OPINION & ORDER
Plaintiff Cobra Pipeline Co., Ltd. (“Cobra Pipeline”) sues Defendants for illegally intercepting and accessing electronic communications in violation of the Stored Communications Act and the Wiretap Act.
Plaintiff seeks partial summary judgment, and asks the Court to find that Defendants violated the Stored Communications Act. Defendants ask the Court for summаry judgment as to all claims brought by Plaintiff. For the reasons below, the Court DENIES Plaintiffs motion for summary judgment, and GRANTS Defendants’ motion.
I. Factual Background
A. Relationship Between Cobra Pipeline and the Ohio Utilities
Plaintiff Cobra Pipeline is a gas transmission pipeline which transports natural
Before Osborne’s removal, Plaintiff Cobra Pipeline had worked together with Defendants Gas Natural and the Ohio Utilities in various ways.
As relevant for the purposes of this motion, the Ohio Utilities employed Defendant Martin Whelan.
But even after May 1, 2014, as the relationship between the institutions deteriorated, Defendant Whelan and his subordinate Jeffrey J. Heindik (“Heindik”) continued to access the Plaintiff Cobra Pipeline SageQuest website using the log-in.
Plaintiff Cobra Pipeline says that Whe-lan and the Ohio Utilities’ access of Sage-Quest violated the Stored Communications Act and the Wiretap Act.
B. The SageQuest System
Plaintiff Cobra Pipeline uses a system called SageQuest to track its fleet of service trucks.
This website is accessible only by the entry of a username and password.
The user-facing site utilizes the GPS information as part of a broader fleet management tool.
Cobra Pipeline has a data storage contract with SageQuest. Upon logging into the system, a user can review historical data for the fleet going back threе months.
The parties have not presented evidence that any aspect of the website changes when multiple people are logged in, or when one user logs in prior to another user. However, it is possible to generate a historical “user activity report” which identifies the time of a particular user’s unique log-ins.
II. Law and Analysis
A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, “[s]ummary judgment is proper when ‘thеre is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ”
Ultimately, the Court must decide “whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
B. Stored Communication Act
Plaintiff Cobra Pipeline alleges violations of the Stored Communications Act (“SCA”). As relevant here, the SCA makes it illegal to “intentionally access[] without authorization a facility through which an electronic communication service is provided ... and thereby obtain[ ] ... a wire or electronic communication while it is in electronic storage....”
1. Covered Communications: Legal Standard
Under the Stored Communications Act, this Court first considers whether the electronic materials that the Defendant ae-cessed are covered under the Act. The SCA does not provide a remedy for unauthorized access to all digital materials. As the name implies, the statute only covers actions when a party obtains an electronic communication “while it is in electronic storage.”
(A) any temporary, intermediate storage of a wire or electroniс communication incidental to the electronic transmission thereof; and
(B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.36
With the Act, Congress intended a “limited” definition of Subsection (A).
Under Subsection (B), a communication may also be covered by the statute if it is in “any storage ... by an electronic communication service for purposes of backup protection of such communication.”
The scope of this provision is disputed. Some courts have taken a narrow view, holding that “backup” refers to copies made “in the event the system crashes before transmission is complete.”
In contrast, the Ninth Circuit in Theofel v. Farey-Jones
The U.S. Government has opposed the broader approach taken by the Ninth Circuit in Theofel, stating that the court’s approach “confuses ‘backup protection’ with ordinary storage of a file.” Sister district courts in the Sixth Circuit have taken both approaches in addressing cases regarding already-opened e-mail.
2. Covered Communications: Analysis
Regardless of the approach the Court takes, the electronic materials accessed by Defendant were not in “electronic storage” as defined in the SCA. There is no genuine dispute as to any issue of material fact regarding the functioning of the Sage-Quest website. The website “presents” information to any user who logs in.
The SageQuest system does not fall under Subsection (A): “any temporary, intermediаte storage of a wire or electronic communication incidental to the electronic transmission thereof.” When the user views the fleet data, the communications have already reached their destination. The communications are not “in transit.” SageQuest is more akin to an electronic bulletin board. The data is not being sent to a particular person, and the data is not being accessed during a transmission to any user. Any user — whether authorized or not — is reviewing SageQuest’s fleet data after it has reached its final destination. Thus, the information accessed is not a communications cannot have been in storage under Subsection (A).
The SageQuest system does not fall under Subsection (B) either: “any storage ... for purposes of backup protection of such communication.” Defendants’ actions, as a matter of law, cannot constitute access to communications in storage “for purposes of backup protection.”
Defendants accessed SageQuest’s primary website. Although Defendants had access to historical fleet data, the time range of fleet data available to Defendant was predetermined. The history Sage-Quest provided was part of the service sold by SageQuest. Even under the Ninth Circuit’s broad approach in Theofel, the storage must be a secondary copy, kept for the “purposes of backup.” Here, the Defendants did not access any backup copy. Instead, they accessed the main SageQuest website.
Consider, for example, if the truck fleet data were kept in a paper form. The website is similar to a copy available to authorized users in the SageQuest lobby. A backup copy is similar to a secondary copy kept in a safety deposit box at another location. Reading the lobby paper copy is not equivalent to reading the separate location’s backup copy. In turn, accessing the SageQuest website is not equivalent to accessing the fleet data while it is storage “for purposes of backup protection.”
Plaintiffs arguments to the contrary fail. First, Plaintiff relies on misguided citations. The Plaintiff relies on the Ninth Circuit’s Konop holding.
The Plaintiff also relies on District of Massachusetts decision in Cheng v. Romo.
Second, Plaintiff cites to its expert, who writes that “[t]he electronic communications such as VIN numbers, Drivers and Other Vehicle data is in electronic storage at SageQuest’s operations center.” First, an expert cannot opine.on a question of law.
Third, Plaintiff points to the SageQuest storage plan that allowed users to view both historical and contemporaneous data. Plaintiff argues that the evidence of a three-month historical data plan “unequivocally demonstrate^] that the electronic communications that were transferred to SageQuest and presented to the user by the website are also stored for backup purpоses.”
The actions of the Ohio Utilities may raise legitimate privacy concerns, but they are not the privacy concerns that are protected under the Stored Communications Act. The communications accessed by Defendants were not in “electronic storage” for the purposes of this statute.
C. The Wiretap Act
Plaintiffs allege that Defendants “intentionally intercepted, disclosed, and used Plaintiffs electronic communications in violation of 18 U.S.C. § 2511.”
Defendants can succeed on summary judgment if they can show that Plaintiff has failed to meet its burden as to an essential element of their case. Despite extensive briefing on whether Defendants’ access was “authorized” and whether Defendants accessed “electronic communications” as defined under the statute, Plaintiff has offered no facts to support the threshold issue in the Wiretap Act: that the communications were “intercepted.”
Taking all reasonable inferences in favor of the Plaintiff, Plaintiff cannot show as a matter of law that the Defendant’s use of the SageQuest logon constituted “interception.” Interception requires a transmission of communications between two points, with some interruption during or contemporaneous with that transmission. Here, Defendants’ use of SageQuest did not interrupt an otherwise — occurring transmission. There was no other intended recipient. When Whelan and Heidnik accessed SageQuest, they were accessing the information at the expected end-point of the transmission. Plaintiff has offered no evidence which could establish that any communications were “intercepted.” Accordingly, the Court grants summary judgment to Defendants as to the Wiretap Act claim.
D. State Law Claim for “Civil Recovery For Criminal Act”
Plaintiff states that Defendants’ conduct, if prosecuted, “would constitute a felony theft offense under Chapter 2913 оf the Ohio Revised Code.”
Plaintiff misunderstands the purpose of Sections 2307.60 and 2307.61. These sections do not create a separate civil cause of action for every corresponding criminal statute. “Rather, Ohio Revised Code §§ 2307.60 and 2307.61 set forth certain evidentiary rules for admitting facts of conviction and certain damages that a civil litigant may recover if a cause of action otherwise exists.”
Plaintiff has only pointed to a criminal statute that — if prosecuted — would give rise to criminal liability. As a matter of law, this is insufficient for a civil claim to survive.
III. Conclusion
Plaintiff has raised colorable concerns regarding Defendants’ use of the Sage-Quest system after May 1, 2014. However, the Plaintiff is the master of the complaint. And Plaintiff here chose to plead its case under ill-fitting statutes. The conduct at hand is not covered under the Stored Communications Act or the Wiretap Act. And Plaintiff has not identified a civil claim under Ohio Law through which to seek relief. For the above reasons, the Court DENIES Plaintiffs motion for partial summary judgment and GRANTS Defendants’ motion for summary judgment in full.
IT IS SO ORDERED.
Notes
.Doc. 1 at ¶¶ 40-53; 18 U.S.C. § 2701 et seq. (The Stored Communications Act); 18 U.S.C. § 2510 et seq. (The Wiretap Act);
. Id. at ¶¶ 54-56.
. See Doc. Nos. 19, 21, 23, 24, 25, 26.
. Doc. 21 at 3.
. Id. at 3-4.
. Id. at 4; Doc. 19 at 3.
. Doc. 19 at 3; Doc. 21 at 4.
. Doc. 21 at 3.
. Doc. 19 at 3-4; Doc. 21 at 5-6.
. Doc. 21 at 5.
. Doc. 19 at 5.
. Doc. 1 at ¶¶ 40-53.
. Id. at ¶ 55.
. Id. at ¶¶ 54-56.
. Doc. 19 at 1; Doc. 21 at 5.
. Doc. 23-2 at 8; Doc. 21-1 at 3.
. Id. The parties differ on their preferred terminology. The Court will call this data collection point the Operation Center.
. Doc. 23-2 at 6; Doc. 21-1 at 4.
. Id.
. Doc. 21-1 at 10 (SageQuest "aggregates, interprets and presents information from GPS units, along with other relevant information related to vehicles used by a company.”); 23-2 at 7 (SageQuest "рresents information to subscribers related to their fleet of vehicles.”).
. Id.
. Doc. 23-2 at 6; Doc. 21-1 at 4-6.
. Doc. 23-2 at 6; see also Doc. 21-1 at 4-6. Neither party offers evidence that Defendants’ use of the Sage Quest system involved sending or receiving text messages. Neither party offers evidence that Defendants’ use of the Sage Quest system involved the interception of alerts or information intended for other recipients. Facts such as these could have added substantial complexity as to whether the actions fell under the рrotections of the Stored Communications Act or the Wiretap Act. However, there is no genuine dispute as to whether such circumstances occurred. They did not.
. Doc. 19-5 at 61 (Carothers Dep.).
. Id.
. Doc.21-2.
. Killion v. KeHE Distribs., LLC,
. See Celotex Corp. v. Catrett,
. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
. Id. at 586,
. Killion,
. Martingale LLC v. City of Louisville,
. Marie v. Am. Red Cross,
. 18 U.S.C. § 2701(a).
. Id.; see also S.Rep.No. 99-541 at 36 (“Subsection 2701 also provides that the offender must obtain, alter, or prevent authorized access to a wire or electronic communication while it is in electronic storage ... in order to commit a violation under the subsection.”).
. 18 U.S.C. § 2510(17) (Wiretap Act); 18 U.S.C. § 2711 (incorporating the Wiretap Act's definitions for purposes of the Stored Communications Act).
. In re Doubleclick Inc. Privacy Litig.,
. Id.
. Snow v. DIRECTV, 2:04-cv-515,
.Plaintiff points to Konop v. Hawaiian Airlines,
The Konop court included "private electronic bulletin boards” in its discussion of the types of communications that Congress "wanted to protect” in passing the SCA. Id. at 875. However, this Court disagrees with the Konop court’s reading of the legislative history in reaching that conclusion. The House and Senate reports generally contrast private e-mail, which would be covered, with public bulletin boards, which would not be covered. H.R. Rep. No 99-647 at 64 (1986) (“It is not the Committee's intent to hinder the development or use of “eleсtronic bulletin boards” or other comparable services. The Committee believes that where communication are readily accessible to the general public, the send has, for purposes of Section 2701(a), extended an "authorization” to the public to access those communications.”); S.Rep. No. 99-541 at 36 (1986) ("This subsection does not prevent broad authorizations to the general public to access such a facility. The bill does not for example hinder the development or use of 'electronic bulletin boards’ or other similar services where the availability of information about the service, and the readily accessible nature of the service are widely known and the service does not require any special access code or warning to indicate that the information is private. To access a communication in such a public system is not a violation of the Act, since the general publiс has been ‘authorized’ to do so by the facility provider.”)
The legislative history does not speak as to how Congress intended to handle a private bulletin board, where postings could be seen by multiple individuals at once, but each individual needed authorized access.
. 18 U.S.C. § 2510(17) (emphasis added).
. U.S. Dep’t of Justice, Electronic Evidence at 124-25 (collecting citations); Orin S. Kerr, A User’s Guide to the Stored Communications Act, 72 Geo. Wash. L.Rev. 1208, 1215-17 (2004) (same).
. Fraser v. Nationwide Mut. Ins. Co.,
.
.Cardinal Health 414, Inc. v. Adams,
.
. Supra, note 40.
. ll-cv-10007,
. Chavez v. Carranza,
. Doc. 26 at 12.
. Because Plaintiffs SCA claim fails at this threshold inquiry, the Court does not reach the question of whether the Defendants accessed an "electronic communication” or whether such access was unauthorized.
. Doc. 1 at K 49.
. See Garback v. Lossing, 09-cv-12407,
. Luis v. Zang, 11-cv-884,
. As pointed out by Defendants in their reply brief, Plaintiff does not even address the issue in their opposition to Defendants' motion for summary judgment.
. Doc 1 at ¶-55.
.Doc 1 at ¶¶ 58-60.
. Jasar Recycling Inc. v. Major Max Mgmt. Corp., 8-cv-2830,
. Edwards v. Madison Twp., 97-APE-06-819,
. A sister district court has previously allowed a similar claim under Ohio Revised Code §§ 2307.60, 2307.61, and 2913.04(B) to survive a motion to dismiss alongside Stored Communications Act claims. Lazette,