Opinion
Case No. C03-0769C (RSL).
March 8, 2004
ORDER GRANTING DEFENDANT HIEU PHUNG'S MOTION TO DISMISS COUNT III
This matter comes before the Court on defendant Hieu Phung's "Motion to Dismiss Count III of Plaintiff DirecTV's Complaint" pursuant to Fed.R.Civ.P. 12(b)(6). Defendant Mike Hennies has joined in the motion. In Count III, DirecTV alleges that each defendant possessed and used a pirate access device in violation of 18 U.S.C. § 2512(1)(b). Section 2512(1)(b) provides that a person commits a federal offense if he intentionally:
manufactures, assembles, possesses, or sells any . . . device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications, and that such device . . . has been . . . sent through the mail or transported in interstate or foreign commerce.18 U.S.C. § 2512(1)(b). Section 2512(1)(b) criminalizes the mere possession of a prohibited device. The question at issue in this motion is whether private parties have a right to enforce that prohibition.
The parties acknowledge that § 2512(1)(b) is a criminal statute which does not, in and of itself, confer a private right of action on plaintiff, DirecTV argues, however, that it can bring suit for violations of § 2512(1)(b) pursuant to 18 U.S.C. § 2520(a). Section 2520(a) provides, in relevant part:
[A]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity . . . which engaged in that violation such relief as may be appropriate.
Whether § 2520(a) affords DirecTV a private right of action against defendants for violations of § 2512(1)(b) has been hotly litigated over the past two years. The Court will begin its analysis, as it must, with the statutory language. See Russello v. United States, 464 U.S. 16, 20 (1983) ("In determining the scope of a statute, we look first to its language. If the statutory language is unambiguous, in the absence of a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive."); Transamerica Mortgage Advisers, Inc. v. Lewis, 444 U.S. 11, 19 (1979) ("It is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.").
Section 2520(a) provides that any person "whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used" may in a civil action recover "from the person . . . engaged in that violation." 18 U.S.C. § 2520(a). The language "intercepted, disclosed, or used" is not found in § 2512(1)(b), which targets any person who "manufactures, assembles, possesses, or sells" prohibited devices. 18 U.S.C. § 2512(1)(b). It does, however, track the language of 18 U.S.C. § 2511(1)(a), which criminalizes the conduct of any person who "intentionally intercepts, endeavors to intercept or procures any other person to intercept . . . any wire, oral, or electronic communication." It is also clear that § 2520(a) does not impose open-ended liability on an interceptor: the section makes the person "engaged in that violation" liable for "such relief as may be appropriate." As a matter of grammar and sentence structure, the phrase "that violation" refers to the interception, disclosure, or intentional use of communications mentioned earlier in the sentence, and not to other conduct such as the possession of prohibited devices. Accordingly, the Court finds that the language of § 2520(a) does not provide DirecTV with a private right of action against those possessing devices in violation of § 2512(1)(b).
Although the Ninth Circuit has not considered this issue, at least one other United States Court of Appeals and dozens of district courts have. Two lines of decisions emerge. The first, exemplified by Flowers v. Tandy Corp., 773 F.2d 585, 586-87 (4th Cir. 1985), holds that § 2520(a) does not provide a private right of action for violations of § 2512(1)(b). The second line of cases, exemplified by Oceanic Cablevision, Inc. v. M.D. Elecs., 771 F. Supp. 1019, 1026-29 (D. Neb. 1991), concludes that Flowers was overturned by a 1986 amendment to the Electronic Communications Privacy Act and holds that a private cause of action for violations of § 2512 does exist. Having considered the language of the relevant statutory provisions, the impact of the 1986 amendments, the relevant case law, and the submissions of the parties, the Court finds Flowers and its progeny persuasive. As succinctly stated in DirecTV v. Bertram, 296 F. Supp.2d 1021, 1026 (D. Minn. 2003):
See also DirecTV v. Boggess, ___ F. Supp.2d ___, 2004 WL 285931 (S.D. W. Va. Feb. 13, 2004); DirecTV v. Lorenzen, ___ F. Supp.2d ___, 2004 WL 286125 (N.D. Ohio Jan. 30, 2004);DirecTV v. Bertram, 296 F. Supp.2d 1021 (D. Minn. 2003);DirecTV v. Cope, ___ F. Supp.2d ___, 2003 WL 23211594 (M.D. Ala. Nov. 20, 2003); DirecTV v. Beecher, 296 F. Supp.2d 937 (S.D. Ind. 2003); DirecTV v. Hosey, 289 F. Supp.2d 1259 (D. Kan. 2003); DirecTV v. Cardona, 275 F. Supp.2d 1357 (M.D. Fla. 2003); DirecTV v. Childers, 274 F. Supp.2d 1287 (M.D. Ala. 2003); DirecTV v. Amato, 269 F. Supp.2d 688 (E.D. Va. 2003);Ages Group, L.P. v. Raythcon Aircraft Co., Inc., 22 F. Supp.2d 1310 (M.D. Ala. 1998). In DirecTV v. Boonstra, ___ F. Supp.2d ___, 2004 WL 302405 (W.D. Mich. Feb. 2, 2004), and DirecTV v. Hyatt, ___ F. Supp.2d ___, 2004 WL 305359 (W.D. Mich. Feb. 2, 2004), DirecTV voluntarily withdrew its claims under 18 U.S.C. § 2512.
See also DirecTV v. Perez, 279 F. Supp.2d 962 (N.D. Ill. 2003); DirecTV v. Drury, 282 F. Supp.2d 1321 (M.D. Fla. 2003); DirecTV v. EO Stuff, Inc., 207 F. Supp.2d 1077 (C.D. Cal. 2002).
The Court has not considered the two "supplemental" memoranda submitted by defendant Phung. Both the additional case law and the legislative materials could have, and should have, been submitted with defendant's reply.
[T]he unambiguous language of § 2520(a) limits those against whom a private right of action lies to those who intercept, disclose, or use electronic communications; this class of persons does not include mere possessors of prohibited devices. This reading of the statutory text is buttressed by the observation first made in Flowers[, 773 F.2d at 589], and later in DirecTV. Amato, 269 F. Supp.2d 688 [, 691] (E.D. Va. 2003), that while the interception of electronic communications, as criminalized by § 2511, creates a victim, thereby justifying a private right of action, the mere possession of a prohibited device, as criminalized by § 2512, creates no individualized harm and, thus, no justification for private recovery.
To the extent this Court's decision in DirecTV v. Marker, C03-0818R (RSL), implies that a private cause of action for violation of § 2512 exists, the implication was unintentional and, being unsupported, is not persuasive.
For all of the foregoing reasons, defendants' motion to dismiss is GRANTED and Count III of plaintiff's complaint is hereby DISMISSED.