Monday, December 10, 2012

The 4th Amendment, the Wiretap Act and Google Voice


This post examines a decision a federal district court in Illinois recently issued in a civil case:  Loucks v. Illinois Institute of Technology, 2012 WL 5921147 (U.S. District Court for the Northern District of Illinois 2012).   

Jonathan Loucks brought the suit, alleging that the Illinois Institute of Technology [IIT] and two individuals -- Ashley Lucas and Elizabeth Pinkus–Huizenga – “violated the 4th Amendment and the Federal Wiretap Act, 18 U.S. Code § 2520.” Loucks v. Illinois Institute of Technology, supra.

This, according to the Complaint Loucks filed to initiate the suit, is how the case arose:

b. Ashley Lucas is the Service Coordinator for the Office of Residence and Greek Life and [Loucks’] former supervisor who was and still is a resident of Chicago in Cook County of the State of Illinois.

c. Elizabeth Pinkus-Huizenga is the Director for Residential Education for the Office of Residence and Greek Life who was and still is a resident of Chicago in Cook County of the State of Illinois. . . .

5. At all times hereinafter mentioned the following individuals and their respective positions act as representative employees of [IIT]:

a. Whereas Ashley Lucas served as the direct supervisor to [Loucks] in her capacity as the Service Coordinator for the Office of Residence and Greek Life. . . .

b. Whereas Elizabeth Pinkus-Huizenga serves as the Director of Residential Education for the Office of Residence and Greek Life. . . .

c. Whereas Terrence Humphrey serves as the Director for Residential Operations and Administration for the Office of Residence and Greek Life. . . .

d. Whereas Katherine Murphy-Stetz serves as the Dean of Students for the Division of Student Affairs. . . .

e. Whereas Victoria Tolbert serves as the Illinois Institute of Technology Ombudsperson and the Assistant to Dean of Students for the Student Affairs Division. . . .

f. Whereas Raymond Martinez serves as the Director of Public Safety for the Department of Public Safety. . . .

g. Whereas Marcus Scott serves as the Assistant Director of Public Safety for the Department of Public Safety at the Illinois Institute of Technology. . . .

6. Whereas . . . Loucks, began employment on May 1st, 2012 with the Office of Residence and Greek Life as Team Leader for the Community Desk Assistant Program after serving as a Resident Advisor and Community Desk Assistant since August 12th, 2011.

7. Whereas [he] was expected to serve in an on-call rotation as part of his position using his personal cell phone as a receiver for the third-party call forwarding service, Google Voice.

8. Whereas the forwarding service was simply explained as strictly a forwarding service without any privacy agreement or provisions set forth or made available to [Loucks] by Ashley Lucas or Elizabeth Pinkus-Huizenga whom advocated the use of the new service.

9. Whereas on May 15th, 2012 a series of text messages sent from [Loucks’] personal phone to the personal phone of Westin Ripley, a fellow [IIT] student, was recorded and logged by the Google Voice account, held by the Office of Residence and Greek Life of [IIT].

10. Whereas a transcript of these text messages was provided to [Loucks] in an investigatory hearing with Lucas, Pinkus-Huizenga, Scott, and Martinez on May 21st, 2012.

11. Whereas [Loucks] maintained that these text messages were private and sent to his personal cell phone and were not intended for public view or dissemination.

12. Whereas [Loucks] was interrogated by Scott and Martinez regarding the nature of the text messages and informed that he would be subject to disciplinary action and likely termination by Pinkus-Huizenga and Lucas.

13. Whereas [Loucks] filed a formal complaint to Victoria Tolbert on May 22nd, 2012 stating that his right to privacy was violated by Pinkus-Huizenga, Lucas, Martinez, and Scott after private text messages were viewed and distributed to the officials mentioned in Paragraph 5.

14. Whereas [Loucks] informed Tolbert of his intention to seek legal counsel on the legality of his likely termination of employment.

15. Whereas [Loucks] was suspended without pay in an email communication from Lucas on May 23rd, 2012.

Complaint, Loucks v. Illinois Institute of Technology, et al., ¶¶ 4-15, 2012 WL 5216652.  On May 25, Loucks “met with Murphy-Stetz who informed him . . . that his employment was to be terminated and he would be required to vacate his provided residence by June 4th, 2012.”  Complaint, Loucks v. Illinois Institute of Technology, et al., supra at 22.

As the opinion explains, as part of his employment at IIT’s Office of Residence and Greek life, Loucks used Google Voice,

a third-party call forwarding service, on his personal cell phone. The Google Voice account was held by the Office of Residence and Greek Life. [Loucks] alleges that a series of text messages, sent from his cell phone to the phone of fellow IIT student Westin Ripley were recorded and logged by the Google Voice account.  

A transcript of these text messages was provided to [Loucks] in an investigatory hearing with his direct supervisor, Lucas; the Director of Residential Education for the Office of Residence and Greek Life, Pinkus–Huizenga; the Director of Public Safety, Raymond Martinez; and the Assistant Director of Public Safety, Marcus Scott. Ultimately, IIT terminated Plaintiff's employment because the text messages revealed that he had `prompted a drug deal to happen on campus.’ 

Loucks v. Illinois Institute of Technology, supra.

The defendants responded to Loucks’ complaint by filing a Rule 12(b)(6) motion to dismiss the suit. Loucks v. Illinois Institute of Technology, supra.  As Wikipedia explains, a Rule 12(b)(6) motion is

how lawsuits with insufficient legal theories underlying their cause of action are dismissed from court. For example, assault requires intent, so if the plaintiff has failed to plead intent, the defense can seek dismissal by filing a 12(b)(6) motion.

The district court judge began his analysis of the defendants’ motion by noting that

[t]o survive a motion to dismiss under Rule 12(b)(6), a complaint must allege `enough facts to state a claim to relief that is plausible on its face.’ Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In other words, a plaintiff's complaint `must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief above the speculative level.’ Independent Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930 (U.S. Court of Appeals for the 7th Circuit 2012).

Loucks v. Illinois Institute of Technology, supra.

 He then took up Loucks’ two causes of action, starting with his claim that the defendants violated the 4th Amendment.  Loucks v. Illinois Institute of Technology, supra.

[T]he Court notes that an alleged wrongful search or seizure conducted by private sector employers -- without governmental participation or knowledge -- is not actionable under the 4th Amendment. Burdeau v. McDowell, 256 U.S. 465 (1921); see also U.S. v. Jacobsen, 466 U.S. 109 (1984) (“This Court has also consistently construed [4th Amendment] protection as proscribing only governmental action; it is wholly inapplicable to a search or seizure . . . effected by a private individual not acting as an agent of the Government’. . . .)

In his opposition to [the] motion to dismiss, [Loucks] concedes that IIT is a private institution. [His] vague, broad based claim rails to allege participation or knowledge of any governmental official. Further, [Loucks’] argument that IIT `could be operating as proxy agents of the Police Department’ because the Chicago Police Department `quickly became involved’ and arrested Ripley on felony drug distribution charges . . . is without merit. . . . As such, [Loucks’] 4th Amendment claim is dismissed.

Loucks v. Illinois Institute of Technology, supra.  (For more on the private search issue, check out this prior post.)

The judge then took up Loucks’ claim under the federal Wiretap Act, which is codified as part of Title 18 of the U.S. Code.  As he noted, 18 U.S. Code § 2520 “provides a civil remedy when a person's communications are `intercepted, disclosed, or used in violation of” the Wiretap Act.  Loucks v. Illinois Institute of Technology, supra.  The judge also pointed out that while Loucksdid not

specifically aver which provision he relies upon for relief, it appears that [Loucks] is alleging a violation of [18 U.S. Code] § 2511, which prohibits the intentional interception and disclosure of wire, oral, or electronic communications. 

Loucks v. Illinois Institute of Technology, supra (emphasis added).

Since Loucks was not alleging that IIT was a state agent, his Wiretap Act claim was apparently brought under 18 U.S. Code § 2511(2)(d) of Title 18, which says it is not unlawful for a person who is

not acting under color of law [i.e., someone who is not a state agent] to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.

Loucks v. Illinois Institute of Technology, supra. 

In analyzing Loucks’ Wiretap Act claim, the judge explained that Loucks alleged that,

prior to deploying Google Voice software, IIT was not fully aware of its ability to record or log messages. See Complaint ¶¶ 19–20 (alleging that the Dean of Students for the Division of Student Affairs, Katherine Murphy–Stetz, stated that the `Office of Residence and Greek Life should have adequately researched the functions of the Google Voice service’ and `that had the Google Voice features been investigated and thoroughly explained upon deployment of the software, the situation would not have escalated or even arisen’).

Even drawing all reasonable inferences in [Loucks’] favor, these allegations, at most, allege a plausibly negligent act. Thus, `[b]ecause the complaint does not allege that defendants intercepted a communication for the purpose of committing any criminal or tortious act, it fails to state a claim under section 2511.’  Lucas v. Fox News Network, LLC, 248 F.3d 1180 (U.S. Court of Appeals for the 11th Circuit 2001). . . . 

Loucks v. Illinois Institute of Technology, supra. 

The judge therefore held that Loucks’ “Federal Wiretap claim is . . . dismissed.”  Loucks v. Illinois Institute of Technology, supra.  He also noted, though, that the complaint was dismissed without prejudice, which means Loucks can try again.  Loucks v. Illinois Institute of Technology, supra.  (The opinion notes that he is proceeding pro se, i.e., is representing himself, which might have prompted the judge to give him another opportunity.)  Loucks v. Illinois Institute of Technology, supra. 

So Loucks has “one final opportunity to file an amended complaint on or before December 21, 2012.”  Loucks v. Illinois Institute of Technology, supra. 

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