Opinion
Civil Action No. 04-1318.
July 15, 2004
MEMORANDUM AND ORDER
The plaintiffs, Voicenet Communications, Inc. ("Voicenet") and Omni Telecom, Inc. ("OTI"), provide computer access to Usenet, an internet discussion and posting forum, for their subscribers. Usenet consists of newsgroups that contain articles posted daily on many different topics. OTI provides its subscribers with Quikvue, a service that collects the information posted to Usenet and provides subscribers with an interface to access that information.
The plaintiffs have sued various law enforcement representatives, alleging the violation of their constitutional and statutory rights by the defendants' seizure, pursuant to a search warrant, of Quikvue's computer equipment. The search warrant authorized a search of the plaintiffs' premises based upon alleged distribution and possession of child pornography on Quikvue.
The defendants are Attorney General Gerald J. Pappert, Special Agent Michele L. Deery, Delaware County District Attorney G. Michael Green, Bucks County District Attorney Diane E. Gibbons, and Bucks County Detectives Martin McDonough and Thomas Thiel.
The plaintiffs sought a preliminary injunction, requesting such relief as the return of seized equipment, a declaration that they are internet service providers ("ISPs") that are not subject to prosecution under Pennsylvania's child pornography statute, and an injunction prohibiting defendants from accessing subscriber information stored in the seized servers. After a hearing and conferences among the Court and counsel, the defendants agreed to return the equipment, except for two JETSTOR IDE RAID arrays ("arrays") that are used for data storage. The plaintiffs argue that they are entitled to broader preliminary relief than the return of the equipment. The Court concludes that the plaintiffs have not established the irreparable harm necessary for the Court to grant such broader relief.
I. Background
The plaintiffs provide their subscribers with access to Usenet. Usenet articles are disseminated through interconnected computer systems called peer servers that temporarily store and share the content with other peer servers. Compl. ¶¶ 19, 24-27. Voicenet is a Usenet peer server that provides Usenet access to OTI and other similar companies, in addition to its own subscribers. Apr. 12, 2004 Hr'g Tr. at 24.
OTI and Voicenet designed, maintained, and made the Usenet newsreader service Quikvue available to its customers in September of 2003. Quikvue is a web-based newsreader that used three computer servers in its operations. Quikvue allows its users to access and view Usenet content. Compl. ¶¶ 31-32; Pls.' Mem. in Supp. of Prelim. Inj. at 7.
The plaintiffs maintain that Voicenet and OTI are separate corporate entities. Voicenet and OTI worked together to establish Quikvue, but OTI is the proprietor of Quikvue. Apr. 12, 2004 Hr'g Tr. at 24. The plaintiffs argue that Voicenet is a reseller of Usenet services and has been harmed by the fact that OTI is no longer purchasing Usenet and a chilling effect has occurred.Id. at 29-30.
The Affidavit of Probable Cause alleges that the defendant Deery received a complaint in November of 2003 regarding the possible distribution and possession of child pornography on Quikvue. The homepage of Quikvue states that it has millions of uncensored files. After using an undercover credit card, Agent Deery subscribed to Quikvue and found images containing child pornography. See Aff. of Probable Cause for Search Warrant, at 2-4. Agent Deery and Detective McDonough completed an Application for Search Warrant and Affidavit of Probable Cause for a Search Warrant, based upon possible violations of 18 Pa. Cons. Stat. §§ 6312, 7512. Id. at 1.
The Bucks County District Attorney's Office obtained a search warrant on January 20, 2004. The defendants Gibbons, Green, Deery, McDonough, and Thiel conducted a search of the plaintiffs' premises on January 21, 2004. The defendants seized three servers and two storage arrays used for the operation of Quikvue and documents in a folder labeled Quikvue. See Compl. ¶ 41; Receipt/Inventory of Seized Property; Apr. 12, 2004 Hr'g Tr. at 40. The plaintiffs alleged that the defendants effectively shut down the operation of Quikvue and also seized private subscriber information. Compl. ¶¶ 41, 44.
The plaintiffs filed a complaint and motion for a temporary restraining order and a preliminary injunction against the defendants on March 26, 2004. The complaint alleges that the defendants' seizure of the plaintiffs' servers was illegal and that the defendants' actions were an impermissible prior restraint on free speech. The plaintiffs specifically argue that the enforcement of 18 Pa. Cons. Stat. § 6312 is precluded, because they are protected by the Communications Decency Act, 47 U.S.C. § 230 ("CDA"), as interactive computer services. They also allege that subscriber information protected by the Electronic Communications Privacy Act, 18 U.S.C. § 2510, et seq. ("ECPA") was seized by the defendants. The plaintiffs argue that they are ISPs and are protected by the Internet Child Pornography Law, 18 Pa. Cons. Stat. § 7621, et seq. ("ICPL") from prosecution or seizures unless the Attorney General notifies them of the existence of alleged child pornography and affords them an opportunity to remove or block that material. They argue that the Attorney General lacks jurisdiction to investigate or prosecute alleged violations of 18 Pa. Cons. Stat. §§ 6312, 7512.
The plaintiffs sought a preliminary injunction, originally requesting: (1) the return of seized equipment; (2) a declaration that the plaintiffs are ISPs and cannot be prosecuted for possession and distribution of child pornography when they have only provided internet access to third parties; (3) an injunction prohibiting defendants Pappert and Deery from proceeding ultra vires; (4) an injunction mandating that the defendants follow the procedures set forth by the Internet Child Pornography Law, 18 Pa. Cons. Stat. § 7621; and (5) an injunction prohibiting defendants from accessing subscriber information temporarily stored in plaintiffs' computer servers.
The complaint brings counts under § 1983 in that they violated the Commerce Clause, the First, Fourth, and Fourteenth Amendments, the CDA, and the ECPA. The plaintiffs also allege a violation of § 1985.
The Court held a conference with counsel on March 29, 2004. During the conference, the plaintiffs agreed to withdraw their motion for a temporary restraining order. Counsel then agreed to a hearing to discuss the legal issues raised in the motion for a preliminary injunction. They agreed to discuss Younger andPullman abstention issues, as well as whether the plaintiffs were protected by the First Amendment and the federal and state statutes in question, even assuming for the purposes of the hearing that the plaintiffs were ISPs.
The Court held oral argument on April 12, 2004. The plaintiffs stated that they did not seek to enjoin any criminal prosecution, and they asked only that any First Amendment violation be enjoined. Counsel primarily argued abstention and First Amendment issues.
The Court next held conferences with counsel on April 20, 2004 and April 23, 2004. The Court told counsel its view that abstention was not appropriate because there was no ongoing state proceeding at that time. The Court also expressed its concern about possible First Amendment violations. The Court urged the defendants to return the equipment. The defendants agreed to the return. The defendants also agreed not to review subscriber information without giving advance notice to the plaintiffs.
The defendants returned copies and original equipment, except for the storage arrays. The plaintiffs then argued that the return of the equipment was not sufficient to resolve their motion for a preliminary injunction. The Court allowed briefing on the issue of whether, in light of the return of the equipment, any broader preliminary relief was appropriate.
The plaintiffs revised their requested preliminary relief, and asked that the Court determine: (1) whether the plaintiffs are ISPs; (2) whether, as ISPs, the plaintiffs have a constitutional right to notice and an opportunity to be heard before any future seizures of their servers; (3) whether the defendants are prohibited from prospectively accessing the subscribers' information pending a final hearing; and (4) whether the defendants must immediately return to the plaintiffs or replace the arrays. See Pls.' Apr. 27, 2004 Letter; Pls.' Apr. 28, 2004 Letter.
The Court sent a letter to counsel on June 21, 2004 explaining that the Court was planning to issue a decision by July 2, 2004 on the plaintiffs' motion for preliminary injunction. On July 2, 2004, however, the Court received a letter from the defendants explaining that an investigating grand jury had been convened in Bucks County and requesting that the Court abstain underYounger. The Court scheduled a telephone conference to discuss the defendants' renewed motion to abstain and its impact on the plaintiffs' request for a preliminary injunction. The plaintiffs then filed a Notice of Appeal on July 6, 2004 to appeal what they characterized as an effective denial of their motion for a preliminary injunction. The Court scheduled a hearing for July 13, 2004 to discuss abstention.
At the hearing, counsel made arguments about the new developments and whether abstention is now appropriate. The parties agreed that the Court could not dismiss the entire case even if Younger is applicable, because the plaintiffs seek money damages in addition to injunctive and declaratory relief. The Court issues this memorandum to set forth its reasons for denying the preliminary injunction. The Court will issue a memorandum on the Younger abstention issues for the rest of the case at a later date.
II. Analysis
A prerequisite to the granting of a preliminary injunction is a showing of irreparable harm by the movant. To show irreparable harm, the "plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial. The preliminary injunction must be the only way of protecting the plaintiff from harm." Garnet Mine, LLC v. Brandolini, 158 F. Supp. 2d 580, 587 (E.D. Pa. 2001) (quoting Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992)) (emphasis in original). The plaintiffs must show that they will suffer immediate irreparable injury if not granted the preliminary injunction. See ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987). For the harm to be irreparable, money alone cannot compensate the loss and there can be no alternative remedies. See id. at 226; Hartford Assocs. v. United States, 792 F. Supp. 358, 371 (D.N.J. 1992).
The defendants argue that because they have returned the equipment to the plaintiffs, the plaintiffs cannot show irreparable harm and the Court should deny the motion for a preliminary injunction. In order to resolve this issue, the Court must consider what relief the plaintiffs seek on a preliminary basis now that the equipment has been returned to them, and whether they will suffer irreparable harm if they are not given that relief.
The plaintiffs argue that there are material issues of fact in dispute and that they are entitled to a hearing. The Court, however, is "not obliged to hold a hearing when the [plaintiffs have] not presented a colorable factual basis to support the claim on the merits or the contention of irreparable harm."Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1176 (3d Cir. 1990).
The plaintiffs seek the return of the JETSTOR IDE RAID arrays, a prohibition against the defendants' accessing the subscribers' information, and a declaration that they have a right to notice and an opportunity to be heard before any future seizures of their servers. The first two requests can be disposed of quickly.
The arrays are storage components that are used to hold the content of Usenet. The plaintiffs do not need the content on the arrays. See Pls.' Apr. 28, 2004 Letter. The plaintiffs estimate that it would cost $20,000 to replace the arrays. The plaintiffs can replace the arrays and recover the cost as money damages at the end of the case if they succeed on the merits. As to the second request regarding the subscribers' information, the defendants have agreed not to access the subscriber information without providing notice to the plaintiffs so that the plaintiffs can seek an injunction against such access. Neither of these harms amount to irreparable harm to support a preliminary injunction.
The plaintiffs' remaining request is that the Court declare that they have a right to notice and an opportunity to be heard before any future seizures of their servers. The plaintiffs argue that without these determinations, there is a chilling effect that can only be addressed by a preliminary injunction.See Dombrowski v. Pfister, 380 U.S. 479, 487 (1965). The plaintiffs contend that their First Amendment rights are chilled by several factors, including the possibility of criminal prosecution and the uncertainty of whether they are protected by statutes such as the CDA and the ICPL.
The Third Circuit has held that "the assertion of First Amendment rights does not automatically require a finding of irreparable injury. . . ." Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir. 1989). Irreparable injury is the "purposeful unconstitutional [government] suppression of speech" and "direct penalization, as opposed to incidental inhibition, of First Amendment rights." Id. at 73 (citations omitted).
The defendants argue that any harm is speculative. The Court agrees. The plaintiffs are able to resume the operation of Quikvue. After the Court urged the defendants to return equipment and after numerous discussions among the parties, the defendants have returned the necessary equipment. Even assuming that the seizure and retention of the equipment could have caused irreparable harm, the return of the equipment has changed the analysis.
The Court notes that the plaintiffs unequivocally stated at oral argument that they are not seeking an injunction against criminal prosecution. In effect, however, the plaintiffs are asking for just that relief by asking for a declaration that they are protected under the ICPL and the CDA.
The plaintiffs cite to the Supreme Court's decision inDombrowski to support their claim that the potential of future seizures creates a chilling effect. The chill in that case, however, was caused by several incidents, including arrest, search and seizure, continued threats of prosecution, and repeated pronouncements that the organization was subversive and Communist. 380 U.S. at 487-88. In the case at hand, the plaintiffs' equipment has been seized only once. The equipment, as discussed above, has been returned. There has been no definite or continued threat of either prosecution or future seizures of equipment.
The Younger Court again examined the factual allegations in Dombrowski and stated that they "sufficiently establish the kind of irreparable injury, above and beyond that associated with the defense of a single prosecution brought in good faith, that had always been considered sufficient to justify federal intervention." Younger, 401 U.S. at 48 (1971). The plaintiffs here have not alleged any facts that rise to the level ofDombrowski.
Factors not present in this case caused the irreparable injury — the chilling effect — in Dombrowski. The Court rejects the plaintiffs' argument that the possibility of future seizures causes irreparable injury.
An appropriate Order follows.