1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0253p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

W ILLIAM L ONG , individually and on behalf of J.L.; B ARBARA L ONG , individually and on behalf of J.L.; J ONATHAN L ONG ; M ELISSA L ONG , Plaintiffs-Appellants ,

v

.

I NSIGHT C OMMUNICATIONS OF C ENTRAL O HIO , LLC, Defendant-Appellee

. ┐ │ │ │ │ │ │ │ │ │ │ ┘ No. 14-3996

Appeal from the United St ates District Court for the Northern District of Ohio at Cleveland. No. 1:14-cv-01096—Patricia A. Gaughan, District Judge. Argued: June 17, 2015 Decided and Filed: October 23, 2015
Before: GUY, GIBBONS, a nd ROGERS, Circuit Judges.

_________________ COUNSEL

ARGUED: Matthew D. Greenwell, CHARLES V. LONGO, CO., L.P.A., Beachwood, Ohio, for Appellants. Jeffrey J. Jones, JONES DAY, Columbus, Ohio, for Appellee. ON BRIEF: Matthew D. Greenwell, CHARLES V. LONGO, CO ., L.P.A., Beachwood, Ohio, for Appellants. Jeffrey J. Jones, Matthew J. Chisman, J ONES DAY, Columbus, Ohio, for Appellee.

_________________ OPINION

_________________ RALPH B. GUY, JR., Circuit Judge. Plainti ffs appeal the dismissal of their claims against defendant Insight Communi cations of Central Ohio, d/b/a Time Warner Cable (“TWC”), 

### >No. 14-3996 Long, et al. v Insight Communications Page 2

arising out of TWC’s mistaken di sclosure of plaintiffs’ basic s ubscriber information in response to a grand jury subpoena. Reviewing the dismissal de novo , we find that plain tiffs failed to state a claim upon which relief may be granted either for violation of the Stored Communications Act (“SCA”) (18 U.S.C. § 2707(a)), or for invasion of privacy, intentional disclosure of private information, intentional infliction of emotional di stress, or breach of contract under Ohio law. Accordingly, the district court’s judg ment in favor of TWC is affirmed.

I.
Plaintiffs—William Long, Barbara Long, Jona than Long, Melissa Long, and JL (a minor)—alleged that they resided at 14064 Ch ardon Windsor Road, Chardon, Ohio, in early 2012. At that time, TWC provided internet and cable services to plaintiffs ’ residence pursuant to a Subscriber Agreement and incorporated Priv acy Notice. The pertin ent allegations were accurately recounted by the di strict court as follows:
On March 27, 2012, Special Agent Richard Wa rner of the Bureau of Criminal Investigation (BCI), Inves tigation Division in the Computer Crimes Unit, was conducting an online internet investigation to identify individuals possessing and sharing child pornography. An internet protoc ol address, known as an IP address, is a code of numbers that identifies a par ticular computer on the internet. Internet Service Providers (ISP), such as [TWC], assign their customers IP addresses. While conducting his investigation, Ag ent Warner located a suspect using a public IP address of 173.88.218.170 (the .170 address) and found several hundred images and movie files titled consistent with child pornography. The IP address of plaintiffs’ computers at that ti me was 173.88.218.70 (the .70 address). [In other words, there was a difference of one digit between the two IP addresses.] Agent Warner downloaded the questiona ble material and determined that it was stored on the computer assigned the .170 address. On April 4, 2012, Agent Warner requested that [the] Geauga County Prosecutors’ Of fice issue a Grand Jury subpoena requiring TWC to provide subscriber information for the .170 address. A subpoena was issued by th e Prosecutors’ Office and served on TWC requesting the information. TWC responded to the subpoena on April 11, 2012[,] and indicated that the .170 address was a ssigned to plaintiff Barbara Long. Based on this information, BCI obtained a search warrant for plaintiffs’ residence. On April 20, 2012, BCI and local law enforc ement personnel executed the search warrant on plaintiffs’ residence. While searching the residence, the BCI agents determined that the IP address assigne d to plaintiffs’ TWC account was the .70 address and not the .170 address, as requested from TWC. The search was terminated and Agent Warner explained to plaintiffs that a mistake had been madeNo. 14-3996 Long, et al. v Insight Communications Page 3

by TWC. Agent Warner was later advise d by TWC that it had “run the wrong IP address.”
Long v. Insight Commc’ns of Cent. Ohio, LLC , No. 1:14-cv-1096, 2014 WL 4425738 at *1 (N.D. Ohio Sept. 8, 2014). Plaintiffs a lleged that the search (which is not separately challenged here) was “extensive, destructive, and in plain sight of all of [their] neighbors.” The search was terminated once the error was discovered, and no evidence of criminal activity was found.
Plaintiffs did not allege any defect with respect to the grand jury subpoena—only that TWC misidentified Barbara Long as the subscrib er assigned the .170 IP address because TWC had “run the wrong IP address.” Specifically, TWC was alleged to have disclosed Barbara Long’s name, “home address, telephone numbers, and length of service.” Without providing any further factual basis, plaintiffs asserted that “TWC’s conduct was knowing, intentional, willful, wanton, malicious, and fraudulent.” 1

Plaintiffs’ complaint alleged a federal claim for disclosure of their subscriber information
without authorization in violat ion of the SCA (18 U.S.C. § 2707(a)) (Count I), and state-law claims for “Negligent Disclosure of Private In formation,” “Invasion of Privacy,” “Intentional Infliction of Emotional Distress,” and “Breach of Contract” (Counts I I-V). TWC moved to
dismiss these claims on a number of alternativ e grounds, including that the claims were barred under one or more defenses provided by the SCA; that TWC was protected by qualified privilege under Ohio common law; and that pl aintiffs failed to state a claim on the merits under either the
SCA or Ohio law. See F ED

. R. C IV

. P. 12(b)(6).
The district court rejected TWC’s claim of immunity under § 2703(e), but found that § 2707(e)’s “good faith reliance” defense barred all of plaintiffs’ claims. See 18 U.S.C. §§ 2703(e) and 2707(e). The district court also concluded that the state-law claims failed on the merits because the factual allegations were insufficient to establish that TWC disclosed the information intentionally, wrongfully, or in breach of contract. Long , 2014 WL 4425738, at *3-4. Judgment was entered accordingly, and this appeal followed.

1 Plaintiffs represented to the district court that the substance of their averments was unchanged by an amended complaint that was filed prior to removal but not made part of this record. Since plaintiffs have not suggested otherwise on appeal, we review the allegations that were before the district court.No. 14-3996 Long, et al. v Insight Communications Page 4

II.

This court reviews a dist rict court’s dismissal for failure to state a claim de novo

. Courie v. Alcoa Wheel & Forged Prods. , 577 F.3d 625, 629 (6th Cir. 2009) . In doing so, we also may affirm the judgment on any ground supported by the record. Wausau Underwriters Ins. Co. v. Vulcan Dev., Inc. , 323 F.3d 396, 403-04 (6th Cir. 2003).
To survive a 12(b)(6) motion, the complaint must contain “enough fact s to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007). In evaluating the complaint, the court must take the well-pleaded facts as true but is “‘not bound to accept as true a legal conclusion couched as a factual allegation.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citation omitted). Indeed, alt hough state of mind may be alleged generally, “the plaintiff still must plead facts about the defendant’s mental state, which, accepted as true, make the state-of-mind-allegation ‘plausible on its face.’” Republic Bank & Trust Co. v. Bear
Stearns & Co. , 683 F.3d 239, 247 (6th Cir. 2012) (citati on omitted). “A claim has facial plausibility when the plaintiff pleads factual cont ent that allows the court to draw the reasonable
inference that the defendant is li able for the misconduct alleged.” Iqbal , 556 U.S. at 678; see also 16630 Southfield Ltd., P’ship v. Flagstar Bank, F.S.B. , 727 F.3d 502, 504 (6th Cir. 2013); Estate of Barney v. PNC Bank, N.A. , 714 F.3d 920, 924-25 (6th Cir. 2013).

III.

Title II of the Electroni c Communications Privacy Act of 1986 (ECPA), commonly
referred to as the Stored Communications Ac t (SCA) (codified as amended at 18 U.S.C. §§ 2701-2712), governs the various circumstances under which a service provider may divulge
the contents of certain electronic communications or disclose other subscriber or customer
records and information. See Orin S. Kerr, A User’s Guide to the St ored Communications Act, and a Legislator’s Guide to Amending It , 72 G EO

. W ASH

. L. R EV . 1208 (2004) (outlining the structure of the SCA). This case, however, involves only the provisi ons governing a serviceNo. 14-3996 Long, et al. v Insight Communications Page 5

provider’s disclosure of basic subscriber informa tion to a governmental entity in response to a grand jury subpoena. 2

A. Unauthorized Disclosure
The SCA dictates that—except as otherw ise permitted—a service provider “shall not knowingly divulge a record or other information pertaining to a subscr iber to or customer of such service . . . to any governmental entity.” 18 U.S. C. § 2702(a)(3). But, the exceptions that follow expressly permit a provider to divulge such records or information when, among other things, it
is “otherwise authorized in sect ion 2703.” 18 U.S.C. § 2702(c)(1); see also id. at § 2702(c)(2)- (6) (other exceptions). As amended, § 2703 provides, in relevant part, th at a governmental entity may require a service provider to disclose a subset of basic subscriber or customer information— including name, address, phone number, and leng th of service—“when the governmental entity uses [1] an administrative subpoena authorized by a Federal or State statute or [2] a Federal or State grand jury or trial subpoena[.]” 18 U.S.C. § 2703(c)(2) (as amended).
Reading these provisions together, and given that no defect was alleged with respect to the grand jury subpoena in this case, we assu me that TWC would have been authorized to
disclose the basic subscriber information associat ed with the .170 IP address in response to that subpoena. As plaintiffs alleged, however, TWC mistakenly disclo sed the subscriber information associated with plaintiffs’ .70 IP address instead. TWC’s error was allegedly made in the course of retrieving the information to be disclosed ( i.e. , “running the IP address”). Notably, plaintiffs have not alleged any facts (or argued that there are any facts) to suggest that TWC was aware of
the error at the time of the disclosure. The distri ct court found plaintiffs had alleged that “TWC made a mistake, a typographical erro r, in responding to the subpoena.” Long , 2014 WL 4425738, at *3. Our de novo review of the complaint confirms that there are no facts from which we may infer that TWC’s unautho rized disclosure of plaintiffs’ information was the result of

2 The parties do not dispute that TWC was a provider of an electronic communicati on service to the public within the meaning of the SCA. See 18 U.S.C. § 2711(1) (“‘electronic co mmunication service’ means any service which provides to users thereof the ability to send or re ceive wire or electronic communications”) (incorporating definition from 18 U.S.C. § 2510(15)). As such, it is immaterial whether TWC was also a provider of a remote computing service as defined in 18 U.S.C. § 2711(2). Also, it is evident that the Ohio BCI comes within the definition of a “governmental entity.” See 18 U.S.C. § 2711(4) (“the term ‘governmental entity’ means a department or agency of the United States or any State or political subdivision thereof”).No. 14-3996 Long, et al. v Insight Communications Page 6

anything other than inadvertence or negligence. Accepting these well-pleaded facts as true, we turn to the question of whether plaintiffs have stated a plausible claim for relief under the SCA.

B. Dismissal
TWC raised three separate grounds for dismissa l of this claim—any one of which may be a basis to affirm. Addressing TWC’s defenses, the district court rejected the claim of immunity under § 2703(e) because TWC could not show that plaintiffs’ info rmation had been provided “in accordance with the terms of” a subpoena. 18 U.S. C. § 2703(e). But, expl aining that similarly restrictive language was omitted from § 2707(e), the district court concluded that the “good faith
reliance” defense was intended “to provide a defense where a provider responds to a subpoena with a good faith belief that it wa s acting pursuant to th at subpoena although a mistake was made in so responding.” Long , 2014 WL 4425738, at *3. In other word s, TWC’s inadvertent mistake would not negate its otherwis e good faith reliance on the undisputedly valid grand jury subpoena. Id

. 3

Plaintiffs argue that the dist rict court misinterpreted and mi sapplied the defense to bar the claims in this case. In particular, plaintiffs contend that “good faith reliance on” a “grand jury subpoena” should be interpre ted to provide a defense only when a provider relied on a facially valid subpoena that was later claimed to have been invalid. Althou gh several courts have recognized the defense in such a situation, none of those courts ’ decisions considered whether the defense should also apply when a provide r makes a mistake in responding to a valid subpoena. See, e.g. , Sams v. Yahoo! Inc. , 713 F.3d 1175, 1180-81 (9th Cir. 2013); McCready v. eBay, Inc. , 453 F.3d 882, 891-92 (7th Cir. 2006); Freedman v. Am. Online, Inc. , 325 F. Supp. 2d 638, 647-50 (E.D. Va. 2004). We do not decide whether the district court properly interpreted or applied § 2707(e)(1), however, because TWC’s mi staken disclosure of plaintiffs’ subscriber information cannot state a plausibl e claim for relief under the SCA. 4

3 “A good faith reliance on . . . a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization . . . is a complete defense to any civil or criminal action[.]” 18 U.S.C. § 2707(e)(1); see also 18 U.S.C. § 2520(d)(1) (nearly identical defense under Title I of the ECPA).
4 For this reason, we also do not decide which, if any, of the tests that have been articulated for determining “good faith reliance” would be appropriate in this case. See Sams , 713 F.3d at 1180 (rejecting the Freedman court’s formulation); Freedman , 325 F. Supp. 2d at 647-48 (adopting test applied under 18 U.S.C. § 2520(d)(1)); Frierson v. Goetz , 99 F. App’x 649, 653 (6th Cir. 2004) (finding “good fa ith reliance” defense applied under 18 U.S.C.No. 14-3996 Long, et al. v Insight Communications Page 7

C. Failure to State a Claim under the SCA
The SCA provides a civil cause of action for damages or other relief to any person “aggrieved by any violation of [the SCA] in which the conduct constituting the violation is engaged in with a knowing or intent ional state of mind[.]” 18 U.S.C. § 2707(a). As discussed, it would be a violation for a provider to “kno wingly divulge” subscriber information if the disclosure is not otherwise permitted under the SCA. TWC argued for dismissal on the grounds that its mistaken disclosure of plaintiffs’ information was insufficient to establish that it acted with the required stat e of mind. We agree.
We accept the allegation that TWC’s error resulted in an unauthorized disclosure of plaintiffs’ subscriber information to a governmental entity. But, no facts were alleged to suggest
that TWC was aware of the error at the time of the disclosure, namely that the information it
disclosed was not associated with the IP address that was the subject of the grand jury subpoena. Without arguing to the contrary, pl aintiffs contend that it is suffi cient to have al leged that TWC was aware of the “act” of disclosure. Tellingly, plaintiffs maintain that TWC may be held liable for negligently or recklessly failing to ensure the accuracy of the information it disclosed in response to the subpoena. Whether this would be sufficient to establish the requisite state of mind is a question of statutory interpretation that we review de novo

. See Elgharib v. Napolitano , 600 F.3d 597, 601 (6th Cir. 2010). The inquiry begins with a natural reading of the full text, including the language a nd design of the statute as a w hole; considers the common-law meaning of its terms; and may examine the relevant legislative history if the statutory language is
not clear. Id

. Starting with the relevant la nguage, plaintiffs must show th at “the conduct constituting the violation”—here, that TWC “ knowingly” divulged pl aintiffs’ subscriber information without authorization—was “engaged in with a knowing or intentional state of mind.” The provisions governing disclosures of subscriber information to governmental entities make clear that not every disclosure is prohibited. The most natural reading of this language requires a showing that the provider knew not only that it was divulging information ( i.e. , that the act of disclosure was

§ 2520(d)(1) where the defendant officer held “an honest and reasonable belief that he acted legally pursuant to a valid court order issued in accordance with state law”).No. 14-3996 Long, et al. v Insight Communications Page 8

not inadvertent), but also what information was being divulged ( i.e. , the facts that made the disclosure unauthorized). See McFadden v. United States , 135 S. Ct. 2298, 2304 (2015) (holding that the most natural reading of 21 U.S.C. § 841( a)(1) is that “the word ‘knowingly’ applies not just to the statute’s verbs but also to the object of those verbs”); Morissette v. United States , 342 U.S. 246, 270-71 (1952) (interpret ing “knowingly converts” to re quire that defendant “had knowledge of the facts, though not necessarily the law, that made the taking a conversion”). The factual allegations do not permit an infere nce that TWC knew that the wrong subscriber information was being divulged in response to the subpoena. 5

The terms “knowing” and “intentional” are not defined by the st atute, and alone may have more than one meaning. But, in context, the language specifies that it is the conduct constituting the violation (not just the act of disclosure) that must have been knowing or intentional. Further, this interpretation is s upported by the legislative history for the ECPA. First, although not specific to the SCA, the Se nate Report explained th at, “[a]s used in the [ECPA], the term ‘intentional’ is narrower than the dictionary definition . . . [and] means more than that one voluntarily engaged in conduct or caused a result. Such conduct or the causing of the result must have been the person’s cons cious objective.” S. Rep. 99-541, at 23 (1986) ( reprinted at 1986 U.S.C.C.A.N. 3555, 3577); see also H. Rep. No. 99-647, at 48 (1986) (same).
It is reasonable to conclude that this definition was intended to apply to both Title I and Title II
of the ECPA.
Further, the legislative histor y includes the explanation that “a knowing state of mind is (1) an awareness of the nature of the conduct, (2) an awareness of or a firm belief in the existence of the circumstance, and (3) an awareness of or a firm belief in the substantial certainty of the result.” H. Rep. 99-647, at 49. Also, in discussing the SCA’s related prohibition on the
disclosure of the contents of communications in § 2702(a), the legisla tive history specifically advises that: “The requirement th at a violator must ‘knowingly’ divulge the contents is intended

5 It is this mistake that distinguishes this case from Freedman , where the defendant knowingly divulged the plaintiffs’ subscriber information in response to a warrant request but claimed to have been mistaken about the validity of the warrant. See Freedman v. Am. Online, Inc. , 329 F. Supp. 2d 745, 749 (E.D. Va. 2004) (clarifying Freedman , 325 F. Supp. 2d at 645). This case does not involv e a mistake as to the legal validity of the disclosure, but a lack of knowledge about the fact that the wrong information was being divulged. See, e.g. , United States v. Wuliger , 981 F.2d 1497, 1502-03 (6th Cir. 1992) (knowledge under 18 U.S.C. § 2511 included the fact of whether the interception was nonconsensual).No. 14-3996 Long, et al. v Insight Communications Page 9

to make clear that ‘reckless’ or ‘negligent’ conduc t is not sufficient to constitute a violation of this section.” S. Rep. 99-541, at 36-37; see also H. Rep. 99-647, at 64 (“The concept of ‘knowingly’ does not include, howev er, ‘reckless’ or ‘negligent’ c onduct.”). This supports our interpretation that for the conduct constituti ng the violation to have been knowing and intentional, TWC must have known that it wa s not divulging the subscriber information associated with the IP address that was the subj ect of the subpoena. The dismissal of the claim
for violation of the SCA is affirmed.

IV.
Finally, plaintiffs argue that th e district court erred in concl uding, in the alternative, that
the claims asserted under Ohio la w failed on the merits. Reviewing the dismissal of these claims
de novo , plaintiffs have not demonstrated error.

Count II . Plaintiffs did not dispute that ther e is not a recognized cause of action for “Negligent Disclosure of Private Information” under Ohio law, but argued that this count was
meant to assert a claim of intentional disclosu re in violation of Ohio Rev. Code § 1347.10. The
district court found that this claim failed because plaintiffs had not pleaded facts sufficient to allege an intentional disclosure. More funda mentally, however, this claim fails because the statute governs personal information maintained in a “personal information system,” which is
defined as a collection of related records that are “maintained by a state or local agency.” O HIO
R EV

. C ODE §§ 1347.01 and 1347.10. This is pl ainly not the case here.

Counts III and IV . Dismissal of the claims for “I nvasion of Privacy” and “Intentional
Infliction of Emotional Distress” was not error. Th e invasion of privacy plai ntiffs assert is “the wrongful intrusion into one’s priv ate activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a pe rson of ordinary sensibilities.” Housh v. Peth , 133 N.E.2d 340, 341 (Ohio 1956) (syllabus 2). However, neglig ent intrusion into one ’s private activities does not constitute an actionable invasion of privacy. See McCormick v. Haley , 307 N.E.2d 34, 38 (Ohio Ct. App. 1973). Nor do th e allegations of TWC’s mistaken disclosure of plaintiffs’ information plausibly allege that defendant acted with the necessary intent to inflict emotional distress required to stat e a claim for intentional infliction of emotional distress under Ohio law.
See Burkes v. Stidham , 668 N.E.2d 982, 989 (Ohio Ct. App. 1995).No. 14-3996 Long, et al. v Insight Communications Page 10

Count V . Plaintiffs argue that it was error to di smiss the breach of contract claim, which alleged that TWC violated the terms of its S ubscriber Agreement and incorporated Privacy Notice by mistakenly disclosing plaintiffs’ subscrib er information in response to the grand jury subpoena. The district court did not err in dism issing this claim because the contract explained that the ECPA allows personally identifiable information to be obtained by governmental entities in some circumstances, including through the use of a subpoena, and gave TWC the authority to “comply with legal process when we believe in our discretion that we are required to do so.”
There were no facts to s uggest that TWC did not believe it was responding to the subpoena when it mistakenly disclosed plain tiffs’ subscriber information.

AFFIRMED.