(1) $100 without regard to the volume of records involved;
(2) any actual damages sustained by the customer as a result of the disclosure;
(3) such punitive damages as the court may allow, where the violation is found to have been willful or intentional; and
(4) in the case of any successful action to enforce liability under this section, the costs of the action together with reasonable attorney’s fees as determined by the court.
As stated above, §3402 defines the conditions in which government officials may access an individual s records. That section provides:
Except as provided by section 3403(c) or (d), 3413, or 3414 of this title, no Government authority may have access to or obtain copies of, or the information contained in the financial records of any customer from a financial institution unless the financial records are reasonably described and
(1) such customer has authorized the disclosure in accordance with section 3404 of this title;
(2) such financial records are disclosed in response to an administrative subpena [sic] or summons which meets the requirements of section 3405 of this title;
(3) such financial records are disclosed in response to a search warrant which meets the requirements of section 3406 of this title;
(4) such financial records are disclosed in response to a judicial subpena [sic] which meets the requirements of section 3407 of this title; or
(5) such financial records are disclosed in response to a formal written request which meets the requirements of section 3408 of this title.
The banks claim that their disclosures were authorized because the government may, under § 3402, have access to financial records if the records are "reasonably described and.., are disclosed in response to a search warrant." The plaintiffs, however, do not claim that the banks are liable for complying with the May 6 warrant to the extent that they allowed the funds in Maria s account to be seized. They concede that the banks "had no alternative but to obey (the terms of the warrant]" with respect to surrendering the funds in her account. The plaintiffs’ claim, however, that the banks actions were not protected because (1) the banks divulged financial information about Maria’s account that was not specified in the warrant, (2) the banks seized and divulged information about the other three plaintiffs who were not mentioned in the warrant and whose accounts were claimed not to be "related" within the meaning of the warrant, and (3) the plaintiffs were not given the requisite notice when the warrant was executed.
The warrant reflects that the court commanded the banks to "arrest, attach and seize the Property until further order of the Court." It did not mention the seizure of other financial records or information. The complaint also alleges that the banks disclosed information, at least in part, due to the verbal instructions of the federal agents. It appears, therefore, that the complaint alleges facts sufficient to maintain a claim under the RFPA, because the banks allegedly disclosed information about the plaintiffs’ accounts beyond the scope of the warrant and did so without the requisite notice. The claims with respect to the separate accounts of Carlos, Angeles, and Menchu are even stronger, because those plaintiffs were not mentioned specifically in the warrant. More facts must be considered in order for the court to determine whether those accounts were sufficiently related to the accounts of Maria in order that their claims may be similarly situated. In any event, at this stage in the proceedings, the plaintiffs’ allegations state a valid cause of action under the RFPA.
Because we find that the district court erred in its findings with respect to the RFPA, and because the plaintiffs stated a claim for relief under the Act, we REVERSE and REMAND this matter for further proceedings.
Claims Under the ECPA, 18 U.S.C. § 2510, et seq
The plaintiffs’ claim that the banks violated their rights under the ECPA, a/k/a The Wiretap Act, by violating 18 U.S.C. § 2511 and § 2703. Generally, the ECPA protects against intentional interception of in-transit electronic communications and proscribes against intentional, unauthorized access of stored electronic communications. See § 2511 (in-transit communications),§ 2603 (stored electronic communications);see also United States v. Moriarty, 962 F. Supp. 217, 218 (Mass. 1997).
The district court found that, while the ECPA may provide for the privacy of the financial information at issue, certain provisions of the statute provide "a complete defense" to the plaintiffs’ claims. Specifically, the court cited the following statute:
Any attorney for the government... may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant, in conformity with section 2518 of this title, an order authorizing or approving the interception of electronic communications by an investigative or law enforcement officer having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of any Federal felony.
18 U.S.C. §2516(3). Also, the court noted, § 2518(3)(a) states that "[upon such application the judge may issue an ex parte order.., if the judge determines. . . there is probable cause for belief that an individual is committing, or has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter.. . ." The district court concluded, without analysis, that the May 6 warrant was sufficient to satisfy the above provisions, thereby giving the banks a defense to the plaintiffs’ allegations. We disagree.
As an initial matter, the district court failed to distinguish sufficiently between the plaintiffs’ claims under §2511, regarding the in-transit communications, and the claims under §2703, regarding disclosures of electronic communications in storage. The Fifth Circuit explained:
(T]he substantive and procedural requirements for authorization to intercept electronic communications are quite different from those for accessing stored electronic communications. For example, a governmental entity may gain access to the contents of electronic communications that have been in electronic storage for less than 180 days by obtaining a warrant. See 18 U.S.C. § 2703(a). But there are more stringent, complicated requirements for the interception of electronic communications; a court order is required. See 18 U.S.C. § 2518.
Second, other requirements applicable to the interception of electronic communications . . . are not imposed when the communications at issue are not in the process of being transmitted at the moment of seizure, but instead are in electronic storage.
Steve Jackson Gaines, Inc. v. United States Secret Service, 36 F.3d 457,463 (5th Cir. 1994). In Steve Jackson Games, the court explained that the risk involved in intercepting in-transit communications is greater because law enforcement officers cannot know in advance the contents of in-transit communication, and which, if any, will be relevant to the crime being investigated. Id.
It seems that the district court construed the warrant issued herein as a "court order" for purposes of § 2516 and § 2518. In finding that the "order" provided a defense to the banks, the district court must have implicitly found that the “order" satisfied the requirements found in §2518 of the ECPA. That section requires, among other things, that orders authorizing the interception of any electronic communication shall specify:
(a) the identity of the person, if known, whose communications are to be intercepted;
(b) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
(c) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;
(d) the identity of the agency authorized to intercept the communications, and of the person authorizing the application; and
(e) the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.
18 U.S.C. §2518(4). Other requirements for such an order are imposed under §2518 for the interception of in-transit electronic communications.
We find that the May 6 warrant issued in this case does not satisfy the "order" requirement of §2516. The district judge made no findings of fact with respect to Maria and the other plaintiffs, particularly in light of the fact that those parties were not mentioned in the body of the in rem complaint as having committed any crime. Furthermore, the in-transit communications sought to be intercepted were not described, nor was a statement made as to the offense to which it relates. The warrant simply commanded the banks to "arrest, attach and seize" the accounts, with no mention of in-transit communications. Therefore, we find that the district court erred in finding that the ECPA provided the banks a complete defense, considering only the face of the pleadings.
Although §2516 does not provide the defendants a defense
to the action, we must review de novo whether the plaintiffs have stated
facially valid claim under either §2511 or §2703 of the ECPA.
Section 2511(3)(a) provides that "an electronic communication service .
. . shall not intentionally divulge the contents of any communication .
. . while in transmission on that service to any person or entity other
than an addressee or intended recipient of such communication." According
to the letter of the statute, a plaintiff must allege that a communication
was intentionally divulged "while in transit." See Lopez v. First Union
National Bank of Florida, 129 F.3d 1186, 1190 (11th Cir. 1997). In paragraph
32 of the plaintiffs’ complaint, they specifically allege that the banks
violated their rights by "intercepting, disclosing and providing the United
States with access to the content of in transit electronic communication
information." Furthermore, the plaintiffs allege that such disclosures
were made "without 'good faith reliance on the warrant." Thus, the plaintiffs
have stated a valid cause of action pursuant to §2511.Id. (plaintiff
failed to state a claim under § 2511 because the complaint did not
allege that the bank disclosed communication in "transmission").
With respect to the plaintiffs’ §2703 claim, the applicable
statute provides that an entity providing an electronic service to the
public, which includes the banks involved herein, "shall not knowingly
divulge to any person or entity the contents of a communication while in
electronic storage" by that service. 18 U.S.C. § 2702(a)(1). Section
2703 defines the conditions in which an electronic service may disclose
electronic communications to the government. Under that section, the government
may require the disclosure of communications in electronic storage that
have been in electronic storage for 180 days or less, but "only pursuant
to a warrant issued under the Federal Rules of Criminal Procedure or equivalent
State warrant." 18 U.S.C. § 2703(a).
The plaintiffs’ complaint alleges in paragraph 34 that the banks "did disclose, to the U.S. Government the contents of electronic fund transfer communication and financial information in electronic storage for less than 180 days." The banks argue that this allegation is insufficient in light of the fact that they disclosed the communication in electronic storage pursuant to the May 6 warrant. The complaint refers to the May 6 warrant, but alleges that the disclosures were made "without 'good faith reliance on a valid warrant." The complaint further alleges that, prior to the execution of the May 6 warrant, the banks disclosed protected information pursuant to a verbal agreement with the government. This court has recently held that, in order to state a prima facie claim under §2703, it is sufficient to allege that the disclosure of information held in electronic storage was made pursuant to "verbal instructions" instead of a warrant. Lopez, 129 F.3d at 1190. Because the complaint in this case makes similar allegations, we find that the plaintiffs have stated a valid claim under §2703.
In sum, we find that the plaintiffs have stated claims upon which relief may be granted under §2511 and §2703 of the ECPA. But determining whether, and to what extent, the banks can support valid defenses would be premature at this stage, and the district court must make findings of fact and conclusions of law based on the evidence. On remand, the district court may consider other arguments raised by the banks in their appellate briefs, such as their claim that no "interception"of "electronic communications" occurred within the meaning of the ECPA; that the banks relied in"good faith" on the warrant (see § 2520); and that the banks are entitled to the protection of the Safe Harbor defense of 31 U.S.C. § 5813(g)(3).
Claims Under Florida State Law
The plaintiffs set forth allegations under the Uniform Commercial Code ("U.C.C.") - Fund Transfers, Fla Stats. §670.406, §670.502, and §670.503, claiming that the banks unlawfully "garnished the proceeds of the electronic fund transfer before the serving of any valid in rem warrant." The district court dismissed the claims under the Florida statutes because it found those statutes to be "inapposite to Plaintiffs’ allegations." We are of the view that the only provision arguably applicable in this case is § 670.503.Florida statute 670.503, entitled "Injunction or restraining order with respect to funds transfer,"provides:
For proper cause and in compliance with applicable law, a court may restrain:
(1) A person from issuing a payment order to initiate a funds transfer;
(2) An originator s bank from executing the payment order of the originator;
(3) The beneficiary s bank from releasing funds to the beneficiary or the beneficiary from withdrawing the funds.
A court may not otherwise restrain a person from issuing a payment order, paying or receiving payment of a payment order, or otherwise acting with respect to a funds transfer.
On appeal, the plaintiffs argue that the restraint of their funds violated their rights under this statute because it was based upon "deficient legal restraint," i.e., the warrant was deficient in that it did not name the Carlos, Angeles, or Menchu specifically. As such, they argue, the banks were without authority to restrain their funds. It is apparent that Maria has no claim under this section, because she concedes that the funds in her account were seized pursuant to the May 6 warrant which specifically ordered the seizure of funds deposited in accounts bearing her name.
In our view, the remaining plaintiffs also cannot maintain a private right of action under §670.503. We agree with the reasoning in Manufacturas Int’l v. Manufactures Hanover Trust Co., 792 F. Supp.180, 194 (N.Y. 1992), which dealt with the New York version of the U.C.C., which is substantially the same as the Code at issue here. In that case, the district court found that banks that restrain funds transfers in federal forfeiture cases pursuant to this statute should not be held liable under the U.C.C. The court stated that "(t]he policies of article 4A are served by protecting the intermediary banks in forfeiture cases. The courts should hesitate to provide restrictions on their own powers to act swiftly."Id. The plaintiffs cite to no authority that would provide them with a basis to maintain a cause of action under this statute. Therefore, we affirm the district court s dismissal of the U.C.C. claims on the face of the complaint.
Conclusion
In light of the foregoing, we REVERSE the dismissal of the plaintiffs’ claims under the RFPA and the ECPA and REMAND to the district court for further proceedings consistent with this opinion. We AFFIRM the district court insofar as it granted the banks a dismissal of the U.C.C. claims relating to the seizure of funds in accounts in the name of Maria pursuant to warrant, including any joint account bearing her name. We also AFFIRM dismissal of the Florida state law claims with respect to the other three plaintiffs.