The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge
*fn1 The other individuals plaintiff named as defendants were
severed from this suit on May 17, 2004.
MEMORANDUM OPINION AND ORDER
Plaintiff has sued defendant for, among other things, his
alleged violations of the Wiretap Act, 18 U.S.C. § 2510, et
seq. Defendant has filed a Federal Rule of Civil Procedure
("Rule") 12(b)(6) motion to dismiss Counts III and V of the
complaint. For the reasons set forth below, the motion is granted
in part and denied in part.
Plaintiff is a California-based company that distributes
satellite television broadcasts across the United States. (Compl.
¶ 2.) To prevent unauthorized reception of its broadcasts,
plaintiff uses encryption technology to scramble the signals.
(Id. ¶ 3.) The signals are unscrambled by a device plaintiff
calls an "Access Card," which is installed in the satellite
receivers of its customers. (Id. ¶¶ 3-4.) Plaintiff alleges that defendant Adrian purchased and used
illegal pirate devices, which unscrambled plaintiff's signals and
gave him access to plaintiff's programming free of charge. (Id.
¶¶ 5-6, 17.)
In Count III of the complaint, plaintiff seeks damages from
Adrian for his alleged possession of the pirating devices under
18 U.S.C. § 2512, 2520. In Count V, plaintiff seeks damages from
Adrian for his alleged conversion of plaintiff's property. Adrian
has moved to dismiss both counts, claiming that neither states a
claim on which relief can be granted.
On a Rule 12(b)(6) motion to dismiss, the Court accepts as true
all well-pleaded factual allegations of the complaint, drawing
all reasonable inferences in plaintiff's favor. Forseth v.
Village of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). No claim
will be dismissed unless "it is clear that no relief could be
granted under any set of facts that could be proved consistent
with the allegations." Hishon v. King & Spalding, 467 U.S. 69,
In Count III, plaintiff alleges that defendant violated
18 U.S.C. § ("section") 2512, which prohibits knowing and
intentional possession of any device that is primarily used for
"surreptitious interception of wire, oral, or electronic
communications." 18 U.S.C. § 2512(1)(b). Plaintiff seeks damages
for that violation through section 2520, which provides:
[A]ny person whose wire, oral, or electronic
communication is intercepted, disclosed, or
intentionally used in violation of this chapter may
in a civil action recover from the person of entity,
other than the United States, which engaged in that
violation such relief as may be appropriate. 18 U.S.C. § 2520(a). Defendant contends that the
private right of action created by section 2520
extends only to violations of section 2511, which
prohibits the intentional interception of electronic
communication, not to violations of section 2512.
Defendant's argument is based primarily on the Fourth Circuit's
decision in Flowers v. Tandy Corp., 773 F.2d 585
1985). In Flowers, a woman whose husband had taped her
telephone conversations sought damages under section 2520 from
the company that sold him the recording device. A jury awarded
her substantial damages on the claim, and the company appealed.
The Fourth Circuit reversed. In its view, the statute provided
a cause of action only against those who illegally intercept
communications (i.e., violators of section 2511), not against
those who manufacture or possess a pirating device (i.e.,
violators of section 2512). Id. at 589.
Plaintiff says Flowers is distinguishable from this case in
two respects. First, the Flowers court was interpreting a
different version of section 2520, which said: "Any person whose
wire or oral communication is intercepted, disclosed, or used in
violation of this chapter shall . . . have a civil cause of
action against any person who intercepts, discloses, or uses, or
procures any other person to intercept, disclose, or use such
communications." Id. at 588 n. 2. Because the statute now says
that anyone whose communication is intercepted "in violation of
this chapter may . . . recover [damages] from the person . . .
[who] engaged in that violation," plaintiff argues, a violation
of any section of the Wiretap Act can be redressed through
section 2520. Second, unlike the defendant in Flowers, the
defendant in this case is alleged to have violated both sections
2511 and 2512. Thus, plaintiff says, it states a viable claim
even under the Flowers court's logic.
Though there are a number of district court decisions that
support plaintiff's argument, see, e.g., DirecTV, Inc. v.
Dyrhaug, No. 03 C 8389, 2004 WL 626822 (N.D. Ill. Mar. 26,
2004); DirecTV, Inc. v. Gatsiolis, No. 03 C 3534, 2003 WL 22669033
(N.D. Ill. Nov. 10, 2003), the language of the statute does not.
Section 2520 permits any person "whose wire, oral, or electronic
communication is intercepted . . . in violation of this chapter"
to sue the person who "engaged in that violation." Read in
context, the phrase "engaged in that violation" refers to the
illegal interception or use. Thus, the plain language of that
section limits the class of plaintiffs to those whose
communications have been illegally intercepted, and the class of
defendants to those who do the illegal intercepting.
Moreover, though the statute has changed since Flowers was
decided, the vitality of that case has not. In its Flowers-era
incarnation, section 2520 permitted those whose communications
were "intercepted . . . in violation of this chapter" to sue
those "who intercept[ed], disclose[d], or use[d], or procure[d]
any other person to intercept, disclose, or use such
communications." Flowers, 773 F.2d at 588 n. 2. In other words,
the statute imposed liability not only on those who did the
intercepting, but on those who procured the interceptions as
well. Subsequently, Congress removed the reference to procurers
from section 2520. Because that amendment ...