Rene v. G.F. Fishers, Inc.

32 IER Cases 1486

817 F.Supp.2d 1090

Lisa M. RENE, Plaintiff,

v.G.F. FISHERS, INC., et al., Defendants.

Cause No. 1:11–cv–514–WTL–DKL.

United States District Court,S.D. Indiana,Indianapolis Division.

Sept. 16, 2011.

Robert E. Duff, Indiana Consumer Law Group, The Law Office of Robert E. Duff, Lebanon, IN, for Plaintiff.

David L. Swider, Gregory W. Guevara, Jonathan A. Bont, Bose McKinney & Evans, LLP, Indianapolis, IN, for Defendants.

ENTRY ON DEFENDANTS' MOTION TO DISMISS

WILLIAM T. LAWRENCE, District Judge.

This cause is before the Court on the Defendants' motion to dismiss the Plaintiff's Complaint for failure to state a claim upon which relief can be granted. The motion is fully briefed, and the Court, being duly advised, GRANTS IN PART AND DENIES IN PART the motion for the reasons and to the extent set forth below.

I. STANDARD

In reviewing a motion to dismiss under Rule 12(b)(6), the Court must take the facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff. The complaint must contain only “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), and there is no need for detailed factual allegations. However, the statement must “give the defendant fair notice of what the ... claim is and the grounds upon which it rests” and the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Pisciotta v. Old Nat. Bancorp, 499 F.3d 629, 633 (7th Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007)).

A plaintiff's brief may clarify lingering uncertainty about the allegations in her complaint. Pegram v. Herdrich, 530 U.S. 211, 230, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000). The facts alleged in a plaintiff's briefs may be considered so long as the brief's allegations are consistent with the complaint. Flying J Inc. v. City of New Haven, 549 F.3d 538, 542, n. 1 (7th Cir.2008). Finding Rene's allegations consistent with her complaint, the Court considers and accepts as true the additional facts alleged in Rene's briefs.

II. FACTUAL BACKGROUND

The facts as alleged in the plaintiff's Complaint and in her briefs in opposition to the instant motion are as follow.

Plaintiff Lisa M. Rene (“Rene”) began working for Defendants G.F. Fishers, Inc. and G.F. Oregon, Inc. at their Southport store in Indianapolis, Indiana, in January 2009. The relationship of Defendants Daniel S. Austad, Rebecca Susan Austad, and Dean Austad to Defendants G.F. Fischers, Inc. and G.F. Oregon, Inc., is unclear but irrelevant to the instant motion.

Rene's employment duties included use of the store's personal computer. Before Rene's employment, the Defendants installed keylogger software on this computer. This keylogger software recorded all keystrokes made on the store's computer keyboard. It then periodically emailed that information to Dean Austad and other Defendants.

While personal use of the store's computer generally was prohibited, Defendants Rebecca and Daniel Austad authorized Rene to access her personal checking account and her personal email account from this computer.

After Rene had used the computer to access her email and personal checking accounts, the Defendants informed Rene that they had installed keylogger software on the store's computer.

Using this software, the Defendants acquired Rene's email password and her personal checking account password. The Defendants used these passwords to access and view Rene's email and personal checking accounts, and the Defendants viewed, forwarded, and discussed among themselves some of Rene's email messages. It is unclear whether these messages had been previously read by Rene. The Defendants also viewed and discussed the contents of her personal checking account.

In late May 2009, Rene discovered that the Defendants were accessing her email and personal checking accounts. Rene confronted Daniel Austad about this access on June 4, 2009. After this confrontation, Daniel Austad falsely documented poor performance by Rene for the purpose of terminating her employment.

As a result of Rene's discovery, the Defendants terminated Rene's employment on June 22, 2009.

III. DISCUSSION

In her Complaint, Rene argues that the Defendants' actions violated the Federal Wiretap Act, the Indiana Wiretap Act, and the Stored Communications Act. Each count will be addressed in turn below.

A. Federal Wiretap Act

The Federal Wiretap Act (“FWA”) criminalizes the interception of electronic communications, 18 U.S.C. § 2511(1)(a), and also provides for the recovery of civil damages for an interception, 18 U.S.C. § 2520(a). Rene claims that the Defendants have violated the FWA by intercepting the transmission of her keystrokes as she typed her passwords into the store's personal computer. In reply, the Defendants argue that the capture of keystrokes does not constitute an “interception” as defined in the statute.

The statute defines “intercept” as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” 18 U.S.C. § 2510(4). In addition, interception must occur contemporaneously with the communication. United States v. Szymuszkiewicz, 622 F.3d 701, 705–06 (7th Cir.2010) (noting the requirement in other circuits and applying the standard). Rene argues that when the keylogger software catches the transmission of a keystroke as it travels from keyboard to computer, a contemporaneous interception has been made. While capture and transmission may indeed occur simultaneously, this is not enough.

The Defendants argue that there was no interception because keystrokes do not constitute “electronic communication,” defined as “any transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a ... system that affects interstate or foreign commerce.” 18 U.S.C. § 2510(12). The Defendants correctly point out than an electronic communication within the purview of the statute must be transmitted by a system that affects interstate or foreign commerce.

The 11th Circuit recently addressed a similar claim in United States v. Barrington, 648 F.3d 1178 (11th Cir.2011). In Barrington, three undergraduate students at Florida A & M University installed keylogger software on registrar computers in order to acquire employees' passwords and then use these passwords to change student grades. Id. at 1183–84. The keylogger software operated by “covertly record[ing] the keystrokes made by Registrar employees as they signed onto their computers, capturing their usernames and passwords.” Id. The software then automatically transmitted the usernames and passwords to the students' email accounts. Id. However, there was no evidence that the software at issue had the capacity to contemporaneously capture information or signals being transmitted beyond the user's computer. Id. at 1202–03. Accordingly, the court held that the keylogger software was not a device that could be used to intercept an electronic communication in violation of the FWA. Id.

Barrington explains the intersection of the requirements of contemporaneous interception with interstate commerce. Specifically, Barrington analyzed whether use of keylogger software satisfied the requirements of interception under the FWA. Id. at 1202–03. The court noted that the “interception of electronic communications must occur contemporaneously with their transmission,” but the court went further, explaining that “use of a keylogger will not violate the Wiretap Act if the signal or information captured from the keystrokes is not at that time being transmitted beyond the computer on which the keylogger is installed (or being otherwise transmitted by a system that affects interstate commerce).” Id. (emphasis added). The Court finds Barrington persuasive and accordingly adopts its holding.¹ In order to violate the FWA, contemporaneous interception must occur while the transmission is traveling through a system that affects interstate or foreign commerce.

The key to the Barrington decision lies in the fact that the transmission of keystrokes exists internally on a computer. The relevant “interception” acted on a system that operated solely between the keyboard and the local computer, and captured a transmission that required no connection with interstate or foreign commerce to reach its destination. Because the keylogger software in Barrington had not been shown to capture transmissions occurring on a system affecting interstate commerce, the keylogger software in Barrington did not satisfy the requirements of the FWA. See also United States v. Ropp, 347 F.Supp.2d 831, 837–38 (C.D.Cal.2004) (explaining that, even though the computer itself was connected to a network, “the network connection is irrelevant to the transmissions [captured by the keylogger], which could have been made on a stand-alone computer that had no link at all to the internet or any other external network”).²

As in Barrington and Ropp, while the Defendants' keylogger software may have captured transmissions in transit, the system through which these signals traveled did not affect interstate or foreign commerce. As a result, the intercepted keystrokes are not “electronic communications” under the FWA. Because the intercepted keystrokes were not electronic communications, they could not be “intercepted” as that term is defined in the FWA. For this reason the Court accordingly holds that the Defendants' keylogger software did not intercept an electronic communication as a matter of law, and Rene's claim for interception must fail.

Rene also alleges violations of 18 U.S.C. § 2511(c) and (d), regarding the use and disclosure of information that was obtained through interception. Because no interception has occurred, no violation of the use and disclosure provisions has occurred, and ...