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Joel Fox 3562 E Harvard Ct. Gilbert, Az 85234 480-287-4552 Email: j_fox@cox.net Pro Se

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA

Joel Fox, Plaintiff, vs.

Case No.: CV-11-0594-PHX-SRB RESPONSE TO DEFENDANTS MOTION FOR JUDGMENT ON THE PLEADINGS

COXCOM, Inc., Defendant

Defendant Coxcom, incs (Cox) Motion for Judgment on the Pleadings should be denied. Contrary to their assertions, Cox did act knowingly and intentionally and there are facts within the complaint and pleadings to support this assertion. Furthermore, in the previous action Cox dubbed the Goddard Case, the issues are notably different and preclusion does not apply.

I. Introduction In reviewing a motion for judgment on the pleadings, the court "must accept all factual allegations in the complaint as true and construe them in the light most favorable to the non-moving party." Fleming v. Pickard, 581 F. 3d 922, 925 (9th Cir. 2009) (citing Turner v. Cook, 362 F.3d 1219, 1255 (9th Cir. 2004)). Furthermore, Judgment on the pleadings is proper when the moving party clearly establishes on the
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face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1549 (9th Cir. 1990). II. Material Issues of Fact Remain A. Good Faith While Cox asserts the affirmative defense of good faith it is far from proven and remains a material issue of fact. The burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits . . ."1 Except for its own bare assertion, Cox has yet to present evidence in support of its claim of good faith and therefore it cannot be simply assumed, particularly when viewed in a light most favorable to the non-moving party. Case law regarding the good faith defense allowed by 18 U.S.C. 2707(e) within Arizona or the Ninth Circuit is scant at best, however the U.S. District Court of Virginia address this issue directly in their 2004 case Freedman v. America Online Inc.2 The Virginia Court also found sparse any authority interpreting this provision and instead turned to the abundant authority interpreting Title I's nearly identical good faith defense found at 18 U.S.C. 2520(d). Quoting the Ninth Circuit decision in Jacobson v. Rose,3 a defendant may invoke the good faith defense if he can demonstrate (1) that he had a subjective good faith belief that he acted legally pursuant to a court order; and (2) that this belief was reasonable. In this matter, Cox has demonstrated neither. Furthermore, as stated in the Complaint, noted by Cox, and evidenced by Coxs exhibits, it is highly questionable that Coxs response to the email warrant4 was in good faith. In fact, it appears that Cox ignored the email warrant completely and furnished protected stored communications based solely on a Document Preservation Demand

."Meacham v. KNOLIS ATOMIC POWER LABORATORY, 554 US __ - Supreme Court 2008 (quoting United States v. First City Nat. Bank of Houston, 386 U. S. 361, 366 (1967) 2 Freedman v. American Online, Inc 325 F. Supp. 2d 638 (E.D. VA. 2004) 3 592 F.2d 515, 523 (9th Cir.1978) 4 Pinal County Search Warrant # SW2009-20 submitted to the court as Defendants Exhibit B
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Letter. Within Coxs instant motion they acknowledge that the email search warrant was accompanied by the Document Preservation Demand Letter previously received which required the preservation of emails within the j_fox email account and they emphasize that this letter also requested preservation of any related screennames, addresses or accounts(emphasis in original). Cox goes on to argue that even though this language was broader than the Search Warrant, they believe that it would allow a reasonable person, in good faith, to produce emails that were requested in the letter.(emphasis added). The letter requests preservation, not production, as Cox surely knows because they did not produce any emails in response to this letter when it was first received. Emails were produced only upon service of a search warrant which Cox appears to have ignored and instead relied upon a document preservation letter to determine which emails to produce. It is only the Document Preservation Demand Letter that fairly describes the emails Cox released. In fact, it appears that Cox even released emails from an account totally unrelated to Plaintiff Joel Fox but similarly named. According to the Amended Search Warrant Return filed by Arizona Attorney General Special Agent Mike Edwards on March 30th, 2009 (Attached as Exhibit A), Cox provided emails from the jfox@cox.net account which never belonged to Plaintiff Joel Fox. By offering emails unrelated to the subject of the email warrant, additional emails that were two years beyond the prescribed date range, and further including email accounts never mentioned in the warrant, it is difficult to imagine that Cox ever read it or in any case made any attempt (good faith or otherwise) to adhere to it. It is reasonable, however, to conclude that Cox provided emails in accordance with their understanding of the Document Preservation Demand Letter, not the search warrant. 18 USC 2707 does not provide a defense for a good faith reliance on a Document Preservation Demand Letter; it only provides such a defense for a good faith reliance on a court order. Even if Cox argues that it had a subjective good faith belief it was following the law, this belief is not objectively reasonable because they did not adhere to the warrant. In addition to the lack of good faith evidenced solely from their response to the search warrant, Cox is under a contractual obligation to protect my privacy. They are my
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Internet Service Provider and I am their customer. I pay a monthly fee in exchange for which Cox is obligated to provide services in accordance with our agreements. One such agreement is their privacy policy which states, in part: Law Enforcement and Legal Requests Information Disclosure - We regularly receive legal requests for customer information from government and law enforcement personnel. We also receive discovery requests in civil cases. In all such cases, we cooperate by providing the information required by law. Cox does not volunteer customer information or give access to customer communications to law enforcement or others, except in the "Special Exceptions" detailed above or if we have a good faith belief that an emergency involving an immediate danger of death or serious physical injury requires disclosure. (emphasis added)5 Cox did not just provide the information required by law but did volunteer customer information by grossly exceeding the parameters of the search warrant. Violating Coxs own privacy policy shows a lack of good faith. Coxs further argument that because Judge Wake reasoned Agent Edwards behavior was taken in good faith that Coxs behavior must also be taken in good faith is mistaken. Agent Edwards good faith is predicated upon the disclosure by Cox. As Judge Wake noted A person acting in good faith reliance on the email warrant could conclude that review of the information provided by Cox Communications, including the information of multiple usernames associated with the J_Fox@cox.net account, fell within the scope of the email warrant. (emphasis added). In other words, Agent Edwards had no way of knowing that Cox would do anything other than strictly comply with the search warrant and could reasonably assume that the CD provided by Cox did just that. Cox, on the other hand, has an obligation to reasonably comply with the search warrant which would, presumably, include reading it and doing what it says. B. Culpable mental state Cox incorrectly argues that no evidence has been presented for the mens rea requirement of a knowing or intentional violation as required by18 USC 2701. By providing emails to the Arizona Attorney Generals Office outside the scope of a search

Retrieved from http://ww2.cox.com/aboutus/policies/annual-privacy-notice.cox

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warrant, Cox could only have acted intentionally. It is inconceivable and never suggested that the Arizona Attorney Generals Office obtained these emails from Cox inadvertently or by accident. While it does not appear that this issue has been directly addressed within Arizona, the U.S. District Court of Virginia also dealt with this identical issue in Freedman.6 In their decision, the Virginia Court noted By phrasing 2707(a)'s state of mind terms in the disjunctive, Congress made clear that an ISP is liable for a prohibited disclosure if it acts either knowingly or intentionally. Thus, to establish the requisite state of mind under this provision, a plaintiff must show only that the ISP acted intentionally. And while the statute does not define "intentional" conduct, legislative history and authority interpreting Title I of the ECPA offer significant guidance in this regard and make clear that an ISP acts intentionally provided its acts are not inadvertent. In explaining this conclusion, the court further noted See S.Rep. No. 99-541, at 23 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3577 (stating that "[a]n intentional state of mind means that one's state of mind is intentional as to one's conduct or the result of one's conduct if such conduct or result is one's conscious objective"); In re Pharmatrak, Inc., 329 F.3d at 23 (stating that ECPA Title I's requirement that interceptions be intentional excludes inadvertent interceptions.).7 The undisputed facts in this case are that Cox received a search warrant for emails and subsequently provided those emails as well as additional emails not covered by the warrant. Their actions cannot be anything other than intentional. III. Issue Preclusion Cox argues that collateral estoppel, or issue preclusion, prevents any further argument on the issue of good faith. In support, they cite the Ninth Circuits decision in Reyns Pasta Bella, LLC v. Visa USA, Inc.8 and the three prong test therein defined to determine whether issue preclusion applies. In a decision two years later than ReynsPasta Bella, the very same Ninth Circuit defined collateral estoppel as when an issue of ultimate fact has once been determined by a valid and final judgment, that issue
6 7

Freedman v. American Online, Inc 325 F. Supp. 2d 638 (E.D. VA. 2004) Ibid. at footnote 10 8 442 F.3d 741, 746 (9th Cir.2006)
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cannot again be litigated between the same parties in any future lawsuit."9 (emphasis added) Using this definition, collateral estoppel clearly does not apply because Cox was not a party in any previous action. Similarly, the U.S. Supreme Court wrote in their 1970 decision of Ashe v. Swenson10 that "Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Here again, the courts recognize that collateral estoppel applies only between the same parties in future lawsuits. Even using Coxs argument and criteria however, issue preclusion fails on the first prong of the test in that the issues are far from identical. In the previous action, Judge Wake determined that a law enforcement officer receiving an answer to a search warrant acted in good faith. In the instant action the issue is whether an Internet Service Provider acted in good faith in responding to a search warrant. The issues are admittedly close, but not at all identical as the Ninth Circuits decision in Reyns demands. Good faith is a subjective standard that necessarily applies differently to different people. Coxs role in responding to the search warrant is very different from that of a law enforcement officer serving a search warrant and what may or may not be reasonable for one will not necessarily apply to the other. The issue of Coxs good faith has never been raised nor adjudicated and therefore, issue preclusion cannot apply. IV. Conclusion 18 U.S.C. 2701(c) clear states that liability befalls whoeverintentionally exceeds authorizationand thereby obtainsaccessto a wire or electronic communication. Congress clearly anticipated not only unauthorized access to stored communications, but also exceeding any authority granted. In this matter the authority to access my single email account comes from a search warrant specifically listing only one

10

US v. Bhatia, 545 F. 3d 757 (9th Cir., 2008) 397 U.S. at 433, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)
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single email account. There is no argument that Cox exceeded the email warrant. The Document Preservation Demand Letter Cox apparently relied upon is not a court order and gives no authority to disclose private emails protected by the Stored Communications Act. Furthermore, the plain language of both the Document Preservation Demand Letter and the search warrant clearly refer to only a single email address, j_fox@cox.net. Cox is not arguing that the additional emails were accidentally or inadvertently sent to the Arizona Attorney Generals Office therefore their actions are intentional and knowing. Additionally, the good faith exception cannot apply because even if Cox had a subjective good faith belief that they were following the law, such a belief is not objectively reasonable. To be objectively reasonable, at the very least, the court order would have to be adhered to. Finally, collateral estoppel, otherwise known as issue preclusion, cannot apply because Cox has never been a party to a previous lawsuit with the Plaintiff and further because the issue of Coxs good faith reliance on the search warrant has never been litigated. Accordingly, Plaintiff Joel Fox requests the Court to deny Coxs Motion for Judgment on the Pleadings and allow this case to proceed.

Respectfully Submitted this 21st day of October, 2011 s/ Joel Fox Joel Fox 3562 E Harvard Ct. Gilbert, Az 85234 Pro Se

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CERTIFICATE OF SERVICE I hereby certify that on October 21, 2011 I electronically transmitted the attached document to the Clerks Office using the CM/ECF system and will be sent electronically to each registered participant as listed on the Notice of Electronic Filing, listed below:

David B. Rosenbaum, 009819 Mark P. Hummels, 023283 OSBORN MALEDON, P.A. 2929 North Central Avenue, 21st Floor Phoenix, Arizona 85012-2793 (602) 640-9390 drosenbaum@omlaw.com mhummels@omlaw.com Attorneys for CoxCom, LLC

s/ Joel Fox

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