counsel for the plaintiffs this is a class action against direct t v for up taining story electronic communications in violation of the of the of the store communications act issue is whether or not directv can be libel even though it did not was not itself an internet service provider but in fact induced the internet service provider to turn over the documents in violation of the law so you can see we're not dealing with a person or entity providing  electronic communication service to the public correct what we're dealing with the statute deals with when you're grown up with something you know that's not there well it doesn't only deal with within a service provider for instance we cited a couple  cases where the government induced the internet service provider to turn over documents to it in violation of the statute and the government was held liable that was under an aiding and abetting they have liability with that directly ability if you read carefully i don't it in those cases the internet service provider violated the law and it's so at the behest of the government there is there is not any finding in those cases i read on that said i was that the government's liability is only limited to direct liability versus aiding and abetting liability is this the discussion of the intent behind the law makes it clear that privacy of the story communications is the most important thing and if the internet service provider is not supposed to turn over the stored communications to a third party whether it be the government or a private citizen must the law calls for it to do so then the entire statutory intent would be completely undermined if the internet service provider could be induced in some fashion to cooperate with either the government or the or the private party and that's the concern i have here well you have the supreme court telling us that quote if this respondents seem to say congress intended to impose aiding and abetting liability recruitment we've used the words in the bed in the statutory context  supreme court pointed out that congress has done this on a couple of occasions here however the decision the central bank position they were discussing it implied right of action under ten b five in the securities law there are  other cases and we cite them where aiding and abetting a conspiracy liability has been found even though this actually does not express lee state one way or another whether or not aiding or abetting the central bank case is never been a blanket rule and it's never been interpreted by this court to be a blanket rule that they can never be aiding and abetting liability unless the words aiding and abetting or something along those lines are expressly used in the statute what do you know in which your best case that you want me to read again before i decide there's a recent case that just came out in late may it's a state case but it also does address the store communications act and i'd like to invite this court's attention to well let's ignore that one of the cases that you cited to us which i think though that you have to take it step by step there's no blanket rule against aiding and abetting liability just because it doesn't say the words step one step two cases have found the betting liability or conspiracy liability if they divined that which fulfill the congressional intent in this case i think this is very important we don't have a situation where as in the doe vs g t e case which is an innocent third party the p who doesn't have an axe to grind or knocks to go or any particular stake in the case they're just going along with the process all we have here is a third party direct t v that induces or solicits a direct violation of law we allege and that's a separate matter whether it is or not that's not before us right now but the if they in fact do induce or solicit a direct violation and they personally benefit from that to hold that they cannot be liable some of them have no choice but to simply submit or cut a deal and that's what this guy did is just an individual he's got a small boy electronic bulletin board had they not have the resources to fight directv they kind of a deal they said you turned over your there is i suppose you could pursue a breach of contract action but the problem is directv is not a party to the contract i s p is a party to the contract and then you have to pursue a inducing someone to breach of contract and i haven't been able to establish that there is a if any all those things were running through my mind because it seemed it seemed like you had this particular federal statute that had a very specific focus which made me think what about all the other business torts you could think of so i just ask you i guess you of some sort these people are not going to be able to show any damages arising from their disclosure of their story communications other than the most intangible of of kinds is going to be very hard to certify a class of this law that contains a statutory penalty online well you could of course congress if if that's what congress could be persuaded of they could amend the statute the difficulty i keep coming back to is thinking that you know maybe they didn't have the full landscape when they enact this and if you go back and you think about when these were enacted everybody was worried about you know i it's a piece basically and that was sort of the issue because you were when all this came up so then we have this very specific language electronic service providers how do you how to get around that those are two different factions right now or too many twenty seven to twenty seven which defines the obligations of an i a speedy or electronic service provider and that service provider whatever you want to call it it doesn't define the scope of liability twenty seven zero seven defines the scope of life militant work to farms what is the violation beyond persons who engage even indirectly from a prescribe activity that's why i think aiding and abetting should be limited in this case you know we're not talking about people who we don't want to go beyond people who indirectly and that was  secondary liability and it seems like there year we would have to make a judicial creation of that document when i think what you're doing is you are recognizing that the you want to put you want to cabinet because you don't want it to be true and reasonable so the only way you could create that rule it seems to me would be judges kind of making a sim city right under historic communications no i  think first of all it's not the language i find the language engages in the violation to be broad enough to encompass someone who solicits the violation and who receives the stolen property so to speak i think that is reasonably you could roll that out so out of hand it could reasonably be within the scope of what congress intended so that allows us to take a look at congress's intense here and since the paramount concern is privacy and they go to great great lengths to try to discuss that  and that's why i wanted to mention if i can this o'grady case that came out may twenty six it's a state court decision if i fire me i would i'd like to just give you this like you have and counsel opposing counsel the courtesy of telling him about this case i  letter or something it does address the congressional intent for the story communications i know you you told me earlier that quickly is your best case and the problem with your brief is the having a live season the quotes from the quickly case and you left out a very important part of the quickly case and that is the initial problem with the argument that it wasn't asserted industry court that's the issue's been wayfaring clean air and through your view we conclude that the  agree that that the analysis in quickly as some is i'm persuasive but obviously that's that's for your arse to decide and i really don't think i need to go as far as this quickly because what we're talking about here is not a  satisfied to go through the process of working its way through the canadian system they think they took a shortcut they went to the guy and he said look we'll cut you a deal if you just give us the stuff and agree to sign it over without fighting this any further than he did who complain that he's there is one guy  you know a corporation and find you know find counsel like my my colleague here and many other attorneys going up against him and he can now if you can and there's lots of small bulletin boards and people like that who cannot possibly be afford to fight t the statute and the ones who violate the statute are the providers but in order to get beyond that it would seem to me your argument is that the statute applies to anyone who is in this condo and you're saying that means more than the party who's prohibited from the other thing is there's some definition of the term in gave  that you think shows that the statute gave broader curves that the definition of engages that i'm asking this court to imply is only inferred from congressional intent discussing the the purpose of the law and in particular the analogy which i kind of a very good which is used in this in this in the in the case which i won't cite but  should have should be empowered with the ability to resist attempts through the civil discovery process to get the information from him the civil discovery process should be utilized in the proper fashion to get the information from one of the two parties to the transaction but not to get attacked the guy who happens to just be storing the information and that was congress's intent in  statute so in the criminal context you know you can kind of land squarely in your argument and it seems to me somewhat persuasive knowing that you can write a law that way congress didn't write this one this abetting liability was used in securities cases all the time into the supreme court put a stop to that so what we're really talking about is why the congress got around to amending the law but if we start getting around to why the congress gotten around to amending the laws to reflect later decisions i don't know you can draw  any conclusions from that congress is very busy and we can't wait for congress to change every law for future situations when congressional intent gives meaning to the language they use i think it's within the judicia right and obligation to it to breathe life into lost to reflect the current situation and certainly as long as it's within the realm of what congress intended and that's what i'm asking this court t being who strings are being polled and then you're going to say cut the strings the guy who's calling the public master is not libel that's essentially what directives position here is here i don't agree that that's what congress intended i don't think you're rewriting a statute just simply on a case by case basis and dealing with the facts of the case we have here to extend the concept of engages in a violation now i've seen the case from them where they say that it's absolutely central bank that was dispositive alone in their eyes however they went on to talk about the other factors here they were kind to the ninth circuit and central banks have i believe  provision and in fact to touch on a point that you're out of her and her great aiding and abetting is much broader than other forms of liability not only did the supreme court recognize that it's broader than directly or indirectly engaging in the violation of the central bank but this provision is even narrower than section twenty seven eleven of the same statute section twenty seven eleven of the e lively not just on a person who intercepts the communication but also anyone who procures another person to violate that statute that sounds a lot like the theory that my colleague is now advancing he would like to read into twenty seven o two this notion that you can force someone or procure someone to commit a violation however notably it's contained within twenty seven eleven but not within twenty seven zero two and in fact the seventh circuit in the in twenty seven o two is even more narrow than that in twenty seven eleven if congress didn't hand twenty seven o two to reach as far as procuring another to violate it surely could not have intended to include aiding and abetting or conspiracy live factor is if you know i realize that his client may have a particular viewpoint but in principle what he's arguing is not that you can't go after happened here directv went into a canadian court got a valid canadian court order that allowed it to go in and seize this information seize the database and if you read the actual language of the order which  is the excerpts of record page twenty five it makes it very clear that they should turn over to the authorized persons which include direct t v and their lawyers the websites the database and any data contained there and it provided that this information should be turned over pursuant to a court order so what plaintiffs are sensually arguing is that by seeking enforcing a court order or by complying with a court order you've somehow violated the electronic communications privacy act this is not a case where directv knocked on their door and said you better turn over a database or we're going to sue you that's not what happened they were using the legal process now if if counsel doesn't think  pillar order was justified or that it was broader than it should have been or has some other attack this isn't the proper forum to attack it he should have gone back to the canadian court and dealt with that that was what mr gray had could have dealt with so really for me and if you think about the expanse of aiding and abetting despite counsel's current attempt to limit that scope it is much broader than that he's not just simply trying to get someone who twist the arm of the internet service provider to turn over the information he has sued i see gene which is the forensic computer firm that did nothing but copy the information pursuant to the court order all your rights our policies that lurk behind this of which we of policy once again the supreme court central bank made clear that the issue is not whether imposing a private civil liability on a version of voters is good policy whether rating in the voting is covered by the statute exactly took the words right out of my  an authorized access to stored communications that deals with one set of issues twenty seven zero two imposes obligations on the service provider saying you cannot disclose this information except under these requirements and twenty zero three deal specifically with the restrictions on governmental access and contrary to a palace contention the cases he relies upon the mcveigh case and the friedman case that involved governmental entities were not aiding and abetting theories they were direct flight of belief theories against the government under section twenty seven zero three and the reasons and you have more protection or more requirements imposed upon the government in this type of situation is very real risk that the government could try to influence and internet service provider to simply turn over their disclosures without following the proper procedure that is why the rules are imposed upon the government and the government is required to strictly adhere to those and that was the issue and the only issue involved in the day and frequent contrary to contention over this information and it very well could have been in breach of that provision however the point of the matter is and the the holding of the court in g t e was that it only he cannot expand the electronic communications privacy and to include aiding and abetting theory finally the legislative history also confirms as quoted in our response brief it made it clear that the application of twenty seven o two was limited to internet congress could clearly put in procure any other person to commit a violation in twenty seven eleven they surely could have done it in twenty seven or two with the intended to do that and they did not so even if  to proceed on that theory it should suffer the same fate there's no indication that it's meant to include anyone other than the electronic communications service provider unless the court has any further questions greg thank you someone hired a hacker to break into the system the argument was well the hacker can be libel and i think i will hire the hacker and a court in that this year versus man all all of lutheran church so that no you know you're standing right there the hackers doing his job you're libel to and that's what we're saying here that getting away from the language of aiding and abetting that directv is essentially completely controlling the actions of this guy and