Davis v. Gracey
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Email Listserve[NOTE: This case has been edited for classroom use by the omission of text, citations, and footnotes. See this alternate source for the full opinion.]
Chief Judge Seymour
Anthony Davis operated a large computer bulletin board system in Oklahoma City. After Mr. Davis sold obscene CD-ROMs to an undercover officer, a warrant was obtained to search his business premises. During the execution of the warrant, police officers determined pornographic CD-ROM files could be accessed through the bulletin board and seized the computer equipment used to operate it. Following his criminal conviction and civil forfeiture of the computer equipment in state court proceedings, Mr. Davis, his related businesses, and several users of electronic mail (e-mail) on his bulletin board brought this action in federal court against the officers who executed the search, alleging that the seizure of the computer equipment, and e-mail and software stored on the system, violated several constitutional and statutory provisions. The district court granted summary judgment for the officers. We affirm.
I. Background
Mr. Davis operated the Oklahoma Information Exchange, a computer bulletin board system. Computer users could subscribe to the bulletin board, dial in using a modem, then use the system to send and receive messages via e-mail, access the Internet, utilize on-line databases, and download or upload software. According to Mr. Davis, approximately 2000 subscribers used his bulletin board.
In April 1993, the Oklahoma City Police Department received an anonymous tip that Mr. Davis was selling obscene CD-ROMs from his business premises. On three different occasions, an undercover officer purchased "adult" CD-ROMs directly from Mr. Davis. During one of these visits, Mr. Davis mentioned to the officer that he operated a bulletin board, and that similar pornographic images could be accessed by dialing in to the bulletin board. The officer never actually saw the computer equipment used to operate the bulletin board. In his affidavit for a search warrant, the officer did not mention the possibility that a bulletin board was being operated on the premises, or the possibility that this bulletin board could be used to distribute or display pornographic images. A judge determined that two CD-ROMs acquired from Mr. Davis were obscene, and issued a warrant to search his business premises for pornographic CD-ROMs and "equipment, order materials, papers, membership lists and other paraphernalia pertaining to the distribution or display of pornographic material in violation of state obscenity laws set forth in O.S. Title 21-1024.1." Aplee. supp. app., vol. I at 45.
Several officers, including defendants Anthony Gracey and Mark Wenthold, conducted the search at Mr. Davis' business. During the search, the officers discovered the bulletin board. . . .The officers called for assistance from officer Gregory Taylor, who was reputed to be more knowledgeable about computers than they were. He confirmed that the pornographic CD-ROMs could be accessed via the bulletin board. The officers seized the computer equipment used to operate the bulletin board, including two computers, as well as monitors, keyboards, modems, and CD-ROM drives and changers. The seizure of this computer equipment is the subject of the federal proceedings in this case.
At the time of the seizure, the computer system contained approximately 150,000 e-mail messages in electronic storage, some of which had not yet been retrieved by the intended recipients. . . .
Mr. Davis was convicted of several counts of possessing and distributing obscenity, and of using a computer to violate Oklahoma statutes. . . .
Mr. Davis, Gayla Davis, John Burton, and TSI Telecommunications Specialists, Inc.,n1 filed the instant suit in federal court alleging claims under 42 U.S.C. § 1983 for violation of First and Fourth Amendment rights, and under the Privacy Protection Act (PPA), 42 U.S.C. §§ 2000aa - 2000aa-12, and the Electronic Communications Privacy Act (ECPA), 18 U.S.C. §§ 2510-2711. The crux of the complaint is that the seizure of the equipment was illegal because the warrant was not sufficiently particular and because the seized computer system contained e-mail intended for private subscribers to the bulletin board, and software intended for future publication by Mr. Davis. Plaintiffs contend these stored electronic materials were outside the scope of the warrant, and are protected by several congressional enactments.
. . . The district court entered summary judgment for the officers, holding that their reliance on a valid warrant entitled them to qualified immunity on the constitutional claims, and entitled them to the statutory good faith defenses contained in the PPA and ECPA.
. . . .
III. Fourth Amendment
The officers claim they are entitled to qualified immunity on the constitutional claims. We review de novo the district court's grant of qualified immunity on summary judgment, viewing the evidence in the light most favorable to the nonmoving party. . . . If we determine that plaintiffs have failed to show the officers' conduct constituted a violation of a constitutional or statutory right, we need not address the other elements of the qualified immunity inquiry.
Plaintiffs assert that the warrant did not specifically authorize the seizure of the computer equipment and thus was unconstitutionally overbroad. They suggest the officers misled the magistrate in procuring the warrant. Even if the warrant authorized the seizure of the computer equipment, plaintiffs contend the warrant should not have been executed in a manner resulting in the incidental seizure of e-mail and other files stored on the hardware which were clearly outside the scope of the warrant. We address each of the contentions in turn.
A. The Warrant
. . . .
Plaintiffs suggest that the warrant's failure to indicate explicitly that "equipment" encompassed computer equipment or electronics was a fatal defect. We do not agree. We ask two questions: did the warrant tell the officers how to separate the items subject to seizure from irrelevant items, and were the objects seized within the category described in the warrant? . . . .
. . . .
Our approval of the particularity of the warrant is bolstered by the execution of the search itself. The officers did not conduct a general search of the premises. They left behind approximately 2000 CD-ROM discs that Mr. Davis represented to be of his own manufacture and non-pornographic in nature. There is no evidence the officers attempted to search or seize computer equipment that was not connected to the CD-ROM drives or the bulletin board. The executing officers consulted with a more expert officer to confirm that the computer equipment was in fact used to distribute or display pornographic material and therefore fell within the scope of the warrant. If the executing officers had flagrantly disregarded the limitations of the warrant, an otherwise constitutional warrant might have been transformed into a general search. There is no indication of such behavior here.
B. The Warrant Application
. . . .
Plaintiffs assert that because the officers knew about the bulletin board but did not include this knowledge in the affidavit supporting the warrant their reliance on the warrant could not be in good faith. "Only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable . . . will the shield of immunity be lost." Malley v. Briggs, 475 U.S. 335, 344-45 (1986). The warrant was amply supported by probable cause. Plaintiffs have offered no theory why a reasonable officer would believe that omitting mention of the bulletin board would vitiate the probable cause contained in the affidavit. . . .
C. Incidental Seizure of Electronically Stored Materials
Plaintiffs appear to argue that even if the warrant authorized the seizure of the computer equipment, such a seizure was nonetheless illegal because of the concomitant incidental seizure of e-mail and software stored therein.n5 We can discern no doctrinal support for this proposition. The argument appears to draw its force from plaintiffs' efforts to distinguish between the computer hardware--the "container"--and its contents. They repeatedly urge that the seizure was unlawful because no probable cause was asserted to seize the contents independent of the probable cause asserted to seize the computer equipment. The question then is whether the incidental temporary seizure of stored electronic materials invalidated the seizure of the computer within which they were stored. We hold that it did not.
Plaintiffs' argument fails for the simple reason that the computer equipment was more than merely a "container" for the files; it was an instrumentality of the crime. . . . The fact that a given object may be used for multiple purposes, one licit and one illicit, does not invalidate the seizure of the object when supported by probable cause and a valid warrant.
. . . We will not hold unlawful the otherwise constitutional seizure of the computer equipment in order to prevent the temporary deprivation of plaintiffs' rights to the contents. However, our conclusion that the seizure of the computer equipment pursuant to a warrant here allowed the incidental seizure of files stored therein should not be read as approval of any subsequent efforts by the police to search or retain the stored files without a warrant.n6
. . . .
Viewing the evidence in the light most favorable to plaintiffs, the conduct of the officers did not rise to a constitutional violation. The district court therefore properly granted summary judgment to the officers on plaintiffs' constitutional claim.
IV. Privacy Protection Act
Plaintiffs assert that the seizure of the stored electronic materials constituted a violation of the Privacy Protection Act (PPA), 42 U.S.C. §§ 2000aa - 2000aa-12. The PPA provides that
it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of publication.42 U.S.C. § 2000aa(a). The PPA requires law enforcement officers, absent exigent circumstances, id. § 2000aa(a)(2), to rely on subpoenas to acquire materials intended for publication unless "there is probable cause to believe that the person possessing [work product] materials has committed or is committing the criminal offense to which the materials relate," id. § 2000aa(a)(1).
The statute creates a civil cause of action for damages resulting from a search or seizure of materials in violation of the Act. Id. § 2000aa-6. . . . The Act provides that "[i]t shall be a complete defense to a civil action [against a government officer or employee] that the officer had a reasonable good faith belief in the lawfulness of his conduct." 42 U.S.C. § 2000aa-6(b). The district court here granted summary judgement for the officers, holding them entitled to the good faith defense due to their reliance on a warrant.
We hold instead that we lack subject matter jurisdiction over defendant officers under the PPA. The statute provides:
The remedy provided by [section 2000aa-6(a)(1)] against the United States, a State, or any other governmental unit is exclusive of any other civil action or proceeding for conduct constituting a violation of this chapter, against the officer or employee whose violation gave rise to the claim, or against the estate of such officer or employee.Id. § 2000aa-6(d). Thus, an action under the PPA may only be brought against the governmental entity, unless the state has not waived sovereign immunity in which event state employees may be sued. Id. § 2000aa-6(a)(2). The PPA by its terms does not authorize a suit against municipal officers or employees in their individual capacities. The statute therefore provides no cause of action against these defendants. . . .
V. Electronic Communications Privacy Act
Plaintiffs claim that the seizure of the e-mail on the bulletin board violated the Electronic Communications Privacy Act (ECPA), 18 U.S.C. §§ 2510-2711. Title II of the ECPA, id. §§ 2701-2711, bars unauthorized access to stored electronic communications. Section 2701 provides criminal penalties for whoever
(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; orId. § 2701(a). In addition to criminal penalties, the ECPA provides a civil cause of action for "any provider of electronic communication service, subscriber, or other person aggrieved by any violation of this chapter." Id. § 2707(a). However, "[a] good faith reliance on . . . a court warrant or order . . . is a complete defense to any civil or criminal action brought under this chapter or any other law." Id. § 2707(e).
(2) intentionally exceeds an authorization to 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.
Plaintiffs contend that by seizing the e-mail and dismantling the bulletin board, the officers "obtain[ed] . . . or prevent[ed] authorized access to a[n] . . . electronic communication while it is in electronic storage" within the meaning of section 2701(a). This claim raises a question of first impression in this or any circuit. There are few cases interpreting the reach of the substantive provisions of the ECPA or applying the good faith defense to violations of Title II of the ECPA, although a body of decisions does address the parallel good faith defense in Title I of the ECPA, 18 U.S.C. § 2520(d).n10
Plaintiffs rely heavily on the decision in Steve Jackson Games, Inc. v. United States Secret Serv., 816 F. Supp. 432 (W.D.Tex. 1993), aff'd, 36 F.3d 457 (5th Cir. 1994), which contains the most extensive discussion of the substantive provisions of the ECPA we have found. . . .
We do not find this scant precedent helpful. The circumstances here are far different from those in Steve Jackson Games. Most centrally, that case involved both a seizure of electronic communications and the subsequent review, reading, and deletion of files in electronic storage. The court focused on the provisions of section 2703, which establishes the procedures for government access to "the contents of an electronic communication." We assume without deciding that an additional warrant in compliance with section 2703 would have been required for the law enforcement officials in the instant case to gain access to the contents of the seized e-mail. Plaintiffs have not alleged that the officers attempted to access or read the seized e-mail, and the officers disclaimed any interest in doing so. We are therefore faced with the entirely distinct question of whether an incidental seizure of electronic communications, standing alone, is a violation of the ECPA. Section 2703 does not appear to address this situation.
We assume without deciding that plaintiffs have described conduct which constitutes a violation of section 2701, that is, that the officers "intentionally access[ed] without authorization a facility through which an electronic communication service is provided . . . and thereby . . . prevent[ed] authorized access to a wire or electronic communication while it [was] in electronic storage in such a system." 18 U.S.C. § 2701(a).n13 We further accept as true plaintiffs' assertion that a reasonable officer with the computer skills of defendant officers should have known that seizure of computer hardware would result in the seizure and disruption of e-mail. Nevertheless, we hold that the officers were entitled to summary judgment because they qualify for the statutory good faith defense as a matter of law. Plaintiffs suggest that the officers could have made a lawful seizure of the electronically stored communications only by satisfying one of the listed exceptions to liability under section 2701 of the ECPA. The exceptions listed contemplate that no liability attaches for "obtain[ing], alter[ing] or prevent[ing] authorized access to a . . . electronic communication," § 2701(a), if such disruption is incident to the government's access to the contents through the procedures for disclosing, § 2703, copying, § 2704, or intercepting, § 2518. In short, these exceptions all excuse government officers from liability based upon a required showing to a magistrate that the intrusive activity is necessary for a law enforcement purpose.
In addition to the enumerated exceptions, however, the statute contains the general good faith defense of section 2707(e) for reliance on a warrant. The officers relied on the warrant to seize the computer equipment, and the seizure of the stored electronic communications was incidental to the execution of the warrant. To be in good faith, the officers' reliance must have been objectively reasonable. We have already concluded in our discussion of plaintiffs' Fourth Amendment claim that the warrant was valid and encompassed the computer equipment. The officers' reliance on the warrant was therefore objectively reasonable.
Finally, plaintiffs contend the officers are not entitled to a good faith defense because they did not inform the magistrate of the possible existence of the stored electronic communications. We have held in our discussion of plaintiffs' constitutional claim that plaintiffs' inference of subjective bad faith in the officers' omission of information from the affidavit does not eliminate the officers' ability to rely on a valid warrant supported by probable cause. The plaintiffs have not persuaded us the statute imposes a requirement stricter than the Fourth Amendment in this respect. . . .
VI. Conclusion
We hold that the officers' reliance on a valid warrant entitled them to qualified immunity on plaintiffs' Fourth Amendment claim, and established a good faith defense under the ECPA. We also hold that we lack subject matter jurisdiction over plaintiffs' asserted claim against the officers under the PPA. We AFFIRM the district court's entry of summary judgment for the officers.
FOOTNOTES
1 Gayla Davis was, at the time of the search, Mr. Davis' wife and co-owner of the Oklahoma Information Exchange bulletin board. TSI Telecommunications is a corporation owned by Anthony and Gayla Davis. The Davises and John Burton were users of the bulletin board.
5 We consider below the similar issues raised by plaintiffs' statutory claim under the ECPA.
6 Not only is there no evidence that the officers ever read the e-mail or files in question, the law enforcement personnel involved in this action repeatedly, both in state and federal court, disclaimed any interest in the contents thereof.
10 . . . In their First Amended Complaint, plaintiffs also alleged a claim for illegal interception of electronic communications under Title I of the ECPA, 18 U.S.C. §§ 2510-2521. . . . The district court held that the seizure here did not constitute an "interception" and granted summary judgment to the officers on that claim. Plaintiffs do not appeal on that issue.
13 We note it is unclear whether this section was intended to apply to the sort of law enforcement activities involved here. Cf. State Wide Photocopy Corp. v. Tokai Fin. Servs., Inc., 909 F. Supp. 137, 145 (S.D.N.Y. 1995) ("[I]t appears that the ECPA was primarily designed to provide a cause of action against computer hackers, (i.e., electronic trespassers)."). It is also unclear whether the term "access" encompasses the simple physical dismantling of the operating hardware.
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