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.
14