Walker v. Coffey

956 F.3d 163

Carol Lee WALKER, Appellant

v.Senior Deputy Brian T. COFFEY, In His Individual Capacity; Special Agent Paul Zimmerer, In His Individual Capacity

No. 19-1067

United States Court of Appeals, Third Circuit.

Argued September 12, 2019

Opinion Filed: April 16, 2020

Geoffrey Richard Johnson [ARGUED], Stevens & Lee, 1818 Market Street, 29th Floor, Philadelphia, PA 19103, Counsel for Appellant

Claudia M. Tesoro [ARGUED], Office of Attorney General of Pennsylvania, 1600 Arch Street, Suite 300, Philadelphia, PA 19103, Counsel for Appellees

Before: CHAGARES, JORDAN and RESTREPO, Circuit Judges

OPINION OF THE COURT

RESTREPO, Circuit Judge

Appellant Carol Lee Walker brought suit against a prosecutor and special agent from the Pennsylvania Office of the Attorney General (OAG) alleging they violated provisions of the Stored Communications Act, 18 U.S.C. §§ 2701 et seq. (SCA), by inducing her employer, Pennsylvania State University (Penn State or University), to disclose her work emails with a facially invalid subpoena. Because the Appellees’ actions, although improper, did not violate the SCA, we will affirm the dismissal of Walker’s claims.

I.

In July 2015, the OAG brought charges of forgery and computer crimes against Walker in Pennsylvania state court. The charges arose from a criminal investigation involving Walker’s husband and his trucking company. The OAG assigned Senior Deputy Attorney General Brian Coffey as the prosecutor and Special Agent Paul Zimmerer as the lead investigator to her case. Some charges against Walker were dropped after an August 2015 preliminary hearing, but four counts of conspiracy to commit forgery remained pending trial.

In October 2015, Coffey and Zimmerer requested that Penn State aid their investigation by producing Walker’s emails from her employee account. Rather than disclose Walker’s emails, however, Penn State officials requested the government agents produce a subpoena. Coffey and Zimmerer obtained a subpoena form from the Centre County Court of Common Pleas but only partially completed the required fields. The subpoena listed the case caption, the intended recipient, and the request for "any & all emails/computer files/documents/attachments to or from Carol Lee Walker" at her Penn State email address. Missing from the subpoena was information regarding the date, time or place where the testimony or evidence would be produced, or which party was requesting the evidence. The OAG concedes that the subpoena was incomplete and therefore unenforceable.

On October 21, 2015, Zimmerer offered the facially invalid subpoena to Katherine Allen, Assistant General Counsel for Penn State. Allen thereafter instructed a Penn State employee to assist Zimmerer with the production of the requested emails. Sometime after the OAG obtained Walker’s emails, the pending criminal charges against her were dismissed with prejudice.

Walker filed an action under 42 U.S.C. § 1983, alleging that Coffey and Zimmerer conducted an unreasonable search in violation of the Fourth Amendment by inducing Penn State to produce the emails with an invalid subpoena. The District Court granted the Appellees’ motion to dismiss after concluding Coffey and Zimmerer were entitled to qualified immunity because Walker did not have a clearly established right to privacy in her work emails.

On appeal, a panel of this Court affirmed the District Court’s dismissal on qualified immunity grounds. The panel held there was "no dispute" that the confiscated emails were sent or received by Walker’s work e-mail address, and the emails themselves were a "part of an email system controlled and operated by Penn State." Walker v. Coffey , 905 F.3d 138, 149 (3d Cir. 2018). Because the "emails were subject to the common authority of [her] employer," Walker "did not enjoy any reasonable expectation of privacy vis-à-vis Penn State." Id. Thus, Fourth Amendment protection did not attach.

Given that Penn State exercised this dominion over its employees’ electronic communications, the panel held that the University had the authority to produce Walker’s work emails. Significantly, the panel also concluded that Penn State acted through its attorney and produced the emails voluntarily, rather than under coercion resulting from the invalid subpoena. Rather than finding Coffey and Zimmerer "evade[d] the limitations of the Fourth Amendment by inducing [Penn State] to do what [it] cannot," the panel held that Penn State was a private party that exercised its "independent ability to consent to a search." Id . In reaching this conclusion, the panel emphasized that it did not condone Coffey and Zimmerer’s improper use of an invalid subpoena. While noting the impropriety of the OAG’s actions, it determined that under the circumstances—Penn State acting within its legal authority and through its own counsel—the University’s compliance with the government’s request for the emails was voluntary "despite the facial invalidity of the subpoena." Id. at 150.

Because Coffey and Zimmerer did not violate Walker’s right to privacy, the panel agreed with the District Court that they were entitled to qualified immunity and affirmed the dismissal of her § 1983 claim. However, it vacated the District Court’s order denying Walker leave to file a second amended complaint to address a new claim under the SCA. Id. at 150-51.

Walker filed an amended complaint alleging that Coffey and Zimmerer violated sections 2701(a), 2703(a) and 2703(b) of the SCA. In granting the Appellees’ motion to dismiss, the District Court found that Walker had not alleged a violation. It further found that qualified immunity was available for claims raised under the SCA and that Coffey and Zimmerer were again entitled to immunity. The District Court reasoned that, even if an SCA violation had been alleged, qualified immunity would be appropriate because the applicable law was unclear when the emails were procured. Walker appeals the District Court’s dismissal of her claim.

II.

The District Court exercised jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291 to review the District Court’s order of dismissal. We exercise plenary review over a decision to dismiss claims under Federal Rule of Civil Procedure 12(b)(6). In re Nickelodeon Consumer Privacy Litig. , 827 F.3d 262, 271 (3d Cir. 2016). To survive a motion to dismiss, a plaintiff must allege "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]" of a cause of action. Phillips v. County of Allegheny , 515 F.3d 224, 234 (3d Cir. 2008) (internal quotations omitted).

III.

This Court, in reviewing the dismissal of Walker’s first complaint, held that it was not clearly established that the Fourth Amendment afforded her the right "to have the contents of her work emails remain free from a law enforcement search, absent a warrant or valid exception to the warrant requirement." Walker , 905 F.3d at 144. The primary question before us now is whether the SCA provided Walker with heightened privacy rights to her work emails and a cause of action resulting from the government’s use of an invalid subpoena.

For the reasons that follow, we conclude that the SCA does not provide Walker with viable grounds for relief. The SCA is inapplicable because Penn State does not provide electronic communication services to the public, and the University acted within its rights as Walker’s employer in voluntarily disclosing her work emails. Our holding is a narrow one: we are not deciding whether, if the invalid subpoena had induced Penn State to disclose Walker’s emails, Coffey and Zimmerer would have liability under the SCA. We hold only that, given the record before us, the dismissal of the claims was proper.

The Stored Communications Act is Title II of the Electronic Communications Privacy Act, codified at 18 U.S.C. §§ 2701 et seq . Passed by Congress in 1986, "the SCA was enacted because the advent of the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address." Quon v. Arch Wireless Operating Co. , 529 F.3d 892, 900 (9th Cir. 2008), rev’d on other grounds sub nom. Ontario v. Quon , 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010). Historically, the Fourth Amendment has not protected personal information revealed to third parties. See, e.g. , United States v. Miller , 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) ("The Fourth Amendment does not prohibit the obtaining of information revealed to a third party ... even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed."). Providers of electronic communications act as third parties that store and process their users’ private files, meaning the provider-maintained files fall outside Fourth Amendment protection. Because most electronic communication providers serve the public but are themselves private actors, they could potentially search files held under their control and disclose their users’ information to the government without violating the Fourth Amendment. See Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It , 72 Geo. Wash. L. Rev. 1208, 1210-11 (2004).

To address this vulnerability, Congress crafted the SCA to protect information held by centralized communication providers. In re Google Inc. Cookie Placement Consumer Privacy Litig. , 806 F.3d 125, 147 (3d Cir. 2015). The SCA "creates a set of Fourth Amendment-like privacy protections by statute [by] regulating the relationship between government investigators and service providers in possession of users’ private information." Kerr, supra , at 1212. It provides this enhanced privacy protection by limiting the government’s ability to compel providers to disclose their users’ information, 18 U.S.C. § 2703, and by limiting the providers’ ability to disclose such information to the...