Friday, July 08, 2011

ECPA Claim Dismissed: No Showing Def Was Connected to 3rd Party Who May Have Illegally Intercepted Email, Or That Def Knew Email May Have Been Illegally Intercepted

ZINNA v. Cook, Court of Appeals, 10th Circuit 2011:  In ECPA cause of Action, Def Motion for Summary Judgment granted where Pltf failed to provide evidence that 

  • Def had any association with third party who may have illegally intercepted the email
  • Def had any knowledge that email may have been illegally intercepted when Def disclosed the email

Facts: "Plaintiff Michael L. Zinna brought this action under the civil damages provision of the Federal Wiretap Act, 18 U.S.C. § 2520(a), claiming defendants conspired to intercept, disclose, or use certain electronic communications he had made. He alleged emails he sent to friends and associates on June 14, 2006, were intercepted by a third party and acquired by defendants, who posted information taken from them to an internet web site ( [no longer resolves]) later that evening in an effort to discredit him. The district court granted summary judgment for defendants, holding that Mr. Zinna failed to present evidence sufficient to create a triable issue that defendants either played a role in the alleged illegal interception or had knowledge of it when contents of the emails were posted on the internet. Mr. Zinna timely filed this appeal. As explained below, we affirm for substantially the reasons stated by the district court."


  • RULE "Defendants could potentially be liable either for conspiring with [email interceptor] beforehand to intercept the emails or by conspiring to acquire the emails for the purpose of illegally disclosing and/or using them. See Thompson v. Delaney, 970 F.2d 744, 748-50 (10th Cir. 1992) (assessing claims of conspiracy to intercept and conspiracy to use or disclose in violation of Federal Wiretap Act)
  • HOLDINGNo competent evidence in the record ties defendants to the alleged interceptor, much less to show they conspired with him to engage in the illegal interception.
  • RULE: Def could be liable for disclosure of emails that they knew were illegally intercepted.  "liability for use or disclosure of the contents of an intercepted communication requires both intentional conduct and knowledge that the information was obtained through the interception of a[n] . . . electronic communication in violation of [the statute]." Thompson, 970 F.2d at 748 (emphasis added and quotation omitted).
  • HOLDING: Plaintiff has "not cited to any evidence in the record sufficient to support a reasonable inference that defendants knew the material posted on the web site derived from an illegal interception of email."

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