     Case: 11-41118   Document: 00512081061     Page: 1   Date Filed: 12/12/2012




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                 Fifth Circuit

                                                              FILED
                                                          December 12, 2012
                                 No. 11-41118
                                                             Lyle W. Cayce
                                                                  Clerk
FANNIE GARCIA

                                           Plaintiff-Appellant
v.

CITY OF LAREDO, TEXAS, A Home Rule City; CARLOS MALDONADO,
Chief of the City of Laredo, TX Police Department, Individually and in His
Official Capacity; CYNTHIA COLLAZO, Deputy City Manager of the City of
Laredo, TX, Individually and in Her Official Capacity; GILBERT NAVARRO,
Former Interim/Acting Chief of the Police Department of the City of Laredo,
TX, Individually and in His Official Capacity; GILBERT MAGANA,
Investigator, Internal Affairs Division of the Police Department of the City of
Laredo, TX, Individually and in His Official Capacity; STEVEN
MONCEVAIS, Crime Scene Unit Investigator of the Police Department of the
City of Laredo, TX, Individually and in His Official Capacity; RAQUEL
BUENROSTRO, Conspirator,

                                           Defendants-Appellees



                Appeal from the United States District Court
                     for the Southern District of Texas


Before DAVIS, JONES, and SMITH, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      In this appeal, Plaintiff-Appellant Fannie Garcia (“Garcia”) contends the
district court’s interpretation of the Stored Communications Act was erroneous.
Garcia alleges that the statute applies and protects all text and data stored on
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                                  No. 11-41118

her personal cell phone which the Defendants accessed without Garcia’s
permission. We conclude that the Stored Communications Act, which prohibits
accessing without authorization a facility through which an electronic
communication service is provided and thereby obtaining access to an electronic
communication while it is in electronic storage, does not apply to data stored in
a personal cell phone. For the reasons more fully set forth below, we AFFIRM.


                                       I.
      Garcia, a former police dispatcher for the City of Laredo, claims
Defendants accessed the contents of her cell phone without permission in
violation of the Stored Communications Act. On November 15, 2008, a police
officer’s wife removed Garcia’s cell phone from an unlocked locker in a substation
of the Laredo Police Department, and she accessed text messages and images
found on Garcia’s phone. Believing she had discovered evidence of violations of
a department policy, she then set up a meeting with Cynthia Collazo, the deputy
assistant city manager, and Gilbert Navarro, the interim /assistant police chief.
At the meeting, she utilized Garcia’s cell phone to access and to share with
Collazo and Navarro the text messages sent from and received by the phone and
the photographs stored on the phone. Later, investigators Gilbert Magaña and
Steven Moncevais successfully downloaded one video recording and thirty-two
digital images from the cell phone; they were unable to download any of the text
messages.
      A subsequent internal investigation concluded, based in whole or in part
upon images and text messages retrieved from her cell phone, that Garcia had




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                                       No. 11-41118

violated police department rules and regulations and Garcia was terminated
from her employment.
       The district court granted summary judgment for Defendants and denied
Garica’s motion for partial summary judgment on the Stored Communications
Act, finding that the statute did not apply to Defendants’ actions in this case.1
We affirm.


                                              II.
       We review summary judgment rulings de novo. Rockwell v. Brown, 664
F.3d 985, 990 (5th Cir. 2011). Summary judgment is appropriate when there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(a). A question of statutory
interpretation is reviewed de novo. Matthews v. Remington Arms Co., 641 F.3d
635, 641 (5th Cir. 2011).


                                             III.
       Garcia first argues that the district court erred in granting summary
judgment for Defendants because the Stored Communications Act (“SCA”)
protects all text and data stored on Garcia’s cell phone which Defendants




       1
         On September 1, 2011, the district court granted Defendants’ summary judgment in
part but denied summary judgment for the Defendants “on the procedural due course claim
related to Garcia’s cell phone” and denied summary judgement “as it relates to any other due
course claim.” On September 26, 2011, the district court, at the request of the parties, entered
a final judgment dismissing the single remaining claim without prejudice.

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                                       No. 11-41118

accessed without her consent.2 Defendants argue the SCA does not apply to
images and text messages accessed from and stored in an ordinary cell phone.
       Prior to 1986, the United States Code provided no protection for stored
communications in remote computing operations and large data banks that
stored e-mails. United States v. Councilman, 418 F.3d 67, 80-81 (1st Cir. 2005)
(en banc). In response, Congress passed the SCA as part of the Electronic
Communications Privacy Act to protect potential intrusions on individual
privacy that the Fourth Amendment did not address. Id. at 81 (citing S. REP. No.
99-541, at 3 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3557); Orin S. Kerr, A
User’s Guide to the Stored Communications Act, and a Legislator’s Guide to
Amending It, 72 GEO. WASH. L. REV. 1208, 1209-13 (2004). The SCA prohibits
unauthorized access to wire and electronic communications in temporary and
back-up storage and provides in relevant part:
               [W]hoever–
              (1) intentionally accesses without authorization a facility
              through which an electronic communication service is
              provided; or
              (2) intentionally exceeds an authorization to access that
              facility;
              and thereby obtains, alters, or prevents authorized access to
              a wire or electronic communication while it is in electronic
              storage in such system shall be punished as provided in
              subsection (b) of this section.
18 U.S.C. § 2701(a) (2006) (emphasis added). Accordingly, for Defendants to be
liable under the SCA, they must have gained unauthorized access to a facility

       2
        While Garcia argued violations of the Fourth Amendment, the SCA, and the Texas
Constitution and alleged an invasion of privacy tort before the district court, she raises only
an alleged violation of the SCA in her appeal.

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through which electronic communication services are provided (or the access
must have exceeded the scope of authority given) and must thereby have
accessed electronic communications while in storage. Garcia argues that her
personal cell phone is a “facility” in which electronic communication is kept in
electronic storage in the form of text messages and pictures stored on the cell
phone.3
       While the SCA does not define the term “facility,” it does define the terms
“electronic communication service” and “electronic storage.” The statute defines
an “electronic communication service” (“ECS ”) as “any service which provides
to users thereof the ability to send or receive wire or electronic communications.”
18 U.S.C. §2510(15) (incorporated by reference in 18 U.S.C. §2711(1) of the SCA).
“Electronic storage” is defined as “(A) any temporary, intermediate storage of a
wire or electronic communication incidental to the electronic transmission
thereof; and (B) any storage of such communication by an electronic
communication        service    for   purposes      of   backup     protection     of   such
communication.” Id. §2510(17).
       Courts have interpreted the statute to apply to providers of a
communication service such as telephone companies, Internet or e-mail service
providers, and bulletin board services. For example, in Steve Jackson Games,
Inc. v. United States Secret Service, we found that the SCA applied to cover the
seizure of a computer used to operate an electronic bulletin board system. 36




       3
        Garcia relies almost exclusively on the dictionary definition of “facilities”: “[that]
which promotes the ease of any action, operations, transaction or course of conduct,” to
support her argument. BLACK’S LAW DICTIONARY 705 (4th ed. 1951).

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                                      No. 11-41118

F.3d 457, 462-63 (5th Cir. 1994).4 Other circuits have applied the SCA to
Internet service providers. See, e.g., Councilman, 418 F.3d at 81-82; Theofel v.
Farey-Jones, 359 F.3d 1066, 1075 (9th Cir. 2004).
       These cases, however, are not helpful to Garcia in establishing that an
individual’s computer, laptop, or mobile device fits the statutory definition of a
“facility through which an electronic communication service is provided.” The
Eleventh Circuit’s decision in United States v. Steiger provides useful guidance.
318 F.3d 1039, 1049 (11th Cir. 2003). In Steiger, when a hacker accessed an
individual’s computer and obtained information saved to his hard drive, the
court held such conduct was beyond the reach of the SCA. Id. The court found
that “the SCA clearly applies . . . to information stored with a phone company,
Internet Service Provider (ISP), or electronic bulletin board system,” but does
not, however, “appear to apply to the source’s hacking into Steiger’s computer
to download images and identifying information stored on his hard-drive.” Id. It
noted that “the SCA may apply to the extent the source accessed and retrieved
any information stored with Steiger’s Internet service provider.” Id. (emphasis
added).
       A number of district courts that have considered this question have also
concluded that “the relevant ‘facilities’ that the SCA is designed to protect are
not computers that enable the use of an electronic communication service, but
instead are facilities that are operated by electronic communication service
providers and used to store and maintain electronic storage.” Freedom Banc


       4
         The bulletin board system allowed Steve Jackson Games to post public information
about its business, facilitate testing of games being developed, and communicate with its 365
users via e-mail. It contained users’ private e-mails which had been stored on the bulletin
board but had not yet been read by intended recipients. Id. at 458.

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Mortg. Servs., Inc. v. O’Harra, No. 2:11-cv-01073, 2012 WL 3862209, at *9 (S. D.
Ohio Sept. 5, 2012) (emphasis added). Recently, the Northern District of
California held that a class of iPhone plaintiffs had no claim under the SCA
because their iPhones did not “constitute ‘facilit[ies] through which an electronic
communication service is provided.’” In re iPhone Application Litig., 844 F. Supp.
2d 1040, 1057-58 (N.D. Cal. 2012).5
       Thus these courts agree that a “home computer of an end user is not
protected by the SCA.” Kerr, supra, at 1215 (footnote omitted). As explained by
Orin Kerr in his widely cited law review article, the words of the statute were
carefully chosen: “[T]he statute envisions a provider (the ISP or other network
service provider) and a user (the individual with an account with the provider),
with the user’s communications in the possession of the provider.” Id. at 1215
n.47 (emphasis added) (citation omitted).
       This reading of the statute is consistent with legislative history, as “Sen.
Rep. No. 99-541 (1986)’s entire discussion of [the SCA] deals only with facilities
operated by electronic communications services such as ‘electronic bulletin
boards’ and ‘computer mail facilit[ies],’ and the risk that communications
temporarily stored in these facilities could be accessed by hackers. It makes no
mention of individual users’ computers . . . .” In re DoubleClick Inc. Privacy
Litig., 154 F. Supp. 2d 497, 512 (S.D.N.Y. 2001) (quoting S. REP. No. 99-541, at
36, reprinted in 1986 U.S.C.C.A.N. 3555, 3590).




      5
         See also Crowley v. CyberSource Corp., 166 F. Supp. 2d 1263, 1271 (N.D. Cal. 2001)
(“[The argument that] computers of users of electronic communication service, as opposed to
providers of electronic communication service, are considered facilities through which such
service is provided [is] destined to failure.”).

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       Even if Garcia’s cell phone were somehow considered a “facility,” this
stops short of demonstrating that storage of text messages and pictures on
Garcia’s cell phone fits within 18 U.S.C. §2510(17)’s definition of “electronic
storage.” “Electronic storage” as defined encompasses only the information that
has been stored by an electronic communication service provider. Id. Thus,
information that an Internet provider stores to its servers or information stored
with a telephone company—if such information is stored temporarily pending
delivery or for purposes of backup protection—are examples of protected
electronic storage under the statute. But information that an individual stores
to his hard drive or cell phone is not in electronic storage under the statute.
Freedom Banc, 2012 WL 3862209, at *8-9; see Hilderman v. Enea TekSci, Inc.,
551 F. Supp. 2d 1183, 1205 (S.D. Cal. 2008) (“E-mails stored on the laptop
computer are not in ‘temporary, intermediate storage’ [as required by
§2510(17)(A)]. Furthermore, the e-mails on the laptop are not stored ‘by an
electronic communication service for purposes of backup protection’ as required
by subsection (B).”); Bailey v. Bailey, No. 07-11672, 2008 WL 324156, at *6 (E.D.
Mich. Feb. 6, 2008) (unpublished) (“Stored Communications Act protection does
not extend to emails and messages stored only on Plaintiff’s personal
computer.”).
      An individual’s personal cell phone does not provide an electronic
communication service just because the device enables use of electronic
communication services, and there is no evidence here that the Defendants ever
obtained any information from the cellular company or network. Accordingly, the
text messages and photos stored on Garcia’s phone are not in “electronic storage”
as defined by the SCA and are thus outside the scope of the statute.


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                                          IV.
          Garcia also argues that the district court erred in denying her Motion to
Recuse United States District Judge Micaela Alvarez. Garcia’s counsel criticizes
Judge Alvarez for not ruling on an application for expedited preliminary
injunctive relief, admonishing him after he contacted chambers ex parte,
striking Plaintiff’s late Motion for Summary Judgment, and attributing the
granting of Defendants’ Motion for Summary Judgment to counsel’s lack of
skills.
          Under 28 U.S.C. § 455(a), a judge of the United States is required to recuse
himself “in any proceeding in which his impartiality might reasonably be
questioned.” We review the denial of a recusal motion for abuse of discretion.
Trevino v. Johnson, 168 F.3d 173, 178 (5th Cir. 1999). A “judge abuses his
discretion in denying recusal where a reasonable man, cognizant of the relevant
circumstances surrounding [the] judge’s failure to recuse, would harbor
legitimate doubts about that judge’s impartiality.” Andrade v. Chojnacki, 338
F.3d 448, 454 (5th Cir. 2003) (internal quotation marks omitted).
          When viewed objectively, we find no facts in this record to cause a
reasonable person to doubt Judge Alvarez’s impartiality. It is undisputed that
Garcia’s Motion for Summary Judgment was filed late, and Judge Alvarez
nevertheless permitted Garcia to file the motion. There is also no question that
Garcia’s counsel contacted Judge Alvarez’s chambers ex parte, and that is the
reason Judge Alvarez admonished him. Although Judge Alvarez’s order stated
that the “poor legal representation” by Garcia’s counsel “stretched the Court’s
patience to the limits,” this does not support Garcia’s allegation that Judge
Alvarez granted Defendants’ summary judgment motion because of the quality


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of Garcia’s representation. Finally, while the district court acknowledged that
its failure to promptly rule on Garcia’s motion for preliminary injunctive relief
was “regrettable,” such failure was due to scheduling issues and from a
reasonable observer’s perspective would not cast doubt on the judge’s
impartiality.
      Further, as this court stated in Wang v. Holder, “The [Supreme] Court
made quite clear [that] displays of temper will not suffice: ‘Not establishing bias
or partiality . . . are expressions of impatience, dissatisfaction, annoyance, and
even anger, that are within the bounds of what imperfect men and women . . .
sometimes display,’” and much of what Garcia’s counsel complains of falls into
this category. 569 F.3d 531, 540-41 (5th Cir. 2009) (quoting Liteky v. United
States, 510 U.S. 540, 555-56 (1994)). Thus neither 28 U.S.C. § 455(a) nor due
process required recusal in this case.


                                         V.
   For the above reasons, the judgment of the district court is AFFIRMED.




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