Court declines to recognize secondary liability for civil ECPA violation, holding that defendant’s divorce lawyer could not be a conspirator in a civil action alleging email interception.
Garback v. Lossing, 2010 WL 3733971 (E.D.Mich. September 20, 2010)
Plaintiff sued his ex-wife’s attorney for violation of the Electronic Communications Privacy Act. He claimed that his ex-wife, her attorney and some other defendants (including a computer forensics firm) acted together to violate the ECPA by “hacking” into plaintiff’s email account. The ex-wife allegedly used information gathered in this process to negotiate a more favorable divorce settlement.
The defendant attorney moved to dismiss for failure to state a claim upon which relief may be granted. The court granted the motion.
The court found that in plaintiff’s “inartful” pleading, he had failed to allege that the defendant attorney had actually intercepted or knowingly used information obtained in violation of the ECPA. Plaintiff argued that this failure was not fatal, however, in that he had alleged that the defendant attorney conspired to intercept emails.
Rejecting this argument, the court observed that “normally federal courts refrain from creating secondary liability that is not specified by statute.” Finding no textual support in the ECPA for such secondary liability, the court declined to read ECPA’s scope so expansively. The court found the statute as being clear on who may be liable: those who intercept communications and those who get ahold of those communications knowing they were illegally obtained. So the ECPA claim failed and plaintiff was given leave to replead.
September 30, 2010
"get ahold of those communications knowing they were illegally obtained" – Does this mean that users of wikileaks are in violation if they know the information was illegally obtained?
September 30, 2010
Randy: Interesting question. I had never thought of Wikileaks from that angle. The ECPA says that one commits a crime/is liable when he or she:
intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of [the ECPA]
The definition of "interception" is pretty narrow, and I'd suspect that in most instances it would be hard to show beyond a reasonable doubt that the typical web user browsing Wikileaks would have detailed enough knowledge to really know the material was unlawfully obtained in this way. But that certainly is not the same thing as saying that no Wikileaks user could be shown to possess such knowledge.