Federal Guide Federal Statutory Civil Law

  1. Federal Civil Rights Statutes, Title VII or Title IX

    1. Introduction

      The federal Civil Rights Act of 1964 outlaws discrimination based on race, color, religion, sex, or national origin. Sexual harassment is encompassed within its prohibition of discrimination on the basis of sex. Because Congress wished to encourage enforcement of these statutes by “private attorneys general,” federal courts may award attorney’s fees to a plaintiff who prevails on claims brought under the Civil Rights Act.1 The sections of the Civil Rights Act that are most likely to be useful to a WMC victim are Title VII, which prohibits sexual harassment or other forms of discrimination at work, or title IX, which prohibits discrimination in an education program that receives funding from the federal government.

    2. Text of Statute(s)

      20 U.S.C. § 1681 (Title IX)

      (a) Prohibition against discrimination; exceptions

      No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance [. . .]

      42 U.S.C. § 2000e-2 (Title VII)

      (a) Employer practices

      It shall be an unlawful employment practice for an employer--

      (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

      (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

      […]

    3. Cases

      1. Ruiz v. City of New York, No. 14-cv-5231 (VEC), 2015 WL 5146629 (S.D.N.Y. Sept. 2, 2015)

        • Procedural Posture: Defendants moved to dismiss plaintiffs’ amended complaint.

        • Law: Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2; the Civil Rights Act of 1866, 42 U.S.C. § 1981; constitutional claims under 42 U.S.C. § 1983, and state law human rights statutes

        • Facts: Plaintiffs were two minority members of the New York Police Department who were romantically involved with each other. They brought claims alleging that defendants, other officers of the New York Police Department and the City of the New York, had engaged in several official and non-official discriminatory and retaliatory actions. In particular, plaintiffs alleged that a coworker had circulated an image of the female plaintiff’s face superimposed onto a naked woman’s body. The female plaintiff also alleged that she was singled out for discipline in retaliation for complaining about discrimination and, as a result, had severely limited promotion and transfer prospects.

        • Outcome: The court dismissed several of plaintiffs’ claims, but allowed the female plaintiff to pursue her race discrimination claims and both plaintiffs to pursue their retaliation and hostile work environment claims.

        • Special Notes: Although the court held that the female plaintiff had not adequately alleged a connection between her gender and the adverse employment action she suffered, it concluded that both defendants had adequately alleged sexual harassment through a hostile work environment. The court highlighted the photoshopped image circulated by a coworker, several instances of sexually-explicit graffiti using the plaintiffs’ names, and a lewd text a coworker sent both plaintiffs.

      2. Doe v. Town of Stoughton, No. 12-10467-PBS, 2013 WL 6195794 (D. Mass. Nov. 25, 2013)

        • Procedural Posture: Plaintiff brought claims against the Town of Stoughton, her school principal, and the town Superintendent of Schools. Defendants moved for summary judgment.

        • Law: Title IX of the Civil Rights Act, Constitutional Claims (Equal Protection), Massachusetts Fair Practices Act, negligence.

        • Facts: Plaintiff was a 14-year old freshman attending public high school. A 17-year old junior solicited nude photographs from plaintiff and, when she sent them, he distributed those photographs to friends and classmates through his cell phone and the Internet. Other classmates subsequently subjected Plaintiff to sexual harassment; for example, other male students requested more nude photographs, students called her gender-charged derogatory names, and students threatened to widen the distribution of the photographs if she transferred to another school. Plaintiff and her mother reported the incidents to school employees in the guidance department, who promised to take action to prevent further harassment. But no formal disciplinary measures were ever imposed and no parents were notified, even after the junior who solicited nude photographs was charged with statutory rape and pled guilty to assault and battery.2

        • Outcome: The court held plaintiffs’ Title IX and negligence claims survived summary judgment but entered summary judgment in favor of defendants on the remainder.

        • Special Notes: Although defendants argued that plaintiff was not harassed “on the basis of sex,” the court held that a reasonable jury could find that the actions were because of plaintiff’s sex, in that (1) students circulated nude photographs of the plaintiff, (2) name-calling included several gender-charged words, (3) classmates spoke to plaintiff about the photographs in a sexually demeaning manner, and (4) in this context, pointing, whispering, and staring by fellow students can be considered sexual harassment. The court further held that the harassment met the “severe, persistent, and objectively offense” bar due to the high number of students (estimated to be between 25 and 30), and the frequency of harassment (as often as every day for a number of months). Additionally, the court concluded a jury could reasonably find that the harassment deprived plaintiff of a public school education based on plaintiff’s testimony that the harassment caused her to develop an eating disorder that required extensive treatment, a week-long hospitalization, and eventual withdrawal from school.

      3. Phillips v. Donahoe, No. 12-410, 2013 WL 5963121 (W.D. Pa. Nov. 7, 2013)

        • Procedural Posture: Plaintiff, a postal employee, brought claims against the Postmaster General. Defendant moved for summary judgment.

        • Law: Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2

        • Facts: After plaintiff made comments about a coworker, she received threatening text messages from him and his cousin, another coworker. The cousin had nude photographs of plaintiff in sexually suggestive poses on his cell phone, and he showed the photographs to several coworkers. Plaintiff was eventually terminated.

        • Outcome: The court held that a reasonable jury could conclude that plaintiff had experienced a hostile work environment because of her sex, but that the Postal Service could not be held vicariously liable for her coworker’s harassing conduct because plaintiff’s supervisors took actions that were reasonably calculated to prevent further harassment. The court denied the defendant’s motion for summary judgment as to plaintiff’s retaliation claims.

        • Special Notes: The court held that although the harassing conduct spanned a brief period of time, it was nonetheless sufficient for a trier of fact to find that the work environment was both objectively and subjectively abusive. In particular, the court highlighted that the plaintiff had almost quit her job after she learned that pictures of her naked body had been shown to her coworkers, and that Pennsylvania law reflects a societal interest in preventing the unauthorized exposure of an individual’s intimate body parts.

      4. Morrison v. N. Essex Commty. College,780 N.E. 2d 132 (Mass. App. Ct. 2002)

        • Procedural Posture: The trial court granted summary judgment for the defendants based on its conclusion that the claims were barred by the three-year statute of limitations. Plaintiffs appealed.

        • Law: Title IX, 20 U.S.C. § 901(a), and state law unfair educational practice claims

        • Facts: Plaintiffs were two female athletes who alleged they were sexually harassed by their basketball coach, who was also the school’s athletic director, while they attended Northern Essex Community College as students. There was evidence that college administrators were on notice as early as the 1980s that the coach gave liquor to underage students and asked female students for sexual favors. No official action was taken until seven years after the initial reports, when the college investigated a complaint against the coach and uncovered several similar accusations, including that he had threatened to reveal pictures in which female students appeared naked that were apparently taken while the students were drunk. As a result of the investigation, the college and the coach entered an agreement prohibiting him from coaching any female athletic teams, but this agreement was later modified to allow him to coach the female basketball team after the earlier coach resigned. Plaintiffs were on the team when he returned, and the coach engaged them in sexually explicit conversations and made sexual advances toward them.

        • Outcome: Grant of summary judgment was reversed and the case was remanded. The court held that “[b]ecause the creation of a hostile educational environment may occur through accretion of sexually offensive behavior over time, the most recent incident of conduct (conduct that need not itself be independently actionable) anchors prior, related events for purposes of determining whether the limitations bars suit even though a large portion of the discriminatory conduct may have taken place more than three years prior to the complaint.” The court concluded that there were genuine issues of material fact regarding whether incidents of conduct within the limitations period were substantially related to earlier events. Additionally, the court held that there were genuine issues of material fact related to whether the college was deliberately indifferent because there was evidence showing the college had been put on notice of the coach having sexually harassed other women at the college.

    4. Practice Pointers

      • Title VII and Title IX of the federal Civil Rights Act do not provide plaintiffs with a cause of action against individuals, only against employers and educational institutions.3

      • Title VII imposes an exhaustion requirement, meaning that an employee alleging unlawful discrimination or retaliation must file an administrative charge with the EEOC (or a similar state or local agency) before suing in court.4 Title VII claims by federal employees must be brought against the head of the relevant department, agency, or unit.5

      • To establish a Title IX claim against a school district based on student-on-student harassment, a plaintiff must be able to show (1) the harassment is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit; (2) the defendant had actual knowledge of the harassment; and (3) the district acted with deliberate indifference to the harassment.6

    1. See Civil Rights Attorney’s Fees Award act, codified at 42 U.S.C. § 1988. 

    2. This factual description is taken from the court’s order granting in part and denying in part the defendants’ motion to dismiss. See Doe v. Town of Stoughton, 917 F. Supp. 2d 160 (D. Mass. 2013). 

    3. See Ruiz v. City of New York, No. 14-cv-5231 (VEC), 2015 WL 5146629, at *12 (S.D.N.Y. Sept. 2, 2015). 

    4. See 42 U.S.C. § 2000e-5(e)(1); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). 

    5. See 42 U.S.C. § 2000e-16(c). 

    6. See Doe v. Town of Stoughton, No. 12-10465-PBS, 2013 WL 6195794, at *1 (Nov. 25, 2013). 

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  2. Federal Statutory Civil Law for Enforcing Constitutional Claims, 42 U.S.C. § 1983

    1. Introduction

      Section 1983, codified as 42 U.S.C. § 1983, was enacted as part of the Civil Rights Act of 1871, and it provides a civil remedy for people whose constitutional rights have been violated.1

      Because constitutional rights generally protect individuals against the government, Section 1983 is generally used to seek monetary remedies from government officials and municipalities, and plaintiffs can also bring civil conspiracy claims under section 1983 if their constitutional rights were violated as the result of an agreement between multiple people. Section 1983 covers a broad swath of issues and often involve complex questions of jurisdiction and procedure.

      A suit under Section 1983 must identify which of plaintiff’s constitutional rights he or she alleges was violated. Most of the cases described below allege violations of plaintiffs’ rights under the Equal Protection Clause or the Fourth Amendment, but a victim should consider whether other constitutional rights are at issue.

      In sum, if the culpable actors were government officials, a WMC victim can consider suing for damages under 42 U.S.C. § 1983.

    2. Text of Statute(s)

      42 U.S.C. § 1983

      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

      Fourth Amendment

      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      Equal Protection Clause (Fourteenth Amendment, Section 1)

      All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    3. Cases

      1. Ruiz v. City of New York, No. 14-cv-5231 (VEC), 2015 WL 5146629 (S.D.N.Y. Sept. 2, 2015)

        • Procedural Posture: Defendants moved to dismiss plaintiffs’ amended complaint.

        • Law: Title VII of the Civil Rights Act, the Civil Rights Act of 1866, 42 U.S.C. § 1981, constitutional claims under 42 U.S.C. § 1983, and state law human rights statutes

        • Facts: Plaintiffs were two minority members of the New York Police Department who were romantically involved with each other. They brought claims alleging that defendants, other officers of the New York Police Department and the City of the New York, had engaged in several official and non-official discriminatory and retaliatory actions. In particular, plaintiffs alleged that a coworker had circulated an image of the female plaintiff’s face superimposed onto a naked woman’s body.

        • Outcome: The court dismissed several of plaintiffs’ claims, but allowed the female plaintiff to pursue her race discrimination claims and both plaintiffs to pursue their retaliation and hostile work environment claims.

        • Special Notes: The court dismissed plaintiffs’ 42 U.S.C. § 1983 claims against the City of New York because the plaintiffs’ allegations were not sufficient to support a claim for municipal liability. Under the 1978 Supreme Court ruling in Monell v. Dep’t of Soc. Servs. of City of N.Y., a municipal entity can only be held liable under § 1983 if the plaintiff can show the constitutional violation was caused by a municipal policy or custom. See 436 U.S. 658, 694 (1978). The court held that this standard was not satisfied by allegations the misconduct was repetitive, continuous, systematic, and extended up the chain of command to a Commanding Officer. The court paid particular attention to the fact that the coworker who circulated the photoshopped image was disciplined after plaintiffs complained.

      2. Doe v. Old Forge Borough, No. 3:12-cv-2236, 2015 WL 4041435 (M.D. Pa. July 1, 2015); Doe v. Old Forge Borough II, No. 3:12-cv-2236, 2015 WL 4079362 (M.D. Pa. July 1, 2015).

        • Procedural Posture: Defendants moved to dismiss some of plaintiff’s claims.

        • Law: Child Abuse Victim’s Rights Act, 18 U.S.C. § 2255; constitutional claims (Substantive Due Process) under 42 U.S.C. § 1983, and several state law torts (negligence, negligence per se, negligent infliction of emotional distress).

        • Facts: While plaintiff was a volunteer junior firefighter, beginning when she was 15, she was sexually assaulted by Borough police officers and firefighters. Plaintiff was also suspended after one defendant told Borough personnel that he had naked pictures of her. All three individual defendants were criminally charged and convicted for their actions against plaintiff.

        • Outcome: The court dismissed most of plaintiff’s claims, but allowed her to pursue her claims against the Borough that her constitutional right to substantive due process was violated by the municipality’s failure to supervise, train, or promulgate policies adequate to protect her.

        • Special Notes: The court observed that all people should be well aware that sexually abusing minors is a criminal action, meaning that her theory of liability would not be convincing if it relied on concluding that her sexual abuse could have been prevented if the Borough had more rigorous policies or training programs about proper contact with minors. But the court did conclude that the municipality could be held liable if plaintiff could prove her allegations that it had failed to implement a policy for reporting supervising officers’ improper and illegal conduct, had not properly sanctioned employees for improper activity, and had not properly monitored and supervised officers with records of improper conduct.

      3. Gillespie v. City of Battle Creek, --- F. Supp. 3d ---, 2015 WL 1459611 (W.D. Mich. Mar. 30, 2015)

        • Procedural Posture: City defendant moved to dismiss, and individual defendants moved for partial judgment on the pleadings.

        • Law: Wiretap Act, 18 U.S.C. § 2520(a); Constitutional Claims (Fourth Amendment); civil conspiracy under 42 U.S.C. § 1983; Michigan eavesdropping statute; state law tort claims (intrusion on seclusion, embarrassing private facts, negligent infliction of emotional distress, intentional infliction of emotional distress)

        • Facts: After receiving reports that money and property had been stolen from the women’s locker room, the Battle Creek Police Department installed a camera and video recording device in the locker room without informing female officers they would be recorded. A video from the locker room recording device was shown during a disciplinary hearing because it included footage of a female officer in her uniform going through at least two open lockers. That video also included footage of the officer removing her clothing and her naked breasts. During the screening, the head of the Internal Affairs Division, who was operating the audio/visual equipment, suggested that the male officers turn around before that part of the video. The officer was instructed not to say anything about the recording or she would be fired, and she was eventually terminated. Several female police officers, including the officer who was shown in the hearing, sued the City and high-ranking officers in the Police Department. The other plaintiffs regularly used the women’s locker rooms and believed they were taped, but did not have access to the videotapes.

        • Outcome: Plaintiffs’ constitutional claims (among others) against the City were allowed to proceed to discovery because the Chief of Police had authorized the surreptitious recording device.

        • Special Notes: The court agreed with plaintiffs that whether a person possesses “final authority” sufficient to establish municipal liability is not a purely legal question, but is a fact-intensive inquiry regarding practice, custom, and delegation of duties.

          The court dismissed the plaintiffs’ civil conspiracy claim under 42 U.S.C. § 1983 because it alleged a conspiracy between employees of the City and was therefore barred by the intra-corporate conspiracy doctrine. The intra-corporate conspiracy doctrine provides that where all defendants belong to the same collective entity, there can be no conspiracy because the defendants are all essentially one “person,” and two “people” are required to have a conspiracy. In so holding, the court rejected plaintiffs’ argument that the intra-corporate conspiracy doctrine does not apply to claims under § 1983.

      4. Doe v. Town of Stoughton, No. 12-10467-PBS, 2013 WL 6195794 (D. Mass. Nov. 25, 2013)

        • Procedural Posture: Plaintiff brought claims against the Town of Stoughton, her school principal, and the town Superintendent of Schools. Defendants moved for summary judgment.

        • Law: Title IX of the Civil Rights Act, Constitutional Claims (Equal Protection), Massachusetts Fair Practices Act, negligence.

        • Facts: Plaintiff was a 14-year old freshman attending public high school. A 17-year old junior solicited nude photographs from plaintiff and, when she sent them, he distributed those photographs to friends and classmates through his cell phone and the Internet. Other classmates subsequently subjected Plaintiff to sexual harassment; for example, other male students requested more nude photographs, students called her gender-charged derogatory names, and students threatened to widen the distribution of the photographs if she transferred to another school. Plaintiff and her mother reported the incidents to school employees in the guidance department, who promised to take action to prevent further harassment. But no formal disciplinary measures were ever imposed and no parents were notified, even after the junior who solicited nude photographs was charged with statutory rape and pled guilty to assault and battery.2

        • Outcome: The court held plaintiffs’ Title IX and negligence claims survived summary judgment but entered summary judgment in favor of defendants on the remainder, including plaintiffs’ claims based on the Equal Protection Clause.

        • Special Notes: The court held the municipality was entitled to summary judgment on plaintiff’s constitutional claims under 42 U.S.C. § 1983 because the school officials who addressed plaintiff’s complaints were not final policymakers under state law and the record did not show a pattern or practice of discrimination. The court also granted summary judgment on plaintiff’s § 1983 claims against the superintendent and assistant principal because neither official was involved in the disciplinary decisions that plaintiff alleged caused her injury.

      5. Clements-Jeffrey v. City of Springfield, Ohio, 810 F. Supp. 2d 857 (S.D. Ohio 2011).

        • Procedural Posture: Two plaintiffs, one male and one female, sued the City, City police officers, a software company, and the company’s theft recovery officer. Defendants moved for partial summary judgment.

        • Law: Constitutional Claims (Fourth Amendment), Federal Wiretap Act, Stored Communications Act, state invasion of privacy law

        • Facts: The female plaintiff purchased a laptop that, unbeknownst to her, was stolen, and she used the laptop to exchange sexually explicit email messages, instant messages, and webcam images with the male plaintiff, believing that password protection would keep these communications secure and private. The stolen laptop had originally been purchased by a school district, however, they installed a theft recovery service provided by the defendant software company and issued the laptop to a vocational student. When the student filed a police report for the theft of the laptop, the school district authorized the defendant software company to gather information to identify the user of the stolen laptop. The software company accomplished this by, among other things, causing the laptop to download software that allows theft recovery officers to remotely access the laptop, to capture screen shots of images shown on the monitor, to record all keystrokes, and to intercept electronic communications sent to and from the stolen laptop without the user’s knowledge. The defendant theft recovery officer was assigned to track this laptop and captured keystrokes, monitored the female plaintiff’s visits to various websites, and took screen shots of sexually explicit images plaintiffs sent using webcams. All these images were sent to the police, who interrogated her about the laptop, showed her the sexually explicit screen captures, berated her about her use of the webcam, and arrested and charged her with receipt of stolen property. The charge was eventually dismissed.

        • Outcome: The court denied the software company and theft recovery officer’s motion for summary judgment because it was not acting as an agent of the police (and therefore did not have immunity because it was acting under the color of law). Also, because a reasonable jury could find that the female plaintiff neither knew nor should have known that the laptop was stolen, there were genuine issues of fact regarding whether or not she had a reasonable expectation of privacy in the laptop. However, the court granted summary judgment for the City and City police officers because, even if they obtained the images from the software company wrongfully, their use of the communications was not a search and seizure and because they had qualified immunity.

    4. Practice Pointers

      • Claims under § 1983 must establish that plaintiffs were denied a constitutional or federal right under color of state law, and therefore usually can be brought only against government officials or entities.3

      • Claims against government officials often fail against those actors’ qualified immunity defense. “Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.”4 Plaintiffs who bring constitutional claims under § 1983 should conduct research and seek discovery to counter this common defense.

      • A municipal entity may be held liable under § 1983 only if the plaintiff can show the constitutional violation was caused by a municipal “policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.”5

      • For these and other reasons, litigation of § 1983 claims often focuses more on procedural hurdles than on whether the plaintiff’s constitutional rights were actually violated. In considering whether to bring claims under § 1983, victims and their attorneys should familiarize themselves with the complex procedural rules.

    1. A more detailed summary of Section 1983 litigation is available from the Federal Judicial Center. See Martin A. Schwartz & Kathryn R. Urbonya, Section 1983 Litigation (2d ed. 2008), available at http://www.fjc.gov/public/pdf.nsf/lookup/sec19832.pdf/$file/sec19832.pdf

    2. This factual description is taken from the court’s order granting in part and denying in part the defendants’ motion to dismiss. See Doe v. Town of Stoughton, 917 F. Supp. 2d 160 (D. Mass. 2013). 

    3. See 42 U.S.C. § 1983; Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50-61 (1999). 

    4. Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)). 

    5. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978). 

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  6. Federal Wiretap Act, 18 U.S.C. § 2520

    1. Introduction

      The federal Wiretap Act protects individual privacy in communications with other people by imposing civil and criminal liability for intentionally intercepting communications using a device, unless that interception falls within one of the exceptions in the statute. Although the Wiretap Act originally covered only wire and oral conversations (for example, using a device to listen in on telephone conversations), it was amended in 1986 to cover electronic communications as well (for example, emails or other messages sent via the Internet).

      If a WMC victim’s sexual photos or videos are obtained through interception of an electronic communication, the perpetrator may be criminally and civilly liable under this statute.

    2. Text of the Statute(s)

      18 U.S.C. § 2511

      (1) Except as otherwise specifically provided in this chapter any person who--

      (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

      (b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when--

      (i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or

      (ii) such device transmits communications by radio, or interferes with the transmission of such communication; or

      (iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or

      (iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or

      (v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;

      (c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

      (d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or

      (e)

      (i) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, intercepted by means authorized by sections 2511(2)(a)(ii), 2511(2)(b)-(c), 2511(2)(e), 2516, and 2518 of this chapter,

      (ii) knowing or having reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation,

      (iii) having obtained or received the information in connection with a criminal investigation, and

      (iv) with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation,

      shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5)

      […]

      18 U.S.C. § 2520

      (a) In general.--Except as provided in section 2511(2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.

      (b) Relief.--In an action under this section, appropriate relief includes--

      (1) such preliminary and other equitable or declaratory relief as may be appropriate;

      (2) damages under subsection (c) and punitive damages in appropriate cases; and

      (3) a reasonable attorney's fee and other litigation costs reasonably incurred.

      (c) Computation of damages.--

      (1) In an action under this section, if the conduct in violation of this chapter is the private viewing of a private satellite video communication that is not scrambled or encrypted or if the communication is a radio communication that is transmitted on frequencies allocated under subpart D of part 74 of the rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, then the court shall assess damages as follows:

      (A) If the person who engaged in that conduct has not previously been enjoined under section 2511(5) and has not been found liable in a prior civil action under this section, the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less than $50 and not more than $500.

      (B) If, on one prior occasion, the person who engaged in that conduct has been enjoined under section 2511(5) or has been found liable in a civil action under this section, the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less than $100 and not more than $1000.

      (2) In any other action under this section, the court may assess as damages whichever is the greater of--

      (A) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or

      (B) statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.

      […]

    3. Cases

      1. Bruce v. McDonald, No. 3:13cv221-MHT, 2014 WL 931522 (M.D. Ala. Mar. 10, 2014)

        • Procedural Posture: Husband and wife plaintiffs sued the wife’s ex-husband and his attorneys for violations of the federal Wiretap Act. Parties filed cross-motions for summary judgment.

        • Law: Wiretap Act, 18 U.S.C. § 2520(a).

        • Facts: When formerly married plaintiff and defendant divorced, they split custody of their only child. Plaintiff eventually married another man, her co-plaintiff in this lawsuit. Without authorization, defendant gained access to his ex-wife’s individual email account, the plaintiffs’ joint email account, and their joint AdultFriendFinder account. Defendant printed out hundreds of pages of sexually explicit messages and photos from the accounts relating to plaintiffs’ engaging in sexual conduct with other people. Defendant allegedly sent a packet of these documents to the Alabama Board of Pharmacy, which began taking actions to revoke plaintiff’s pharmacist’s license, and also disclosed the documents to his attorneys in the child-custody dispute against plaintiff. The attorneys used the documents in the custody case, subject to a protective order, and also may have used the documents during a mediation. The new child custody agreement granted defendant increased custody time, put limits on plaintiff’s sexual activities, and included other terms favorable to the defendant.

        • Outcome: Summary judgment granted in favor of the defendants because there was no evidence of an “interception” as required under 18 U.S.C. § 2511.

        • Special Notes: Plaintiffs argued that defendant “intercepted” their email messages by logging into their accounts without authorization. The court held that unauthorized access to an email account, standing alone, does not constitute interception because interception does not occur unless the electronic communications were acquired while they were being transmitted. In other words, communications are “intercepted” if they are obtained while they are in motion, but are not “intercepted” if they are obtained while they are at rest.

      2. Clements-Jeffrey v. City of Springfield, Ohio, 810 F. Supp. 2d 857 (S.D. Ohio 2011).

        • Procedural Posture: Two plaintiffs, one male and one female, sued the City, City police officers, a software company, and the company’s theft recovery officer. Defendants moved for partial summary judgment.

        • Law: Constitutional Claims (Fourth Amendment), Federal Wiretap Act, Stored Communications Act, state invasion of privacy law

        • Facts: The female plaintiff purchased a laptop that, unbeknownst to her, was stolen, and she used the laptop to exchange sexually explicit email messages, instant messages, and webcam images with the male plaintiff, believing that password protection would keep these communications secure and private. The stolen laptop had originally been purchased by a school district, however, that installed a theft recovery service provided by the defendant software company and issued the laptop to a vocational student. When the student filed a police report for the theft of the laptop, the school district authorized the defendant software company to gather information to identify the user of the stolen laptop. The software company accomplished this by, among other things, causing the laptop to download software that allows theft recovery officers to remotely access the laptop, to capture screen shots of images shown on the monitor, to record all keystrokes, and to intercept electronic communications sent to and from the stolen laptop without the user’s knowledge. The defendant theft recovery officer was assigned to track this laptop and captured keystrokes, monitored the female plaintiff’s visits to various websites, and took screen shots of sexually explicit images plaintiffs sent using webcams. All these images were sent to the police, who interrogated her about the laptop, showed her the sexually explicit screen captures, berated her about her use of the webcam, and arrested and charged her with receipt of stolen property. The charge was eventually dismissed.

        • Outcome: The court denied the software company and theft recovery officer’s motion for summary judgment. As relevant to the Wiretap Act, the court refused to craft a public policy exception to the federal Wiretap Act where the rights of a user of stolen property could never outweigh the rights of the legal owner of that property. Instead, the court held it is inappropriate for a court to craft a “public policy” exception to the Wiretap Act, and that any steps an owner of stolen property takes to track down that property must stay within the confines of the law.

    4. Practice Pointers

      • Whether or not communications were “intercepted” is a key issue under the Federal Wiretap Act. Although the statute defines “intercept” broadly 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,”1 some courts have adopted a more narrow construction requiring that “interception” occur while the communication is being transmitted.2 Plaintiffs seeking to bring claims under the Wiretap Act should research the interpretation of “interception” in the applicable jurisdiction.

      • Civil claims under the Federal Wiretap Act, 18 U.S.C. § 2511, are sometimes referred to in court documents as being brought under the Electronic Communications Privacy Act.3

    1. 18 U.S.C. § 2510(4). 

    2. See, e.g., United States v. Steiger, 318 F.3d 1039, 1050 (11th Cir. 2003). 

    3. See, e.g., Gillespie v. City of Battle Creek, --- F. Supp. 3d ---, 2015 WL 1459611, at *2 n.1 (W.D. Mich. Mar. 30, 2015); Clements-Jeffrey v. City of Springfield, Ohio, 810 F. Supp. 2d 857 (S.D. Ohio 2011). 

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