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Becker v. Toca

September 24, 2008




Before the Court is the Defendant's Motion to Dismiss (Rec. Doc. 16). For the following reasons, the Defendant's motion is now GRANTED IN PART AND DENIED IN PART.


On October 23, 2007, the Plaintiff, a lawyer, initiated this action against the Defendant, his ex-wife, for punitive damages, attorney fees, injunctive relief, and equitable relief pursuant to (1) the Federal Wiretap Act, 18 U.S.C. § 2510, et seq.; (2) the Stored Communications Act, 18 U.S.C. § 2701, et seq. ("SCA"); (3) the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(5)(a)(i), et seq.; and (4) the Louisiana Electronic Surveillance Act, La. Rev. Stat. 15:1302, et seq. The Plaintiff alleges that the Defendant installed a computer virus on his office and personal computers in order to steal his passwords and gain access to financial information for leverage in their ongoing divorce proceedings.

According to the Plaintiff, who operates a law firm in Lake Charles, Louisiana, he and his staff "began to experience considerable difficulties in both their home and office computers." Compl. ¶ 6. The Plaintiff alleges that the difficulties included "error messages, slow processing, and other indicators of technical problems with the operations of the computers." Id. The Plaintiff further alleges that he retained the services of Webtronics, a computer repair company, in order to run diagnostic operations on his computers. The Plaintiff reports that Webtronics identified "spyware and viruses on two Compaq computers and one Toshiba laptop which were severe in nature." Id. ¶ 8.

The Plaintiff claims that, "[u]pon further examination, it became apparent that the computers in question were infected with an internet 'Trojan Horse' virus named 'Infostealer.'" Id. ¶ 9. According to the Plaintiff, the Infostealer program is "used to detect and steal passwords from computers operated by others, and works by gathering the passwords from the compromised computer and sending them to a remote computer by email or other means." Id. The Plaintiff alleges that the Defendant intentionally sent the Infostealer program to him "by means of various emails and attachments" in order to gain financial information for use in the ongoing divorce proceedings between the two. Id. ¶¶ 10, 11.


On March 24, 2008, the Defendant filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Defendant contends that the Plaintiff's allegations fail to state a valid claim under each of the statutes by which the Plaintiff seeks relief. First, the Defendant argues that sending a computer virus to detect and steal passwords located on a computer does not constitute an attempt to "intercept" an "electronic communication" for purposes of the Federal Wiretap Act. Second, the Defendant argues that the Stored Communications Act does not apply to the instant case because the Plaintiff's computers are not "facilit[ies] through which an electronic communication service is provided." Third, the Defendant argues that the Computer Fraud and Abuse Act does not apply because the Plaintiff only alleges that the Defendant sought to recover passwords and did not intend to "harm" the Plaintiff's computer. Finally, the Defendant argues that the Louisiana Electronic Surveillance Act does not apply because that statute only prohibits the interception of "wire or oral" communications.


"The district court may not dismiss a complaint under rule 12(b)(6) 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court must construe the complaint liberally in favor of the plaintiff, "and all facts pleaded in the complaint must be taken as true." Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.1986). "In order to avoid dismissal for failure to state a claim, however, a plaintiff must plead specific facts, not mere conclusory allegations." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.2000) (quoting Tuchman v. DSC Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir.1994)). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 127 S. Ct 1955, 1965 (2007). The Court will address each of the Defendant's arguments in turn.

A. The Federal Wiretap Act

The Federal Wiretap Act subjects to criminal liability any person who "intentionally intercepts [or] endeavors to intercept ... any wire, oral or electronic communication," except as otherwise permitted by law. 18 U.S.C. § 2511(1)(a). "Electronic communication" is defined as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in party by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce." 18 U.S.C. § 2510(12). "Intercept" is defined as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. § 2510(4). The Wiretap Act provides a civil cause of action for persons whose electronic communications are intercepted in violation of its provisions. 18 U.S.C. § 2520.

In Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457 (5th Cir. 1994), the Fifth Circuit held that the government did not "intercept" electronic communications by seizing a computer containing unread email messages stored on an electronic bulletin board system. In examining the scope of the Federal Wiretap Act, the court noted as significant the fact that Congress had defined wire and electronic communications differently:

Critical to the issue before us is the fact that, unlike the definition of 'wire communication,' the definition of 'electronic communication' does not include electronic storage of such communications.... Congress' use of the word 'transfer' in the definition of 'electronic communication,' and its omission in that definition of the phrase 'any electronic storage of such communication' ... reflects that Congress did not intend ...

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