The opinion of the court was delivered by: PHILIP REINHARD, District Judge
(Reserved for use by the Court)
MEMORANDUM OPINION AND ORDER
Plaintiff, DirectTV, Inc., filed a complaint against defendant, Jason
Rath. Rath has filed, pro se, a motion to dismiss Count III. For the
following reasons, and consistent with its prior orders in similar cases
(see, e.g., DirecTV v. Westendorf, No. 03 C 50210, minute order of Sept.
15, 2003), the court grants the motion to dismiss Count III.
Count III alleges a private cause of action under 18 U.S.C. § 2512.
The operative conduct alleged in Count III is that defendants "possessed,
manufactured, and/or assembled" devices that were designed to make them
primarily useful for intercepting satellite television broadcasts in
violation of section 2512. Also of relevance to this motion is Count II
which pleads a cause of action under section 2520(a) based on the actual
interception, disclosure, or use of electronic communications in
violation of section 2511.
Rath contends in his motion to dismiss that there is no private cause
of action arising out of section 2512. Plaintiff responds that there is a
private right of action under section 2512 for two reasons: first,
because section 2520(a) recognizes a cause of action for any violation of
the chapter, and, second, because it has alleged that defendants actually
used the devices to intercept its transmissions. Both sides cite several
cases that support their respective positions. Neither side cites a court
of appeals case from the Seventh Circuit, and research reveals none.
Section 2520(a) expressly provides, in relevant part, "any person whose
wire, oral, or electronic communication is intercepted, disclosed, or
intentionally used in violation of this chapter" may maintain a private
cause of action. 18 U.S.C. § 2520(a). Section 2511, in turn, makes it a
crime, among other things, to intercept, or use any device to intercept,
an electronic communication. 18 U.S.C. § 2511. Section 2512 also makes it
a crime to manufacture, assemble, possess, or sell any device designed to
intercept electronic communications. 18 U.S.C. § 2512.
Section 2520(a) provides for a civil cause of action for any
interception, disclosure, or intentional use of any electronic
communication "in violation of this chapter." The words "in violation of
this chapter" clearly qualify any interception, disclosure or intentional
use. The court does not read such words so broadly as to give rise to a
cause of action for any violation of the chapter generally. While section
2511 addresses unlawful intercepts, disclosures, or uses, section 2512 is
limited to unlawful possession, manufacture, or assembly of devices
designed to intercept. There is no mention of actual interception, use,
or disclosure in section 2512. Thus, section 2520(a)does not, by its
express terms, incorporate section 2512 into its private cause of action
Nor does section 2520(a) or section 2512 give rise to an implied right
of action. A strong presumption exists against the creation of an implied
right of action. Endsley v. City of Chicago, 230 F.3d 276, 281 (7th.
Cir. 2000). The focus of the inquiry is whether Congress intended an
implied right of action in light of the statute's language, structure,
and legislative history. Endsley, 230 F.3d at 280.
In this case, it is apparent that Congress intended to create an
express cause of action via section 2520(a). When Congress does so, an
implied right of action is especially difficult to infer "without
powerful support in the legislative history." Community and Economic
Development Assoc. of Cook County v. Suburban Cook County Area Agency on
Aging, 770 F.2d 662, 666 (7th Cir. 1985). There is nothing in the
legislative history behind section 2520(a) or section 2512, including the
1986 amendments, to indicate Congress intended to create an implied cause
of action beyond that expressly provided for in section 2520(a).
Further, unlike a violation of section 2511 where a provider would be
damaged by an unauthorized interception, disclosure, or use of its
electronic communications, a violation of section 2512 would not harm
such a provider. The assembly, manufacture, possession, or sale of a
device designed to intercept, while harmful to society in a criminal
sense, does not cause compensable harm to a provider in a civil sense.
The court finds that there is no private cause of action, express or
implied, under section 2512.
To the extent plaintiff relies on its allegations of use of the devices
to intercept electronic communications to support Count III, see DirectTV
v. Perez, 279 F. Supp.2d 962 (N.D. Ill. 2003), such allegations, in this
court's opinion, may only give rise to a cause of action under section
2511, the section underlying Count II. See DirectTV v. Amato, 2003 WL
21537206, (E.D. Va. June 20, 2003).
For the foregoing reasons, the court grants Rath's motion to dismiss
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