No. 19-1067 Appellant v. BRIEF FOR APPELLEES · 2019-05-16 · IN THE UNITED STATES COURT OF...

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 19-1067

CAROL LEE WALKER,

Appellant

v.

SENIOR DEPUTY BRIAN T. COFFEY, In His Individual Capacity;

SPECIAL AGENT PAUL ZIMMERER, In His Individual Capacity

BRIEF FOR APPELLEES

APPEAL FROM THE JUDGMENT OF THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ENTERED DECEMBER 11, 2018

Office of Attorney General

1600 Arch Street

Suite 300

Philadelphia, PA 19103

Phone: (215) 560-2908

FAX: (717) 772-4526

DATE: May 8, 2019

JOSH SHAPIRO

Attorney General

BY: CLAUDIA M. TESORO

Senior Deputy Attorney General

J. BART DELONE

Chief Deputy Attorney General

Chief, Appellate Litigation Section

Case: 19-1067 Document: 003113232480 Page: 1 Date Filed: 05/08/2019

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT OF JURISDICTION.......................................................................... 1

STATEMENT OF ISSUES ....................................................................................... 2

STATEMENT OF THE CASE .................................................................................. 3

STATEMENT OF FACTS ........................................................................................ 6

STATEMENT OF RELATED CASES ...................................................................10

SUMMARY OF ARGUMENT ...............................................................................11

ARGUMENT ...........................................................................................................12

I. Walker’s Stored Communications Act Claims Against The

Defendants Were Properly Dismissed. ..........................................................13

A. Walker failed to state a claim under SCA § 2701(a). .........................16

1. Defendants themselves did not “access” a facility. ..................17

2. Defendants were in any event authorized to obtain

Walker’s emails. ........................................................................21

B. Walker also failed to state a claim under SCA § 2703. ......................30

II. Alternatively, The Defendants Were Entitled To Qualified Immunity

On Walker’s Stored Communications Act Claims Against Them. ...............37

A. Defendants in SCA civil cases may raise qualified immunity. ...........38

B. Qualified immunity applies because nothing defendants Coffey

and Zimmerer did violated clearly established law. ...........................41

1. The “clearly established law” standard is central to any

qualified immunity determination. ...........................................43


ii

2. No clearly established law undermines the defendants’

arguments regarding SCA § 2701 and SCA § 2703. ................45

3. Even if “electronic storage” warrants consideration,

divergent decisions on the issue reinforce defendants’

entitlement to immunity. ...........................................................48

CONCLUSION ........................................................................................................54

CERTIFICATE OF COUNSEL ..............................................................................55

CERTIFICATE OF SERVICE ................................................................................56


iii

TABLE OF AUTHORITIES

Page

Cases

Anderson Consulting LLP v. UOP,

991 F. Supp. 1041 (N.D. Ill. 1998) ......................................................................32

Anderson v. Creighton,

483 U.S. 635 (1987) ...................................................................................... 38, 42

Anzaldua v. Northeast Ambulance and Fire Protection Dist.,

793 F.3d 822 (8th Cir. 2015) ....................................................................... passim

Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011) .....................................................................................43

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ........................................................................................6, 33

Berry v. Funk,

146 F.3d 1003 (D.C. Cir. 1998) ........................................................ 38, 39, 40, 41

Blake v. Wright,

179 F.3d 1003 (6th Cir. 1999) ...................................................................... 40, 41

Bohach v. City of Reno,

932 F. Supp. 1232 (D. Nev. 1996) .......................................................................23

Brown Jordan International, Inc. v. Carmicle,

846 F.3d 1167 (11th Cir. 2017) ........................................................ 18, 20, 51, 52

Brown v. Grabowski,

922 F.2d 1097, 1118 (3d Cir. 1990) ....................................................................46

Burns v. PA Dept. of Corrections,

642 F.3d 163 (3d Cir. 2011) .................................................................................13

Carroll v. Carman,

135 S.Ct. 348 (2014) ............................................................................................43


iv

Casey v. Planned Parenthood of Southeastern Pa.,

14 F.3d 848 (3d Cir. 1994) ...................................................................................25

City and County of San Francisco v. Sheehan,

135 S.Ct. 1765 (2015) ..........................................................................................44

City of Escondido, Calif. v. Emmons,

139 S.Ct. 500 (2019) ............................................................................................39

City of Grand Rapids v. Grand Rapids Police Command Officers Assn.,

346 F. Supp. 3d 1061 (W.D. Mich. 2018) ...........................................................40

City of Ontario, Cal. v. Quon,

560 U.S. 746 (2010) .............................................................................................15

Collegesource, Inc. v. Academyone, Inc.,

597 Fed. Appx. 116 (3d Cir. 2015) ......................................................................24

Curry v. Yachera,

835 F.3d 373 (3d Cir. 2016) .................................................................................13

Diana v. Oliphant,

441 Fed. Appx. 76 (3d Cir. 2011) ........................................................................40

Doe v. County. of Centre, Pa.,

242 F.3d 437 (3d Cir. 2001) .................................................................................39

Doe v. Delie,

257 F.3d 309 (3d Cir. 2001) .......................................................................... 44, 53

Dresser-Rand Company v. Jones,

957 F. Supp.2d 610 (E.D. Pa. 2013) ....................................................................20

Fraser v. Nationwide Mut. Ins. Co.,

135 F. Supp.2d 623 (E.D. Pa. 2001) ....................................................................49

Fraser v. Nationwide Mutual Ins. Co.,

352 F.3d 107 (3d Cir. 2004) .......................................................................... 23, 50

Freedman v. America Online Inc.,

303 F. Supp.2d 121 (D. Conn. 2004) .......................................... 34, 35, 36, 37, 46


v

Freedman v. America Online, Inc.,

325 F. Supp.2d 638 (E.D. Va. 2004) ...................................................................35

Hafer v. Melo,

502 U.S. 21 (1991) ......................................................................................... 33-34

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ...................................................................................... 39, 42

Hassen v. Govt. of Virgin Islands,

861 F.3d 108 (3d Cir. 2017) ................................................................................... 6

Hately v. Watts,

917 F.3d 770 (4th Cir. 2019) ...............................................................................52

Hepting v. AT&T Corp.,

439 F. Supp. 2d 974 (N.D. Cal. 2006) .................................................................41

In re Google Inc. Cookie Placement Consumer Privacy Litigation,

806 F.3d 125 (3d Cir. 2015) .............................................................. 14, 16, 17, 18

In re iPhone Application Litigation,

844 F. Supp.2d 1040 (N.D. Cal. 2012) ................................................................18

In re: City of Philadelphia Litigation,

158 F.3d 711 (3d Cir. 1998) .................................................................................25

John K. Maciver Inst. for Public Policy, Inc. v. Schmitz,

885 F.3d 1004 (7th Cir. 2018) ...................................................................... 40, 41

Kane v. Barger,

902 F.3d 185 (3d Cir. 2018) .......................................................................... 45, 46

L.R. v. Sch. Dist. of Phila.,

836 F.3d 235 (3d Cir. 2016) .................................................................................43

Lazette v. Kulmatycki,

949 F. Supp.2d 748 (N.D. Ohio 2013) .................................................................17

Lonegan v. Hasty,

436 F. Supp.2d 419 (E.D.N.Y. 2006) ..................................................................40


vi

Long v. Insight Communications of Central Ohio, LLC,

804 F.3d 791 (6th Cir. 2015) ...............................................................................13

Malley v. Briggs,

475 U.S. 335 (1986) .............................................................................................41

Mammaro v. N.J. Div. of Child Prot. & Permanency,

814 F.3d 164 (3d Cir. 2016) .................................................................................44

McTernan v. City of York,

577 F.3d 521 (3d Cir. 2009) ................................................................................... 8

Mitchell v. Forsyth,

472 U.S. 511 (1985) .............................................................................................38

Mullenix v. Luna,

136 S.Ct. 305 (2015) ............................................................................................41

P.C. Yonkers, Inc. v. Celebrations the Party and Seasonal Superstore, LLC,

428 F.3d 504 (3d Cir. 2005) .......................................................................... 20, 21

Pearson v. Callahan,

555 U.S. 223 (2009) .............................................................................................42

Quon v. Arch Wireless Operating Co.,

445 F. Supp.2d 1116 (C.D. Cal. 2016) ......................................................... 14, 16

Quon v. Arch Wireless Operating Co.,

529 F.3d 892 (9th Cir. 2008) ...............................................................................15

Reichle v. Howards,

566 U.S. 658 (2012) ...................................................................................... 38, 43

Saucier v. Katz,

533 U.S. 194 (2001) .............................................................................................42

Sauers v. Borough of Nesquehoning,

905 F.3d 711 (3d Cir. 2018) .......................................................................... 42, 43

Tapley v. Collins,

211 F.3d 1210 (11th Cir. 2000) .................................................................... 40, 41


vii

Taylor v. Barkes,

135 S.Ct. 2042 (2015) ..........................................................................................37

Theofel v. Farey-Jones,

359 F.3d 1066 (9th Cir. 2004) .......................................................... 50, 51, 52, 53

United States v. Bansal,

663 F.3d 634 (3d Cir. 2011) .................................................................................47

United States v. Baroni,

909 F.3d 550 (3d Cir. 2018) .................................................................................43

United States v. Warshak,

631 F.3d 266 (6th Cir. 2010) .................................................................. 47, 50, 52

USA Mobility Wireless, Inc. v. Quon,

558 U.S. 1091 (2009) ...........................................................................................15

Vista Marketing, LLC v. Burkett,

812 F.3d 954 (11th Cir. 2016) ...................................................................... 51, 52

Walker v. Coffey ("Walker I"),

905 F.3d 138 (3d Cir. 2018) ......................................................................... passim

Walter v. Pike Cnty.,

544 F.3d 182 (3d Cir. 2008) .................................................................................42

WEC Carolina Energy Solutions, LLC v. Miller,

687 F.3d 199 (4th Cir. 2012) ...............................................................................21

Wilson v. Layne,

526 U.S. 603 (1999) .............................................................................................43

Statutes

5 U.S.C. § 7211 ........................................................................................................39

18 U.S.C. § 1030 ......................................................................................................20

18 U.S.C. § 1505 ......................................................................................................39

18 U.S.C. § 2510(1) .................................................................................................18


viii

18 U.S.C. § 2510(15) ...............................................................................................32

18 U.S.C. § 2510(17) ...............................................................................................49

18 U.S.C. § 2510(17)(B) ................................................................................... 49, 51

Stored Communications Act, 18 U.S.C. § 2701, et seq. .................................. passim

SCA § 2701 ...................................................................................... passim

SCA § 2701(a) ................................................................................. passim

SCA § 2701(a)(1) .....................................................................................19

SCA § 2701(a)(2) .....................................................................................19

SCA § 2701(c) .................................................................................. 22, 23

SCA § 2701(c)(1) .............................................................................. 22, 23

SCA § 2702 ........................................................................... 23, 31, 46, 47

SCA § 2702(a) .........................................................................................31

SCA § 2703 ...................................................................................... passim

SCA § 2703(a) .................................................................. 4, 30, 33, 47, 48

SCA § 2703(b) .............................................................................. 4, 30, 33

SCA § 2703(c) .........................................................................................35

SCA § 2705 ..............................................................................................33

SCA § 2707 ................................................................................................ 1

SCA § 2707(a) .........................................................................................13

SCA § 2710(a) .........................................................................................18

SCA § 2711(1) ............................................................................ 18, 32, 49

SCA § 2711(2) .........................................................................................32

28 U.S.C. § 1291 ........................................................................................................ 1


ix

28 U.S.C. § 1331 ........................................................................................................ 1

28 U.S.C. § 1343 ........................................................................................................ 1

42 U.S.C. § 1983 ........................................................................................................ 1

Other authorities

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 (2004)

(“Kerr SCA Guide”) ................................................................................... passim

2 Moore’s Federal Practice, § 12.34[4][a] (Matthew Bender 3d Ed.) ...................21

https://www.merriam-webster.com/dictionary/ ................................................ 19, 24


1

STATEMENT OF JURISDICTION

This is a civil rights action brought pursuant to 42 U.S.C. § 1983 and the

Stored Communications Act, 18 U.S.C. § 2701 et seq. The district court had

subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. See also 18

U.S.C. § 2707.

This appeal is from a final order, entered on December 11, 2018 (App. 2).

The notice of appeal was filed on January 7, 2019 (App. 1). This Court has

appellate jurisdiction by virtue of 28 U.S.C. § 1291.


2

STATEMENT OF ISSUES

Invoking the Stored Communications Act (“SCA”), Carol Walker sued a

prosecutor and agent handling a criminal case against her because they requested

and obtained copies of certain emails from her employer.

I. Were Walker’s claims properly dismissed, where:

A. for purposes of SCA § 2701, the defendants did not

intentionally “access” the employer’s “facility,” and the employer

“authorized” the defendants to obtain the emails, and

B. for purposes of SCA § 2703, the disclosure of Walker’s emails

was voluntary, not compelled?

II. Alternatively, were the defendants entitled to qualified immunity,

given that:

A. SCA defendants may raise this defense, and

B. defendants’ actions were not contrary to clearly established

law?


3

STATEMENT OF THE CASE

This is the second appeal in this case. The litigation began when appellant

Carol Lee Walker, plaintiff in the district court, filed a civil rights action against

Brian T. Coffey, a prosecutor with the Office of Attorney General, and Paul

Zimmerer, an investigator in that office. Walker alleged that the defendants

violated the Fourth Amendment when – in connection with a then-pending

criminal matter against her and others – they sought and were provided with

certain personal emails to and from Walker that her employer, Pennsylvania State

University (“Penn State”) held in its computer system. The defendants’ motion to

dismiss this constitutional claim was granted, and this Court affirmed that

conclusion, finding that both defendants were shielded by qualified immunity.

Walker v. Coffey, 905 F.3d 138, 150 (3d Cir. 2018) (“Walker I”). The case was

remanded to enable Walker to pursue an alternative theory, based on the Stored

Communications Act, 18 U.S.C. § 2701 et seq. (“SCA”). Id., at 151.

Upon return to the district court, Walker filed her “Second Amended Civil

Action Complaint” (App. 32-53). The defendants again moved to dismiss, both on

the merits and on qualified immunity grounds (App. 55-69. See also App. 90-99).

Over Walker’s opposition (see App. 70-89), and after hearing oral argument (see

App. 100-212 – transcript), the district court granted the defense motion.


4

First, the district court decided that Walker had failed to state a claim under

SCA § 2701(a), which only pertains to actions taken without (or beyond) prior

“authorization.” According to the court, that statutory provision did not apply here

because, under the circumstances, Penn State was authorized to provide emails

from its own email system to the defendants, and voluntarily did so (See App. 6-8).

That the defendants had, admittedly, offered Penn State an incomplete and

unenforceable – but ultimately unchallenged – subpoena when requesting Walker’s

emails did not negate this conclusion (Id.).

Second, the district court considered whether Walker stated a claim under

SCA § 2703(a) or SCA § 2703(b) (or both). These govern when and how a

“governmental entity” may obtain emails that are “in electronic storage” from a

“provider of electronic communications services.” The court reasoned that “[t]he

government can always obtain documents through a party’s consent” and – in this

instance – “Penn State consented to the disclosure of Ms. Walker’s emails” from

its own records (App. 8-9). Hence, no claim was stated under SCA § 2703.

Third, the district court confirmed that, in principle, “qualified immunity is

available for Stored Communications Act claims” (See App. 10-12).

Finally, in the longest section of its decision, the district court held that,

even assuming the defendants violated the SCA in this particular case, they were

entitled to qualified immunity because the applicable law was not clearly


5

established when they obtained Walker’s emails (App. 13-21). Whether Walker’s

emails on Penn State’s server were in “electronic storage” for purposes of “backup

protection” was not clear (See App. 13-20). It also was not clear that – where, as

here, an employer “voluntarily produces information to which the employee does

not enjoy an expectation of privacy” – an investigator must still obtain a warrant or

a valid subpoena before obtaining the employee’s emails (See App. 20-21).


6

STATEMENT OF FACTS1

In July 2015, the Office of Attorney General filed criminal charges in the

Court of Common Pleas of Centre County, against Walker, her husband, and her

husband’s company (App. 33 – ¶¶ 6-7).2 Defendant Coffey was the assigned

attorney for the Commonwealth, while defendant Zimmerer was a “case agent”

working with defendant Coffey (App. 34 – ¶¶ 8-9).

Some (although not all) of the criminal charges against Walker and her co-

defendants were dismissed early on, but the case against them remained open (See

App. 34 – ¶¶ 11-12). At the time, Walker was employed by Penn State and, as an

employee, she had access to, and used, the Penn State email system (See App. 32,

34, 35 – ¶¶ 1, 13, 18-19). By policy, Penn State “recognizes … the reasonable

privacy expectations of its employees … in communications by mail, telephone,

1 Given the procedural posture of this case, the facts set forth in the operative

complaint must be taken as true, but any “bald assertions” and “legal conclusions”

in that pleading need not be credited. Ashcroft v. Iqbal, 556 U.S. 662, 678-679

(2009). Accord Hassen v. Govt. of Virgin Islands, 861 F.3d 108, 114-115 (3d Cir.

2017).

2 Parenthetical paragraph references in this summary (and elsewhere in this

brief) are to Walker’s second amended complaint (App. 32-53).


7

and other electronic means, subject only to applicable state and federal laws and

University regulations” (App. 35-36 – ¶ 23 and Ex. A thereto).3

While the criminal matter against Walker and her co-defendants was open

and pending, the defendants asked Penn State, informally, to produce Walker’s

computer files and emails, but at that point Penn State declined to do so voluntarily

(App. 36 – ¶¶ 24-25). Rather, according to Walker (averring on “information and

belief”), Penn State “demanded” a subpoena before it would produce her computer

files and emails (App. 36 – ¶ 26).

Soon thereafter, the defendants followed up: On October 21, 2015,

defendant Zimmerer went to the office of Penn State’s general counsel and met

with Assistant General Counsel Katherine Allen (App. 36-37 – ¶ 28 and Ex. B

thereto). In his follow-up Investigative Report, addressed to his superiors later the

same day, defendant Zimmerer stated: “A subpoena was presented to [Ms. Allen]

for PSU computer records to and from Carol Walker’s PSU computer email” (Id.).

A copy of the subpoena was attached to the report (See App. 37-38 – ¶¶ 29-35 and

Ex. C thereto).

3 On its face, the quoted Penn State “Privacy Statement” (App. 46-47) also

provides that exceptions to the broad policy will be authorized under certain

circumstances, in accordance with prescribed procedures (Id., at paragraphs A-C).

See also infra, at 26-28.


8

The subpoena was on a Centre County court form, with the caption and

docket number of the criminal case against “Carol Lee Walker, ETAL” typed in,

along with a description of materials to be produced by the person to whom the

subpoena was addressed, one John Corro, Penn State’s “General Counsel & Senior

Security/Systems Analyst” (App. 52). The pre-printed form itself indicates that the

subpoena was “witnessed” by the President Judge of the court (Id.). Below that

recitation, a handwritten signature appears on a line marked “Prothonotary” (Id.).

On the other side of the document, defendant Coffey is identified as the issuing

attorney, and his name and address are filled in (App. 52).

But the subpoena form lacks certain details. The blank spaces meant to

specify the time and place for the recipient to appear and testify were not filled in

(App. 52. See also App. 38 – ¶ 34). In fact, no court hearing on the pending

criminal matter was actually scheduled when defendant Zimmerer went to Penn

State and presented the subpoena form to Ms. Allen (App. 38 – ¶ 34).

Thus, the subpoena was incomplete on its face, and therefore would not have

been judicially enforceable.4 Walker has not alleged, however, that defendant

4 Throughout her complaint, Walker characterizes the subpoena form as

“purported,” “fraudulent,” “unlawful,” and “illegal” (See App. 36-42 – ¶¶ 27, 30,

32, 34, 35, 37-42, 44, 46, 61, 62). These are quintessential “bald assertions” and

“legal conclusions” and, as such, they are to be disregarded. See, e.g., McTernan

v. City of York, 577 F.3d 521, 531 (3d Cir. 2009).


9

Zimmerer (or defendant Coffey) deliberately misrepresented the import of the

subpoena to Ms. Allen when they met (or to any of her Penn State colleagues or

superiors), or that any Penn State officials were cowed, deceived, or misled by the

incomplete form, which they unquestionably received and reviewed. Nor has

Walker alleged that anyone connected with Penn State ever questioned,

challenged, or in any way objected to complying with the request that was

conveyed via that subpoena form.

In the end, having initially “demanded” a subpoena, Penn State softened its

stance, concluding that the incomplete subpoena form presented to counsel by the

defendants, and reviewed by her, was sufficient for the university’s purposes.

Thus, with that document in hand, Penn State chose to cooperate with the

defendants. Indeed, Ms. Allen specifically told defendant Zimmerer “that David

Dulabon of her office may assist with the subpoena” (App. 50 – Investig. Rept.).

Thereafter, with Mr. Dulabon’s (or someone’s) assistance, the defendants did

obtain the requested emails from Penn State (App. 40 – ¶ 43).


10

STATEMENT OF RELATED CASES

This case was previously before this Court, at No. 17-2172. See Walker I.

Otherwise there are no pending or completed federal cases to which it is related.


11

SUMMARY OF ARGUMENT

In connection with a pending criminal case, defendants Coffey and

Zimmerer asked Walker’s employer, Penn State, for certain emails, and those were

provided. This did not violate the SCA. As to § 2701(a): Defendants did not

themselves affirmatively “access” Penn State’s “facility” (its email system).

Moreover, they were “authorized” by Penn State to obtain the emails. Admittedly

the subpoena form defendants had presented at Penn State’s request was

incomplete, but university counsel reviewed it and authorized the production. As

to § 2703: This was not an improper compelled disclosure of electronically stored

information, because Penn State – a non-public service provider – agreed to it.

That being so, no subpoena was even required. Walker’s “illegal subpoena” theory

rests on a single, distinguishable district court case, and cannot carry the day.

Alternatively, and at a minimum, defendants were entitled to qualified

immunity on Walker’s claims. Qualified immunity is potentially available to civil

defendants on statutory as well as constitutional claims, including claims brought

under the SCA. Substantively, the “clearly established law” criterion for analyzing

qualified immunity defenses is itself clearly established. Here, even if the

defendants ran afoul of SCA technicalities (and they did not), the applicable law

was not clearly established, both in general and with regard to the definition of

“electronic storage … for purposes of backup protection.”


12

ARGUMENT

The facts of this case, involving one discrete incident in 2015, have not

changed since Walker I. And this Court’s observations about that incident are as

apt now as they were last year – even though the legal focus has shifted from the

Constitution to the Stored Communications Act. To recap:

o “[I]t is undisputed that the communications in question were sent or

received [to or] from Walker’s work email account.” Id., 905 F.3d at

148.

o “[A]lthough employees may have certain privacy interests in their

work-related documents and communications vis-à-vis outsiders, their

privacy interests vis-à-vis their employer are far more circumscribed.”

Id.

o “[E]mployers, as third parties who possess common authority over the

workplace, may independently consent to a search of an employee’s

workplace documents or communications.” Id., 905 F.3d at 148-149.

o “Upon receipt of the subpoena, Penn State exercised its independent

authority to consent to a search and produced Walker’s work emails.”

Id., 905 F.3d at 149.

o “Rather than contest the validity of the subpoena or otherwise limit

any search, the Assistant General Counsel instructed an employee of

her office to assist with the production of Walker’s emails.” Id., 905

F.3d at 149-150.

o “That decision was within the authority of Penn State – acting through

its attorney – as Walker’s employer.” Id., 905 F.3d at 150.

o “[D]espite the facial invalidity of the subpoena, [this Court declined]

to find that the University’s consent was coerced.” Id.


13

The central question now is whether, with all this in mind, dismissal of Walker’s

SCA claims was justified, just as dismissal of her Fourth Amendment claim was.

The answer to that question is “yes.”

* * * * *

Standard of review: This Court exercises plenary review over an order

granting a motion to dismiss for failure to state a claim upon which relief can be

granted. E.g., Curry v. Yachera, 835 F.3d 373, 377 (3d Cir. 2016). Similarly, an

order granting dismissal on the basis of qualified immunity presents a pure

question of law, subject to de novo review. Walker I, 905 F.3d at 143. See also,

e.g., Burns v. PA Dept. of Corrections, 642 F.3d 163, 170 (3d Cir. 2011).

I. Walker’s Stored Communications Act Claims Against The Defendants

Were Properly Dismissed.

Pursuant to SCA § 2707(a), “any provider of electronic communication

service, subscriber, or other person aggrieved” may bring a civil action for redress

from “any violation” of the law. Id. To be actionable under SCA § 2707(a), “the

conduct constituting the violation” must have been “engaged in with a knowing or

intentional state of mind[.]” Id. See also Long v. Insight Communications of

Central Ohio, LLC, 804 F.3d 791, 796-797 (6th Cir. 2015) (discussing “knowing

or intentional” requirement). One may readily assume that Walker was, and

continues to be, “aggrieved” by the events at issue. That alone does not mean that


14

she stated a cognizable SCA damages claim against the defendants for knowingly

or intentionally violating that statute.

The Stored Communications Act was enacted in 1986, as Title II of the

federal Electronic Communications Privacy Act. It “was born from congressional

recognition that neither existing federal statutes nor the Fourth Amendment

protected against potential intrusions on individual privacy arising from illicit

access to stored communications in remote computing operations and large data

banks that stored emails.” In re Google Inc. Cookie Placement Consumer Privacy

Litigation, 806 F.3d 125, 145 (3d Cir. 2015) (internal quotation marks and citation

omitted). The statute was crafted to “protect information held by centralized

communication providers.” Id., 806 F.3d at 147 (internal citations and quotation

marks omitted). Among other things, Congress was concerned about “the risk that

communications temporarily stored in these facilities could be accessed by

hackers.” Id.

In short, the SCA was meant “to provide some protection to electronic

communications.” Quon v. Arch Wireless Operating Co., 445 F. Supp.2d 1116,

1128 (C.D. Cal. 2016).5 The scope of the SCA is narrow, however. It “is not a

5 The Quon litigation continued well after issuance of the above-cited district

court decision, which held (inter alia) that the governmental defendants then

before the court were not liable under the SCA for disclosing the contents of

certain employee text messages. Id., 445 F. Supp.2d at 1129. That specific ruling


15

catch-all statute designed to protect the privacy of stored Internet communications;

instead it is narrowly tailored to provide a set of Fourth Amendment-like

protections for computer networks.” 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, 1214 (2004) (“Kerr, SCA Guide”).

Not only is the SCA less comprehensive than one might assume; in addition,

analyzing SCA issues can be vexing, because the statute is now quite old. As

written, it “reflects the technology of the 1980s[,]” effectively “freezing into the

law the understandings of computer network use as of 1986.” Id., at 1213-1214.

But after more than three decades, technology has changed significantly while, by

and large, the SCA has not. Consequently, applying the SCA to the facts of

Walker’s case (or any contemporary case) can sometimes feel like trying to put a

square peg into a round hole. See Anzaldua v. Northeast Ambulance and Fire

Protection Dist., 793 F.3d 822, 839 n.5 (8th Cir. 2015) (it is “not always easy to

square the decades-old [SCA] with the current state of email technology”). See

was not appealed, but the litigation went on. Among other things, the Ninth

Circuit found that Arch Wireless, a private entity, did violate the SCA. See Quon

v. Arch Wireless Operating Co., 529 F.3d 892, 903 (9th Cir. 2008). While

discretionary review of that conclusion was denied, see USA Mobility Wireless,

Inc. v. Quon, 558 U.S. 1091 (2009), the Supreme Court granted certiorari to

consider the Fourth Amendment aspects of the case, which the Court later decided

on the merits. See City of Ontario, Cal. v. Quon, 560 U.S. 746 (2010).


16

also Quon, 445 F. Supp.2d at 1128 (given statute’s age, courts must often struggle

to analyze problems involving modern technology).

Walker makes separate arguments based on SCA § 2701(a) and SCA § 2703

(See Brief for Appellant [“Brf.”], at 9-14 and 14-17, respectively). Both of these

challenges to the dismissal of her lawsuit fall short.

A. Walker failed to state a claim under SCA § 2701(a).

Section 2701 of the SCA “lays out a substantive criminal prohibition,”

punishable by fines or imprisonment for up to ten years, depending on the

circumstances. Kerr, SCA Guide, at 1238. Professor Kerr has bluntly criticized

this provision, noting that it is redundant and explaining, moreover, that its “vague

language has needlessly confused the courts, which have tried to use § 2701 in

civil cases to do far more than the SCA’s drafters ever intended.” Kerr, SCA

Guide, at 1240. To date, however, this Court and others have allowed aggrieved

parties to base civil complaints on alleged violations of SCA § 2701. See, e.g., In

re Google, Inc., 806 F.3d at 145-146; Anzaldua, 793 F.3d at 838-839.

Deciding whether a civil claim for relief has been stated under SCA § 2701

must begin with the words of that statutory provision. Pursuant to paragraph (a)

(and subject to certain prescribed exceptions), § 2701 is violated if someone either:

(1) intentionally accesses without authorization a facility through

which an electronic communication service is provided; or


17

(2) intentionally exceeds an authorization to access that facility;

and thereby obtains … authorized access to a wire or electronic

communication while it is in electronic storage in such system [.]

SCA § 2701(a) (emphasis added). Basically, this is meant to prohibit conduct,

including hacking, whereby a party’s electronic data is acquired by another party,

intentionally and without authorization. See Lazette v. Kulmatycki, 949 F. Supp.2d

748, 753 (N.D. Ohio 2013).

For a civil plaintiff to make out a claim under SCA § 2701, then, four

prerequisites must be pled and eventually proved: first, that the defendant(s)

intentionally “accessed” a “facility” that provides “electronic communication

service;” second, that in so doing the defendant(s) acted without “authorization”

(or in excess of authorization); third, that the defendant(s) thereby “obtain[ed]”

access to the plaintiff’s electronic communication; and fourth, that this occurred

while the subject electronic communication was “in electronic storage” in “such

system.” Walker’s attempted § 2701 claim against defendants Coffey and

Zimmerer was legally deficient in two different ways.

1. Defendants themselves did not “access” a facility.

As noted in In re Google, Inc., 806 F.3d at 146, in § 2701, the SCA uses, but

does not define, the term “facility.” Given this gap, this Court reasoned that a

facility, for this purpose, is something through which “electronic communication


18

service” is provided. Id., 806 F.3d at 146 & nn. 90-91. “Electronic

communication service,” in turn, is a statutorily-defined term, meaning “any

service which provides to users thereof the ability to send and receive wire or

electronic communications.” 18 U.S.C. § 2510(1) (incorporated by reference in

SCA § 2711(1)).

Penn State operates an email system that is used by employees and other

members of the University community (See App. 34 – ¶ 13). That being so – and

as Walker herself points out (see Brf., at 10) – Penn State’s system can be

considered a “facility” as that term is used in SCA § 2701(a). See Brown Jordan

International, Inc. v. Carmicle, 846 F.3d 1167, 1177 n.4 (11th Cir. 2017)

(“facility” includes “physical means or equipment for doing something;” program

providing ability to send and receive emails “is a facility through which an

electronic communication service is provided”). See also In re iPhone Application

Litigation, 844 F. Supp.2d 1040, 1057 (N.D. Cal. 2012) (commenting that

“computer systems of an email provider, a bulletin board system, or an ISP are

uncontroversial examples of facilities that provide electronic communications

services to multiple users”).

But did defendants Coffey and Zimmerer intentionally “access” this

“facility” – Penn State’s email system – as SCA § 2701(a) contemplates? Contrary


19

to Walker’s unexplained assumption, they did not.6 While they did ultimately

obtain certain emails from Penn State representatives, who responded to their

overtures, this was not a result of the defendants’ penetrating Penn State’s email

system – “accessing” it – themselves.

Just as the SCA does not define “facility,” it also does not define “access,”

but the ordinary meaning of “access” is not obscure. In contemporary English, it

may be either a noun or a verb. See, e.g., https://www.merriam-

webster.com/dictionary/access (visited Apr. 11, 2019). As used in SCA

§ 2701(a)(1) and (2), “access” is a transitive verb.7 As such, it means “to get at …

to be able to use, enter, or get near (something)[.]” Id. Synonyms include “enter”

and “penetrate.” Id. Thus, this use of “access” in SCA § 2701(a)(1) and (2)

contemplates an affirmative, intentional incursion, by an actor, into an electronic

communication system (the facility), as opposed to secondary receipt of

electronically stored information from a system’s manager, administrator, or other

6 Walker simply asserts, without elaboration, that the defendants “accessed a

‘facility’ when they obtained [her] emails from PSU” (Brf., at 10). She then

attacks the district court’s allegedly deficient analysis of two other entirely

different concepts, namely electronic storage and authorization (Id., at 10-14).

7 A transitive verb takes a direct object. In subsections (1) and (2) of SCA

§ 2701(a), the direct object of “access” is “a facility[.]” (It should also be noted

that, after the second semicolon in that statutory provision, “access” is used again,

but as a noun.)


https://www.merriam-webster.com/dictionary/access

https://www.merriam-webster.com/dictionary/access

20

overseer. Expressed in more legal terms: “Use of the computer is integral to the

[violation of this provision], and not merely incidental.” Dresser-Rand Company

v. Jones, 957 F. Supp.2d 610, 614-615 (E.D. Pa. 2013) (emphasis added).8

Examining individual cases validates this reading of “access.” That is, the

challenged “accessing” behavior must have entailed actual entry into, or

encroachment on, another’s computer or computer system to capture data or

information, not just the receipt of electronically-stored information from a helpful

intermediary, responding to an inquiry or request. See, e.g., Brown Jordan

International, 846 F.3d at 1171, 1177 (SCA defendant himself had used

company’s “generic password” to access others’ emails); Anzaldua, 793 F.3d at

838-839 (terminated employee, bringing SCA claim based on boss and ex-

girlfriend getting emails from his gmail account, sufficiently alleged “access” by

them). See also P.C. Yonkers, Inc. v. Celebrations the Party and Seasonal

Superstore, LLC, 428 F.3d 504, 506-507 (3d Cir. 2005) (CFAA civil defendant

8 Dresser-Rand is instructive although, as a district court decision, it is of

course not binding on this Court. In addition, Dresser-Rand arose under the

Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, rather than under SCA

§ 2701(a). However, “Section 2701 [of the SCA] is a very close cousin” of CFAA

§ 1030. Kerr, SCA Guide, at 1239. As with SCA § 2701(a), the “basic mechanism

[of CFAA § 1030] is a prohibition on accessing a computer without authorization,

or exceeding authorized access,” Kerr, SCA Guide, at 1239. Furthermore, the two

referenced provisions include nearly identical terminology. As a result, CFAA

decisions aid in the interpretation of the SCA.


21

“accessed” plaintiff companies’ computer system electronically, from his own

home); WEC Carolina Energy Solutions, LLC v. Miller, 687 F.3d 199, 201 (4th

Cir. 2012) (CFAA civil defendant had downloaded proprietary information from

his employer’s computers).9

Based on Walker’s own recitation of events, she cannot establish that the

defendants intentionally accessed Penn State’s facility. She therefore cannot

satisfy the first requirement for her putative § 2701 claim. For that discrete reason,

the claim was subject to dismissal.10

2. Defendants were in any event authorized to obtain Walker’s

emails.

Aside from whether the defendants actually “accessed” Penn State’s email

system when they asked for and later were given Walker’s emails – and even

assuming arguendo that being handed something one has requested amounts to

intentionally “accessing” a “facility” – a separate, and crucial, question arises:

9 In Brown Jordan International, supra, a finding that the civil defendant

had violated the SCA was upheld on appeal. In Anzaldua, P.C. Yonkers, and WEC

Carolina Energy, statutory violations were not established, but those merits

determinations were based on grounds other than whether the “access” requirement

was satisfied. If anything, “access” by the defendants was not seriously disputed in

those cases, which turned on other issues.

10 “Dismissal under Rule 12(b)(6) is proper if the complaint lacks an

allegation regarding an element necessary to obtain relief.” 2 Moore’s Federal

Practice, § 12.34[4][a] (Matthew Bender 3d Ed.).


22

were the defendants “authorized” to do – and get – what they did? They were, and

for that reason they did not violate SCA § 2701.

The concept of authorization is central to SCA § 2701. Subsection (a) of

that provision only prohibits accessing a facility without authorization (or in excess

of authorization). Reinforcing that standard, subsection (c) goes on to say that

SCA § 2701(a) does not apply at all with respect to questioned conduct that was

authorized “by the person or entity providing a wire or electronic communications

service[.]” SCA § 2701(c)(1). The actions of defendants Coffey and Zimmerer

fall squarely within this authorization exception, as the district court properly

concluded (App. 6-8).

Again, what happened here was that the defendants asked Penn State for

certain emails and – after first telling the defendants to serve a subpoena and then

deciding that an incomplete (and unenforceable) one would fill that bill – Penn

State chose to furnish the requested emails to the defendants. It stands to reason

that Penn State, as an “entity providing a wire or electronic communications

service” to the University community, for University-related purposes (see App. 34

– ¶ 13), was “authorized” to obtain “wire or electronic communication[s]” from its

own system as necessary and disclose them to others as it saw fit.11 Its doing so in

11 Importantly, Penn State does not provide electronic communication or

computing services to the public. For that reason, the constraints upon voluntary


23

this instance was wholly consistent with SCA § 2701(c) and, concomitantly, did

not violate SCA § 2701(a). This Court decided as much in Fraser v. Nationwide

Mutual Ins. Co., 352 F.3d 107, 114-115 (3d Cir. 2004). There, the defendant

employer’s search of an employee’s emails was within the SCA § 2701(c)

exception because the employer, a communications service provider, administered

the email system that contained the employee’s emails.12 In fact, Walker does not

say otherwise (See Brf., at 25 n.6).

Because the conduct at issue – the obtaining of Walker’s emails – was

unquestionably authorized “by the person or entity providing a wire or electronic

communications service[,]” SCA § 2701(c)(1), the defendants did not violate SCA

§ 2701(a). That should be the end of it. Walker nevertheless contends that her

rights were violated when Penn State chose to share electronically-stored

information that it held in its system with the defendants pursuant to their request.

As Walker views the situation, even if Penn State oversees and controls its own

disclosure of “customer communications or records” that are applicable to persons

or entities that do provide services to the public, see SCA § 2702, have no bearing

here. See infra, at 31-32.

12 In Fraser, this Court followed Bohach v. City of Reno, 932 F. Supp. 1232

(D. Nev. 1996), which also arose in the employment context. Bohach recognized

that “§ 2701(c)(1) allows service providers to do as they wish when it comes to

accessing communications in electronic storage.” Id., 932 F. Supp. at 1236.


24

email system, it lacked “authorization” to do that. This contention cannot

withstand scrutiny.

The district court reasoned that authorization, in the SCA § 2701 context, is

comparable to consent, in the Fourth Amendment context (See App. 7-8 & n. 31).

This analytical approach was logical and sound.

Because the SCA does not specifically define “authorization,” the term

should be given its common meaning, not some technical or ambiguous

interpretation. Cf. Collegesource, Inc. v. Academyone, Inc., 597 Fed. Appx. 116,

129 (3d Cir. 2015) (non-precedential) (CFAA civil defendant’s access to servers

“was not ‘without authorization’ under any common meaning of that term”).

Contrary to Walker’s argument (see Brf., at 13-14), “authorization” and “consent”

cannot readily be differentiated here. They are overlapping, sometimes

interchangeable concepts; indeed, they may be synonyms for each other.13

Walker cannot avoid this Court’s conclusion, in Walker I, that Penn State

“consented” to the release of her emails to the defendants for Fourth Amendment

purposes. She nevertheless argues (again) that Penn State’s conduct could not

amount to “authorization” for SCA purposes because the defendants supposedly

13 See, e.g., https://www.merriam-webster.com/dictionary/authorization and

https://www.merriam-webster.com/dictionary/consent (both visited Apr. 11, 2019).


https://www.merriam-webster.com/dictionary/authorization

https://www.merriam-webster.com/dictionary/consent

25

bamboozled the University when they proffered an incomplete and unenforceable

subpoena for the emails.

Walker’s argument is in serious tension with the analysis in Walker I, which

the district court was not free to ignore. See, e.g., Casey v. Planned Parenthood of

Southeastern Pa., 14 F.3d 848, 857 (3d Cir. 1994) (on remand after decision by

appellate court, “trial court must implement both the letter and spirit of the

mandate, taking into account the appellate court’s opinion and the circumstances it

embraces”) (internal citation omitted). The district court did just what Casey

demands (See App. 7-8).

Nor should this Court shut its eyes to Walker I and reexamine the import of

Walker’s own allegations (including, notably, the indisputable role of Penn State’s

in-house counsel in green-lighting the provision of Walker’s emails to the

defendants despite the subpoena’s gaps). “Under the law of the case doctrine, one

panel of an appellate court will not reconsider questions that another panel has

decided on a prior appeal in the same case.” In re: City of Philadelphia Litigation,

158 F.3d 711, 717 (3d Cir. 1998). Applying “general principles governing third-

party consent,” this Court in Walker I resolved questions that, for all practical

purposes, Walker wants to re-litigate now.14 She cannot do so.

14 As a reminder: The panel in Walker I explicitly concluded that Walker

did not have a reasonable expectation of privacy vis-à-vis her employer, Penn


26

Attempting to bypass Walker I and bolster her current lack-of-authorization

argument, Walker faults the district court for failing to analyze whether, under the

SCA, the defendants’ “illegal subpoena vitiated [Penn State’s] ability to authorize”

the defendants’ access to her emails (See Brf., at 13; emphasis by Walker). If, as

argued above, there is no practical difference between “consenting” to access and

“authorizing” access (even when one is presented with an incomplete subpoena),

this supposed lapse by the district court was no lapse at all. At this juncture,

however, Walker points to one previously unmentioned detail: Penn State’s own

privacy policy (See Brf., at 12, 13). On remand, she quoted this document in her

Second Amended Complaint (App. 35-36 – ¶ 23) and she attached a copy of the

full two-page “Privacy Statement” to that filing as an exhibit (App. 46-47). But

this additional data point neither salvages her claim nor undercuts the defendants’

defense.

Walker seems to assume that, absent a complete and enforceable subpoena,

the release of electronically-stored information cannot be deemed “authorized” for

SCA purposes if the holder of that information has generally pledged, in writing, to

State; that Penn State, as her employer, could independently consent to (read,

“authorize”) a search of her work emails; and that Penn State therefore could

voluntarily produce the requested emails to the defendants (and did so upon receipt

of the requested subpoena, notwithstanding its facial invalidity). Id., 905 F.3d at

149-150.


27

respect others’ privacy, as Penn State purportedly did. That, however, would

eviscerate the very concept of third-party consent in this context. The mere

existence of an internal policy such as Penn State’s cannot be controlling. If it

were, no non-public electronic communication service provider that is an employer

– and, as such, oversees and controls the information in its own system – would

ever be able to “authorize” the review or release of any emails in the employer’s

system that were received or generated by an employee.

Furthermore, and notwithstanding Walker’s characterization of Penn State’s

policy as “strict” (Brf., at 13), that “Privacy Statement” is quite elastic overall. In

it, the University does indicate that it will not infringe upon employees’ and

students’ “reasonable privacy expectations,” but absolute privacy is not guaranteed

(App. 46). Simultaneously, the University recognizes its duty to comply with

“applicable state and federal laws” (id.) – necessarily including the SCA. In

addition, and by its terms, the Penn State policy may be bypassed “when there is

good reason to believe that [an] individual employee … has violated law” and an

appropriate University official has authorized an exception to otherwise-applicable

restrictions (App. 46, 47).

That certainly appears to be what happened here: First, in the course of

investigating and prosecuting a pending criminal case against Walker and her

husband, the defendants sought information from Penn State. Then, following


28

review of that inquiry (including the incomplete subpoena form) by counsel for the

University, the requested emails were made available.15 That was permissible

under the terms of Penn State’s policy and, in turn, “authorized” for purposes of

SCA § 2701.

For that reason, too, Walker’s § 2701 claim was properly dismissed.

* * * * *

As posited earlier, at 17, a plaintiff who bases a civil action on SCA § 2701

is required to satisfy four prerequisites: Not only must the defendant have (1)

intentionally accessed a facility, and (2) done so without authorization; in addition,

the defendant (3) must have “thereby obtain[ed] … authorized access to a wire or

electronic communication,” and (4) this must have occurred while that wire or

electronic communication “[was] in electronic storage in such system[.]” See SCA

§ 2701. If, as defendants Coffey and Zimmerer now argue, Walker’s allegations

were insufficient with respect to the first or second of these requirements (or both),

there is no need to go further; her claim under SCA § 2701 was properly

dismissed, and the third and fourth requirements need not be dissected.

15 When and how Walker first became aware of this development is not

apparent. If she was not “notified in advance” of the defendants’ request or Penn

State’s response, it was probably because of the possibility, recognized in the

policy itself, that doing so “would compromise an on-going criminal investigation”

(See App. 47).


29

Nevertheless, for the sake of clarity and completeness, the latter

requirements should be touched upon quickly now. The third – “thereby

obtain[ing]” authorized access – is not in serious dispute; with Penn State’s

cooperation, the defendants did obtain “authorized access” to Walker’s emails.16

On the other hand, the fourth § 2701 requirement – that the accessed

communications must have been “in electronic storage” at the time – is contested.

Focusing only on authorization, the district court did not address the storage

issue as part of its SCA § 2701 merits analysis (See App. 6-8). Instead, the district

court grappled with storage at some length later, in conjunction with its discussion

of qualified immunity (See App. 13-20). Similarly, Walker’s present argument

with regard to storage is part of her attempt to negate the defendants’ qualified

immunity defense (Compare Brf., at 10 and Brf., at 23-27). Defendants Coffey

and Zimmerer will therefore defer any discussion of storage – and whether the law

on that sub-issue is or is not “clearly established” for qualified immunity purposes

– until Part II.B.3 of this brief, infra.

16 To be clear: while the defendants did obtain authorized access to the

emails they sought, they did not do so by affirmatively accessing Penn State’s

facility themselves.


30

B. Walker also failed to state a claim under SCA § 2703.

Separately, Walker argues that she stated a claim against defendants Coffey

and Zimmerer under SCA § 2703 (Brf., at 14-17). In this respect, too, her legal

theory is flawed, as the district court understood (See App. 8-9).

Broadly speaking, SCA § 2703 governs “compelled disclosure” of stored

communications. See generally Kerr, SCA Guide, at 1218-1226. Read together,

subsections (a) and (b) of SCA § 2703 spell out how a “governmental entity” may

“require” the disclosure, by a “provider,” of the contents of stored electronic

communications such as emails. At the pleading stage of this case, Walker averred

that the defendants violated SCA § 2703 because they “used an unlawful subpoena

to seize and/or require” Penn State to disclose the contents of her emails (App. 41-

42 – ¶¶ 57-63).

In its ruling refusing to allow Walker to go forward on this aspect of her

case, the district court quoted portions of SCA §§ 2703(a) and (b), but did not

delve into the details or subtleties of these statutory provisions in any way (See

App. 8-9). Instead, the district court took a different approach, emphasizing that

“[t]he government can always obtain documents through a party’s consent” (App.

9). If so, the court continued, there was no reason why Penn State could not

“cooperate with prosecutors as to its own records” (Id.). In that event, according to

the court, compliance with SCA § 2703 was not necessary in this instance (Id.).


31

In other words, SCA § 2703 governs situations when disclosure, by an

unwilling, non-consenting party or entity, may potentially be compelled despite the

resistance of that party or entity. “Because Penn State consented to disclosure of

Ms. Walker’s emails,” there was no need for the defendants to compel Penn State

to disclose anything. Ergo, Walker failed to state a claim against the defendants

for violating SCA § 2703 (App. 8-9).

While the district court did not mention SCA § 2702, that provision validates

the court’s approach to Walker’s § 2703 claim. On its face, SCA § 2702 explicitly

contemplates some voluntary disclosures of stored communications to third parties;

after all, it is captioned “Voluntary disclosure of customer communications or

records[.]”17 At the same time, SCA § 2702 curtails the ability of communications

service providers to voluntarily divulge the contents of electronic communications

to a “person or entity” to some extent. The question is whether any of the

“prohibitions” on voluntary disclosures set forth in SCA § 2702(a) constrained

Penn State’s decision to share Walker’s emails with the defendants. If not, Walker

has nothing to complain about.

“Importantly, § 2702 imposes restrictions only on providers of ECS

[electronic communication services] and RCS [remote computing services] that

17 In contrast, SCA § 2703 is captioned “Required disclosure of customer

communications or records.”


32

provide services ‘to the public.’ Nonpublic providers can voluntarily disclose

information freely without violating the SCA.” Kerr, SCA Guide, at 1220

(footnotes omitted; emphasis added).18 “If a University provides accounts to its

faculty and students … those services are not available to the public.” Id., at 1227

(citing Anderson Consulting LLP v. UOP, 991 F. Supp. 1041, 1042-1043 (N.D. Ill.

1998)).

Consistent with the district court’s view, then, Penn State, as a nonpublic

provider, could indeed voluntarily make Walker’s emails – retrievable from Penn

State’s own system – available to defendants Coffey and Zimmerer. And that –

consistent with the sequence of events summarized in Walker I, 905 F.3d at 149-

150 and reiterated in Walker’s Second Amended Complaint – is what Penn State

ultimately did, in response to the defendants’ initial and follow-up inquiries. Put

differently, the Stored Communications Act did not bar the defendants from

seeking information from Penn State (unquestionably a non-public provider), and it

also did not bar Penn State from voluntarily acceding to their request.

Discounting any possibility of voluntariness or consent on Penn State’s part,

Walker still insists that her § 2703 claim was viable. Her main argument rests on

18 For the definition of “electronic communication service” (ECS), see SCA

§ 2711(1), which incorporates 18 U.S.C. § 2510(15) by reference. For the

definition of “remote computing service” (RCS), see SCA § 2711(2).


33

the premise that the defendants improperly compelled Penn State to disclose her

emails to them, by handing them an “illegal” subpoena (See Brf., at 14-17).19 This

contention is not convincing.20

19 Before and after her main invalid-subpoena argument, Walker makes two

briefer points based on an explicit assumption, for the sake of argument, that the

defendants presented Penn State with a valid subpoena (See Brf., at 15). Even if

they did so, Walker suggests, there were two further problems:

First, no subpoena would be good enough to compel the disclosure of emails

that were in electronic storage for 180 days or less, because in that situation, a full-

blown warrant, not a mere subpoena, is mandatory under SCA § 2703(a). Whether

this is legally correct or not is beside the point, because the subpoena here, dated

October 20, 2015, sought emails dating back to 2008, far more than 180 days (See

App. 52).

Second, even if a subpoena was an option to compel the disclosure of Penn

State emails that were in electronic storage for more than 180 days, any such

subpoena allegedly was ineffective because Walker was not given advance notice

that a subpoena was forthcoming. Whether this categorical assertion is legally

correct or not is also beside the point, because SCA § 2705 allows delayed notice

in some situations, and this could certainly have been one of them.

In short, Walker’s two fallback points do not merit extended discussion

because neither would be dispositive. Everything still rests on whether, based on

all of Walker’s own factual allegations, she stated a viable SCA claim (despite the

incomplete subpoena).

20 One threshold detail warrants brief mention: SCA §§ 2703(a) and (b)

spell out when and how a “governmental entity” may require someone else to

disclose specified electronic communications. Walker averred that defendants

Coffey and Zimmerer are “governmental entities” for this purpose (App. 41 –

¶ 57), but this is a legal conclusion, which need not be credited. See, e.g., Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). What is more, Walker’s complaint explicitly –

and somewhat inconsistently – indicates that each of the defendants is “an

individual,” being sued “in his individual capacity” (App. 32-33 – ¶¶ 2, 3).

Whether and to what extent this distinction has legal ramifications in the SCA

context, as it does in other kinds of cases, is nowhere addressed. Cf. Hafer v.

Melo, 502 U.S. 21, 25-27 (1991) (differentiating between personal and official-


34

Both to support her § 2703 illegal subpoena argument on the merits, and to

neutralize the consent issue, Walker relies on a single case, Freedman v. America

Online Inc., 303 F. Supp.2d 121 (D. Conn. 2004) (See Brf., at 15-17).21 Freedman,

however, obviously does not bind this Court and, moreover, cannot bear the weight

Walker asks it to carry.

Contrary to Walker’s suggestion (Brf., at 16), Freedman is not “on all fours”

with her case. Rather, the scenario at issue in Freedman was different from hers,

in a legally meaningful way.

In Freedman, two police officers involved in an investigation had prepared a

“Search and Seizure Warrant Application,” which was not signed or approved by a

judge, and faxed it to America Online, Inc. (AOL). Id., 303 F. Supp.2d at 123.

Evidently the officers did this “out of the blue,” entirely on their own initiative,

and without directing any “further communication” to AOL. Id. Solely by means

of that fax, then, the officers solicited personal “subscriber information” about the

plaintiff – not stored communications – from AOL, a commercial internet service

capacity actions). For now, the defendants will assume that they qualified as

governmental entities.

21 Addressing qualified immunity, Walker does cite additional cases to show

that the defendants “clearly” violated SCA § 2703 (Brf., at 28-29). These further

citations do not strengthen her position (on qualified immunity or on the merits).

See infra, at 46-47.


35

provider. Id.22 AOL went ahead and responded a few days later, apparently

without first reaching out to the officers informally or expressing any uncertainty

about their responsibilities. Put bluntly, AOL forwarded all of the requested

personal information to the officers via fax, no questions asked. Id.

Unlike Walker, who only sued defendants Coffey and Zimmerer, not Penn

State, the plaintiff in Freedman filed an 11-count complaint against AOL and the

two officers (and, incidentally, the town that employed them), alleging – among

other things – that the use of an invalid search warrant violated SCA § 2703(c).

Id., 303 F. Supp.2d at 123-124. On that claim, summary judgment was entered

against the officers, id., at 129,23 but the court’s rationale for that conclusion does

not carry over to this case.

In Freedman, the district court rejected the officers’ suggestion that their

original fax was “just” an innocuous “request;” rather, the court emphasized, the

apparently-unsolicited fax was clearly designed to induce compliance by coming

22 In contrast to Penn State (a non-commercial entity that happened to be

Walker’s employer), AOL is a commercial provider of electronic communication

services. For purposes of SCA § 2703, the plaintiff in Freedman was one of

AOL’s “customers” or “subscribers.”

23 The claim against AOL was adjudicated separately, after being transferred

to Virginia. See Freedman v. America Online, Inc., 325 F. Supp.2d 638 (E.D. Va.

2004).


36

across as “official” (even if it was unsigned). See id., at 127.24 But the court did

not articulate a legal rule to be applied in future cases. In no way did Freedman

conclude that every technically non-compliant but official-seeming document that

seeks subscriber information gives rise, in and of itself, to an actionable SCA claim

in favor of the affected subscriber, against law enforcement parties, regardless of

the surrounding circumstances.

The instant case is distinguishable from Freedman because, here, the

defendant-investigators did not blindside the entity in possession of the

information being sought. Unlike the officers in Freedman, defendants Coffey and

Zimmerer were in direct contact with Penn State and effectively reached an

agreement whereby the emails at issue would be made available.

Details regarding the exact nature of the defendants’ original (presumably

verbal) request to Penn State and the response thereto – when Penn State

“demanded” a subpoena (App. 36 – ¶¶ 24-26) – are unspecified and unknowable at

this stage. That exchange could have been angry, adversarial, and insistent, or it

could have been matter-of-fact, open, and friendly. It does not matter. There is no

question that, thereafter, the defendants approached Penn State a second time,

24 Freedman also dismissed the officers’ argument that AOL could have

chosen to overlook any deficiencies in the faxed document pursuant to some

“emergency exception” to SCA requirements. Id., at 127-128.


37

bearing a subpoena;25 that Assistant General Counsel Katherine Allen reviewed the

subpoena; that, notwithstanding any possible irregularity in that document, Ms.

Allen, a lawyer, nevertheless designated someone from her office to “assist with

the subpoena” (App. 50); and that the requested emails were then produced. If

faced with these facts and circumstances, there is no reason to believe that the

Freedman court would have found in Walker’s favor.

In sum, notwithstanding the outcome in Freedman, on the facts as pled by

Walker, there are no grounds to infer that the defendants improperly “compelled”

Penn State’s disclosure of her emails. They did not violate SCA § 2703.

II. Alternatively, The Defendants Were Entitled To Qualified Immunity

On Walker’s Stored Communications Act Claims Against Them.

As articulated earlier in this very case, “[q]ualified 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.” Walker I, 905 F.3d at 143 (quoting Taylor v. Barkes, 135

S.Ct. 2042, 2044 (2015)). The district court has since determined, on remand, that

25 Defendants again acknowledge that the subpoena they presented was not

properly filled out and therefore unenforceable, and that this Court refused to

condone their actions in Walker I, 905 F.3d at 150. It does not follow, however,

that the defendants violated the SCA (as just explained) or – even if they somehow

acted improperly – that they forfeited their entitlement to qualified immunity. Id.

at 150 & n.63. See Part II, infra.


38

qualified immunity is potentially available to governmental parties sued for

damages under the Stored Communications Act in particular (see App. 10-12), and

that qualified immunity shields defendants Coffey and Zimmerer specifically from

liability on Walker’s SCA claims against them (see App. 13-21). Although Walker

questions both of these conclusions (Brf., at 18-30), her arguments lack merit.

A. Defendants in SCA civil cases may raise qualified immunity.

The district court found that “qualified immunity is available for Stored

Communications Act claims” and that defendants Coffey and Zimmerer could

therefore invoke it as a defense to Walker’s SCA damages claims against them

(App. 12). Walker disputes this threshold determination (Brf., at 18-21), but her

criticisms should be rejected.

Relying mainly on Berry v. Funk, 146 F.3d 1003 (D.C. Cir. 1998), Walker

would like this Court to conclude that qualified immunity only exists to protect

defendants who have been sued for violating the Constitution, as opposed to

federal statutes like the SCA (See Brf., at 18-20). While precedents arising from

constitutional claims have shaped qualified immunity jurisprudence over the years

in many ways,26 that does not mean qualified immunity is only available in

26 See, e.g., Reichle v. Howards, 566 U.S. 658 (2012) (First Amendment);

Anderson v. Creighton, 483 U.S. 635 (1987) (Fourth Amendment); Mitchell v.

Forsyth, 472 U.S. 511 (1985) (warrantless wiretap).


39

constitutional cases. At least one seminal qualified immunity decision, Harlow v.

Fitzgerald, 457 U.S. 800 (1982), says otherwise and cannot be overlooked.

Fundamentally, Harlow was a public employment dispute. The plaintiff had

sued two presidential aides on both constitutional claims, under the First

Amendment, and statutory claims, under 5 U.S.C. § 7211 and 18 U.S.C. § 1505.

See Harlow, 457 U.S. at 805 & n.10. Against that backdrop, the Supreme Court

held that “government officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Id., 457 U.S. at 818 (emphasis added).27 Since then,

qualified immunity issues have been litigated in cases involving both statutory and

constitutional violations of individuals’ rights. For example, in Doe v. County. of

Centre, Pa., 242 F.3d 437, 453-455 (3d Cir. 2001), this Court afforded qualified

immunity to county officials on damages claims under the Americans with

Disabilities Act and other federal statutes (as well as the Constitution).

Berry, a wiretap matter, did say – as Walker stresses (Brf., at 18-19) – that

qualified immunity could not be invoked in that type of case because the federal

27 Following Harlow, the “statutory or constitutional” formulation has been

reiterated countless times. See, e.g., City of Escondido, Calif. v. Emmons, 139

S.Ct. 500, 503 (2019). See also Walker I, 905 F.3d at 143.


40

wiretap statute contains its own “good faith” defense. Id., 146 F.3d at 1013. More

recently, however, two other courts of appeals have rendered precedential

decisions, declining to follow Berry and going the opposite way regarding the

availability of qualified immunity in wiretap cases. See Tapley v. Collins, 211 F.3d

1210, 1214-1216 (11th Cir. 2000); Blake v. Wright, 179 F.3d 1003, 1011-1013 (6th

Cir. 1999).28 Then, just last year, the Seventh Circuit took the same analytical

approach that had been taken in Blake and Tapley (and its own Wiretap Act case

law), in John K. Maciver Inst. for Public Policy, Inc. v. Schmitz, 885 F.3d 1004

(7th Cir. 2018). There, the Seventh Circuit definitively held that qualified

immunity is available to SCA defendants. Id., 885 F.3d at 1015. The district court

followed suit in this matter (See App. 10-12).

Based on Blake, Tapley, and Maciver, one cannot conclude – as Berry

essentially did – that statutory good-faith immunity and traditional qualified

immunity are co-extensive, or that qualified immunity is redundant in situations

28 Without detailed discussion, this Court, too – albeit in a non-binding

decision – has recognized that one who has been sued in a civil Wiretap Act case

may raise qualified immunity as a defense. See Diana v. Oliphant, 441 Fed. Appx.

76, 81 (3d Cir. 2011) (non-precedential). See also City of Grand Rapids v. Grand

Rapids Police Command Officers Assn., 346 F. Supp. 3d 1061, 1073-4 (W.D.

Mich. 2018) (affording qualified immunity to certain defendants in a wiretap case

in light of, e.g., Blake). Evidently, district courts in the Second Circuit, as well,

have “routinely allowed defendants to raise the defense [of qualified immunity] in

Wiretap Act cases.” See Lonegan v. Hasty, 436 F. Supp.2d 419, 430 n.5 (E.D.N.Y.

2006) (listing examples).


41

where statutory immunity may be available. To the contrary, these three post-

Berry decisions teach that, in a given matter, either type of immunity (or perhaps

both) may come into play.

Tellingly, Walker does not mention, let alone analyze, Blake, Tapley, or

Maciver in her brief, even though the district court cited, discussed, and relied

upon all three of them in arriving at – and explaining – its qualified immunity

conclusion. That amply-supported determination should not be disturbed.29

B. Qualified immunity applies because nothing defendants Coffey

and Zimmerer did violated clearly established law.

The defense of qualified immunity protects “all but the plainly incompetent

or those who knowingly violate the law.” Mullenix v. Luna, 136 S.Ct. 305, 308

(2015) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Whether one can

29 Walker does mention one other decision that discusses immunity, Hepting

v. AT&T Corp., 439 F. Supp. 2d 974 (N.D. Cal. 2006), but it does not particularly

help her. Hepting concerned warrantless electronic surveillance. As to qualified

immunity, the court generally aligned itself with Berry, but it mentioned Blake and

Tapley as well and only actually decided that AT&T, a private communications

provider would not be permitted to raise this defense. Hepting, 439 F. Supp.2d at

1006-1010. In so holding, the court seemed to recognize that, when it comes to

immunity, the policies behind, and protections afforded to, governmental parties –

such as defendants Coffey and Zimmerer – may well be broader than those enjoyed

by private defendants such as AT&T. In other words, standing alone Hepting does

not negate defendants’ qualified immunity argument.


42

prevail on this defense hinges upon objective factors, not subjective good faith.

See Anderson, 483 U.S. at 639; Harlow, 457 U.S. at 819.

Analyzing qualified immunity in a given case typically necessitates

answering two questions: “whether the defendants’ conduct violated a statutory or

constitutional right” at all, and, legally, “whether the right at issue was clearly

established when the conduct took place.” Sauers v. Borough of Nesquehoning,

905 F.3d 711, 716 (3d Cir. 2018). See also, e.g., Saucier v. Katz, 533 U.S. 194,

201 (2001). These two inquiries do not have to be undertaken in sequence in every

case. Pearson v. Callahan, 555 U.S. 223, 236 (2009). This Court has discretion to

address either issue first, Sauers, 905 F.3d at 716, and may even bypass the first

inquiry altogether, Pearson, 555 U.S. at 237-241.

If, as explained in Part I above, Walker failed to state an actionable SCA

claim against defendants Coffey and Zimmerer – who therefore cannot be said to

have violated her rights under SCA § 2701 or SCA § 2703 at all – the qualified

immunity inquiry can stop there; the defendants are entitled to prevail on the merits

and on immunity grounds. See Saucier, 533 U.S. at 201. See also, e.g., Walter v.

Pike Cnty., 544 F.3d 182, 196 (3d Cir. 2008) (because plaintiff could not establish

constitutional violation, defendants were also entitled to qualified immunity). But

even assuming that some SCA violation may have occurred here (a point not

conceded), no “clearly established law” put the defendants on notice, in October


43

2015, that their conduct was improper. Thus, at a minimum, dismissal of the SCA

claims against the defendants on the basis of qualified immunity was justified.

1. The “clearly established law” standard is central to any

qualified immunity determination.

A right is “clearly established,” for qualified immunity purposes, when the

law is sufficiently clear that every reasonable official would have understood – at

the time of the challenged events – that what he or she was doing would violate

that right. E.g., Reichle, 566 U.S. at 664; Sauers, 905 F.3d at 719. “That does not

require a prior precedent with indistinguishable facts[.]” Sauers, 905 F.3d at 719.

On the other hand, “existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011).

When making this assessment, a court must look first to applicable Supreme

Court precedent; a relevant Supreme Court holding that answers the question at

hand ends the inquiry. United States v. Baroni, 909 F.3d 550, 586 (3d Cir. 2018)

(citing L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 247-248 (3d Cir. 2016)). If there

is no high-court precedent, controlling authority in the relevant jurisdiction may

suffice, see Reichle, 566 U.S. at 665-666; Wilson v. Layne, 526 U.S. 603, 617

(1999), although a single case from the defendant’s jurisdiction, even if

precedential, does not necessarily afford the requisite notice to a future civil

defendant, see Carroll v. Carman, 135 S.Ct. 348, 350 (2014).


44

Absent unquestionably binding, instructive Supreme Court or in-circuit case

law, a “robust consensus of cases of persuasive authority” in the Courts of Appeals

may be enough to “clearly establish the federal right the [plaintiff] alleges.” City

and County of San Francisco v. Sheehan, 135 S.Ct. 1765, 1779 (2015). See also

Mammaro v. N.J. Div. of Child Prot. & Permanency, 814 F.3d 164, 169 (3d Cir.

2016). Conversely, the existence of a circuit split on a determinative legal issue is

a powerful indicator that the law is not clearly established.

Walker largely acknowledges, as she must, that these principles apply in her

case (See Brf., at 21-23).30 But her attempt to undercut the defendants’ immunity

defense falls flat.

30 Citing Doe v. Delie, 257 F.3d 309, 321 n.10 (3d Cir. 2001), Walker also

notes that district court decisions “play a role in the qualified immunity analysis”

(Brf., at 22). While the cited Doe footnote does say that, qualified immunity

principles have continued to develop since then. That aside, the corresponding text

in Doe suggests, more narrowly, that district court opinions “may be relevant to the

determination of when a right was clearly established[.]” Id., 257 F.3d at 321

(emphasis added). Doe also explains why, in various circuits, district court cases

alone are not necessarily controlling when qualified immunity is at issue. Id., at

321 & nn. 10-11. Furthermore, Doe itself held – despite the existence of certain

similar district court cases – that the applicable law was not clearly established in

the situation presented, so the defendants were immune from the plaintiff’s

damages claims.


45

2. No clearly established law undermines the defendants’

arguments regarding SCA § 2701 and SCA § 2703.

Throughout the remand proceedings here, Walker charged the defendants

with violating both SCA § 2701 and SCA § 2703 (see, e.g., App. 41-42 – ¶¶ 56,

57, 63); the district court found that she had failed to state a claim under either

statutory section (see App. 6-8, 8-9); and she has addressed the purported merits of

those two claims separately in this Court (see Brf., at 9-14, 14-17). Now though,

as to qualified immunity, she only argues that “Coffey and Zimmerer Clearly

Violated Section 2703” (see Brf., at 27-30) without offering any meaningful

parallel argument with respect to her distinct claim under SCA § 2701.

Defendants submit that, based on their § 2701 merits argument, they did not

violate that provision at all. See 16-28, supra. Even if they did, they ought – at the

very least – to be afforded qualified immunity on that claim without further ado

because no clearly established § 2701 law (i.e., on “access” or “authorization”)

barred their actions. Walker does not cogently argue otherwise.31

31 At the end of her brief, Walker does cite Kane v. Barger, 902 F.3d 185,

195 (3d Cir. 2018), seemingly for the proposition that conduct which violates a

criminal statute – including SCA § 2701 – is, ipso facto, contrary to clearly

established law (Brf., at 30). That argument is baseless, as the district court

recognized (App. 19 & n.102). Kane concerned a claim against a police officer

who, while investigating a woman’s allegation of sexual assault, proceeded himself

to violate her undeniable right to bodily integrity in multiple ways. The pertinent

facts were so extreme that, “intuitively,” this Court found it “absurd” to analyze

whether the officer’s conduct – which contravened policy and possibly also


46

Walker’s no-immunity argument on her § 2703 claim is somewhat more

developed, and cannot go unanswered. The question is whether – in light of

available, controlling law on compelled, as opposed to voluntary, disclosures of

electronic communications – any reasonable prosecutor or agent would have

understood, in 2015, that presenting Penn State with an incomplete subpoena for

an employee’s emails clearly violated SCA § 2703, under these specific

circumstances. It did not. This is so because, as explained earlier, Penn State

voluntarily agreed to disclose Walker’s emails which, as a non-public provider, it

was permitted to do, notwithstanding SCA §§ 2702 or 2703.

Freedman, the only case explicitly relied upon by Walker in arguing the

merits of this issue (see Brf., at 16-17), is distinguishable and in any event cannot,

by itself – as a single, out-of-circuit, trial-level decision – rise to the level of clearly

established law for qualified immunity purposes (as the district court recognized,

App. 20-21 & nn. 104-105). See Brown v. Grabowski, 922 F.2d 1097, 1118 (3d

Cir. 1990). In addition to Freedman, Walker does now pull snippets from five

more court decisions and tries to characterize them as a “robust consensus of

appellate precedent” in support of her § 2703 compelled disclosure challenge

criminal statutes – was contrary to clearly established law (but the court did still

undertake the prescribed legal analysis and reject that officer’s qualified immunity

defense). Kane, 902 F.3d at 195-196.


47

against the defendants (Brf., at 27-29). But these cases, which differ starkly from

each other (and from this case), shed no light on the objective legal reasonableness

of the defendants’ actions here. Indeed, two were criminal matters;32 the other

three were resolved against the civil plaintiffs.

Throughout its legal life, the SCA has posed interpretive challenges.

Distinguishing “between voluntary disclosure regulated by § 2702 and compelled

disclosure regulated by § 2703” is one of them. See Kerr, SCA Guide, at 1224.

Though many interactions between law enforcement and internet service providers

“fall clearly into one of these categories,” others are in a “gray zone somewhere

between the two.” Id. To illustrate, Professor Kerr offers two examples (quoted in

the margin), each of which somewhat resembles the present scenario, although

neither is identical.33 This commentary highlights, quite vividly, how confusing

32 The lengthy decision in United States v. Bansal, 663 F.3d 634, 662 (3d

Cir. 2011), is particularly irrelevant. It does contain the language Walker

references (regarding § 2703(a) procedures that “law enforcement officers must

follow when compelling disclosure…”), but it involved a warrant, which was

properly obtained and executed (and the defendant’s many other challenges to his

conviction were rejected). As to United States v. Warshak, 631 F.3d 266, 291 (6th

Cir. 2010), see infra, at 50.

33 “A police officer contacts an ISP system administrator and explains that

he is investigating a child molestation case. The officer asks the system

administrator if he is interested in helping out the police by voluntarily disclosing

certain files. Wishing to be a good citizen, the system administrator agrees and

turns over the files to the agent. Is this a case of ‘compelled’ disclosure or

‘voluntary’ disclosure? Alternatively, imagine that a system administrator contacts


48

and unsettled the law has been, and still is. That, in a nutshell, is why – if the

defendants ran afoul of the SCA at all – they were rightly afforded qualified

immunity on Walker’s § 2703 claim against them.

3. Even if “electronic storage” warrants consideration,

divergent decisions on the issue reinforce defendants’

entitlement to immunity.

Analyzing qualified immunity, the district court addressed one more issue in

some depth: whether, in connection with Walker’s claims under both SCA § 2701

and SCA § 2703, it was clearly established that her Penn State emails were in

“electronic storage” as the statute specifies (App. 13-20).34 Finding a marked lack

of clarity on this point, the court afforded qualified immunity to the defendants on

this basis (App. 19-20). Walker disagrees (Brf., at 23-27).

If this Court accepts defendants’ merits arguments on these two claims, see

Parts I.A and I.B above, or their corresponding qualified immunity contentions, see

Part II.B.2, there is no need to venture into the “electronic storage” thicket. But

the FBI and wants to disclose files but then asks for a subpoena just to make sure

there was some sort of documentation of the disclosure. The FBI agent agrees,

forward a subpoena to the system administrator, and then accepts the files. Does

the presence of the subpoena turn what was a voluntary disclosure into a compelled

disclosure?” Kerr, SCA Guide, at 1224-1225.

34 SCA § 2701 regulates access to electronic communications “in electronic

storage;” SCA § 2703(a) governs compelled disclosures of electronic

communications “in electronic storage.”


49

doing so, as Walker urges, will not change the outcome of this appeal. It will only

reinforce the defendants’ entitlement to qualified immunity, because – as is true on

other issues – the law on this precise point is not clearly established.

Through SCA § 2711(1), the definition of “electronic storage” at 18 U.S.C.

§ 2510(17) is incorporated into the SCA. Accordingly, the term “electronic

storage” means “(A) any temporary, intermediate storage of a wire or electronic

communication incidental to the electronic transmission thereof; and (B) any

storage of such communication by an electronic communication service for

purposes of backup protection of such communication.” Walker contends that her

Penn State emails were in “electronic storage” pursuant to subparagraph (B) of this

provision because they were “stored” by Penn State after being delivered (See Brf.,

at 23-27). The issue, however, is not simply whether the emails were on Penn

State’s server but whether they were held there “for purposes of backup

protection” as § 2510(17)(B) requires. That is not clear. There certainly is no

Supreme Court pronouncement on this point. Nor is there binding precedent from

this Court. And there also is no “robust consensus” among other Courts of

Appeals.

More specifically, in Fraser v. Nationwide Mut. Ins. Co., 135 F. Supp.2d

623 (E.D. Pa. 2001), the district court concluded that “messages that are in post-

transmission storage, after transmission is complete, are not covered by part (B) of


50

the definition of ‘electronic storage.’” Id., at 636. On appeal, this Court affirmed

“through a different analytical path, assuming without deciding that the e-mail in

question was in backup storage.” Fraser, 352 F.3d at 114 (emphasis added). To

date, that issue has not resurfaced in this Court.

As she did below, Walker urges this Court to adopt the broad approach to

“electronic storage” taken in Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004)

(Brf., at 24). Theofel questioned the district court’s reasoning in Fraser, finding

instead that storage of a message on a provider’s server after delivery does satisfy

the “backup protection” requirement. Theofel, 359 F.3d at 1075. Here, the district

court – like others before it – declined to follow Theofel, characterizing that

opinion as “oft-cited and widely disputed” (App. 16-19). Post-Theofel, no

consensus among the Courts of Appeals has emerged.

Walker herself correctly notes that the Sixth Circuit “cast doubt on Theofel”

in Warshak, 631 F.3d at 291 (Brf., at 27).35 It has not been the only Court of

Appeals to do so. Later, taking a cue from Warshak, the Eighth Circuit thoroughly

explained that, while some trial courts had followed Theofel, others had “openly

disagree[d] with,” or “dispute[d],” or “distinguish[ed]” it. Anzaldua, 793 F.3d at

35 Warshak’s criticism was based in part on the scholarly observation that

the analysis in “Theofel is quite implausible and hard to square with the statutory

text” regarding “electronic storage.” See Kerr, SCA Guide, at 1217.


51

840-841. Ultimately, though, the Eighth Circuit found it unnecessary to explicitly

resolve the “backup protection” issue because, even under Theofel’s reasoning, that

plaintiff could not prevail for other reasons.

Anzaldua was decided in the summer of 2015, a couple of months before the

events at issue here. Later – and well after those events – the Eleventh Circuit also

encountered, but did not have to decide, a similar “electronic storage” question.

Remarking that “[m]uch debate surrounds the issues” being raised, that court

declined to “wade into the discussion” because it was undisputed that at least some

emails “accessed” by the defendant were maintained in electronic storage. See

Vista Marketing, LLC v. Burkett, 812 F.3d 954, 963-964 (11th Cir. 2016). A year

later, the same court again opted not to grapple with “this complicated issue … of

first impression in [the] circuit” because it had not been “fairly presented” below.

See Brown Jordan International, 846 F.3d at 1175-1177.

In sum, in October 2015, there was no hint of a “robust consensus” in the

federal appellate courts showing definitively (i.e., clearly establishing) that the

emails defendants obtained from Penn State were, indeed, in “electronic storage …

for purposes of backup protection” as 18 U.S.C. § 2510(17)(B) dictates.36 The

36 Concomitantly, existing law could not be read to say that reasonable

people in defendants’ respective positions would have understood this to be the

case.


52

Ninth Circuit had decided Theofel; the Sixth had expressed doubt about it in

Warshak; the Eighth was disinclined to find a “Theofel” problem in Anzaldua but

based its decision on other grounds; and the other nine circuits had not weighed in

at all.37 After October 2015, the Eleventh Circuit twice acknowledged but did not

embrace Theofel. See Vista Marketing; Brown Jordan International. And there

things stood – one court of appeals articulating the legal interpretation Walker

supports; three others neither accepting nor rejecting that view; and the other eight

still saying nothing pertinent – until March 6, 2019.

Six days before Walker filed her opening brief, the Fourth Circuit endorsed

Theofel. See Hately v. Watts, 917 F.3d 770 (4th Cir. 2019). For present purposes,

however, this late-breaking development does not alter the “clearly established”

calculus for this case. The majority of the Courts of Appeals still have not taken a

position on the contours of the “electronic storage” concept, especially the “backup

protection” proviso. That is, there still is no “robust consensus” at the court-of-

appeals level in support of Walker’s legal position. And absent such a consensus,

37 Walker mentions two additional appellate decisions, issued by the First

and Second circuits in 2005 (Brf., at 24), but they are irrelevant. Neither focuses

on whether any emails there at issue were in “electronic storage … for purposes of

backup protection.”


53

the applicable law – which was not clearly established in 2015 – remains

unsettled.38

Consideration of Walker’s “storage” argument is not essential, but if it is

explored, the outcome of this case will not change. Dismissal was correct, either

on the merits or on qualified immunity grounds.

38 Aside from Theofel, Walker mainly relies on trial-level “electronic

storage” decisions to support her “clearly established law” argument (See Brf., at

23-27). These will not be separately discussed. Even assuming they might have a

role in the analysis, per Doe, they are not controlling. Crucially, there are

numerous other trial-level decisions, going the other way, as the district court took

care to explain (App. 16-19).


54

CONCLUSION

For the foregoing reasons, this Court should affirm the judgment of the

district court.

Respectfully submitted,

JOSH SHAPIRO

Attorney General

By: /s/ Claudia M. Tesoro

CLAUDIA M. TESORO


Bar No. 32813 (Pa.)

J. BART DeLONE

Chief Deputy Attorney General

Chief, Appellate Litigation Section

Office of Attorney General

1600 Arch Street

Suite 300

Philadelphia, PA 19103

Phone: (215) 560-2908

FAX: (717) 772-4526

DATE: May 8, 2019


55

CERTIFICATE OF COUNSEL

I, Claudia M. Tesoro, Senior Deputy Attorney General, hereby certify as

follows:

1. I am a member of the bar of this Court.

2. The text of the electronic version of this brief is identical to the text of the

paper copies.

3. A virus detection program was run on the file and no virus was detected.

4. This brief contains 11,969 words within the meaning of Fed.R.App.P.

32(a)(7)(B). In making this certificate, I have relied on the word count of the

word-processing system used to prepare the brief.

/s/ Claudia M. Tesoro

CLAUDIA M. TESORO



56

CERTIFICATE OF SERVICE

I, Claudia M. Tesoro, Senior Deputy Attorney General, hereby certify that

the foregoing Brief For Appellees is this day being filed electronically, using the

Court’s CM/ECF system, and thus will be served electronically on any/all Filing

User(s) involved in this case, including counsel for appellant at

[email protected] and [email protected] .

I further certify that seven copies of this Brief were duly sent to the Clerk of

the United States Court of Appeals for the Third Circuit in Philadelphia,

Pennsylvania.

/s/ Claudia M. Tesoro

CLAUDIA M. TESORO


DATE: May 8, 2019


mailto:[email protected]

mailto:[email protected]

No. 19-1067 Appellant v. BRIEF FOR APPELLEES · 2019-05-16 · IN THE UNITED STATES COURT OF...

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Transcript of No. 19-1067 Appellant v. BRIEF FOR APPELLEES · 2019-05-16 · IN THE UNITED STATES COURT OF...