This case arose after two Fairfield, Connecticut police officers faxed a Search and Seizure Warrant Application to American Online requesting personal information about a user alleged to have sent an obscene or harassing email. The warrant application did not bear a judge’s signature, nor was an actual warrant form ever filled out or submitted for judicial approval. Therefore, the document was legally void. Still, AOL provided one of the officers with the Plaintiff’s name, address, phone numbers, account status, membership information, other AOL screen names, and software, billing, and account information. The Plaintiff brought various privacy-related statutory, contract, and state and federal constitutional claims against one or more of the Defendants: the police officers, the Town of Fairfield, and AOL. He filed a motion for summary judgment against the police officers and the Town of Fairfield for violation of the Electronic Communication Privacy Act of 1986 (“ECPA”). The ECPA requires that government entities comply with specific, proper legal process or obtain consumer consent before requesting information from internet service providers (“ISPs”). 18 U.S.C. § 2703(c)(1).
The court held that the police officers had violated the ECPA in this case. It first concluded that government entities could be liable under Section 2703(c) for failing to follow the statutory procedures for obtaining private information, citing McVeigh v. Cohen, 983 F. Supp. 215 (D. D.C. 1998) (action where naval officer requested user information from AOL in relation to another officer’s homosexual-oriented online activities) and the act’s legislative history.
The court then rejected the officers’ argument that they had merely requested, rather than required, AOL’s record disclosure. “A request accompanied by a court form has substantial resemblance to a compulsory court order,” reasoned the court.
It further declined to accept the police officers’ argument that the circumstances under which AOL disclosed the information constituted an “emergency involving immediate danger of death or serious physical injury.” The ECPA allows disclosure by the ISP under such emergency situations. 18 U.S.C. § 2702(c). But the court found no evidence that AOL voluntarily disclosed the information in response to a perceived emergency; indeed, AOL waited over six days before responding to the officers’ fax.
Finally, the court held that regardless of whether AOL had received Plaintiff’s consent to disclose his information (the facts were unclear on this point), the government did not obtain the Plaintiff customer’s consent as required for the consent exception of the statute to apply..
The court granted the Plaintiff’s summary judgment motion against the police officers, but found that the his indemnification and respondent superior claims against the Town of Fairfield were insufficiently supported to uphold summary judgment against it.
