Matthew Alexander v. Verizon Wireless Services, LL

Case: 16-31227 Document: 00514235325 Page: 1 Date Filed: 11/13/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 16-31227 FILED

November 13, 2017

Lyle W. Cayce

MATTHEW EDWARD ALEXANDER, Clerk

Plaintiff – Appellant,

v.

VERIZON WIRELESS SERVICES, L.L.C.,

Defendant – Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Matthew Edward Alexander appeals the district court’s judgment

dismissing his complaint for failure to state a claim against Verizon Wireless

Services, L.L.C. under the Stored Communications Act, 18 U.S.C. §§ 2701–

2712. The district court adopted the magistrate judge’s report and

recommendation stating that Verizon is entitled to statutory immunity and a

complete defense because it relied in “good faith” on an officer’s representations

regarding the existence of an emergency. Because we likewise conclude that

Verizon acted in good faith, we AFFIRM.

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No. 16-31227

I.

In August 2014, around 6:30 a.m., a fire took place at Illie Ray and

Christine 1 Nixon’s home in West Monroe, Louisiana. 2 The Nixons put out the

fire. Around 8:45 a.m., the Nixons called the police to report the fire as an

arson. A detective from the Ouachita Parish Sheriff’s Department, Gary

Gilley, arrived at their home an hour later. The Nixons told Detective Gilley

that they believed Matthew Edward Alexander, a former employee of Mr.

Nixon’s telecommunications company and someone who had previously

brought suit against the company, was responsible for the fire. Mr. Nixon gave

Detective Gilley the make, model, and license plate number of Alexander’s car,

Alexander’s home address, and Alexander’s cell phone number, all of which

Mr. Nixon had from when his company employed Alexander.

Later that day, at 3:00 p.m., Detective Gilley contacted the Law

Enforcement Resource Team at Verizon Wireless Services, L.L.C., the service

provider for the cell phone number that Mr. Nixon gave Detective Gilley.

Detective Gilley spoke with Andrea Cole, a Verizon representative. During the

conversation, Detective Gilley told Cole that he needed to know where the

subscriber to whom the number belonged had been that day, but not the

subscriber’s current location. 3 He also mentioned that he was investigating a

fire that had been discovered at 6:30 a.m. and that the individual to whom the

1 The magistrate judge’s report and recommendation identifies the Nixons as “Ray

and Christina Nixon.” The complaint, however, identifies the Nixons as “Illie Ray and

“Christine.” Assuming this was a simple oversight, we use the names provided in the

complaint.

2 Unless otherwise noted, all the facts in this opinion come from Alexander’s complaint

and are undisputed.

3 Detective Gilley testified to this effect and gave additional details regarding his

conversation with Cole at a suppression hearing held in a later criminal proceeding against

Alexander. Specifically, according to Alexander, Detective Gilley testified that he told Cole

that he “needed to know not where (the suspect/Plaintiff) is right now, but where he had been

that day.”

2

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number belonged was his main lead. Cole told Detective Gilley that, after

discussing the alleged arson, she believed the situation met Verizon’s

guidelines for releasing the information he requested and that she would fax

him the appropriate paperwork.

Cole sent Detective Gilley an “Emergency Situation Disclosure” form,

which Detective Gilley filled out and returned to her. 4 The form includes a

question asking whether the request “potentially involve[s] the danger of death

or serious physical injury to a person, necessitating the immediate release of

information relating to the emergency.” In response, Detective Gilley checked

the box next to “yes.” In a box for additional comments, Detective Gilley wrote:

“This case is in connection with an Arson, House was set on fire with victims

inside.” Detective Gilley included his name, badge number, contact

information, and title as a “Senior Investigator” with the Ouachita Parish

Sheriff’s Department. Moreover, he signed the form under a certification

stating as follows: “I certify that the foregoing is true and correct and

understand that Verizon Wireless may rely upon this form to make an

4 The “Emergency Situation Disclosure” form was not attached to Alexander’s

complaint but was instead submitted to the district court as an exhibit to Verizon’s motion to

dismiss and then used by Alexander as an exhibit to his response to the motion to dismiss.

In her report and recommendation, the magistrate judge considered the completed form,

which had been cited by both parties. Neither party objected to the court’s consideration of

the form. Typically, at the 12(b)(6) stage, the court is confined to the complaint. See Fed. R.

Civ. P. 12(d). Nonetheless, because the form was repeatedly referenced in Alexander’s

complaint, is central to Alexander’s claims, and was submitted to the court by both parties,

it was appropriate for the magistrate judge to consider it, and we do the same here. See

Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (“Documents that

a defendant attaches to a motion to dismiss are considered part of the pleadings if they are

referred to in the plaintiff’s complaint and are central to [the] claim.”); see also In re Katrina

Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (“[B]ecause the defendants attached

the contracts to their motions to dismiss, the contracts were referred to in the complaints,

and the contracts are central to the plaintiffs’ claims, we may consider the terms of the

contracts in assessing the motions to dismiss.”).

3

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emergency disclosure to my law enforcement agency or governmental entity

pursuant to 18 U.S.C. § 2702(b)(8) and § 2702(c)(4).”

After receiving the completed form, Verizon provided Detective Gilley

with the requested information. This included the identity of the subscriber,

location information, incoming and outgoing call details, and SMS 5 details.

The time period spanned by these records was, as requested by Detective

Gilley, from three days before the date of the incident to the “present time,”

which was interpreted by Verizon as the time the records were sent around

4:15 p.m. that day. All of the information received from Verizon was non-

content information. 6

Based in part on the information from Verizon, Alexander was arrested

and charged with aggravated arson and two counts of attempted second degree

murder. 7 In the criminal proceeding, Alexander moved to suppress the cell

phone records obtained from Verizon. A state trial judge granted Alexander’s

motion, finding that there were no exigent circumstances justifying Detective

5 SMS is an acronym for “short message service.” Peter DiCola & David Touve,

Licensing in the Shadow of Copyright, 17 Stan. Tech. L. Rev. 397, 421 (2014). SMS is the

way in which a text message is typically transmitted. See generally John Naughton, Now 4

Billion People Know the Joy of Txt, Guardian (May 5, 2012), https://www.theguardian.com/

technology/2012/may/06/sms-text-messages-20th-birthday.

6 Non-content information includes “a record or other information pertaining to a

subscriber to or customer of [an electronic communication] service” but does not include the

contents of any communications. 18 U.S.C. § 2702(a)(3), (c); see also 18 U.S.C. § 2703(c). We

have held, for example, that cell-site information is non-content information, while the

contents of an email or a call is content information. See In re U.S. for Historical Cell Site

Data, 724 F.3d 600, 607, 611–12 (5th Cir. 2013) (“[T]he historical cell site information reveals

his location information for addressing purposes, not the contents of his calls.”).

7 The exact offenses with which Alexander was charged and the fact that Alexander

also filed a civil lawsuit against Detective Gilley and two other officials from the Ouachita

Parish Sheriff’s Department were included in Alexander’s disclosure of collateral proceedings

pursuant to local rule 3.1 of the Local Rules for the United States District Court for the

Western District of Louisiana. See W.D. La. L.R. 3.1. This disclosure was filed with

Alexander’s complaint. See id.

4

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Gilley’s actions in obtaining the records without a warrant. Alexander’s

criminal proceeding is ongoing. 8

Proceeding pro se, Alexander filed a lawsuit against Verizon in federal

district court, alleging various violations of the Stored Communications Act

(SCA), 18 U.S.C §§ 2701–2711, and seeking $5,000,000 in damages. Verizon

filed a motion to dismiss for failure to state a claim upon which relief can be

granted. The motion was referred by the district court to a magistrate judge.

After the motion was fully briefed, the magistrate judge issued a report and

recommendation in which the judge recommended that the motion be granted.

The magistrate judge concluded that, taking all of the facts in Alexander’s

complaint as true, Alexander’s complaint establishes on its face that Verizon

is statutorily immune from liability and further entitled to a “good faith

reliance” affirmative defense. As such, the magistrate judge concluded that

dismissal was proper. The report and recommendation also warned in bolded

all caps that a party’s failure to timely object to the report would bar that party,

except on grounds of plain error, from attacking any unobjected-to portions of

the report accepted by the district judge on appeal. Alexander did not file any

written objections, and the district court dismissed Alexander’s lawsuit with

prejudice. Alexander timely appealed the district court’s judgment. 9

8 We hereby grant Verizon’s request that we take judicial notice, pursuant to Federal

Rule of Evidence 201, of a copy of the docket in Alexander’s criminal proceeding and a motion

he filed in that proceeding. Alexander does not oppose Verizon’s request. These two

documents, however, do not affect our analysis.

9 Alexander also filed a motion for relief from judgment under rule 60 of the Federal

Rules of Civil Procedure, which the district court construed as a motion to alter or amend the

judgment under rule 59(e). The district court denied Alexander’s motion, and Alexander did

not appeal the district court’s ruling.

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II.

When a party who is warned of the requirement to file timely objections

to a magistrate judge’s report and recommendation fails to file any such

objections, and the magistrate judge’s factual findings and legal conclusions

are accepted by the district court, our review is for plain error. Douglass v.

United Servs. Auto Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc),

superseded on other grounds by 28 U.S.C. § 636(b)(1). When, however, the

district court undertakes an independent review of the record, our review is de

novo, despite any lack of objection. Guillory v. PPG Indus., Inc., 434 F.3d 303,

308 (5th Cir. 2005). “This exception to the usual plain-error standard is

especially relevant in the context of pro se cases.” 10 Fogarty v. USA Truck, Inc.,

242 F. App’x 152, 154 (5th Cir. 2007) (unpublished) 11 (citing Douglass, 79 F.3d

at 1430).

The district court here stated in its judgment that it found the

magistrate judge’s report and recommendation to be “supported by the law and

the record in this matter.” We have held that similar statements, while

potentially “judicial boilerplate,” indicate that the district court conducted an

independent review of the record. Guillory, 434 F.3d at 308 n.5 (reviewing the

district court’s decision de novo where it stated: “Alternatively, an independent

review of the record has led this court to conclude that the proposed findings

and conclusions are entirely correct.”); see also Hatcher v. Bement, 676 F. App’x

238, 241–42 (5th Cir. 2017) (unpublished) (“The district court explicitly stated

10 While we construe briefs of pro se litigants liberally and apply less stringent

standards to pro se litigants, “pro se parties must still brief the issues and reasonably comply

with the standards of [Federal Rule of Appellate Procedure 28].” Grant v. Cuellar, 59 F.3d

523, 524 (5th Cir. 1995).

11 Pursuant to Fifth Circuit Rule 47.5.4, unpublished opinions issued on or after

January 1, 1996 generally are not precedent, although they may be cited as persuasive

authority pursuant to Federal Rule of Appellate Procedure 32.1(a).

6

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that it had made ‘an independent review of the pleadings, files, and records in

this case,’ and, accordingly, even if [the party whose motion was denied] did

not file specific written objections, we review the district court’s decision de

novo.”). As such, our review here is de novo.

When considering a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), we apply the same standard as does the district court: A

claim will not be dismissed unless the plaintiff cannot prove any set of facts in

support of his claim that would entitle him to relief. EPCO Carbon Dioxide

Prods., Inc. v. JP Morgan Chase Bank, NA, 467 F.3d 466, 469 (5th Cir. 2006).

We take all factual allegations as true and construe the facts in the light most

favorable to the plaintiff. Kelly v. Nichamoff, 868 F.3d 371, 374 (5th Cir. 2017).

“Although dismissal under rule 12(b)(6) may be appropriate based on a

successful affirmative defense, that defense must appear on the face of the

complaint.” Id. (quoting EPCO Carbon Dioxide, 467 F.3d at 470).

III.

This case does not concern whether the information obtained by

Detective Gilley from Verizon can be used against Alexander in any criminal

proceeding against him. The state trial court already resolved that question

in Alexander’s favor. Instead, we are faced with the question of whether

Alexander can recover against Verizon through a civil lawsuit under the SCA.

The SCA governs the privacy of stored electronic (also referred to as

Internet 12) communications in the United States. See In re U.S. for Historical

12 Although many style guides, such as the Chicago Manual of Style, and news sources,

such as the Associated Press, no longer instruct writers to capitalize “Internet,” we decline

to follow this trend. See, e.g., The Chicago Manual of Style Online § 7.80 (17th ed. 2017); AP

Stylebook (@APStylebook), Twitter (Apr. 2, 2016, 8:00 AM), https://twitter.com/apstylebook

/status/716279065888563200?lang=en (“We will lowercase internet effective June 1, when

the 2016 Stylebook launches.”). For many, such as the New York Times, the reason for the

change to “internet” is simple: others were doing it, so they thought they should, too. Philip

B. Corbett, It’s Official: The ‘Internet’ Is Over, N.Y. Times (June 1, 2016), https://www.nytimes

7

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Cell Site Data, 724 F.3d 600, 606 (5th Cir. 2013) (“The SCA regulates disclosure

of stored electronic communications by service providers.”); 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, 1208 (2004) (“The privacy of stored

Internet communications in the United States is governed by a federal statute

known as the Stored Communications Act (‘SCA’).”). Congress passed the SCA

as part of the Electronic Communications Privacy Act (ECPA). Kerr, supra, at

1208. Generally, the SCA (1) prohibits unauthorized access to certain

electronic communications, see 18 U.S.C. § 2701; (2) restricts service providers

from voluntarily disclosing the contents of customer communications or

records to certain entities and individuals, see id. § 2702; and (3) permits a

governmental entity to compel a service provider to disclose customer

communications or records in certain circumstances, see id. § 2703.

Section 2707(a) creates a cause of action for any person aggrieved by a

violation of the SCA. Id. § 2707(a). Section 2707(a) states:

Except as provided in section 2703(e), any provider of electronic

communication service, subscriber, or other 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

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.

.com/2016/06/02/insider/now-it-is-official-the-internet-is-over.html. “Internet,” however, was

originally capitalized to distinguish the global network from other internets—short for “inter-

networks”—which are collections of smaller networks that communicate using the same

protocols. Adam Nathaniel Peck, Stop Capitalizing the Word Internet, New Republic (July

28, 2015), https://newrepublic.com/article/122384/stop-capitalizing-word-internet. In our

view, this still makes the word a proper noun, regardless of how often people refer to other

internets. Furthermore, to the extent “decapitalizing [I]nternet is part of a universal

linguistic tendency to reduce the amount of effort required to produce and process commonly-

used words,” we reject the tasks of striking an additional key or reading over a capital “I” as

persuasive reasons to alter a word. Susan C. Herring, Should You Be Capitalizing the Word

‘Internet’?, Wired (Oct. 19, 2015), https://www.wired.com/2015/10/should-you-be-capitalizing-

the-word-internet/.

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Id. Section 2703(e), the exception referenced at the beginning of § 2707(a),

states:

No cause of action shall lie in any court against any provider of

wire or electronic communication service . . . for providing

information, facilities or assistance in accordance with the terms

of a . . . statutory authorization . . . under [the SCA].

Id. § 2703(e). Thus, § 2703(e) provides immunity to a service provider when it

makes a disclosure in accordance with a provision of the SCA. See In re a

Warrant to Search a Certain E-Mail Account Controlled & Maintained by

Microsoft Corp., 855 F.3d 53, 55 n.2 (2d Cir. 2017) (“[Section 2703(e)] gives a

provider immunity from civil liability for a voluntary production . . . made ‘in

accordance with a statutory authorization under [the SCA].’” (quoting 18

U.S.C. § 2703(e))); Sams v. Yahoo! Inc., 713 F.3d 1175, 1180 (9th Cir. 2013)

(“[W]here a provider . . . discloses basic subscriber information to the

government ‘in accordance with the terms of a subpoena’ . . . the provider is

immune from suit.” (quoting 18 U.S.C. § 2703(e))).

A second provision of the SCA provides additional protection to service

providers who follow the terms of a statutory authorization in the form of a

complete defense. Section 2707(e) states:

A good faith reliance on (1) 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 brought

under [the SCA] or any other law.

18 U.S.C. § 2707(e) (emphasis added). One such statutory authorization—the

one relevant in this case—states:

A [service] provider . . . may divulge a record or other information

pertaining to a subscriber to or customer of such service (not

including the contents of communications covered by subsection

(a)(1) or (a)(2) . . . to a governmental entity, if the provider, in good

faith, believes that an emergency involving danger of death or

serious physical injury to any person requires disclosure without

delay of information relating to the emergency . . . .

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Id. § 2702(c). We refer to this as the “emergency exception.”

Here, Alexander challenges the district court’s determination that

Verizon is protected from liability under sections 2703(e) and 2707(e) based on

the emergency exception. 13 Alexander argues generally that the information

provided by Detective Gilley to Verizon regarding the alleged emergency

lacked enough specificity for Verizon’s reliance on it to be in good faith.

Alexander also faults Verizon for failing to take additional steps to challenge

Detective Gilley’s assessment of the situation as an “emergency.” The fact that

Detective Gilley successfully filled out a form, in Alexander’s view, is not

enough.

In Verizon’s view, the SCA allowed Verizon to rely in good faith on

Detective Gilley’s written representations, and Alexander has no factual

allegations that could plausibly show Verizon acted in bad faith. Verizon also

argues that asking its representatives to question the emergency assessments

of police officers is inconsistent with the statute and its design.

The term “good faith” appears twice in the provisions relevant to this

case. First, for a provider to qualify under the emergency exception, the

provider must “in good faith, believe[] that an emergency involving danger of

13 Alexander raises a total of five issues on appeal: (1) whether § 2702(c)(4) is

unconstitutionally broad; (2) whether application of § 2702(c)(4) in this case violates the

Fourth Amendment; (3) whether § 2703(e) and § 2707(e)(1) violate Alexander’s due process

rights; (4) whether the services providers referenced in § 2703(e) and § 2707(e)(1) should be

afforded absolute immunity from civil lawsuits; and (5) whether a member of a service

provider can be subject to suit under 42 U.S.C. § 1983. Only the fourth of these issues was

raised in the district court, and it is therefore the only issue we now consider. See Lyles v.

Medtronic Sofamor Danek, USA, Inc., 871 F.3d 305, 310 (5th Cir. 2017) (“Although . . . the

record is reviewed de novo, this court will not consider evidence or arguments that were not

presented to the district court for its consideration in ruling on the motion.”); New Orleans

Depot Servs., Inc. v. Dir., Office of Worker’s Comp. Programs, 718 F.3d 384, 387 (5th Cir.

2013) (“Generally, we do not consider issues on appeal that were not presented and argued

before the lower court.”); see also Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the

general rule, of course, that a federal appellate court does not consider an issue not passed

upon below.”).

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death or serious physical injury to any person requires disclosure without

delay of information relating to the emergency.” 18 U.S.C. § 2702(c)(4)

(emphasis added). A good faith belief in the existence of an emergency is

therefore required for § 2702(c)(4) to qualify as the “statutory authorization”

for § 2703(e)’s grant of immunity. Second, “good faith reliance” on this

statutory authorization is required to trigger § 2707(e)’s “complete defense”—

insulating the emergency exception in a second analytical layer of “good faith.”

Id § 2707(e).

“Good faith” is not defined by the SCA. Moreover, courts examining

§ 2707(e) have differed on whether “good faith” should be determined using an

objective or a subjective test. See generally Robert D. Brownstone & Tyler G.

Newby, Data Sec. & Privacy Law § 9:30 (2017). Only three circuits have

weighed in on the issue: the Seventh, Ninth, and Tenth Circuits. See Sams,

713 F.3d at 1180; McCready v. eBay, Inc., 453 F.3d 882, 892 (7th Cir. 2006);

Davis v. Gracey, 111 F.3d 1472, 1484 (10th Cir. 1997). As such, this is an issue

of first impression in our circuit.

The Seventh and Tenth Circuits, on the one hand, have supported an

objective approach. In McCready, the Seventh Circuit looked only to the

subpoena at issue to determine that eBay’s compliance with the subpoena was

in good faith. 453 F.3d at 892. Similarly, in Davis, the Tenth Circuit held that

“[t]o be in good faith, the officers’ reliance must have been objectively

reasonable.” 111 F.3d at 1484. Because the warrant was valid and

encompassed the seized equipment, the court concluded that the officers’

reliance was objectively reasonable. Id.

The Ninth Circuit, on the other hand, more recently examined § 2707(e)’s

“good faith reliance” defense and determined that it “should contain both an

objective and subjective element.” Sams, 713 F.3d at 1180. In so holding, the

court agreed with the general approach taken by the federal district court in

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Freedman v. America Online, Inc., 325 F. Supp. 2d 638, 647–48 (E.D. Va. 2004),

but created its own test. 14 Id. at 1180–81. In Freedman, the district court

noted that the available authority at that time supported an objective test for

§ 2707(e), yet concluded that the more appropriate test was a two-pronged

standard used in cases interpreting a “nearly identical” provision under the

ECPA: 18 U.S.C. § 2520(d). 325 F. Supp. 2d at 647–49; see also Fox v. CoxCom

Inc., 2012 WL 6019016, at *3 (D. Ariz. Dec. 3, 2012) (also applying the § 2520(d)

two-pronged standard).

Section 2520(d), which is housed in a chapter of Title 18 dealing with

wire and electronic communications interception, establishes, in nearly

identical fashion to § 2707(e), that “[a] good faith reliance on . . . a statutory

authorization . . . is a complete defense against any civil or criminal action

brought under this chapter or any other law.” 18 U.S.C. § 2520(d). The

Freedman court turned to the Ninth Circuit’s decision in Jacobson v. Rose, 592

F.2d 515 (9th Cir. 1978), for the § 2520(d) “good faith” standard. 325 F. Supp.

2d at 647–48. In Jacobson, the Ninth Circuit acknowledged that § 2520 does

not define “good faith” and, with guidance from the Senate Report on the

unamended version of § 2520, applied the good faith defense allowed in 42

U.S.C. § 1983 cases to the § 2520 context. 592 F.2d at 523. Applying that

formula, the Ninth Circuit held that “a defendant may invoke the defense of

good faith reliance on a court order only if he can demonstrate (1) that he had

a subjective good faith belief that he acted legally pursuant to a court order;

14The Ninth Circuit held that “the good faith defense under 18 U.S.C. § 2707(e) is met

when the defendant complies with a subpoena (or other process detailed in § 2707(e) of the

SCA) that appears valid on its face, in the absence of any indication of irregularity sufficient

to put the defendant on notice that the subpoena may be invalid or contrary to applicable

law. A defendant may not benefit from the good faith defense, however, if the defendant

actually knew that the subpoena (or other process) was invalid under the applicable law.”

Sams, 713 F.3d at 1180–81.

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and (2) that this belief was reasonable.” Id. This was the standard applied by

the Freedman court and modified in Sams. See Sams, 713 F.3d at 1180–81;

Freedman, 325 F. Supp. 2d at 648.

Looking to the Seventh and Tenth Circuits’ decisions or to the history

behind the Ninth Circuit’s decision in Sams leads us to the same conclusion—

an objective standard should be used in determining “good faith” under

§ 2702(c)(4) and § 2707(e) of the SCA. Although the Ninth Circuit in Sams did

not adopt the Freedman court’s articulation of the good faith test, it agreed

with the Freedman court that the test should contain both an objective and a

subjective element. 713 F.3d at 1180. The Freedman court, in turn, looked to

the § 2520 good faith test, which the Ninth Circuit had previously defined as

the § 1983 good faith test. 325 F. Supp. 2d at 647–48. Indeed, at that time,

the good faith test applied in § 1983 cases was a combined objective plus

subjective standard. See Pierson v. Ray, 386 U.S. 547, 557 (1967) (holding that

a good faith defense applies if the defendant held a subjective belief that was

objectively reasonable that he was acting legally). This, however, is no longer

the case. See Anderson v. Creighton, 483 U.S. 635, 641 (1987) (holding that the

relevant question in § 1983 cases is an objective one, in which “subjective

beliefs . . . are irrelevant”). Consequently, this line of reasoning for an objective

plus subjective approach in the context of the SCA lacks support and, in fact,

points towards an objective approach.

We have held that the “qualified” or “good faith” immunity that public

officials whose positions entail the exercise of discretion enjoy is axiomatic in

§ 1983 cases. Saldana v. Garza, 684 F.2d 1159, 1162–63 (5th Cir. 1982). The

qualified immunity doctrine originally was developed to protect law

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enforcement officials against civil suits stemming from either a Bivens 15 or a

§ 1983 claim. John D. Kirby, Note, Qualified Immunity for Civil Rights

Violations: Refining the Standard, 75 Cornell L. Rev. 462, 462 (1990). In both

contexts, the standard we apply is an objective one. See Harlow v. Fitzgerald,

457 U.S. 800, 814–15 (1982); Anderson, 483 U.S. at 641. The reason for this,

as the Supreme Court has explained, is that it strikes the right balance

between competing values: providing a recourse for the vindication of

constitutional guarantees while minimizing social costs, “including the risk

that fear of personal monetary liability and harassing litigation will unduly

inhibit officials in the discharge of their duties.” Anderson, 483 U.S. at 638.

Similarly, in the Fourth Amendment context, the Supreme Court has

created good faith exceptions to the exclusionary rule. “The exclusionary rule

is a judicially fashioned remedy whose focus is not on restoring the victim to

his rightful position but on deterring police officers from knowingly violating

the Constitution.” United States v. Wallace, 866 F.3d 605, 609 (5th Cir. 2017)

(quoting United States v. Allen, 625 F.3d 830, 836 (5th Cir. 2010)). “As such,

courts have carved out exceptions for police conduct ‘pursued in complete good

faith’ because the rule’s ‘deterrence rationale loses much of its force’ in such

circumstances.” Id. (quoting United States v. Leon, 468 U.S. 897, 919 (1984)).

Two such exceptions are when an officer relies in “good faith” on a statute or

on a warrant. See Illinois v. Krull, 480 U.S. 340, 349 (1987); Leon, 468 U.S. at

922. In both circumstances, the good faith test is purely an objective one.

Illinois, 480 U.S. at 355.

15 In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971), the Supreme Court held that an individual whose right to freedom from unreasonable

search and seizure is violated by federal agents has a private cause of action against those

agents. 403 U.S. at 396–97.

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Accordingly, we apply an objective standard to the good faith

requirements found in § 2702(c)(4) and § 2707(e)(1) of the SCA and ask if

Verizon’s conduct was objectively reasonable. We find that this approach is

consistent with the opinion of two other circuits and finds support in the

reasoning of the third circuit to have considered the issue thus far.

Furthermore, this approach strikes the right balance between providing a

recourse for subscribers whose rights under the SCA have been violated and

minimizing social costs, including the risk that fear of monetary liability and

harassing litigation will unduly inhibit the willingness of Internet service

providers voluntarily to help government officials in times of emergency.

Here, taking all factual allegations as true and construing the facts in

the light most favorable to Alexander, Verizon acted in an objectively

reasonable manner. 16 It is undisputed that Verizon only released the non-

content information tied to Alexander’s cell phone number after it received a

signed and certified form indicating that the request involved: (1) “the danger

of death or serious physical injury to a person, necessitating the immediate

release of information relating to that emergency,” (2) an alleged arson, and

(3) victims who were within the home when it was set on fire. Moreover, the

government official who submitted the form, Detective Gilley, listed

identifying information, such as his badge number and title as a senior

investigator with the Ouachita Parish Sherriff’s Department, making it

reasonable for Verizon to rely on its contents. Equipped with this form,

Verizon acted reasonably in concluding that there was “an emergency

involving danger of death or serious physical injury to [a] person” that required

16 We note that, even if we were to incorporate a combined objective and subjective

approach to the good faith determination in this case, we would reach the same conclusion

that Verizon is statutorily immune from liability.

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Verizon to act without delay, in satisfaction of § 2702(c)(4). An affirmative

defense is therefore established on the face of Alexander’s complaint.

We also do not find persuasive any argument that Detective Gilley’s

conversation with Cole made Verizon’s subsequent reliance on the form

unreasonable. First, although Detective Gilley did state that he did not need

the subscriber’s current location and that the fire had occurred several hours

earlier, these statements in themselves, even assuming Cole ultimately

released the records or communicated this information to the person who did,

do not preclude the fact that the situation was an emergency. See, e.g., Registe

v. State, 734 S.E.2d 19, 21 (Ga. 2012) (concluding that a provider believed in

good faith that disclosure under § 2702(c)(4) was appropriate where the

provider “received information directly from police that its records could help

identify an at-large suspect of a double homicide committed within a day of the

request and that the suspect presented a present and immediate danger”).

Second, with respect to Cole’s comment that Detective Gilley’s initial

statements met Verizon’s “guidelines,” this statement has little effect on the

analysis, since it is undisputed that no records were actually released until

after Verizon received the completed “Emergency Situation Disclosure” form.

Third, and most important, the situation could have changed between the time

Detective Gilley spoke with Cole and the time when he submitted the form to

Verizon. Verizon was not required to verify Detective Gilley’s representations,

certified as “true and correct,” in order to release Alexander’s records under

§ 2702(c)(4). As a result, Verizon is protected from liability under the SCA or

any other law for releasing Alexander’s records both by the immunity provided

by § 2703(e) and the complete defense created by § 2707(e)(1).

As a final note, we address Verizon’s argument that Alexander has not

sufficiently pleaded bad faith, a supposed “element of the cause of action under

section 2707(a).” Verizon seems to support the existence of a bad faith element

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to Alexander’s cause of action with a recitation of the subjective component of

the Ninth Circuit’s good faith test in Sams. As already discussed, however, the

test we adopt today does not have a subjective component, nor do we agree that

bad faith is an element of the cause of action under § 2707(a).

Along the same lines, Verizon argues that Alexander failed to plead facts

“to show why Verizon had a motive to violate the statute.” Again, this is not a

requirement. The plain language of § 2707(a) requires, to establish a claim,

that “the conduct constituting the violation is engaged in with a knowing or

intentional state of mind.” 18 U.S.C. § 2707(a) (emphasis added). Verizon

argues, under §2707(a), that “the violation, not just the act of the disclosure,

[needs to] be knowing and intentional” and cites to Long v. Insight

Communications of Central Ohio, LLC, 804 F.3d 791 (6th Cir. 2015), in

support.

In Long, while the Sixth Circuit acknowledged that it is “the conduct

constituting the violation” that must have been knowing or intentional, it

defined the relevant conduct as the violation itself—“that [the provider]

‘knowingly’ divulged plaintiffs’ subscriber information without authorization”

in violation of 18 U.S.C. § 2702. 804 F.3d at 797; see also 18 U.S.C. § 2702(a)(3)

(prohibiting providers from “knowingly” divulging records or other information

pertaining to a subscriber to a governmental entity). According to the Sixth

Circuit, the most natural reading of § 2707(a) “requires a showing that the

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

disclosure was not inadvertent), but also what information was being divulged

(i.e., the facts that made the disclosure unauthorized).” Long, 804 F.3d at 797

(emphasis added). The Sixth Circuit thus essentially collapsed the phrase “the

conduct constituting the violation” into two words: the violation.

Nonetheless, as the Freedman court noted with respect to § 2702, “to

make a disclosure violation turn on whether [the provider] acted with a bad

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faith intent to violate the statute would render the statute’s good faith defense

provision superfluous, an impermissible result under the well-established rule

‘that a statute ought, upon the whole, to be so construed that, if it can be

prevented, no clause, sentence, or word shall be superfluous, void, or

insignificant.’” 325 F. Supp. 2d at 646–47 (footnote omitted) (citing TRW, Inc.

v. Andrews, 534 U.S. 19, 31 (2001)).

We agree with the Freedman court that to make a disclosure violation

turn on whether the provider knew they were acting “without authorization”

would render § 2707(e)’s “good faith reliance on a statutory authorization”

defense superfluous. This is an unacceptable result. See United States v.

Butler, 297 U.S. 1, 65 (1936) (“These words cannot be meaningless, else they

would not have been used.”); see also Corley v. United States, 556 U.S. 303, 314

(2009) (recognizing that “one of the most basic interpretive canons” is that a

“statute should be construed so that effect is given to all its provisions, so that

no part will be inoperative or superfluous, void or insignificant”); Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174

(2012) (“If possible, every word and every provision is to be given effect (verba

cum effectu sunt accipienda). None should be ignored. None should needlessly

be given an interpretation that causes it to duplicate another provision or to

have no consequence.” (footnote omitted)). Thus, with respect to the SCA, a

provider acts “knowingly” if it has knowledge of the factual circumstances (i.e.,

divulging records or other information pertaining to a subscriber to a

governmental entity) that constitute the alleged offense and “intentionally” if

its acts are not inadvertent. See, e.g., Freedman, 325 F. Supp. 2d at 645–46.

IV.

On the above grounds, we AFFIRM the district court’s judgment

dismissing Alexander’s lawsuit against Verizon Wireless Services, L.L.C. with

prejudice.

18