Carol Walker v. Brian Coffey

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 19-1067

____________

CAROL LEE WALKER,

Appellant

v.

SENIOR DEPUTY BRIAN T. COFFEY, In His Individual

Capacity;

SPECIAL AGENT PAUL ZIMMERER, In His Individual

Capacity

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-17-cv-00040)

District Judge: Honorable Mark A. Kearney

____________

Argued September 12, 2019

Before: CHAGARES, JORDAN and RESTREPO,

Circuit Judges

(Opinion Filed: April 16, 2020)

Geoffrey Richard Johnson [ARGUED]

Stevens & Lee

1818 Market Street

29th Floor

Philadelphia, PA 19103

Counsel for Appellant

Claudia M. Tesoro [ARGUED]

Office of Attorney General of Pennsylvania

1600 Arch Street

Suite 300

Philadelphia, PA 19103

Counsel for Appellees

___________

OPINION OF THE COURT

____________

RESTREPO, Circuit Judge

Appellant Carol Lee Walker brought suit against a

prosecutor and special agent from the Pennsylvania Office of

the Attorney General (OAG) alleging they violated provisions

of the Stored Communications Act, 18 U.S.C. §§ 2701 et seq.

(SCA), by inducing her employer, Pennsylvania State

University (Penn State or University), to disclose her work

emails with a facially invalid subpoena. Because the

Appellees’ actions, although improper, did not violate the

SCA, we will affirm the dismissal of Walker’s claims.

I.

In July 2015, the OAG brought charges of forgery and

computer crimes against Walker in Pennsylvania state court.

The charges arose from a criminal investigation involving

Walker’s husband and his trucking company. The OAG

assigned Senior Deputy Attorney General Brian Coffey as the

prosecutor and Special Agent Paul Zimmerer as the lead

investigator to her case. Some charges against Walker were

dropped after an August 2015 preliminary hearing, but four

counts of conspiracy to commit forgery remained pending trial.

In October 2015, Coffey and Zimmerer requested that

Penn State aid their investigation by producing Walker’s

emails from her employee account. Rather than disclose

2

Walker’s emails, however, Penn State officials requested the

government agents produce a subpoena. Coffey and Zimmerer

obtained a subpoena form from the Centre County Court of

Common Pleas but only partially completed the required fields.

The subpoena listed the case caption, the intended recipient,

and the request for “any & all emails/computer

files/documents/attachments to or from Carol Lee Walker” at

her Penn State email address. Missing from the subpoena was

information regarding the date, time or place where the

testimony or evidence would be produced, or which party was

requesting the evidence. The OAG concedes that the subpoena

was incomplete and therefore unenforceable.

On October 21, 2015, Zimmerer offered the facially

invalid subpoena to Katherine Allen, Assistant General

Counsel for Penn State. Allen thereafter instructed a Penn

State employee to assist Zimmerer with the production of the

requested emails. Sometime after the OAG obtained Walker’s

emails, the pending criminal charges against her were

dismissed with prejudice.

Walker filed an action under 42 U.S.C. § 1983, alleging

that Coffey and Zimmerer conducted an unreasonable search

in violation of the Fourth Amendment by inducing Penn State

to produce the emails with an invalid subpoena. The District

Court granted the Appellees’ motion to dismiss after

concluding Coffey and Zimmerer were entitled to qualified

immunity because Walker did not have a clearly established

right to privacy in her work emails.

On appeal, a panel of this Court affirmed the District

Court’s dismissal on qualified immunity grounds. The panel

held there was “no dispute” that the confiscated emails were

sent or received by Walker’s work e-mail address, and the

emails themselves were a “part of an email system controlled

and operated by Penn State.” Walker v. Coffey, 905 F.3d 138,

149 (3d Cir. 2018). Because the “emails were subject to the

common authority of [her] employer,” Walker “did not enjoy

any reasonable expectation of privacy vis-à-vis Penn State.” Id.

Thus, Fourth Amendment protection did not attach.

Given that Penn State exercised this dominion over its

employees’ electronic communications, the panel held that the

University had the authority to produce Walker’s work emails.

3

Significantly, the panel also concluded that Penn State acted

through its attorney and produced the emails voluntarily, rather

than under coercion resulting from the invalid subpoena.

Rather than finding Coffey and Zimmerer “evade[d] the

limitations of the Fourth Amendment by inducing [Penn State]

to do what [it] cannot,” the panel held that Penn State was a

private party that exercised its “independent ability to consent

to a search.” Id. In reaching this conclusion, the panel

emphasized that it did not condone Coffey and Zimmerer’s

improper use of an invalid subpoena. While noting the

impropriety of the OAG’s actions, it determined that under the

circumstances—Penn State acting within its legal authority and

through its own counsel—the University’s compliance with the

government’s request for the emails was voluntary “despite the

facial invalidity of the subpoena.” Id. at 150.

Because Coffey and Zimmerer did not violate Walker’s

right to privacy, the panel agreed with the District Court that

they were entitled to qualified immunity and affirmed the

dismissal of her § 1983 claim. However, it vacated the District

Court’s order denying Walker leave to file a second amended

complaint to address a new claim under the SCA. Id. at 150-

51.

Walker filed an amended complaint alleging that Coffey

and Zimmerer violated sections 2701(a), 2703(a) and 2703(b)

of the SCA. In granting the Appellees’ motion to dismiss, the

District Court found that Walker had not alleged a violation. It

further found that qualified immunity was available for claims

raised under the SCA and that Coffey and Zimmerer were

again entitled to immunity. The District Court reasoned that,

even if an SCA violation had been alleged, qualified immunity

would be appropriate because the applicable law was unclear

when the emails were procured. Walker appeals the District

Court’s dismissal of her claim.

II.

The District Court exercised jurisdiction under 28

U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291

to review the District Court’s order of dismissal. We exercise

plenary review over a decision to dismiss claims under Federal

Rule of Civil Procedure 12(b)(6). In re Nickelodeon Consumer

4

Privacy Litig., 827 F.3d 262, 271 (3d Cir. 2016). To survive a

motion to dismiss, a plaintiff must allege “enough facts to raise

a reasonable expectation that discovery will reveal evidence of

the necessary element[s]” of a cause of action. Phillips v.

County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)

(internal quotations omitted).

III.

This Court, in reviewing the dismissal of Walker’s first

complaint, held that it was not clearly established that the

Fourth Amendment afforded her the right “to have the contents

of her work emails remain free from a law enforcement search,

absent a warrant or valid exception to the warrant

requirement.” Walker, 905 F.3d at 144. The primary question

before us now is whether the SCA provided Walker with

heightened privacy rights to her work emails and a cause of

action resulting from the government’s use of an invalid

subpoena.

For the reasons that follow, we conclude that the SCA

does not provide Walker with viable grounds for relief. The

SCA is inapplicable because Penn State does not provide

electronic communication services to the public, and the

University acted within its rights as Walker’s employer in

voluntarily disclosing her work emails. Our holding is a

narrow one: we are not deciding whether, if the invalid

subpoena had induced Penn State to disclose Walker’s emails,

Coffey and Zimmer would have liability under the SCA. We

hold only that, given the record before us, the dismissal of the

claims was proper.

The Stored Communications Act is Title II of the

Electronic Communications Privacy Act, codified at 18 U.S.C.

§§ 2701 et seq. Passed by Congress in 1986, “the SCA was

enacted because the advent of the Internet presented a host of

potential privacy breaches that the Fourth Amendment does

not address.” Quon v. Arch Wireless Operating Co., 529 F.3d

892, 900 (9th Cir. 2008), rev’d on other grounds sub nom.

Ontario v. Quon, 560 U.S. 746 (2010). Historically, the Fourth

Amendment has not protected personal information revealed to

third parties. See, e.g., United States v. Miller, 425 U.S. 435,

443 (1976) (“The Fourth Amendment does not prohibit the

5

obtaining of information revealed to a third party . . . even if

the information is revealed on the assumption that it will be

used only for a limited purpose and the confidence placed in

the third party will not be betrayed.”). Providers of electronic

communications act as third parties that store and process their

users’ private files, meaning the provider-maintained files fall

outside Fourth Amendment protection. Because most

electronic communication providers serve the public but are

themselves private actors, they could potentially search files

held under their control and disclose their users’ information

to the government without violating the Fourth Amendment.

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, 1210-11 (2004).

To address this vulnerability, Congress crafted the SCA

to protect information held by centralized communication

providers. In re Google Inc. Cookie Placement Consumer

Privacy Litig., 806 F.3d 125, 147 (3d Cir. 2015). The SCA

“creates a set of Fourth Amendment-like privacy protections

by statute [by] regulating the relationship between government

investigators and service providers in possession of users’

private information.” Kerr, supra, at 1212. It provides this

enhanced privacy protection by limiting the government’s

ability to compel providers to disclose their users’ information,

18 U.S.C. § 2703, and by limiting the providers’ ability to

disclose such information to the government, 18 U.S.C. §

2702.

In addition to enhancing privacy rights, the SCA also

prohibits certain forms of electronic trespass. Whereas

sections 2702 and 2703 set forth procedural rules for acquiring

or disclosing a user’s information, section 2701 prohibits

intentionally accessing without authorization, or accessing

beyond authorization, a service provider in order to obtain,

alter, or prevent authorized access to an electronic

communication. 18 U.S.C. § 2701(a). Unlike other sections of

the SCA, liability for violating section 2701 could be damages

or a fine and imprisonment, depending on the intention of the

violator. While sections 2702 and 2703 regulate the

information given to the government, section 2701 was

“primarily designed to provide a cause of action against

6

computer hackers.” State Wide Photocopy Corp. v. Tokai Fin.

Servs., Inc., 909 F. Supp. 137, 145 (S.D.N.Y. 1995).

Aside from the criminal prohibitions unique to section

2701, violators of the SCA face civil liability pursuant to

section 2707. The section enables service providers,

subscribers or any “other person aggrieved” to bring a civil

action against anyone who knowingly and intentionally

violates the SCA. 18 U.S.C. § 2707(a). Government entities

are included in those potentially liable where it is established

that their agents willfully violated the SCA’s provisions.

Organizacion JD Ltda. v. U.S. Dep’t of Justice, 18 F.3d 91, 95

(2d Cir. 1994); 18 U.S.C. § 2707(d). A violation of the Act is

not enough to satisfy the requirement for Article III standing;

a plaintiff must allege the SCA violations caused a

“sufficiently concrete and particularized” injury-in-fact in

order to have standing to sue. Frank v. Gaos, 139 S. Ct. 1041,

1046 (2019) (citing Spokeo, Inc. v. Robins, 136 S. Ct. 1540

(2016)). If a sufficiently particularized injury is alleged but the

SCA is found not to apply, the plaintiff may have standing but

no civil recourse. See In re Nickelodeon Consumer Privacy

Litig., 827 F.3d at 273-74, 277.

It is in this context that we determine whether the

District Court erred in finding that Coffey and Zimmerer did

not violate sections 2701 or 2703 of the SCA. Walker claims

the OAG officials violated section 2701(a) by gaining

unauthorized access to Penn State’s electronic

communications through the use of an invalid subpoena. She

claims they violated section 2703, either paragraph (a) or (b),

by using the invalid subpoena to coerce Penn State to disclose

her work emails. Because we conclude Penn State’s

consensual search of its own server and its voluntary disclosure

of Walker’s emails to the government did not violate the SCA,

we affirm the District Court’s dismissal of Walker’s second

amended complaint.

IV.

Section 2701 of the SCA creates liability for one who

“(1) intentionally accesses without authorization a facility

through which an electronic communication service is

provided; or (2) intentionally exceeds an authorization to

7

access that facility; and thereby obtains, alters, or prevents

authorized access to a wire or electronic communication while

it is in electronic storage in such system.” 18 U.S.C. § 2701(a).

While the SCA does not define “facility,” it does define

“electronic communication service” as “any service which

provides to users thereof the ability to send or receive wire or

electronic communications.” 18 U.S.C. § 2510(15)

(incorporated by reference in 18 U.S.C. § 2711(1)). This Court

has concluded that “facilities” under the SCA are network

service providers, which include “telephone companies,

internet or e-mail service providers, and bulletin board

services.” In re Google Inc., 806 F.3d at 146 (quoting Garcia

v. City of Laredo, 702 F.3d 788, 792 (5th Cir. 2012)). We agree

with the District Court, therefore, that Penn State qualifies as a

facility that provides electronic communication services to its

employees under the terms of the SCA.

The question becomes, therefore, whether Coffey and

Zimmerer intentionally “accessed” Penn State’s server under

the terms of section 2701. We conclude they did not.1 The

1

We are assuming here, without deciding, that sections

2701 and 2703 apply to the emails in question, though there is

a serious argument that they do not. By their terms, those

sections apply only to communications “in electronic

storage[.]” See 18 U.S.C. §§ 2701(a), 2703(a). “Electronic

storage” is a term of art under the SCA. A message can be in

electronic storage in one of two ways – the “temporary,

intermediate storage of a wire or electronic communication

incidental to the electronic transmission thereof[,]” or the

“storage of such communication by an electronic

communication service for purposes of backup protection of

such communication[.]” Id. § 2510(17). The parties agree that

the first definition is inapplicable here. Indeed, they must,

because we have previously held that e-mails, once they have

been read by the recipient, are no longer in temporary,

intermediate storage. See Fraser v. Nationwide Mut. Ins. Co.,

352 F.3d 107, 114 (3d Cir. 2003), as amended (Jan. 20, 2004)

(holding that e-mails stored on a server were no longer in

temporary, intermediate storage after they had been read by the

recipient). Thus the only way that Walker’s e-mails could be

held to be in electronic storage is if they were being stored “for

8

SCA does not define “access,” but a dictionary definition of

the verb is “to get at” or “gain access to.” See United States v.

Smith, 155 F.3d 1051, 1058 n.13 (9th Cir. 1998) (citing

Webster’s Ninth New Collegiate Dictionary 49 (1986)) (noting

that “access” as a verb “came into being in the so-called

‘computer age’”). Accessing a facility as defined by section

2701 requires an intrusion into an electronic communication

system. Even assuming Coffey and Zimmerer coerced Penn

State’s Assistant General Counsel with the invalid subpoena to

acquire Walker’s emails, they themselves did not gain access

to Penn State’s electronic communications facility. They

instead only accessed Walker’s emails, through the assistance

of a Penn State employee.

Designed to prohibit “hacking” into electronic

communication facilities, section 2701 does not cover

nonintrusive procurements of electronic communications.

Walker’s argument encourages us to find that the OAG’s use

of the illegal subpoena rendered Penn State’s search of its own

facility unauthorized. But section 2701(c)(1) explicitly

excepts from liability conduct authorized “by the person or

entity providing a wire or electronic communications service.”

18 U.S.C. § 2701(c)(1); see Fraser, 352 F.3d at 114-15 (noting

purposes of backup protection[.]” 18 U.S.C. § 2510(17). And

that is where Walker might run into difficulty, since it is

arguable that versions of already-read emails that are left on a

service provider’s server do not qualify as being stored for

backup protection. See Lazette v. Kulmatycki, 949 F. Supp. 2d

748, 758 & n.13 (N.D. Ohio 2013) (concluding opened e-mails

are not in storage for backup protection); United States v.

Weaver, 636 F. Supp. 2d 769, 771-73 (C.D. Ill. July 15, 2009)

(rejecting reasoning that opened emails on a service provider’s

server are covered by the SCA); Bansal v. Russ, 513 F. Supp.

2d 264, 276 (E.D. Pa. 2007) (holding that accessing to opened

e-mail did not violate the SCA). But see Theofel v. Farley-

Jones, 359 F.3d 1066 (9th Cir. 2004) (stating that “[a]n obvious

purpose for storing a message on an [internet service

provider’s] server after delivery is to provide a second copy of

the message in the event that the user needs to download it

again[,]” and so concluding that “[t]he ISP copy of the message

functions as a ‘backup’ for the user.”). We do not need to

address this issue now and therefore do not.

9

the liability exception in section 2701(c)(1) extends to

employers searching their own electronic communications

server). Penn State’s search of its own server to produce

Walker’s emails is not prohibited by section 2701, regardless

of whether its counsel was induced by deceit or knowingly

cooperative. Because no proscribed intrusion occurred in this

instance, we deny the claim and turn to Walker’s next ground

for relief. 2

V.

Walker argues the District Court erred in finding that

Coffey and Zimmerer’s use of the invalid subpoena did not

violate section 2703, titled “Required disclosure of customer

communications or records.” Given the circumstances of Penn

State’s disclosure of her emails, we again agree with the

District Court that this provision of the SCA does not provide

Walker a viable cause of action.3

Section 2703 mandates that electronic communication

providers disclose a user’s information to the government if the

2

Walker claims the disclosure of her emails to the OAG

was contrary to Penn State’s privacy policy, which recognized

that she had an expectation of privacy in her emails. However,

this argument again misinterprets the applicability of section

2701. Penn State had the authority to search and cull her work

emails. In citing Penn State’s privacy policy, Walker is

“relying on a theory of unauthorized disclosure of

information,” not of one of unauthorized access, and

disclosures are not covered by section 2701. In re Am. Airlines,

Inc. Privacy Litig., 370 F. Supp. 2d 552, 558-59 (N.D. Tex.

2005) (“Section 2701 does not proscribe unauthorized use or

disclosure of information obtained from authorized access to a

facility.”).

3

Although section 2703’s title is “Required disclosure of

customer communications or records,” the section also

addresses the disclosure of a subscriber’s information. Walker

subscribed to Penn State’s email service as an employee.

10

government meets certain procedural requirements. 4 Walker

argues Coffey and Zimmerer failed to abide by the

4

The relevant parts of 18 U.S.C. § 2703(a) and (b) are as

follows:

(a) Contents of wire or electronic

communications in electronic storage. A

governmental entity may require the disclosure

by a provider of electronic communication

service of the contents of a wire or 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[.] . . . A governmental entity may

require the disclosure by a provider of electronic

communications services of the contents of a

wire or 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.

(b) Contents of wire or electronic

communications in a remote computing

service.—

(1) A governmental entity may require a provider

of remote computing service to disclose the

contents of any wire or electronic

communication to which this paragraph is made

applicable by paragraph (2) of this subsection--

(A) without required notice to the subscriber or

customer, if the governmental entity obtains a

warrant . . .; or

(B) with prior notice from the governmental

entity to the subscriber or customer if the

governmental entity--

11

requirements when they used a facially invalid subpoena to

obtain her emails. She acknowledges, however, that the

District Court’s ruling that Penn State consented to disclosing

the emails independently of the illegal subpoena is fatal to her

claim. Walker’s argument on appeal, therefore, amounts to an

attack on the District Court’s conclusion that Penn State

voluntarily “agreed to produce” her emails. App. 3.

Walker fails to recognize that this Court, in affirming

the dismissal of her first complaint, also concluded that Penn

State’s Assistant General Counsel “instructed an employee in

her office to assist with the production of [her] emails,”

choosing to cooperate “rather than contest the validity of the

subpoena or otherwise limit any search.” Walker, 905 F.3d at

149-50. Thus, we have previously decided the issue of whether

Penn State acted voluntarily, and that decision is the law of the

case. The law of the case doctrine dictates that “one panel of

an appellate court generally will not reconsider questions that

another panel has decided on a prior appeal in the same case.”

In re City of Phila. Litig., 158 F.3d 711, 717 (3d Cir. 1998).

The precept fosters “the finality and efficiency of the judicial

process by protecting against the agitation of settled issues.” In

re Cont’l. Airlines, Inc., 279 F.3d 226, 233-34 (3d Cir. 2002)

(internal quotations omitted) (quoting Christianson v. Colt

Indus. Operating Corp., 486 U.S. 800, 816 (1988)). The law

of the case governs our exercise of discretion; we can

reconsider previously decided issues under “extraordinary

circumstances,” such as if new evidence becomes available, a

supervening law has been introduced, or the prior decision was

“clearly erroneous and would create manifest injustice.” In re

City of Phila. Litig., 158 F.3d at 718 (citing Pub. Interest

Research Grp. of N.J., Inc. v. Magnesium Elektron, Inc., 123

F.3d 111, 116 (3d Cir. 1997)).

(i) uses an administrative subpoena authorized

by a Federal or State statute or a Federal or State

grand jury or trial subpoena; or

(ii) obtains a court order for such disclosure

under subsection (d) of this section[.]

12

Walker does not allege, much less establish, that

extraordinary circumstances exist to justify reconsidering

whether Penn State acted voluntarily in cooperating with the

government agents. Because it is the law of the case that Penn

State consented to disclosing Walker’s emails, we conclude

that she failed to allege a violation of section 2703.

Given that Penn State acted voluntarily, we note that the

disclosure of Walker’s emails is governed by section 2702 of

the SCA, aptly titled “Voluntary disclosure of customer

communications or records.” 5 Section 2702 requires electronic

communication service providers to keep communications

confidential unless a court order, warrant, or subpoena is

produced. However, these restrictions apply only to providers

offering services “to the public.” 18 U.S.C. § 2702(a)(1)

(emphasis added). Penn State offers electronic communication

services to its employees, not to the community at large.

Walker’s work emails, therefore, fall outside of the scope of

the SCA’s protection. See, e.g., Andersen Consulting LLP v.

UOP, 991 F. Supp. 1041, 1043 (N.D. Ill. 1998) (holding that

contract employer did not provide electronic communication

services to the public and therefore could not be sued under the

SCA for divulging emails from its server to third parties).

Because the Act did not restrict Penn State from voluntarily

providing Coffey and Zimmerer with the requested emails

from its server, we will affirm the District Court’s finding that

Walker failed to state a cause of action under the SCA.

5

18 U.S.C. § 2702 provides in relevant part:

(a) Prohibitions.--Except as provided in subsection (b)

or (c)--

(1) a person or entity providing an electronic

communication service to the public shall not

knowingly divulge to any person or entity the contents

of a communication while in electronic storage by that

service; and

(2) a person or entity providing remote computing

service to the public shall not knowingly divulge to any

person or entity the contents of any communication

which is carried or maintained on that service[.]

13

VI.

In light of our holding that no violation of the SCA

occurred, we need not reach the issue of whether Coffey and

Zimmerer are entitled to qualified immunity. We decline to

review the holding of the District Court because such a

decision is not necessary to resolve the case. We join the prior

panel of this Court in condemning the OAG’s use of an invalid

subpoena to obtain evidence and similarly emphasize that our

holding denying Walker relief should not be interpreted as

excusing its failure to prepare an enforceable subpoena.

Walker, 905 F.3d at 150 (“We emphasize that nothing in this

opinion should be taken as condoning the actions of Appellees

in this case.”).

For the foregoing reasons, we hold that the Appellees

cannot be found liable under the Stored Communications Act

and will therefore affirm the District Court’s dismissal of

Walker’s second amended complaint.

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