Armour et al v. Wilson et al, No. 2:2012cv00851 - Document 7 (W.D. Wash. 2012)
Court Description: ORDER granting 5 Motion for TRO by Judge Richard A Jones. Court orders Defendant to show cause why TRO should not be converted to a preliminary injunction. Show cause hearing to be held at 9:00 a.m. on Wednesday, May 23, 2012. Plaintiffs to update court immediately upon serving Defendant in accordance with this order. (JJ)
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Armour et al v. Wilson et al Doc. 7 HONORABLE RICHARD A. JONES 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 PAUL ARMOUR, et al., 10 11 12 Plaintiffs, CASE NO. C12-851RAJ ORDER v. REBECCA WILSON, et al., 13 Defendants. 14 I. INTRODUCTION 15 16 17 18 19 20 21 This matter comes before the court on the motion (Dkt. # 5) of Plaintiffs Paul Armour and Kari Chase for a temporary restraining order. For the reasons stated below, the court GRANTS the motion and issues this temporary restraining order. In addition, the court orders Defendant Rebecca Wilson appear at a hearing on May 23, 2012 at 9:00 a.m. to show cause why the court should not convert this temporary restraining order into a preliminary injunction. II. BACKGROUND 22 23 24 25 26 Mr. Armour and Ms. Chase, who are engaged, contend that Ms. Wilson, who is Mr. Armour’s ex-wife, has used unlawful means to gain access to their private email communications and to various private online accounts. They have, for example, presented evidence that Ms. Wilson accessed an investment account that Mr. Armour 27 28 ORDER – 1 Dockets.Justia.com 1 maintains and replaced Mr. Armour’s email address with her own. Armour Decl. (Dkt. 2 # 5-2), ¶ 10, Ex. 4; Supp. Armour Decl. (Dkt. # 6) ¶ 2, Ex. 1. Mr. Armour speculates that 3 Ms. Wilson has gained access to his online medical records, because she has learned that 4 Mr. Armour is taking certain prescription drugs. Armour Decl. (Dkt. # 5-2) ¶ 11. Ms. 5 Wilson has also learned that Mr. Armour is receiving medical treatment that he has 6 discussed only with Ms. Chase in person and via email. Id. ¶ 12. He has presented 7 evidence that someone using the same IP address as the person who accessed his 8 investment accounts accessed both his email account and Ms. Chase’s email account. Id. 9 ¶ 13, Ex. 5. 10 Mr. Armour contends that Ms. Wilson has made use of the information she 11 unlawfully acquired from his email and his online accounts. For example, she has 12 discussed his medical information with a family therapist that she sees with Mr. Armour 13 to address issues relating to the custody of their sons. Id. ¶ 15. She has also, according to 14 him, divulged that information, along with information about his Ms. Chase’s alcohol 15 use, to a social worker addressing a petition related to Mr. Armour’s oldest son. Id. ¶ 16. 16 He also believes that his ex-wife has accessed information that he sent to his family law 17 attorney, although he provides no explanation of why he believes this. Id. ¶ 17. 18 Ms. Chase makes similar allegations. She provides evidence that Ms. Wilson has 19 gained access to private information related to Ms. Chase’s professional licensing, 20 information that she could have learned only by accessing her email. Chase Decl. (Dkt. 21 # 5-3) ¶¶ 6-7. She also provides evidence that someone has accessed one of her social 22 networking accounts and re-activated it, and has accessed her online credit reports. Id. 23 ¶¶ 8-10. 24 Mr. Armour believes that Ms. Wilson gained access to this information by using 25 “spyware” software that she installed on a laptop computer. Mr. Armour, the two 26 teenage sons he shares with Ms. Wilson, and Ms. Chase all use this laptop computer 27 28 ORDER – 2 1 (hereinafter the “family laptop”). Armour Decl. (Dkt. # 5-2) ¶ 6. The evidence shows 2 that in 2009, Ms. Wilson purchased spyware software for the purpose of monitoring her 3 sons’ computer use. Id. ¶ 8, Ex. 3. Mr. Armour has now discovered spyware software on 4 the family laptop, and he believes that Ms. Wilson installed that software when she had 5 access to the family laptop while her sons visited her. Id. ¶¶ 7, 9. 6 Mr. Armour has reported these concerns to the Redmond Police Department. Id. ¶ 7 19. He believes the Redmond Police Department is examining the laptop computer, and 8 that it will return it to him sometime this week. Id. 9 Mr. Armour and Ms. Chase now seek a temporary restraining order (“TRO”) that 10 not only prohibits Ms. Wilson from further access to their online accounts and the family 11 laptop, but also prohibits Ms. Wilson from making further use of the information she has 12 already acquired from those sources. Plaintiffs have not served Ms. Wilson with either 13 their complaint or with their motion for a TRO. They both declare, however, that they 14 believe that Ms. Wilson will take further steps to access their information or disseminate 15 it if she is given notice before this court issues a TRO, and that she might destroy 16 evidence of her unlawful activity. Armour Decl. (Dkt. # 5-2) ¶ 21; Chase Decl. ¶ 11. 17 18 III. ANALYSIS The “standard for issuing a temporary restraining order is essentially the same as 19 that for issuing a preliminary injunction.” Beaty v. Brewer, 2011 U.S. App. LEXIS 20 11391, at *8 (9th Cir. May 25, 2011). The primary difference is that a court can issue a 21 TRO without notice to the adverse party. It may do so, however, only where “specific 22 facts in an affidavit or a verified complaint clearly show that immediate and irreparable 23 injury, loss, or damage will result to the movant before the adverse party can be heard in 24 opposition.” Fed. R. Civ. P. 65(b)(1)(A). Where appropriate, the party seeking the TRO 25 must explain any efforts to give notice. 26 27 28 ORDER – 3 Putting aside concerns about notice to the non-moving party, the court may issue a 1 2 TRO where a party establishes (1) a likelihood of success on the merits, (2) that it is 3 likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance 4 of hardships tips in its favor, and (4) that the public interest favors an injunction. Winter 5 v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). A party can also 6 satisfy the first and third elements of the test by raising serious questions going to the 7 merits of its case and a balance of hardships that tips sharply in its favor. Alliance for the 8 Wild Rockies v. Cottrell, 632 F.3d 1127, 1131. (9th Cir. 2011). 1 The court must view the merits of Plaintiffs’ claims through the prism of the laws 9 10 they invoke for relief. Although Plaintiffs raise a number of claims in their complaint, 11 their motion for TRO relies solely on the federal Electronic Communications Privacy Act 12 (“ECPA,” 18 U.S.C. §§ 2510-2522) and its Washington analog at RCW Ch. 9.73. In 13 relevant part, both statutes prohibit the unauthorized interception of electronic 14 communications. 18 U.S.C. § 2511(1); RCW § 9.73.030(1). ECPA also prohibits the use 15 or disclosure of those communications. 18 U.S.C. § 2511(1)(c)-(d). Although both 16 statutes are primarily criminal, each authorizes a civil action. 18 U.S.C. § 2520; RCW 17 § 9.73.060. 18 The court finds that Plaintiffs have raised at least a serious question on the merits 19 of their claim that Ms. Wilson has unlawfully intercepted their email or other electronic 20 communications. They have provided evidence that Ms. Wilson has learned information 21 that is contained in confidential electronic communications, and have provided evidence 22 that Ms. Wilson had the means to access that information. It is possible, of course, that 23 1 24 25 26 27 28 Winter overruled Ninth Circuit law that permitted a party to obtain a preliminary injunction merely by proving a “possibility” of irreparable harm 555 U.S. at 22. Ninth Circuit panels initially raised questions over the scope of the Winter ruling. See Shepherd v. Weldon Mediation Servs., Inc., 794 F. Supp. 2d 1173, 1176-77 (W.D. Wash. 2011) (reviewing cases). It now appears settled that Winter did not “change the requisite showing for any individual factor [in the preliminary injunction analysis] other than irreparable harm.” Small v. Avanti Health Sys., LLC, 661 F.3d 1180, 1187 (9th Cir. 2011). ORDER – 4 1 Ms. Wilson learned some of this information through means other than the unlawful 2 interception of electronic communications. She could have, for example, learned some of 3 the information from her sons or from other sources. Nonetheless, there is at least a 4 serious possibility that she has unlawfully intercepted Plaintiffs’ electronic 5 communications. 6 There is also evidence raising a serious possibility that Ms. Wilson has accessed 7 Plaintiffs’ online accounts. Plaintiffs have not explained why that amounts to a violation 8 of ECPA or its Washington analog. Information stored in an online account may not 9 qualify as a “communication” under either statute. The court finds, however, that there is 10 at least a serious question as to whether information on an online account constitutes a 11 communication between the account provider (e.g., a bank or medical provider) and the 12 account holder. 13 The court also finds that Plaintiffs have established a likelihood that Ms. Wilson 14 has used or disclosed the communications that she unlawfully intercepted. Plaintiffs’ 15 evidence shows that Ms. Wilson has used this information in several venues. 16 Moving away from the likelihood of success on the merits, the court finds that 17 Plaintiffs have already been irreparably harmed, and that it is highly likely they will 18 suffer further irreparable harm if the court does not issue a TRO. The court finds it 19 difficult to question the irreparable nature of the harm inherent in the disclosure of one’s 20 private medical history, substance use history, and other information of the type Plaintiffs 21 describe. 22 The balance of hardships overwhelmingly favors Plaintiffs. Although the court 23 has not yet heard from Ms. Wilson, it is difficult to comprehend a valid interest she could 24 assert in intercepting and disclosing Plaintiffs’ private information. The court finds she 25 will suffer no hardship if the court enjoins her from unlawful conduct and using the fruits 26 of that unlawful conduct. 27 28 ORDER – 5 The public interest strongly favors the protection of private information. Again, 1 2 the court cannot conceive that Ms. Wilson’s alleged conduct advances any public interest. 3 Finally, the court finds that Plaintiffs have established that the court should issue a 4 TRO without first giving notice to Ms. Wilson. If Plaintiffs’ suspicions regarding Ms. 5 Wilson’s conduct are correct, it is not difficult to imagine that Ms. Wilson would engage 6 in further violations of the law if she were to receive notice of this motion, and it is not 7 difficult to imagine that she might attempt to destroy evidence of her conduct. Moreover, 8 as the court will soon discuss, it will give Ms. Wilson an opportunity to appear before this 9 court to present any evidence or argument that undermines Plaintiffs’ motion. 10 IV. TEMPORARY RESTRAINING ORDER For the reasons stated above, the court enters the following temporary restraining 11 12 13 order: Pending further order of the court, the court prohibits Defendant Rebecca Wilson 14 or anyone acting on her behalf from engaging in the following acts: 15 1) intercepting any of Plaintiffs’ electronic communications; 16 2) accessing any of Plaintiffs’ online accounts; 17 3) using or divulging any information that she learned by intercepting Plaintiffs’ 18 19 electronic communications or accessing their online accounts; 4) modifying or destroying any evidence in her possession that bears on whether 20 she has intercepted Plaintiffs’ electronic communications, accessed their online 21 accounts, or used or disclosed information she has learned by intercepting their 22 electronic communications or accessing their online accounts. 23 Because the court finds no possibility that Ms. Wilson will suffer pecuniary harm, 24 even if the court has wrongfully entered this injunction, the court finds that no bond is 25 necessary to support this temporary restraining order. 26 27 28 ORDER – 6 1 This temporary restraining order will take effect as soon as Plaintiffs serve it on 2 Ms. Wilson. Plaintiffs are directed to serve Ms. Wilson with this temporary restraining 3 order, their complaint, their motion for a TRO and all material they filed to support that 4 motion. Plaintiffs shall immediately inform the court when they have accomplished 5 service on Ms. Wilson. 6 7 V. ORDER TO SHOW CAUSE The court orders Ms. Wilson to show cause why the court should not convert this 8 temporary restraining order into a preliminary injunction. She shall show cause at a 9 hearing before this court at 9:00 a.m. on Wednesday, May 23, 2012. The hearing will be 10 11 12 in courtroom 13106 at the following address: United States District Court 700 Stewart Street Seattle, Washington 98101 13 Ms. Wilson may file a written response to this order in advance of the hearing, but she is 14 not required to do so. 15 VI. CONCLUSION 16 For the reasons stated above, the court GRANTS Plaintiffs’ motion for a 17 temporary restraining order. Dkt. # 5. The court orders Ms. Wilson to show cause, at a 18 hearing set for 9:00 a.m. on May 23, 2012, why the court should not convert the 19 temporary restraining order into a preliminary injunction. 20 DATED this 18th day of May, 2012. 21 A 22 23 The Honorable Richard A. Jones United States District Court Judge 24 25 26 27 28 ORDER – 7
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