Case Information
*1 Before MURNAGHAN and MOTZ, Circuit Judges, and YOUNG, Senior United States District Judge for the District of Maryland, sitting by designation.
Vacated and remanded by published opinion. Judge Motz wrote the opinion, in which Judge Murnaghan and Senior Judge Young joined. *2 COUNSEL
ARGUED: Mark Alexander Charns, Durham, North Carolina; Thomas Franklin Loflin, III, Durham, North Carolina, for Appellant. Reginald B. Gillespie, Jr., FAISON & FLETCHER, Durham, North Carolina, for Appellees. ON BRIEF: Ann F. Loflin, Durham, North Carolina; William G. Goldston, Durham, North Carolina, for Appel- lant. Keith D. Burns, FAISON & FLETCHER, Durham, North Caro- lina, for Appellees.
_________________________________________________________________ OPINION
DIANA GRIBBON MOTZ, Circuit Judge: This case involves alleged violations of Title II of the Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2701 et seq., by appellee, the City of Durham, North Carolina, and certain officials in its police department. 1 Appellant, Cora Tucker, sued the City of Dur- ham pursuant to 18 U.S.C. § 2707, which allows a private right of action for persons aggrieved by knowing or intentional violations of the Act. Her complaint alleged that the City, through its police offi- cers, violated 18 U.S.C. § 2703(c) when the officers obtained sub- scriber information regarding her telephone service from GTE South, Incorporated, through the use of two improper subpoenas. Tucker sued the police officials in their individual and official capaci- ties. The district court dismissed all claims against the officers in their
individual capacities on the theory that 18 U.S.C.§ 2703(c)(1)(A)
expressly permits disclosure of records to "any person other than a gov-
ernmental entity," and thus the officers in their individual capacities
could not violate the statute. Tucker noted an appeal of this ruling but did
not address it in any way in her appellate briefs or at oral argument.
Accordingly, we deem any claim as to liability of the defendants in their
individual capacities to have been abandoned. See 11126 Baltimore
Blvd., Inc. v. Prince George's County,
The City of Durham argues that § 2703(c) does not create a cause of action against governmental entities. 2 Of course, in Tucker's com- plaint the asserted basis for jurisdiction was § 2707, not § 2703(c). Section 2707 provides in pertinent part:
Except as provided in section 2703(e) [exempting providers
of communication services from liability when they disclose
information pursuant to court order, subpoena, etc.], any
provider of electronic communication service, subscriber, or
customer aggrieved by any violation of this chapter in which
Tucker's only response is that the City waived this defense when it
withdrew its appeal of the district court's grant of summary judgment
with respect to the November 8 subpoena. That argument is meritless.
First, it is not at all clear that the City's decision to abandon its appeal
constituted a waiver of this argument in Tucker's appeal. In any event,
the City's argument is at heart an assertion that the complaint failed to
state a claim upon which relief can be granted. If the City is correct, then
there is no basis for federal jurisdiction here and lack of subject matter
jurisdiction "cannot be waived by the parties." United States v. Griffin,
the conduct constituting the violation is engaged in with a
knowing or intentional state of mind may, in a civil action,
recover from the person or entity which engaged in that vio-
lation such relief as may be appropriate.
18 U.S.C. § 2707(a) (1988) (emphasis added). The term "person"
refers not only to individuals, including agents and employees of gov-
ernmental entities, but also to business entities such as partnerships,
associations, and corporations. See 18 U.S.C. § 2510(6), incorporated
by reference in 18 U.S.C. § 2711 (1994). Thus, the inclusion of the
words "or entity" in § 2707 strongly suggests that Congress intended
to include governmental entities within the scope of the section; to
interpret it otherwise would render that language mere surplusage. See
Gustafson v. Alloyd Co., -- U.S. --,
In sum, the plain language of § 2707, particularly when considered in light of its legislative history, compels the holding that the statute authorizes a private cause of action against governmental entities that violate the Electronic Communications Privacy Act.
II.
This holding does not, however, end our inquiry. Persons aggrieved by violations of the Act can only assert a cause of action against the person or entity that "engaged in that violation." 18 U.S.C. § 2707(a). The only statute which Tucker alleges that the City violated is 18 U.S.C. § 2703(c). 3 Accordingly, in order for Tucker to have a cause of action and a basis for federal jurisdiction in this case, the police department must have "engaged in" a violation of § 2703(c). The lan- guage of § 2703(c) does not expressly proscribe any action by gov- ernmental entities or their employees. Rather, § 2703(c) only prohibits the actions of providers of electronic communication ser- vices and remote computing services:
A provider of electronic communication service or remote computing service shall disclose a record or other informa- tion pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a) or (b) of this section) to a governmental entity only when the governmental entity-- (i) uses an administrative subpoena authorized by a Federal or State statute, or a Federal or State grand jury or trial subpoena;
(ii) obtains a warrant issued under the Federal Rules of
Criminal Procedure or equivalent State warrant;
In contrast, in Brown v. Waddell,
(iii) obtains a court order for such disclosure under sub- section (d) of this section; or (iv) has the consent of the subscriber or customer to such disclosure. 18 U.S.C. § 2703(c)(1)(B) (1988) 4 (emphasis added). To be sure, this section discusses different courses of action available to governmental entities wishing to obtain customer information, but only in the con- text of limiting the circumstances under which providers may disclose such information. Tucker's sole support for her argument that § 2703(c) prohibits governmental entities and their employees from obtaining subscriber telephone records is the following statement from a handbook on law enforcement search and investigation techniques:"An officer who obtains a customer's telephone information by violating this federal law [§ 2703 (c)] is subject to civil damages to the customer of at least $1,000." Robert L. Farb, Arrest, Search, and Investigation in North Carolina, 2d ed. (Institute of Government, The University of North Carolina at Chapel Hill, 1992), at 86. The author cites no authority for this proposition, and we have found none.
The Electronic Communications Privacy Act was "modeled after the Right to Financial Privacy Act, 12 U.S.C. 3401 et. seq." S. Rep. No. 541 at 3, 1986 U.C.C.A.N. at 3557. Examination of the Right to Financial Privacy Act indicates that Congress there recognized a dis- tinction between limiting disclosure of information and limiting access to information. The Right to Financial Privacy Act, like the Electronic Communications Privacy Act at issue here, contains a sec- tion limiting the circumstances under which customer records may be disclosed to governmental authorities (by financial institutions rather This section was amended in 1994, but the original version, quoted above, was in effect at the time of the disclosures complained of in this case. The amendment struck out clause (i) in subpart (c)(1)(B), and added new subpart (c)(1)(C), which designated certain information that providers may disclose in response to administrative, trial or grand jury subpoenas. See 18 U.S.C. § 2703(c) (1994). Our analysis here is unchanged by the amendment.
than by communications service providers). 12 U.S.C.§ 3403 (1994).
5
However, the Right to Financial Privacy Act, unlike the statute
involved here, also contains a "companion" section limiting the cir-
cumstances under which governmental authorities may obtain access
to customer records from the financial institutions. 12 U.S.C. § 3402
(1994). Customers aggrieved by the improper disclosure of their
records have a private right of action against the governmental author-
ity that obtained the records and the financial institution that
disclosed the records. 12 U.S.C. § 3417(a). Civil actions against gov-
ernmental authorities for improperly obtaining information allege vio-
lations of § 3402, while actions against financial institutions for
improper disclosure allege violations of § 3403. Compare Duncan v.
Belcher,
Thus, in enacting the Right to Financial Privacy Act, Congress lim- ited both the disclosure of customer records by financial institutions and the acquisition of such information by governmental entities. It did so by enacting two "companion" sections, one directed at the actions of governmental entities, and the other directed at the actions of financial institutions. Although Congress modeled the statute invoked here, the Electronic Communications Privacy Act, on the Right to Financial Privacy Act and fashioned a similar prohibition against disclosure of customer information held by electronic commu- nications service providers, Congress did not incorporate in the statute relied on in this case any similar bar to acquisition of information by governmental entities. The absence of a "companion" section limiting the access of customer information by governmental entities indicates that Congress did not intend to authorize civil suits against govern- mental entities for improperly obtaining customer records.
Furthermore, even within § 2703 itself, the distinction between limiting disclosure and limiting access is apparent. While subsection (c) focuses on the conduct of the service providers, subsections (a) The Right to Financial Privacy Act has undergone some minor amendments since the time when the Electronic Communications Pri- vacy Act was "modeled after" it. See 12 U.S.C. § 3401 et seq. (1994). None of the amendments are relevant for our purposes in this case. *8 and (b) focus on the conduct of governmental entities. For example, subsection (a) provides:
A governmental entity may require the disclosure by a pro- vider of electronic communication service of the contents of an 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 issued under the Federal Rules of Criminal Procedure or equivalent State warrant. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of an 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.
18 U.S.C. § 2703(a) (1988) (emphasis added). Subsection (b) is simi- larly focused on the conduct of the government, describing when and how "[a] governmental entity may require a provider of remote com- puting service to disclose the contents of an electronic communica- tion." 18 U.S.C. § 2703(b). The inclusion, within the same section, of two subsections limiting governmental access to information and one subsection limiting provider disclosure of information makes the dis- tinction between the two eminently clear.
A governmental entity that violates the dictates of§ 2703(a) or (b)
may be held civilly liable for such violation. See Steve Jackson
Games, Inc. v. United States Secret Service,
Consequently, § 2707 does not authorize a private cause of action against the City of Durham or its officers in this case. III.
Having concluded that the ECPA does not authorize a civil suit against the City for "violating" § 2703(c), we cannot address the mer- its of this appeal. Thus, we do not reach the question of whether the information obtained by the City, through its police department, was in the public domain. Instead because the complaint failed to state a claim upon which relief can be granted, we vacate the orders of the district court and remand the case for entry of an order of dismissal on that ground.
VACATED AND REMANDED