Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In the 17 years since the Electronic Communications Privacy Act was enacted, courts have ruled in hundreds of cases involving the illegal release ofb 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 this month — castigating two Fairfield, Conn., police detectives for using an unsigned warrant to attain AOL subscriber information — is just the fourth such opinion, said privacy law attorney Daniel J. Klau, of Hartford, Conn.’s Pepe & Hazard. Klau is representing Clifton S. 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 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, 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 First, Fourth and 14th Amendment rights. In December, Freedman filed a motion for summary judgment against all four defendants on the ECPA claims. U.S. District Court Senior Judge Peter C. Dorsey, 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 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 a affidavit. In addition, they maintained that they didn’t “require” AOL to release the information under the act, but merely “requested” their cooperation. In ruling against the officers, Dorsey called that argument “disingenuous” and said it doesn’t absolve them of liability under 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 H. Saxl called 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 said. 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 said the town continues to stand behind the two officers. The town’s board of selectman decided last week 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,” said Klau. (Klau is representing 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,” added Klau, who teaches privacy law at the University of Connecticut School of Law. “Freedman engaged in constitutionally protected, anonymous speech,” he continued. “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 said. 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 said. “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.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.