What does it take to qualify under the Emergency Exception?

When is a Service Provider Who Discloses Non-Content Personal Information to Authorities Immune From Civil Liability under the SCA? When it has an Objective Good Faith Belief in the Existence of an Emergency

Author: Samantha Monteleone
Case Citation: Alexander v. Verizon Wireless Services LLC 2017 (S.D. Fla. 2017)
Employee/Personnel/Employer Implicated: Verizon Wireless Services, L.L.C
eLesson Learned: A service provider is statutorily immune from liability and further entitled to a “good faith reliance” affirmative defense when it has an objectively good faith belief in the existence of an emergency.
Tweet This: Court Dismisses Complaint Against Verizon Claiming Service Provider Violated the SCA When It Provided Detective Non-Content Information About Location of Alleged Arsonist

The Fifth Circuit affirmed the District Court’s judgment dismissing the Plaintiff’s complaint for failure to state a claim against Verizon under the Stored Communications Act (SCA). The Court adopted an objective standard to the “good faith” requirements of Sections 2702(c)(4) and 2707(e)(1) of the SCA and found that Verizon’s conduct was objectively reasonable.

In August 2014, a fire took place at the Nixon’s home in West Monroe, Louisiana. The Nixons explained to Detective Gary Gilley that they believed Matthew Alexander (Plaintiff), a former employer of Mr. Nixon, was responsible for the fire. Mr. Nixon gave Detective Gilley Alexander’s cell phone number, home address, and the make, model, and license plate number of Alexander’s car, all of which he had from when his company employed Alexander. Detective Gilley then contacted Verizon Wireless Services, L.L.C., the service provider for the cell phone number that Mr. Nixon provided him. Detective Gilley spoke with Andrea Cole, a Verizon representative, and told her that he needed to know where the subscriber to whom the number belonged had been on the day of the alleged arson, explaining that the individual to whom the number belonged was his main lead in an alleged arson. 

Cole told Detective Gilley that she believed the situation met Verizon’s guidelines for releasing the information he requested and then sent him an “Emergency Situation Disclosure” form, which Detective Gilley filled out and returned to her. The form included a question asking whether the request “potentially involves the danger of death or serious physical injury to a person, necessitating the immediate release of information relating to the emergency.” In response, Detective Gilley checked the box next to “yes.”  In the box for additional comments, Detective Gilley wrote: “This case is in connection with an Arson, House was set on fire with victims inside.”  Detective Gilley included his name, badge number, contact information, and title as a “Senior Investigator.” Moreover, he signed the form under a certification stating “I certify that the foregoing is true and correct and understand that Verizon Wireless may rely upon this form to make an emergency disclosure to my law enforcement agency or governmental entity pursuant to 18 U.S.C. § 2703(b)(8) and § 2702(c)(4).”

After receiving the form, Verizon provided Detective Gilley with the requested information, including the identity of the subscriber, location information, incoming and outgoing call details, and SMS details spanning from three days before the date of the incident to the time the records were sent to Detective Gilley. All of the information received from Verizon was non-content information. Based in part on the information from Verizon, Alexander was arrested and charged with aggravated arson and two counts of attempted second-degree murder.

Separate from the criminal proceeding, Alexander filed a civil lawsuit against Verizon in federal district court, alleging various violations of the SCA and seeking $5,000,000 in damages. Verizon filed a motion to dismiss for failure to state a claim upon which relief can be granted. The motion was referred by the District Court to a magistrate judge, who issued a report and recommendation that the motion be granted. The magistrate judge concluded that, taking all of the facts in Alexander’s complaint as true, the complaint established on its face that Verizon is statutorily immune from liability and further entitled to a “good faith reliance” affirmative defense. The district court dismissed Alexander’s lawsuit and Alexander appealed.

Alexander challenged the District Court’s determination that Verizon, as a service provider, is protected from liability under Sections 2703(e) and 2707(e) based on the emergency exception. Alexander argued that the information provided by Detective Gilley to Verizon regarding the alleged emergency lacked enough specificity for Verizon’s reliance on it to be in good faith. Alexander also faults Verizon for failing to take additional steps to challenge Detective Gilley’s assessment of the situation as an “emergency.” 

In Verizon’s view, the SCA allowed it to rely in good faith on Detective Gilley’s written representations, and Alexander has no factual allegations that could plausibly show Verizon acted in bad faith. Verizon also argued that asking its representatives to question the emergency assessments of police officers is inconsistent with the statute and its design.

First, the Court determined that an objective approach to the good faith requirements found in § 2702(c)(4) and § 2707(e)(1) of the SCA is required. The Court reasoned that an objective approach is consistent with a majority of circuits to have considered this issue. The Court also explained that an objective approach strikes the right balance between providing recourse for subscribers whose rights under the SCA have been violated and minimizing social costs, including the risk that fear of monetary liability and harassing litigation will unduly inhibit the willingness of Internet service providers voluntarily to help government officials in times of emergency.

Ultimately, the Court affirmed the district court’s judgment dismissing Alexander’s lawsuit, holding that Verizon’s conduct was objectively reasonable. The Court highlighted that Verizon only released the non-content information after it received a signed and certified form indicating that the request involved: (1) “the danger of death or serious physical injury to a person, necessitating the immediate release of information relating to that emergency;” (2) an alleged arson, and (3) victims who were within the home when it was set on fire. The Court also noted that Detective Gilley listed identifying information, such as his badge number and title as senior investigator, making it reasonable for Verizon to rely on its contents. The Court found that an affirmative defense is established on the face of Alexander’s complaint, holding that Verizon acted reasonably in concluding that there was “an emergency involving danger of death or serious physical injury to a person” that required Verizon to act without delay. 

Samantha Monteleone is a third year law student at Seton Hall University School of Law (Class of 2018).  She was born and raised in New Jersey and has plans to practice in the state after graduation.  She has a passion for all things family law but enjoys reading and writing about all vanguard topics in the law.

Want to read more articles like this?  Sign up for our post notification newsletter, here.

Comments are closed.

  • Find an eLesson

  • Register for Post Notifications

    Subscribe to receive updates whenever a new eLesson is published.

    Manage Subscriptions
  • Let Us Blog Your Event!

    eLessons Learned is fast becoming the site of choice for employers, employees, judges, lawyers, and journalists who are interested in learning more about these areas without being intimidated by the complexity of the topic. In fact, organizations and event coordinators often feature eLessons Learned as their official eDiscovery blog. Fill out our simple registration form to have eLessons Learned be the official blog of your organization or event.

    Register Now
  • Recent Praise

    The blog takes a clever approach to [e-discovery]. Each post discusses an e-discovery case that involves an e-discovery mishap, generally by a company employee. It discusses the conduct that constituted the mishap and then offers its ‘e-lesson’ — a suggestion on how to learn from the mistake and avoid it happening to you.

    Robert Ambrogi

    Legal Tech Blogger and creator of LawSites

    Although I may have missed some, yours is the first article that I have seen addressing Zubulake II. It is often the lost opinion amongst the others.

    Laura A. Zubulake

    Plaintiff, Zubulake v. UBS Warburg

    Click here to see more.