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In the 17 years since the Electronic Communications Privacy Act was enacted, courts have ruled in hundreds of cases involving the illegal release of subscriber information by Internet companies. But only a handful of decisions have dealt with such information being improperly obtained by government officials. A federal court ruling issued last month — castigating two Fairfield, Conn., police detectives for using an unsigned warrant to attain AOL subscriber information — is just the fourth such opinion, says privacy law attorney Daniel Klau of Hartford, Conn.’s Pepe & Hazard. Klau represents Clifton Freedman, a former Fairfield Board of Education member who sent anonymous e-mails last March to members of a rival Republican faction after they lost in their elections complaint against local Republican Town Committee leaders. The head of that faction, Mary Carroll-Mirylees, was preparing to challenge the endorsed Republican nominee for the town’s first selectman post. Freedman’s e-mail mimicked a campaign phrase from the town’s 2001 elections, “Go John Go Away,” in reference to then-First Selectman John Metsopoulos. It was sent under the e-mail address of [email protected] and said, “The End is Near” in the subject line. There was nothing in the body of the message. The day after the e-mails were received, Sandra Mulligan and Dee Dee Brandt, both friends and political supporters of Carroll-Mirylees, filed complaints with the police, claiming that the e-mails were harassing and threatening. That afternoon, police faxed a search warrant to AOL, requesting the identity of the subscriber using the “GoMaryGoAway” account, billing information, and other accounts used by that subscriber. The search warrant had not been signed by a judge or even presented to a judge for his or her signature. Six days later, AOL faxed the requested information to the detectives, who then called Mulligan and Brandt and revealed Freedman’s identity. Within days, the local newspaper obtained a copy of a police report containing Freedman’s identity and other screen names. The ensuing ruckus eventually prompted Freedman to withdraw from the school board race and resign from the Republican Town Committee. In June 2003, he filed an 11-count complaint against the two detectives, William Young and David Bensey, the town of Fairfield, and AOL, alleging their actions violated the Electronic Communications Privacy Act (ECPA) as well as his rights under the First, Fourth, and 14th amendments. In December 2003, Freedman filed a motion for summary judgment against all four defendants on the ECPA claims. Senior Judge Peter Dorsey of the U.S. District Court for the District of Connecticut, ruling Feb. 4, granted the motion against the two detectives. AOL TO BLAME? Attorneys for Fairfield and the two detectives, both 23-year veterans of the department, argued that they weren’t trying to pass off the warrant as legitimate, but used the form because “it was a clear and concise format for conveying the facts of the case and the reasons I believed probable cause existed to request the information,” Young said in an affidavit. In addition, they maintained that they didn’t “require” AOL to release the information under the act, but merely “requested” its cooperation. In ruling against the officers, Dorsey called that argument “disingenuous” and said it doesn’t absolve them of liability under the ECPA. “In soliciting the information from AOL, the Defendants knew, or should have known, that AOL was requested to violate the ECPA,” he wrote. “Even if AOL acted without lawful authority in disclosing the information, this does not absolve Defendants from unlawfully requesting or soliciting AOL’s disclosure. . . . Violation by one does not excuse the other.” Lead counsel for the town and the police officers, Mark Perkins of Maher & Murtha in Bridgeport, Conn., would not comment on the case. But Fairfield Town Attorney Richard Saxl calls the decision “galling.” “They [the detectives] relied on AOL. If AOL had said, ‘Get a court order,’ they would have gotten a court order — it’s not hard,” Saxl says. Fairfield also argued that AOL acted on an emergency exception to the law. But Dorsey noted that it took AOL six days to respond, “a delayed response which severely undermines [the defendants'] conclusory allegations that AOL ‘may have believed’ the e-mail recipients were in immediate danger.” Dorsey didn’t rule on summary judgment against AOL because the case against the company has already been transferred to the U.S. District Court for Eastern Virginia, under a forum-selection clause in AOL’s subscriber contract. Saxl says the town continues to stand behind the two officers. The town’s board of selectmen decided last month to appeal Dorsey’s ruling. The decision paves the way for Freedman’s suit to move forward. “The ECPA violation entitles us to all the damages [compensatory and punitive], and it has a provision for attorney fees,” says Klau. ( Editor’s Note: Klau is representing Legal Times affiliate The Connecticut Law Tribune in a federal suit against the state court system seeking basic docket information in so-called Level 1 and Level 2 sealed cases.) “Police not only asked for, and obtained, information beyond the scope of the identity behind the GoMaryGoAway handle, they released [the information] to people outside the department, and later released the case incident report containing the information to the newspaper,” adds Klau, who teaches privacy law at the University of Connecticut School of Law. “Freedman engaged in constitutionally protected, anonymous speech,” he continues. “The question is whether the defendants were really threatened or had other motives for wanting to find out. And did the police understand the true context of the e-mail and were they complicit? I don’t know,” Klau says. Saxl denies the second part. “Do I think the police were duped? Yes, I do think they were duped. I think the police were taken in by the two women, but they acted in good faith,” he says. “Could they have taken the time to see a judge? Of course, they could. Would the judge have signed it? I’m sure he would.” Ray B. Burton III is a reporter at The Connecticut Law Tribune, an American Lawyer Media newspaper published in Hartford and where this article first appeared.

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