed: October 23, 2015

Before: GUY, GIBBONS, and ROGERS, Circuit Judges.

_________________

COUNSEL

ARGUED: Matthew D. Greenwell, CHARLES V. LONGO, CO., L.P.A., Beachwood, Ohio,

for Appellants. Jeffrey J. Jones, JONES DAY, Columbus, Ohio, for Appellee. ON BRIEF:

Matthew D. Greenwell, CHARLES V. LONGO, CO., L.P.A., Beachwood, Ohio, for Appellants.

Jeffrey J. Jones, Matthew J. Chisman, JONES DAY, Columbus, Ohio, for Appellee.

_________________

OPINION

_________________

RALPH B. GUY, JR., Circuit Judge. Plaintiffs appeal the dismissal of their claims

against defendant Insight Communications of Central Ohio, d/b/a Time Warner Cable (“TWC”),

1

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arising out of TWC’s mistaken disclosure of plaintiffs’ basic subscriber information in response

to a grand jury subpoena. Reviewing the dismissal de novo, we find that plaintiffs failed to state

a claim upon which relief may be granted either for violation of the Stored Communications Act

(“SCA”) (18 U.S.C. § 2707(a)), or for invasion of privacy, intentional disclosure of private

information, intentional infliction of emotional distress, or breach of contract under Ohio law.

Accordingly, the district court’s judgment in favor of TWC is affirmed.

I.

Plaintiffs—William Long, Barbara Long, Jonathan Long, Melissa Long, and JL (a

minor)—alleged that they resided at 14064 Chardon Windsor Road, Chardon, Ohio, in early

2012. At that time, TWC provided internet and cable services to plaintiffs’ residence pursuant to

a Subscriber Agreement and incorporated Privacy Notice. The pertinent allegations were

accurately recounted by the district court as follows:

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 [TWC], 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

images 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). [In

other words, there was a difference of one digit between the two IP addresses.]

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 [the] Geauga County Prosecutors’ Office issue a Grand

Jury subpoena requiring TWC to provide subscriber 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

No. 14-3996 Long, et al. v Insight Communications Page 3

by TWC. Agent Warner was later advised by TWC that it had “run the wrong IP

address.”

Long v. Insight Commc’ns of Cent. Ohio, LLC, No. 1:14-cv-1096, 2014 WL 4425738 at *1 (N.D.

Ohio Sept. 8, 2014). Plaintiffs alleged that the search (which is not separately challenged here)

was “extensive, destructive, and in plain sight of all of [their] neighbors.” The search was

terminated once the error was discovered, and no evidence of criminal activity was found.

Plaintiffs did not allege any defect with respect to the grand jury subpoena—only that

TWC misidentified Barbara Long as the subscriber assigned the .170 IP address because TWC

had “run the wrong IP address.” Specifically, TWC was alleged to have disclosed Barbara

Long’s name, “home address, telephone numbers, and length of service.” Without providing any

further factual basis, plaintiffs asserted that “TWC’s conduct was knowing, intentional, willful,

wanton, malicious, and fraudulent.”1

Plaintiffs’ complaint alleged a federal claim for disclosure of their subscriber information

without authorization in violation of the SCA (18 U.S.C. § 2707(a)) (Count I), and state-law

claims for “Negligent Disclosure of Private Information,” “Invasion of Privacy,” “Intentional

Infliction of Emotional Distress,” and “Breach of Contract” (Counts II-V). TWC moved to

dismiss these claims on a number of alternative grounds, including that the claims were barred

under one or more defenses provided by the SCA; that TWC was protected by qualified privilege

under Ohio common law; and that plaintiffs failed to state a claim on the merits under either the

SCA or Ohio law. See FED. R. CIV. P. 12(b)(6).

The district court rejected TWC’s claim of immunity under § 2703(e), but found that §

2707(e)’s “good faith reliance” defense barred all of plaintiffs’ claims. See 18 U.S.C. §§ 2703(e)

and 2707(e). The district court also concluded that the state-law claims failed on the merits

because the factual allegations were insufficient to establish that TWC disclosed the information

intentionally, wrongfully, or in breach of contract. Long, 2014 WL 4425738, at *3-4. Judgment

was entered accordingly, and this appeal followed.

1

Plaintiffs represented to the district court that the substance of their averments was unchanged by an

amended complaint that was filed prior to removal but not made part of this record. Since plaintiffs have not

suggested otherwise on appeal, we review the allegations that were before the district court.

No. 14-3996 Long, et al. v Insight Communications Page 4

II.

This court reviews a district court’s dismissal for failure to state a claim de novo. Courie

v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 629 (6th Cir. 2009). In doing so, we also may

affirm the judgment on any ground supported by the record. Wausau Underwriters Ins. Co. v.

Vulcan Dev., Inc., 323 F.3d 396, 403-04 (6th Cir. 2003).

To survive a 12(b)(6) motion, the complaint must contain “enough facts to state a claim

to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

In evaluating the complaint, the court must take the well-pleaded facts as true but is “‘not bound

to accept as true a legal conclusion couched as a factual allegation.’” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (citation omitted). Indeed, although state of mind may be alleged generally,

“the plaintiff still must plead facts about the defendant’s mental state, which, accepted as true,

make the state-of-mind-allegation ‘plausible on its face.’” Republic Bank & Trust Co. v. Bear

Stearns & Co., 683 F.3d 239, 247 (6th Cir. 2012) (citation omitted). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; see

also 16630 Southfield Ltd., P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013);

Estate of Barney v. PNC Bank, N.A., 714 F.3d 920, 924-25 (6th Cir. 2013).

III.

Title II of the Electronic Communications Privacy Act of 1986 (ECPA), commonly

referred to as the Stored Communications Act (SCA) (codified as amended at 18 U.S.C.

§§ 2701-2712), governs the various circumstances under which a service provider may divulge

the contents of certain electronic communications or disclose other subscriber or customer

records and information. See Orin S. Kerr, A User’s Guide to the Stored Communications Act,

and a Legislator’s Guide to Amending It, 72 GEO. WASH. L. REV. 1208 (2004) (outlining the

structure of the SCA). This case, however, involves only the provisions governing a service

No. 14-3996 Long, et al. v Insight Communications Page 5

provider’s disclosure of basic subscriber information to a governmental entity in response to a

grand jury subpoena.2

A. Unauthorized Disclosure

The SCA dictates that—except as otherwise permitted—a service provider “shall not

knowingly divulge a record or other information pertaining to a subscriber to or customer of such

service . . . to any governmental entity.” 18 U.S.C. § 2702(a)(3). But, the exceptions that follow

expressly permit a provider to divulge such records or information when, among other things, it

is “otherwise authorized in section 2703.” 18 U.S.C. § 2702(c)(1); see also id. at § 2702(c)(2)-

(6) (other exceptions). As amended, § 2703 provides, in relevant part, that a governmental entity

may require a service provider to disclose a subset of basic subscriber or customer information—

including name, address, phone number, and length of service—“when the governmental entity

uses [1] an administrative subpoena authorized by a Federal or State statute or [2] a Federal or

State grand jury or trial subpoena[.]” 18 U.S.C. § 2703(c)(2) (as amended).

Reading these provisions together, and given that no defect was alleged with respect to

the grand jury subpoena in this case, we assume that TWC would have been authorized to

disclose the basic subscriber information associated with the .170 IP address in response to that

subpoena. As plaintiffs alleged, however, TWC mistakenly disclosed the subscriber information

associated with plaintiffs’ .70 IP address instead. TWC’s error was allegedly made in the course

of retrieving the information to be disclosed (i.e., “running the IP address”). Notably, plaintiffs

have not alleged any facts (or argued that there are any facts) to suggest that TWC was aware of

the error at the time of the disclosure. The district court found plaintiffs had alleged that “TWC

made a mistake, a typographical error, in responding to the subpoena.” Long, 2014 WL

4425738, at *3. Our de novo review of the complaint confirms that there are no facts from which

we may infer that TWC’s unauthorized disclosure of plaintiffs’ information was the result of

2

The parties do not dispute that TWC was a provider of an electronic communication service to the public

within the meaning of the SCA. See 18 U.S.C. § 2711(1) (“‘electronic communication service’ means any service

which provides to users thereof the ability to send or receive wire or electronic communications”) (incorporating

definition from 18 U.S.C. § 2510(15)). As such, it is immaterial whether TWC was also a provider of a remote

computing service as defined in 18 U.S.C. § 2711(2). Also, it is evident that the Ohio BCI comes within the

definition of a “governmental entity.” See 18 U.S.C. § 2711(4) (“the term ‘governmental entity’ means a

department or agency of the United States or any State or political subdivision thereof”).

No. 14-3996 Long, et al. v Insight Communications Page 6

anything other than inadvertence or negligence. Accepting these well-pleaded facts as true, we

turn to the question of whether plaintiffs have stated a plausible claim for relief under the SCA.

B. Dismissal

TWC raised three separate grounds for dismissal of this claim—any one of which may be

a basis to affirm. Addressing TWC’s defenses, the district court rejected the claim of immunity

under § 2703(e) because TWC could not show that plaintiffs’ information had been provided “in

accordance with the terms of” a subpoena. 18 U.S.C. § 2703(e). But, explaining that similarly

restrictive language was omitted from § 2707(e), the district court concluded that the “good faith

reliance” defense was intended “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.” Long, 2014 WL 4425738, at *3. In other words, TWC’s inadvertent mistake

would not negate its otherwise good faith reliance on the undisputedly valid grand jury

subpoena. Id.3

Plaintiffs argue that the district court misinterpreted and misapplied the defense to bar the

claims in this case. In particular, plaintiffs contend that “good faith reliance on” a “grand jury

subpoena” should be interpreted to provide a defense only when a provider relied on a facially

valid subpoena that was later claimed to have been invalid. Although several courts have

recognized the defense in such a situation, none of those courts’ decisions considered whether

the defense should also apply when a provider makes a mistake in responding to a valid

subpoena. See, e.g., Sams v. Yahoo! Inc., 713 F.3d 1175, 1180-81 (9th Cir. 2013); McCready v.

eBay, Inc., 453 F.3d 882, 891-92 (7th Cir. 2006); Freedman v. Am. Online, Inc., 325 F. Supp. 2d

638, 647-50 (E.D. Va. 2004). We do not decide whether the district court properly interpreted or

applied § 2707(e)(1), however, because TWC’s mistaken disclosure of plaintiffs’ subscriber

information cannot state a plausible claim for relief under the SCA.4

3

“A good faith reliance on . . . a court warrant or order, a grand jury subpoena, a legislative authorization,

or a statutory authorization . . . is a complete defense to any civil or criminal action[.]” 18 U.S.C. § 2707(e)(1); see

also 18 U.S.C. § 2520(d)(1) (nearly identical defense under Title I of the ECPA).

4

For this reason, we also do not decide which, if any, of the tests that have been articulated for determining

“good faith reliance” would be appropriate in this case. See Sams, 713 F.3d at 1180 (rejecting the Freedman court’s

formulation); Freedman, 325 F. Supp. 2d at 647-48 (adopting test applied under 18 U.S.C. § 2520(d)(1)); Frierson

v. Goetz, 99 F. App’x 649, 653 (6th Cir. 2004) (finding “good faith reliance” defense applied under 18 U.S.C.

No. 14-3996 Long, et al. v Insight Communications Page 7

C. Failure to State a Claim under the SCA

The SCA provides a civil cause of action for damages or other relief to any person

“aggrieved by any violation of [the SCA] in which the conduct constituting the violation is

engaged in with a knowing or intentional state of mind[.]” 18 U.S.C. § 2707(a). As discussed, it

would be a violation for a provider to “knowingly divulge” subscriber information if the

disclosure is not otherwise permitted under the SCA. TWC argued for dismissal on the grounds

that its mistaken disclosure of plaintiffs’ information was insufficient to establish that it acted

with the required state of mind. We agree.

We accept the allegation that TWC’s error resulted in an unauthorized disclosure of

plaintiffs’ subscriber information to a governmental entity. But, no facts were alleged to suggest

that TWC was aware of the error at the time of the disclosure, namely that the information it

disclosed was not associated with the IP address that was the subject of the grand jury subpoena.

Without arguing to the contrary, plaintiffs contend that it is sufficient to have alleged that TWC

was aware of the “act” of disclosure. Tellingly, plaintiffs maintain that TWC may be held liable

for negligently or recklessly failing to ensure the accuracy of the information it disclosed in

response to the subpoena. Whether this would be sufficient to establish the requisite state of

mind is a question of statutory interpretation that we review de novo. See Elgharib v.

Napolitano, 600 F.3d 597, 601 (6th Cir. 2010). The inquiry begins with a natural reading of the

full text, including the language and design of the statute as a whole; considers the common-law

meaning of its terms; and may examine the relevant legislative history if the statutory language is

not clear. Id.

Starting with the relevant language, plaintiffs must show that “the conduct constituting

the violation”—here, that TWC “knowingly” divulged plaintiffs’ subscriber information without

authorization—was “engaged in with a knowing or intentional state of mind.” The provisions

governing disclosures of subscriber information to governmental entities make clear that not

every disclosure is prohibited. The most natural reading of this language requires a showing that

the provider knew not only that it was divulging information (i.e., that the act of disclosure was

§ 2520(d)(1) where the defendant officer held “an honest and reasonable belief that he acted legally pursuant to a

valid court order issued in accordance with state law”).

No. 14-3996 Long, et al. v Insight Communications Page 8

not inadvertent), but also what information was being divulged (i.e., the facts that made the

disclosure unauthorized). See McFadden v. United States, 135 S. Ct. 2298, 2304 (2015) (holding

that the most natural reading of 21 U.S.C. § 841(a)(1) is that “the word ‘knowingly’ applies not

just to the statute’s verbs but also to the object of those verbs”); Morissette v. United States,

342 U.S. 246, 270-71 (1952) (interpreting “knowingly converts” to require that defendant “had

knowledge of the facts, though not necessarily the law, that made the taking a conversion”).

The factual allegations do not permit an inference that TWC knew that the wrong subscriber

information was being divulged in response to the subpoena.5

The terms “knowing” and “intentional” are not defined by the statute, and alone may

have more than one meaning. But, in context, the language specifies that it is the conduct

constituting the violation (not just the act of disclosure) that must have been knowing or

intentional. Further, this interpretation is supported by the legislative history for the ECPA.

First, although not specific to the SCA, the Senate Report explained that, “[a]s used in the

[ECPA], the term ‘intentional’ is narrower than the dictionary definition . . . [and] means more

than that one voluntarily engaged in conduct or caused a result. Such conduct or the causing of

the result must have been the person’s conscious objective.” S. Rep. 99-541, at 23 (1986)

(reprinted at 1986 U.S.C.C.A.N. 3555, 3577); see also H. Rep. No. 99-647, at 48 (1986) (same).

It is reasonable to conclude that this definition was intended to apply to both Title I and Title II

of the ECPA.

Further, the legislative history includes the explanation that “a knowing state of mind is

(1) an awareness of the nature of the conduct, (2) an awareness of or a firm belief in the

existence of the circumstance, and (3) an awareness of or a firm belief in the substantial certainty

of the result.” H. Rep. 99-647, at 49. Also, in discussing the SCA’s related prohibition on the

disclosure of the contents of communications in § 2702(a), the legislative history specifically

advises that: “The requirement that a violator must ‘knowingly’ divulge the contents is intended

5

It is this mistake that distinguishes this case from Freedman, where the defendant knowingly divulged the

plaintiffs’ subscriber information in response to a warrant request but claimed to have been mistaken about the

validity of the warrant. See Freedman v. Am. Online, Inc., 329 F. Supp. 2d 745, 749 (E.D. Va. 2004) (clarifying

Freedman, 325 F. Supp. 2d at 645). This case does not involve a mistake as to the legal validity of the disclosure,

but a lack of knowledge about the fact that the wrong information was being divulged. See, e.g., United States v.

Wuliger, 981 F.2d 1497, 1502-03 (6th Cir. 1992) (knowledge under 18 U.S.C. § 2511 included the fact of whether

the interception was nonconsensual).

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to make clear that ‘reckless’ or ‘negligent’ conduct is not sufficient to constitute a violation of

this section.” S. Rep. 99-541, at 36-37; see also H. Rep. 99-647, at 64 (“The concept of

‘knowingly’ does not include, however, ‘reckless’ or ‘negligent’ conduct.”). This supports our

interpretation that for the conduct constituting the violation to have been knowing and

intentional, TWC must have known that it was not divulging the subscriber information

associated with the IP address that was the subject of the subpoena. The dismissal of the claim

for violation of the SCA is affirmed.

IV.

Finally, plaintiffs argue that the district court erred in concluding, in the alternative, that

the claims asserted under Ohio law failed on the merits. Reviewing the dismissal of these claims

de novo, plaintiffs have not demonstrated error.

Count II. Plaintiffs did not dispute that there is not a recognized cause of action for

“Negligent Disclosure of Private Information” under Ohio law, but argued that this count was

meant to assert a claim of intentional disclosure in violation of Ohio Rev. Code § 1347.10. The

district court found that this claim failed because plaintiffs had not pleaded facts sufficient to

allege an intentional disclosure. More fundamentally, however, this claim fails because the

statute governs personal information maintained in a “personal information system,” which is

defined as a collection of related records that are “maintained by a state or local agency.” OHIO

REV. CODE §§ 1347.01 and 1347.10. This is plainly not the case here.

Counts III and IV. Dismissal of the claims for “Invasion of Privacy” and “Intentional

Infliction of Emotional Distress” was not error. The invasion of privacy plaintiffs assert is “the

wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental

suffering, shame or humiliation to a person of ordinary sensibilities.” Housh v. Peth, 133 N.E.2d

340, 341 (Ohio 1956) (syllabus 2). However, negligent intrusion into one’s private activities

does not constitute an actionable invasion of privacy. See McCormick v. Haley, 307 N.E.2d 34,

38 (Ohio Ct. App. 1973). Nor do the allegations of TWC’s mistaken disclosure of plaintiffs’

information plausibly allege that defendant acted with the necessary intent to inflict emotional

distress required to state a claim for intentional infliction of emotional distress under Ohio law.

See Burkes v. Stidham, 668 N.E.2d 982, 989 (Ohio Ct. App. 1995).

No. 14-3996 Long, et al. v Insight Communications Page 10

Count V. Plaintiffs argue that it was error to dismiss the breach of contract claim, which

alleged that TWC violated the terms of its Subscriber Agreement and incorporated Privacy

Notice by mistakenly disclosing plaintiffs’ subscriber information in response to the grand jury

subpoena. The district court did not err in dismissing this claim because the contract explained

that the ECPA allows personally identifiable information to be obtained by governmental entities

in some circumstances, including through the use of a subpoena, and gave TWC the authority to

“comply with legal process when we believe in our discretion that we are required to do so.”

There were no facts to suggest that TWC did not believe it was responding to the subpoena when

it mistakenly disclosed plaintiffs’ subscriber information.

AFFIRMED.