Opinion
CIVIL ACTION NO. 03-1465, SECTION "N"
November 12, 2003
ORDER AND REASONS
Before the Court is a Motion to Dismiss, filed by defendant Edward L. Sims, seeking to dismiss Count III of the complaint pursuant to Rule 12(b)(6). For the reasons that follow, the motion is GRANTED.
A 12(b)(6) motion to dismiss should be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Indest v. Freeman Decorating, Inc., 164 F.3d 258, 261 (5th Cir. 1999). In making this determination, the Court must: accept all well-pleaded facts as true, and view them in the light most favorable to the plaintiff. Id.
This is a civil action brought pursuant to the Federal Communications Act of 1934, 47 U.S.C. § 605, and the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, and the Communications Assistance for Law Enforcement Act of 1994, 18 U.S.C. § 2510-22 ("the Wiretap Act"). In Count HI, plaintiff alleges that the defendants possessed, manufactured and/or assembled electronic communication intercepting devices in violation of 18 U.S.C. § 2512. Sims argues that this count should be dismissed because no private civil right of action exists for violations of section 2512, which creates only criminal liability.
Section 2520(a) of the statute creates a private right of action for certain violations of the Wiretap Act. The question before the Court is whether this private civil action extends to violations of section 2512 or is instead limited to violations of section 2511. Sims argues the latter. He bases this argument on the language of section 2520(a) itself, which provides that "any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from any person or entity . . . which engaged in that violation. . . ." 18 U.S.C. § 2520(a). Sims argues that the words "intercepted, disclosed, or intentionally used," as used in section 2520(a), reflect the precise activities prohibited by section 2511, and cannot be read to encompass those prohibited by section 2512 — i.e., the manufacture, assembly, distribution, and possession of interception devices. Thus, according to Sims, section 2520 should be construed as providing a vehicle for private civil recovery only with respect to activities prohibited by section 2511 (e.g., the actual interception, disclosure, and/or use of the victim's communication), and not those prohibited by section 2512 (e.g., the mere possession or assembly of an interception device).
Section 2511 provides in pertinent part:
(1) Except as otherwise specifically provided in this chapter, any person who intentionally —
(a) sends through the mail, or sends or carries in interstate or foreign commerce, any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications;
(b) manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications, and that such device or any component thereof has been or will be sent through the mail or transported in interstate or foreign commerce; or
(c) places in any newspaper, magazine, handbill, or other publication or disseminates by electronic means any advertisement of —
(i) any electronic, mechanical, or other device knowing the content of the advertisement and knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications; or (ii) any other electronic, mechanical, or other device, where such advertisement promotes the use of such device for the purpose of the surreptitious interception of wire, oral, or electronic communications, knowing the content of the advertisement and knowing or having reason to know that such advertisement will be sent through the mail or transported in interstate or foreign commerce,
shall be fined under this title or imprisoned not more than five years, or both.
18 U.S.C § 2511.
Section 2511 provides in pertinent part:
(1) Except as otherwise specifically provided in this chapter any person who —
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when —
(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or
(ii) such device transmits communications by radio, or interferes with the transmission of such communication; or
(iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or
(v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;
(c) intentionally discloses, or endeavors to disclose, to any other person 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 this subsection;
(d) 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 this subsection; or
(e)(i) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, intercepted by means authorized by sections 2511(2)(a)(ii), 2511(2)(b)-(c), 2511(2)(e), 2516, and 2518 of this chapter, (ii) knowing or having reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation, (iii) having obtained or received the information in connection with a criminal investigation, and (iv) with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation.
shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).
18 U.S.C § 2511.
Section 2520(a) provides:
Except as provided in section 2511(2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter 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.18 U.S.C. § 2520(a).
Plaintiff, on the other hand, focuses on the words "this chapter" and argues that section 2520(a) creates a private civil cause of action for any violation of the chapter (Chapter 119, Title 18, United States Code), including section 2512. Courts are split on the issue, with several adopting Sims' construction and others opting for the broader interpretation advocated by plaintiff. The statute defines the class of defendants subject to the private right of action as those persons or entities "which engaged in that violation" 18 U.S.C. § 2520(a) (emphasis added). Thus, the breadth of this class hinges on the meaning of the term "that violation." Plainly, the term refers to the violation described earlier in the sentence. Plaintiff would have the term refer to the phrase "in violation of this chapter," truncated and dissociated from the words that precede it. In the Court's opinion, however, the phrase is on its face dependent upon the words that immediately precede it. Thus, "the person . . . which engaged in that violation" can only mean the person who " intercepted, disclosed, or intentionally used [the victim's electronic communication] in violation of this chapter [119]." Id. (emphasis added).
See DIRECTV. Inc. v. Hosey, ___ F. Supp.2d ___; 2003 WL 22463055 (D. Kan. Sept. 11, 2003) ("the plain language of the current § 2520(a) creates a private cause of action only against those who intercept, disclose, or intentionally use wire, oral, or electronic communication"); DIRECTV, Inc. v. Childers, 274 F. Supp.2d 1287, 1288-89 (M.D. Ala. 2003) (rejecting plaintiffs "argument that a private cause of action exists for both statutory subsections [2512 and 2511]; "mere proof of possession of pirating' equipment may establish a violation of the criminal statute, but cannot support a civil action for damages"); DIRECTV, Inc. v. Cardona, 275 F. Supp.2d 1357, 1367 (M. D. Fla. 2003) ("the plain and unambiguous language of § 2520(a) limits those against whom a civil action lies to persons who intercept, disclose, or use electronic communications; that class of persons does not include manufacturers, assemblers, possessors, and sellers of satellite decrypters"); DIRECTV, Inc. v. Amato. 269 F. Supp.2d 688 (E.D. Va. 2003); Ages Group, L.P. v. Raytheon Aircraft Co., Inc., 22 F. Supp.2d 1310, 1315 (M.D. Ala. 1998) ("a plaintiff does not have a private right of action against a defendant based on evidence that the defendant possessed surveillance equipment within the meaning of the statute. While proof of possession of equipment used to intercept oral communications could certainly be part of [a plaintiffs] proof that oral communications were intercepted, possession of equipment will not support a separate claim. . . ."); cf. Flowers v. Tandy Corp., 773 F.2d 585, 589 (4th Cir. 1985) (interpreting section 2520(a) as it read prior to 1986 amendments and holding that the statute provided no private right of action for violations of section 2512).
See DIRECTV. Inc. v. Gatsiolis. 2003 WL 22111097 (N.D. Ill. Sep 10, 2003) (a plaintiff with standing can "pursue relief from the appropriate defendant . . . for a violation of any of the subsections of Chapter 119"); DIRECTV, Inc. v. Drury, ___ F. Supp.2d ___;, 2003 WL 22245388 (M.D. Fla. Jun. 26, 2003) (section 2520 "defines the class of potential defendants as any person or entity `engaged in' a `violation of this chapter'" and section 2512 "lies within the covered chapter"); cf. Oceanic Cablevision. Inc. v. M.D. Electronics, 771 F. Supp. 1019, 1026-28 (D. Neb. 1991); DIRECTV, Inc. v. EQ Sniff, Inc., 207 F. Supp.2d 1077, 1084 (C.D. Cal. 2002) (following Oceanic).
This interpretation is buttressed by the Fifth Circuit's reasoning in Peavy v. WFAA-TV, Inc., 221 F.3d 158, 168-69 (5th Cir. 2000), cert. denied, 532 U.S. 1051 (2001). The question in Peavy was not whether the section 2520 private civil action extends to violations of section 2512, but whether it extends to a violation of section 2511 other than those expressly enumerated in section 2520 (i.e., interception, disclosure, and intentional use). Specifically, the issue in Peavy was whether section 2520 authorizes a private civil action for damages resulting from the procurement of another person to intercept a wire, oral, or electronic communication, in violation of 18 U.S.C. § 2511(1)(a). Prior to 1986, section 2520(a) expressly reached persons who engaged in such procurement. Although section 2511 continues to proscribe such procurement, the 1986 amendments to the Wiretap Act deleted the procurement language from section 2520(a). Construing section 2520(a) as amended, the Peavy court explained that the statute now "extend[s] civil liability to `the person or entity which engaged in that violation" Peavy, 221 F.3d at 168 (emphasis in original). "And, the referenced `violation' is `intercepted, disclosed, or intentionally used'; there is no mention of `procures'." Id. at 169. Rejecting the appellant's argument that the class of potential defendants in section 2520(a) should be construed more broadly, the court emphasized: "Section 2520(a)'s plain, unambiguous language authorizes a civil action by one whose covered `communication is intercepted, disclosed, or intentionally used in violation of this chapter', from `the person or entity which engaged in that violation'. Id. (emphasis in original). "Accordingly, `that violation' refers only to illegal interception, disclosure, or use, and not to procuring interception by another." Id. (underline added). This rationale necessarily forecloses the viability of plaintiff's argument that the term "that violation" is broad enough to encompass the manufacture, possession, or assembly of interception devices, or any other activity other than interception, disclosure, and intentional use.
Prior to its amendment in 1986, section 2520(a) provided, in pertinent part:
Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall (1) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and (2) be entitled to recover from any such person [damages, attorney's fees, and costs].18 U.S.C. § 2520 (1970) (emphasis added).
Nor is the Court persuaded by plaintiff's argument that, so long as it has also alleged unlawful interception and use by a particular defendant, in violation of section 2511, then section 2520 authorizes a private right of action against that defendant not only for the 2511 violation, but for any other violation of Chapter 119 he might have committed, including violations of section 2512. First, the argument seeks to expand the private civil action beyond the plainly circumscribed language of section 2520, as discussed above. Second, as observed by the court in DIRECTV, Inc. v. Amato, the argument "defies logic." 269 F. Supp.2d at 691. "[T]he use of an eavesdropping [or other interception] device, as outlawed by § 2511, creates a victim, thereby justifying a private cause of action, but the mere possession of such a device, as banned by § 2512, creates no individualized harm and, thus, no justification for private recovery." Id. Thus, while a claim based on section 2511 (as alleged here in Count II) likely will entail both the possession of interception equipment as well as its use, "the mere possession of that equipment, alone, affords no civil recovery under either code section." Id.
269 F. Supp.2d 688, 691 (E.D. Va. 2003).
Accordingly, IT IS ORDERED that the Motion to Dismiss, filed by defendant Edward L. Sims, is GRANTED, and Count III of the Complaint is dismissed as to defendant Sims.