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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Randall David Fischer v. Mt. Olive Lutheran Church, et al.

207 F. Supp.2d 914 (W.D. Wis., March 28, 2002)

Court allows plaintiff to proceed with claims advanced against his employer and various fellow employees under the Electronic Communications Privacy Act, the Electronic Communications Storage Act, and Wisconsin's right to privacy statute, Wis. Stat. Section 895.50, as well as a common law defamation claim, arising out of defendants' interception of a telephone call plaintiff placed from his place of employ, and defendants' review of e-mails contained in a personal e-mail account plaintiff maintained with Hot Mail, which account plaintiff accessed from his work place.  There were sharply differing versions of the content of these various communications.  Defendants alleged that during the telephone call, the participants, while masturbating, graphically described homosexual activity between two males.  Plaintiff denied this.  Defendants also alleged that e-mails read from plaintiff's email account evidenced that plaintiff was involved in homosexual activity.  Plaintiff denied that these e-mails had been sent to him.

Defendants' version of the telephone conversation was related to various third parties, which resulted in the termination of plaintiff's employment.  This lawsuit ensued.  The court determined that plaintiff should be permitted to proceed with various claims he asserted. 

The court refused to dismiss plaintiff's claim, advanced under Wisconsin's right of privacy law, section 895.50, arising out of the review of e-mail from plaintiff's personal Hot Mail account.  The court held that issues of fact existed as to whether the review of such e-mail would be highly offensive to a reasonable person, and as to whether a reasonable person could consider such an account to be private, which precluded a grant of summary judgment to defendants.  The court also refused to dismiss the claim plaintiff brought under the Electronic Communications Storage Act arising out of the review of these e-mails.  If such a review took place (as opposed to defendants' having fabricated the e-mails) it would run afoul of the Stored Communications Act.  The court did dismiss the claims plaintiff raised under the Computer Fraud and Abuse Act, holding that plaintiff had not alleged economic damages arising from the review of these e-mails sufficient to state a claim under the Act.

The court also refused to dismiss the claims plaintiff advanced under the Electronic Communications Privacy Act and Wisconsin Privacy Act arising out of the interception of the telephone call described above.  The court refused to dismiss plaintiff's ECPA claim because, depending on what actually occurred, the defendants should have stopped listening to the telephone call when they discovered it was personal in nature.  The court refused to dismiss plaintiff's privacy act claims because plaintiff may have had a reasonable expectation of privacy in the telephone call if his claim that he made the call from a place his employer designated for private personal calls was true.

Lastly, the court refused to dismiss plaintiff's defamation claim, finding that issues of fact precluded it from determining whether defendants' communication of their version of the telephone call to third parties was protected by the common interest privilege possessed by members of religious associations as to communications pertaining to the qualifications of those who work for the organization.  Such privilege may have been lost, given plaintiff's claim that the defendants were lying about what took place during the telephone call.

Defendant Mt. Olive Lutheran Church, Inc. ("Mt. Olive") employed plaintiff Fischer as its Minister of Youth and Children's Ministries pursuant to the terms of a "call."  Mt. Olive's by-laws provide that plaintiff's call could only be terminated by a 2/3 vote of the congregation.  Defendant Connor is the pastor of Mt. Olive, and defendants Salzmann and Janiszewski are each employees of the Church.

On June 10, 1999, plaintiff made a telephone call to an adult male from a vacant office in his place of employ.  According to plaintiff, defendant Connor told him that he could make personal calls, or calls as to which he needed privacy, from this office.

While plaintiff was on this call, defendant Salzmann attempted to make a business call from another phone at the Church.  According to her, she was instead connected to plaintiff's telephone call, during which she allegedly heard "two male voices involved in a sexually graphic conversation."  Defendant Salzmann, concerned for the youths plaintiff worked with, gave the phone to defendant Janiszewski so that she too could hear what was going on.  Defendant Janiszewski alleged that she heard two males engaged in a sexually graphic conversation describing male homosexual acts.  She further alleged that she believed the two men were masturbating during the telephone call.  Plaintiff denied these allegations.  He said that the conversation was with an adult male tutor he had known in college who was having a sexual identity crisis, and who was describing sexual experiences in graphic detail.

The defendants called the police, and asked plaintiff to leave the Church.  Plaintiff complied with this request, and discussed defendant Janiszewski's allegations with his wife.  After plaintiff left the Church, defendants Connor, Salzmann and Janiszewski examined the vacant office from which plaintiff placed the call and found wet tissue in the wastebasket, which defendant Connor thought contained fresh semen.  This tissue was preserved.

Plaintiff was subsequently informed by defendant Connor in a meeting that he was being suspended with pay pending an investigation.  During this meeting, Connor formed the belief that plaintiff was suicidal, and so informed police officers on the premises.  They concurred, and plaintiff was committed to North Central Health Care involuntarily overnight.

In response to police recommendations, defendant Connor retained a computer expert to check plaintiff's e-mail for any improper sexual communications with minors.  This expert accessed plaintiff's Hot Mail account, using a password guessed at by defendant Connor.  Plaintiff had opened the account from a computer terminal at a public library, and used the account for personal purposes.  The emails contained in the account reside on a server that is part of the Microsoft Network.

The expert printed e-mails from this account, which evidenced that plaintiff was involved in homosexual activity.  Plaintiff denies that these e-mails were sent to him, and alleges that he opened the same e-mail account with his wife and neighbor and did not find them.  He alleges that shortly thereafter, he was unable to access the account.

A meeting was held before the congregation of the Mt. Olive church for the purpose of revoking plaintiff's call.  At this meeting, counsel for the church described defendants' version of the telephone call to the congregation.  The congregation voted to terminate plaintiff's call, and he subsequently lost his job.  This lawsuit ensued.

Plaintiff advanced a number of claims against the defendants as a result of their review of his e-mail, the interception of his telephone call, and the various statements they made about them.  These included claims that such conduct violated the Electronic Communications Privacy Act, the Electronic Communications Storage Act, the Computer Fraud and Abuse Act and Wisconsin's right to privacy statute, Wis. Stat. Section 895.50.  Plaintiff also asserted a common law defamation claim.  Defendants moved for summary judgment.  Finding that material issues of fact existed, the court refused to dismiss a number of the claims plaintiff asserted.

Among these were claims plaintiff asserted under Wis. Stat. 895.50 for invasion of privacy.  This statute defines one type of invasion of privacy as an "intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass."  Finding that "it is disputed whether accessing plaintiff's email account is highly offensive to a reasonable person and whether plaintiff's e-mail account is a place that a reasonable person would consider private" the court denied defendants' motion for summary judgment.  In so holding, the court rejected defendants' claim that no invasion of privacy could exist under the cited statute because they had not improperly entered a private geographical place, as required by the statute.  Rejecting this argument, the court held that an email account could constitute the requisite place, citing the Restatement (Second) of Torts, Section 625B ("intrusion on privacy of another 'may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit inspection of his personal documents.'")

The court also refused to dismiss plaintiff's claim that defendants' review of his email violated the Electronic Communications Storage Act.  Under the Act, 18 U.S.C. Section 2701, it is a violation for anyone who "intentionally access without authorization a facility through which an electronic communication service is provided … and thereby obtains, alters or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system."  The court held that Hot Mail e-mails stored on Microsoft's servers were in electronic storage pursuant to the Act, which defines "electronic storage" 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."  If defendants did indeed view the contents of plaintiff's hot mail account "they would have obtained plaintiff's email in violation of the act."  However, because plaintiff denied that these emails existed, the court refused to grant either party summary judgment.

The court did dismiss the claims plaintiff advanced under the Computer Fraud and Abuse Act arising out of the alleged review of his emails because plaintiff could not demonstrate the requisite economic loss arising out the violation of the section.

The court let stand claims plaintiff advanced under both the Electronic Communications Privacy Act and Wis. Stat. Section 895.50 arising out of the interception of his telephone call.  Defendants admittedly intercepted a wire communication through use of a qualifying device, a telephone.  The issue before the court was whether defendants were permitted to access the call by virtue of the "business exception" contained in the ECPA, which permits the interception of certain calls being made during the ordinary course of business.  The court held that issues of fact existed as to the purpose of the call - counseling a troubled individual or personal pleasure.  If the call was personal in nature, given that plaintiff was talking to an adult, defendants would be obligated to cease listening as soon as they determined the call was personal.

The court also refused to dismiss the invasion of privacy claim, holding that issues of fact as to plaintiff's ability to use the office from which he placed the call for private or personal phone calls precluded dismissal of his claims.

Lastly, the court refused to dismiss plaintiff's defamation claim.  Obviously, issues of fact existed as to the truth of the statements made by the defendants as to the communications in question.  However, they would still be entitled to dismissal if their communications were privileged against defamation claims.  One such conditional privilege is the "common interest" privilege, which resides in members of religious associations when discussing the qualifications of the officers and members and their participation in the activities of the association.  Such a privilege can be waived if defendant knows the matter to be false, or if defendant publishes it for a purpose other than that for which the privilege is granted.  Because plaintiff claimed the statements defendants made about his communications were knowingly false, issues of fact precluded dismissal of his defamation claims against defendant Salzmann and Janiszewski.

The full text of the court's decision can be found on a web site maintained by the United States District Court for the Western District of Wisconsin.

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