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Williams v. Stoddard

Superior Court of Rhode Island

February 11, 2015

DANIEL WILLIAMS, Plaintiff,
v.
LEAH STODDARD f/k/a LEAH WILLIAMS, PAUL M. MARTELLINI, in his capacity as Acting Chief of Police of the North Providence Police Department, NORTH PROVIDENCE POLICE DEPARTMENT, and THOMAS MASSARO, in his capacity as the Finance Director of the Town of North Providence, Defendants.

Providence County Superior Court PC 12-3664

For Plaintiff: John R. Grasso, Esq.; Stephen J. Brouillard, Esq.

For Defendant: John B. Harwood, Esq.; John A. Tarantino, Esq., Vincent F. Ragosta, Jr., Esq.; Carly Beauvais Iafrate, Esq.

DECISION

GIBNEY, P.J.

This matter came before the Court for a jury-waived trial on June 2 through June 6, 2014. The Plaintiff, Daniel Williams (Williams), filed suit against Defendants Leah Stoddard (Stoddard), his ex-wife, and the North Providence Police Department (the NPPD), his employer, for invasion of privacy and violations of the Federal Wiretap Act (FWA), the Rhode Island Wiretap Act (RIWA), the Stored Communications Act (SCA) and Rhode Island's computer crime and trespass laws. Williams also named as Defendants Acting Chief of the NPPD Paul Martellini (Martellini) and North Providence Finance Director Thomas Massaro (Massaro) (collectively, with Stoddard, the Defendants). At the close of all evidence, Defendants moved pursuant to Super. R. Civ. P. 52(c) (Rule 52(c)) for judgment against Williams, who objected to the motion. Jurisdiction is pursuant to G.L. 1956 § 8-2-13.

I

Standard of Review

A non-jury trial is governed by Super. R. Civ. P. 52(a), which provides that "[i]n all actions tried upon the facts without a jury . . . the court shall find the facts specially and state separately its conclusions of law thereon." In a bench trial, therefore, "[t]he trial justice sits as a trier of fact as well as of law." Hood v. Hawkins, 478 A.2d 181, 184 (R.I. 1984). "The task of determining the credibility of witnesses is peculiarly the function of the trial justice when sitting without a jury." Walton v. Baird, 433 A.2d 963, 964 (R.I. 1981).

Although the trial justice is required to make specific findings of fact and conclusions of law, "brief findings will suffice as long as they address and resolve the controlling factual and legal issues." White v. LeClerc, 468 A.2d 289, 290 (R.I. 1983); see also Super. R. Civ. P. 52(a). As such, a trial justice sitting as a finder of fact "need not 'categorically accept or reject each piece of evidence'" or "resolve every disputed factual contention that may arise during a trial." Notarantonio v. Notarantonio, 941 A.2d 138, 147 (R.I. 2008) (quoting Narragansett Elec. Co. v. Carbone, 898 A.2d 87, 102 (R.I. 2006)). The trial justice's findings, however, must be supported by "competent evidence." Tim Hennigan Co. v. Anthony A. Nunes, Inc., 437 A.2d 1355, 1357 (R.I. 1981).

II

Findings of Fact

Having reviewed the evidence presented by all parties, the Court makes the following findings of fact. Williams is employed as a police officer by the NPPD. On June 6, 2009, Williams married Stoddard. Within the first year of their marriage, Stoddard began to suspect Williams of infidelity. In order to confirm her suspicions, Stoddard purchased a surveillance software program in March 2010 and installed it on the laptop computer that both she and Williams used at home. The surveillance software included a "keylogger" function that recorded all keystrokes entered into the computer's keyboard, a screenshot function that captured images of what the computer screen was displaying every five minutes, and a function that logged every website visited on the computer's web browser. The surveillance software stored this data on the computer's hard drive in a file to which Stoddard had access.

For approximately one month, Stoddard recorded Williams' computer activities without his knowledge. During that time, Stoddard, using the keylogger data from the surveillance software, obtained Williams' log-in credentials for his email account, various social media accounts-including his Facebook and MySpace webpages-and various online dating services-including his Ashley Madison[1] and Cougar Life[2] profiles. Prior to using the keylogger program, Stoddard was not privy to Williams' log-in credentials because Williams never shared them with her. Stoddard used these log-in credentials to access Williams' accounts and then read, printed out, or emailed to herself various emails and instant message conversations that Williams had exchanged with various other women. Among the email correspondence that Stoddard discovered was a message containing a photograph of Williams' genitalia, which Williams had sent to a person he met online, and messages containing partially nude photos of a woman. Stoddard also captured screenshots of Williams' online activity, which depicted, among other activity, pornography and an instant message conversation between Williams and another woman. Williams discovered the surveillance software on the couple's computer on April 12, 2010, at which time he deactivated it and confronted Stoddard. The couple then separated, and Stoddard soon filed for divorce.[3]

On April 16, 2010, several days after Williams discovered the surveillance software on the laptop, Stoddard contacted Lieutenant Kristian Calise (Calise) of the NPPD's Internal Affairs Department (Internal Affairs) and told him that she had information that Williams had engaged in improper activities while on duty. Stoddard told Calise that she could support her accusation with data that she had collected from the computer on which she had installed the surveillance software. Calise and Stoddard met in person later that evening while he was on duty at a Shaw's Supermarket in North Providence. When Stoddard expressed some hesitancy about turning over the surveillance data, Calise informed her that although she was under no obligation to give him the data, he might not be able to take disciplinary action against Williams without it. Calise and Stoddard then arranged to meet again at Panera Bread in Seekonk, Massachusetts on April 20, 2010. Stoddard's mother and Captain Brendon Furtado (Furtado) of the NPPD were also present at this meeting at which Stoddard gave Calise and Furtado a folder containing printed copies of several emails that Williams had sent to other women. Stoddard also brought her laptop to the April 20, 2010 meeting and allowed Calise or Furtado to copy all of the data that she had captured with the surveillance software, including records of online activity and communications in which Williams engaged while he was using the computer at home.

After receiving the surveillance data from Stoddard, Calise decided to investigate whether Williams was again engaging in behavior for which he had previously been disciplined. In March of 2007, Williams had been suspended from duty for fifty days after a woman whom he had encountered while on duty complained to the NPPD that Williams had contacted her via Facebook to make sexual advances. Williams had learned this woman's name by running her license plate number through the Rhode Island Law Enforcement Telecommunications System (RILETS), the database that the NPPD officers use to look up information on motorists by their license plate numbers. Thus, when Stoddard approached Calise with her concerns that some of Williams' online activities might have occurred while he was on duty, Calise promptly commenced an investigation to determine whether Williams had again been using RILETS to find out the names of women he encountered while on duty and to later contact them via Facebook. [4] In furtherance of his investigation, Calise accessed the publically-available version of Williams' Facebook webpage, for which Calise did not need Williams' log-in credentials to access, and obtained a list of Williams' Facebook "friends."[5] On April 21, 2010, Calise requested from Captain Paul Ricci of the NPPD information on license plate numbers that Williams had run through RILETS. Calise then cross-referenced Williams' list of Facebook friends with women whose license plate numbers Williams had looked up in RILETS while on duty. Finding that Williams had contacted on Facebook several women whose names he had obtained by running their license plate numbers through RILETS, as well as a domestic violence victim whom Williams met when responding to her call for help after her boyfriend physically attacked her, Calise contacted and interviewed the women. These women corroborated that Williams had first met them while he was carrying out his duties as a police officer and had then contacted them via Facebook or other social media websites. At least one woman believed that Williams contacted her for the purpose of initiating a sexual relationship.

After amassing evidence that he believed was sufficient to terminate Williams' job with the NPPD, Calise initiated disciplinary proceedings and formally examined Williams at the NPPD Professional Standards Unit on November 1, 2010. During this examination, Williams acknowledged contacting, via Facebook or over the telephone, several people whose names he learned through his position as a police officer. Williams further admitted that he contacted these people, mostly women, for "social" reasons and not for law enforcement purposes. In addition, Williams admitted to taking a photograph of his genitalia while on duty in his police cruiser and emailing it to a person he had met online. Williams also admitted to opening emails that contained photographs of a partially nude woman while he was on duty.

On March 28, 2012, Internal Affairs filed a complaint against Williams pursuant to the Law Enforcement Officers' Bill of Rights (LEOBOR), G.L. 1956 §§ 42-28.6-1 through 42-28.6-17. The complaint alleged that Williams had engaged in conduct unbecoming a police officer and had conducted personal business while on duty. The complaint also included charges of incompetence, violation of the NPPD rules of behavior, and insubordination. In accordance with § 42-28.6-4(a), Internal Affairs notified Williams that he was entitled to a "LEOBOR hearing" at which he would be given the opportunity to respond to the allegations of misconduct before Internal Affairs reached a final decision on whether to terminate his employment. On March 29, 2012, the NPPD suspended Williams from duty with full pay and benefits, and Williams exercised his right to a LEOBOR hearing. The NPPD attempted to submit into evidence at the LEOBOR hearing much, if not all, of the surveillance data that Stoddard had collected, including screenshots of pornographic websites that Williams had visited while off duty. Williams objected to the use of the surveillance data and filed the instant lawsuit seeking to permanently enjoin the NPPD from using Stoddard's surveillance data, as well as any information that Internal Affairs derived with the aid of that data, at his LEOBOR hearing. The hearing has, therefore, been held in abeyance during the pendency of this lawsuit.

As grounds for the instant legal action, Williams alleges that Stoddard violated the FWA, 18 U.S.C. § 2511, the Stored Communications Act (SCA), 18 U.S.C. § 2701, and the RIWA, G.L. 1956 § 12-5.1-13, by recording and accessing his online communications without his permission. Furthermore, Williams alleges that Stoddard violated the Rhode Island Computer Crimes Law, G.L. 1956 §§ 11-52-3 and 11-52-4.1, and G.L. 1956 § 9-1-28.1, which codifies a right to privacy and creates a cause of action for violating an individual's right to privacy. Williams also seeks to hold Stoddard civilly liable, pursuant to § 9-1-2, for her alleged criminal conduct in violating the Wire Fraud Act, 18 U.S.C. § 1343, the Identity Theft Act, 18 U.S.C. § 1028A, and the fraud provision of the Rhode Island Computer Crimes Law, § 11-52-2. Additionally, Stoddard has asserted a counterclaim of abuse of process against Williams.[6]

Williams further alleges that the NPPD, Martellini, and Massaro (the North Providence Defendants) violated the FWA and RIWA (collectively, the Wiretap Acts) by seeking to use Stoddard's surveillance data against him in his LEOBOR hearing. Accordingly, Williams seeks to enjoin the NPPD from using any of the surveillance evidence obtained by Stoddard and the evidence derived therefrom at his LEOBOR hearing. In addition, Williams requests the Court issue a declaration stating that all evidence obtained by the NPPD is inadmissible at the LEOBOR hearing. Lastly, Williams seeks attorneys' fees, costs, punitive damages, statutory damages, and compensatory damages from both Stoddard and the North Providence Defendants.

III

Analysis

A

Stoddard's Affirmative Defense of Waiver

As a threshold matter, this Court addresses the validity of Stoddard's affirmative defense that Williams waived his right to bring this suit against her in their divorce settlement agreement. In particular, Stoddard asserts that because Williams agreed in their divorce settlement to release her from any and all claims he had against her, he waived his right to sue her in any action subsequent to their divorce for any claim that had arisen prior to his signing their divorce settlement. Williams, however, maintains that the divorce agreement bars both him and Stoddard only from bringing subsequent lawsuits that relate to each other's property interests and that the agreement does not preclude him from bringing the instant lawsuit against Stoddard.

The divorce agreement contains two separate provisions with release language. First, section 5 is a mutual release of all claims to the property of the former spouse, as well as the right to support, maintenance, and alimony. Second, section 14, entitled "Full Disclosure, " provides:

"Each of the parties hereto represents that each has made a full disclosure one to the other of all assets owned by him or her . . . at the time of the negotiation of this agreement. Each expressly releases the other of and from any and all claims of every nature which either have [sic] had, now has, or hereafter may have, for or by reason of anything whatsoever, from the beginning of the world to the day or date of these presents."

In Ritter v. Mantissa Inv. Corp., 864 A.2d 601, 607-08 (R.I. 2005), our Supreme Court held that a divorce settlement agreement containing remarkably similar release language was ambiguous on the question of whether it barred the ex-wife's subsequent lawsuit against the ex-husband for a matter not dealt with in the divorce settlement. Noting that "a release provision [can] be ambiguous despite broad language consistent with a general release, " the Supreme Court reasoned that the settlement agreement in question could reasonably be read in two ways. Id. at 608. On the one hand, the narrow language of section 5, which, by its terms, only applied to property and spousal support, could be interpreted "to cabin the parameters of the release [in section 14] to only the rights and obligations flowing from the divorce despite the broad language of section 14." Id. On the other hand, the broader release language of section 14 could be read to extend to matters outside the scope of the divorce settlement. Id.

The Supreme Court's reasoning and conclusion in Ritter is directly on point in the case at bar, as the facts and the release language in the divorce decrees are nearly identical. Moreover, the language of section 14 in the Stoddard-Williams divorce agreement, standing alone, is ambiguous on its face. The paragraph begins with a sentence relating to the parties' assets, but that sentence is then followed by another sentence purporting to control "any and all" of the parties' claims against each other "of every nature . . . from the beginning of the world." Just as the Supreme Court found in Ritter that section 5's narrow focus on property rights could "cabin" the broad release language of section 14, so too can the narrow focus of the first sentence of section 14 be read to limit the dominion of the rest of the section. Id.; see also Aetna Cas. & Sur. Co. v. Farr, 594 A.2d 379, 381 (R.I. 1991) (holding that even though a release used broad language to limit the plaintiff's ability to sue the defendant, the release's specific reference to only a certain kind of claim rendered the agreement ambiguous). Consequently, this Court finds that the parties' divorce settlement agreement is ambiguous on the question of whether the release language bars Williams from bringing the instant suit against Stoddard.

In resolving the issues raised by this ambiguity, this Court applies general principles of contract law. See Esposito v. Esposito, 38 A.3d 1, 5 (R.I. 2012) (noting that "[i]t is well settled that a property settlement agreement that has been 'incorporated by reference, but not merged into the final divorce decree, retain[s] the characteristics of a contract'") (quoting Zaino v. Zaino, 818 A.2d 630, 637 (R.I. 2003)). Ordinarily, "when ambiguity exists [in a contract], extrinsic evidence may be introduced to ascertain the executing parties' intent." Farr, 594 A.2d at 381. Accordingly, this Court heard extrinsic evidence during trial in the form of testimony from both Williams and Stoddard as to what they understood the release language of section 14 to mean when they entered the agreement. Williams testified that when he signed the agreement, he believed the agreement precluded the parties only from bringing subsequent lawsuits pertaining to each other's property interests. Stoddard testified that she believed that it pertained to all suits of any kind. From this testimony, the Court can only conclude that the parties had a misunderstanding as to the meaning of section 14 when they entered into the divorce agreement. See II Farnsworth on Contracts, § 9.2 at 589 (2004) (explaining that a misunderstanding in contract law is "a situation in which two parties attach different meanings to their language").

This misunderstanding has two consequences. First, because the extrinsic evidence presented at trial failed to clarify the agreement's ambiguity, this Court is unable to decipher the meaning of the release provision of section 14. As a result, the Court cannot enforce this provision of the agreement. See 1 Corbin on Contracts, § 4.1 at 525 (1993) (explaining that "[a] court cannot enforce a contract unless it can determine what it is. It is not enough that the parties think that they have made a contract. They must have expressed their intentions in a manner that is capable of being understood"). Second, Stoddard and Williams cannot be said to have actually agreed to be bound by the provisions of section 14 because they did not mutually assent to its terms. See State v. Rice, 727 A.2d 1229, 1232 (R.I. 1999) (explaining that "[a]n agreement[, ] in order to have any semblance of validity[, ] must at least objectively manifest the mutual assent of the parties to be bound by a contractual relationship"); see also Restatement (Second) Contracts § 20 (1981) (providing that "[t]here is no manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestations and . . . neither party knows or has reason to know the meaning attached by the other").

In general, when the parties to a contract have not mutually assented to all material terms of a contract, the entire contract is deemed invalid and unenforceable. See O'Donnell v. O'Donnell, 79 A.3d 815, 820 (R.I. 2013) (explaining that "in order to form an enforceable agreement, '[e]ach party must have and manifest an objective intent to be bound by the agreement'") (quoting Opella v. Opella, 896 A.2d 714, 720 (R.I. 2006)); see also Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 612 (1989) (holding that "[a]s a general rule a contract is not to be partially rescinded"). Fortunately, however, in the case at bar, such a fate need not befall the parties' entire divorce settlement because the agreement contains a severability clause. See Bonnco Petrol, Inc., 115 N.J. at 612 (explaining that "a severable transaction may be partially rescinded"). In section 33 of the parties' divorce settlement, entitled "Partial Invalidity, " Stoddard and Williams agreed that "[i]f any provision of this agreement is held to be invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect." Because its meaning is clear and undisputed, this Court will enforce the parties' severability clause. See Sturbridge Home Builders, Inc. v. Downing Seaport, Inc., 890 A.2d 58, 66 n.5 (R.I. 2005) (explaining that "unambiguous terms in signed contracts will be enforced as written unless enforcement is barred by a supervening principle of law or equity"). Thus, this Court finds only that the release provision of section 14 is unenforceable. As a result, the parties' divorce settlement agreement does not bar Williams' claims against Stoddard in the instant lawsuit.

B

Claims Against Stoddard

1

Wiretap Acts

Williams alleges that Stoddard violated the Wiretap Acts in several ways. First, Williams alleges that Stoddard violated the interception provisions of the Wiretap Acts by recording the log-in credentials that he used to access various websites. Williams further maintains that Stoddard's recording of screenshots of Williams' online activity-capturing images of Williams' emails, Facebook messages, and instant message conversations while Williams was typing these communications-violated the Wiretap Acts' prohibition on intercepting electronic communications. Next, Williams alleges that Stoddard violated the use provision of the FWA by using the information she gained from the keylogger program to access Williams' email and social media accounts. Lastly, Williams claims that Stoddard violated the disclosure provision of the FWA when she gave her surveillance data to Calise.

a

The FWA

The FWA establishes criminal and civil penalties for intentionally intercepting electronic communications and for disclosing or using electronic communications that were intercepted in violation of the law. See 18 U.S.C. §§ 2511, 2520. The federal courts are largely in agreement that the FWA's reference to "electronic communications" extends to email messages as well as "information . . . conveyed from a private website to users, " such as Facebook. United States v. Councilman, 418 F.3d 67, 79 (1st Cir. 2005); United States v. Steiger, 318 F.3d 1039, 1047 (11th Cir. 2003); accord United States v. Szymuszkiewicz, 622 F.3d 701, 705 (7th Cir. 2010) (finding that email messages are electronic communications under the Wiretap Act); accord Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 876 (9th Cir. 2002) (concluding that a "website fits the [FWA's] definition of 'electronic communication'").

There is much disagreement, however, as to what constitutes an "interception" of an electronic communication. The FWA defines "intercept[ion]" as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. § 2510(4). Despite the complete absence of either the word "contemporaneous" or "simultaneous" from the statute, most federal circuit courts which have considered the question have interpreted this definition as requiring that an interception must occur contemporaneously with the transmission of the electronic communication. See United States v. Barrington, 648 F.3d 1178');"> 648 F.3d 1178, 1202 (11th Cir. 2011) (holding that "to violate the Wiretap Act, an interception of electronic communications must occur contemporaneously with their transmission"); see also Steiger, 318 F.3d at 1047-48 (adopting the contemporaneity rule and citing cases); Konop, 302 F.3d at 876-79 (explaining history of contemporaneity rule and citing cases). This line of reasoning can be traced back to a 1976 case from the Fifth Circuit Court of Appeals, which held that, in the context of a tape-recorded telephone conversation, the FWA's prohibition of unauthorized interceptions applies only "in the contemporaneous acquisition of the communication" while it is being transmitted over telephone wires. United States v. Turk, 526 F.2d 654, 658 (5th Cir. 1976); see also Michael D. Roundy, The Wiretap Act-Reconcilable Differences: A Framework for Determining the "Interception" of Electronic Communications Following United States v. Councilman's Rejection of the Storage/Transit Dichotomy, 28 W. New Eng. L. Rev. 403, 418 (2006) (noting that Turk was the wellspring of the contemporaneity test "for determining when an electronic communication has been intercepted in violation of the . . . Wiretap Act").

Championing the contemporaneity rule, the Defendants argue that Stoddard's use of the keylogger program did not violate the FWA because it did not intercept any of Williams' emails or instant message communications while they were being transmitted. Defendants base their argument on two federal district court cases that held that keystroke recorders do not violate the FWA: Rene v. G.F. Fishers, Inc., 817 F.Supp.2d 1090 (S.D. Ind. 2011) and United States v. Ropp, 347 F.Supp.2d 831 (2004).

Some judges and many commentators, however, have rejected or questioned the contemporaneity rule on the grounds that it is unworkable in the face of the speed and complexity at which electronic communications are transmitted. See, e.g., Konop, 302 F.3d at 891 (Reinhardt, J. dissenting) (arguing that a reading of the FWA that "would prohibit the interception of electronic communications, both stored and en route, " is "consistent with the nature of the technology at issue, leaves no unexplained statutory gaps, and renders none of the myriad provisions of either the Wiretap Act or the Stored Communications Act superfluous"); Councilman, 418 F.3d at 73 (noting that "[t]he statute contains no explicit indication that Congress intended to exclude communications in transient storage from the definition of 'electronic communication, ' and, hence, from the scope of the Wiretap Act"); Potter v. Havlicek, No. 3:06-CV-211, 2007 WL 539534, at *6 (S.D. Ohio Feb. 14, 2007) (noting that "[c]ontemporaneousness was an element originally introduced to 18 U.S.C. 2511 when the law applied only to wire and oral communications, " not to electronic communications); Roundy, supra, at 426 (advocating against the contemporaneity rule because "[t]he technological nature of e-mail and other forms of electronic communication renders the actual [contemporaneous] interception of such a communication virtually impossible, " thereby "caus[ing] much of the . . . [Federal] Wiretap Act to be effectively inoperative with respect to electronic communications").

As the U.S. Supreme Court has not ruled on this issue, there is no controlling rule dictating whether an interception of an electronic communication under the FWA must occur contemporaneously with transmission. Nonetheless, this Court takes note of the high court's recent admonition against extending the reasoning of old case law to modern technology when that old case law was decided at a time when the modern technology at issue was "nearly inconceivable." Riley v. California, 134 S.Ct. 2473, 2484, 2491 (2014) (finding that Fourth Amendment search and seizure precedents developed in the 1960s and 1970s were largely inapplicable to search and seizure of "Internet-connected devices" and "data stored on remote servers"). When the Turk case was decided in 1976, a nascent form of email had just been invented, and the internet consisted of only a few dozen computers connected through an experimental U.S. Department of Defense program. Aaron Schwabach, Internet and the Law: Technology, Society, and Compromises 155 (2d ed. 2014). The internet as we know it today- together with email, social networking, and online dating-did not exist in any form.

Therefore, this Court declines to apply the reasoning of the Turk decision to the instant case and, accordingly, declines to foist a wholesale contemporaneity requirement onto the FWA's definition of "intercept[ion]" in the case of electronic communications. As an initial matter, the basis of the Turk court's formation of the contemporaneity rule was its reluctance to criminalize listening to a recording of a telephone conversation by someone who had no involvement in making the recording. Turk, 526 F.2d at 657-58 (eschewing an interpretation of the law that "would mean that innumerable 'interceptions, ' and thus violations of the Act, could follow from a single recording"). Such reasoning has no applicability in a case where, as in the case at bar, the person accused of violating the FWA was the person who surreptitiously accessed and read the plaintiff's electronic communications.

Moreover, the Turk case dealt with the interception of a telephone call, a technology that is not closely analogous to emails or other online, electronic communications. Unlike the landline telephone conversation at issue in Turk-a communication transmitted only once between the caller and the recipient at the time the call was placed-emails, instant message conversations, and other electronic communications submitted over websites are transmitted multiple times both in transit between the sender and the recipient and every time the recipient accesses the communication from the website (such as by accessing an already-read email from a webmail server). As the First Circuit Court of Appeals explained in Councilman,
"[a]fter a user composes a[n] [email] message . . . a program called a mail transfer agent . . . formats that message and sends it to another program that 'packetizes' it and sends the packets out to the Internet. Computers on the network then pass the packets from one to another; each computer along the route stores the packets in memory, retrieves the addresses of their final destinations, and then determines where to send them next. At various points the packets are reassembled to form the original e-mail message, copied, and then repacketized for the next leg of the journey. . . . While the journey from sender to recipient may seem rather involved, it usually takes just a few seconds, with each intermediate step taking well under a second." 418 F.3d at 69-70.

Thus, emails, as well as other electronic communications sent over the internet, are transmitted multiple times at a staggering speed, making them impossible to intercept in the same way that a telephone call may be intercepted. Consequently, it makes no sense to apply the reasoning from Turk to cases involving electronic communications.

The wisdom of not applying the contemporaneity rule to electronic communications is evident in the absurd results that occur when the rule is so applied. For example, in the Rene case, relied on by Defendants, the court found that use of keylogger software to capture another person's log-in credentials to private email and bank accounts did not violate the FWA. 817 F.Supp.2d at 1094. Additionally, the court in Ropp, also relied on by Defendants, found that use of a keylogger program to record the content of another's email messages did not violate the FWA. 347 F.Supp.2d at 837-38. Both courts based their conclusions on the fact that the keystrokes recorded by the keylogger programs were not immediately transmitted over the internet as they were being typed. Id. Instead, the computer user would have to take an additional step (e.g. clicking "send" or hitting the "enter" key) to transmit the characters recorded by the keylogger, thereby breaking the contemporaneity between interception and transmission. However, this distinction between typing a password into a webmail server's website and transmitting it to that webmail server is so temporally superficial that it takes much of the force out of the FWA's prohibition on intercepting electronic communications. See Steiger, 318 F.3d at 1050 (acknowledging that under a narrow reading of the FWA, "very few seizures of electronic communications from computers will constitute 'interceptions' because of the fleeting amount of time, lasting only seconds or milliseconds, in which such communications are in transit"); but see TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (holding that "[i]t is a cardinal principle of statutory construction" that "a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant").

Nearly every electronic communication that the average person engages in on a daily basis-such as accessing bank account information, sending emails, and having instant message conversations-starts out with keystrokes transmitted from the keyboard to the computer, which then send the information through the internet to a different computer someplace else. Yet, intercepting these electronic communications while they are in transit and before they are stored on a server is so difficult that most unauthorized surveillance of electronic communications is much more likely to be carried out with the use of keyloggers. See Steiger, 318 F.3d at 1050 (explaining that under the contemporaneity rule, electronic communications surveillance "'is virtually impossible'") (quoting Jarrod J. White, E–Mail @Work.com: Employer Monitoring of Employee E–Mail, 48 Ala.L.Rev. 1079, 1083 (1997)). Therefore, a rule that protects electronic communications from unauthorized interception but does not protect the keystrokes necessary to create those electronic communications provides almost no meaningful protection at all and is, therefore, contrary to the evident purpose of the FWA. See Konop, 302 F.3d at 875 (noting that "[t]he legislative history of the [FWA] suggests that Congress wanted to protect electronic communications that are configured to be private, such as email").

Thus, this Court finds the reasoning espoused in the dissenting opinion in Konop to be persuasive and holds that keylogger programs that capture typed information, which is intended to be and is transmitted over the internet immediately after it is typed, do constitute an interception of electronic communications in violation of the FWA. 302 F.3d at 891 (Reinhardt, J. dissenting). In such an instance, it is the typed information, such as an email password, sent from a website user to the website that constitutes the intercepted electronic communication. See 18 U.S.C. § 2510(12) (defining "electronic communication" as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce"). This interpretation is consistent with the plain language of the statute, which defines "intercept[ion]" as merely the "acquisition of the contents of any . . . electronic . . . communication through the use of any electronic, mechanical, or other device." 18 U.S.C. § 2510(4). Accordingly, when Stoddard used the keylogger program to record the passwords to Williams' private online accounts and his emails, she intercepted his electronic communications in violation of the FWA, 18 U.S.C. § 2511(1)(a).

Moreover, Stoddard violated the FWA's prohibition on interception of electronic communications by capturing screenshots of Williams' instant message conversations. These screenshots recorded Williams' online instant message conversations with his Facebook friends in real time, while the conversations were occurring. Thus, the screenshots would qualify as prohibited interceptions even under an interpretation of the FWA that requires interceptions of electronic communications to be contemporaneous with transmission. Cf. Shefts v. Petrakis, No. 10-CV-1104, 2012 WL 4049484, at *9 (C.D. Ill. Sept. 13, 2012) (finding that software that caused images of the plaintiff's email communications to be captured as they were being written and sent or received "contemporaneously captured Plaintiff's electronic communications within the meaning of the [FWA]"); see also Potter, 2007 WL 539534, at *6 (holding that "incoming emails subjected to the screen shot software" satisfy the FWA's definition of an interception of an electronic communication).

Furthermore, Stoddard violated the FWA's prohibition on using unlawfully intercepted electronic communications when she used Williams' log-in credentials to access his emails and other online communications. See 18 U.S.C. § 2511(1)(d). Finally, she violated the FWA's disclosure provision by disseminating copies of Williams' electronic communications to Calise. See 18 U.S.C. § 2511(1)(c); see also Noel v. Hall, 568 F.3d 743, 751 (9th Cir. 2009) (holding that 18 U.S.C. § 2511(1)(c) "protects against the dissemination of private communications that have been unlawfully intercepted").

b

The RIWA

Because Williams' claims against the North Providence Defendants are predicated, in part, on Williams' contention that Stoddard violated the RIWA, the North Providence Defendants argue that the civil suit provision of the RIWA does not apply to Stoddard. They base this argument on the fact that § 12-5.1-13 provides a civil remedy for "[a]ny person whose wire, electronic, or oral communication is intercepted, disclosed, or used in violation of this chapter." Sec. 12-5.1-13(a) (emphasis added). Because the statute outlines the legal avenues by which law enforcement officials and prosecutors-and no one else-may legally obtain wire, electronic, and oral communications, the North Providence Defendants argue that only law enforcement officials and prosecutors may violate the statute. Therefore, they argue, the RIWA does not provide a civil remedy against parties who are not law enforcement officials or prosecutors and, thus, does not give Williams a cause of action against Stoddard, who is neither a law enforcement official nor a prosecutor.

The North Providence Defendants' reading of the RIWA, however, is so limited as to lead to an absurd result. See Matter of Falstaff Brewing Corp. re: Narragansett Brewery Fire, 637 A.2d 1047, 1050 (R.I. 1994) (holding that "[a] statute may not . . . be construed in a way that would result in 'absurdities or would defeat the underlying purpose of the enactment'") (quoting Brennan v. Kirby, 529 A.2d 633, 637 (R.I. 1987)). The North Providence Defendants correctly point out that the RIWA provides a legal mechanism for only law enforcement officers and prosecutors to surreptitiously obtain wire, oral, and electronic communications. See §§ 12-5.1-2, 12-5.1-10. This does not mean, however, that only law enforcement officers and prosecutors may violate the RIWA. The North Providence Defendants' interpretation of the law would allow everyone for whom the legislature did not provide a legal means of obtaining such communications to obtain them in any way at all. Such an interpretation "would result in 'absurdities [and] would defeat the underlying purpose of the enactment, '" which is to restrict the class of persons who can lawfully intercept wire, oral, and electronic communications to law enforcement officials and prosecutors. Matter of Falstaff Brewing Corp., 637 A.2d at 1050 (quoting Brennan, 529 A.2d at 637); see also §§ 12-5.1-2, 12-5.1-10. Thus, any person who is not a law enforcement official or a prosecutor who obtains such communications necessarily obtains them in violation of the law, and a victim of such unauthorized surveillance has a cause of action under § 12-5.1-13.

In addition, the North Providence Defendants' interpretation of the RIWA is contrary to the statute's plain language, which creates "a civil cause of action against any person who intercepts, discloses, or uses . . . communications [in violation of the law]." Sec. 12-5.1-13 (emphasis added). Thus, where a "person" intercepts an electronic communication in nonconformance with § 12-5.1-1, et seq., a cause of action may lie. The statute broadly defines "person" as "any individual, partnership, association, joint stock company, trust, or corporation, whether or not any of the foregoing is an officer, agent, or employee of the United States, a state, or a political subdivision of a state." Sec. 12-5.1-1(11) (emphasis added). Thus, by the statute's plain terms, Stoddard, an "individual, " comes under the ambit of the civil remedy provisions of § 12-5.1-13.

c

The RIWA Applied to Stoddard's Actions

As noted above, the RIWA provides a civil remedy for "[a]ny person whose wire, electronic, or oral communication is intercepted, disclosed, or used in violation of this chapter." Sec. 12-5.1-13(a). This statute is, in large part, parallel to the FWA. See Pulawski v. Blais, 506 A.2d 76, 77, n.1 (R.I. 1986). In particular, both the federal and the state law provide a civil cause of action against a person who discloses or uses unlawfully intercepted communications. See § 12-5.1-13(a); 18 U.S.C. § 2511(1)(c)-(d). In addition, the RIWA defines "intercept" in exactly the same way as the federal statute. Compare § 12-5.1-1(8) with 18 U.S.C. § 2510(4). However, this Court is unaware of any Rhode Island Supreme Court ruling that has adopted the federal courts' contemporaneity rule with respect to interception of electronic communications. On the contrary, our Supreme Court "has indicated that Rhode Island's wiretapping statute would be interpreted more strictly than its federal counterpart in 'the interest of giving the full measure of protection to an individual's privacy.'" State v. O'Brien, 774 A.2d 89, 100 (R.I. 2001) (quoting State v. Maloof, 114 R.I. 380, 390, 333 A.2d 676, 681 (1975)); see also Maloof, 114 R.I. at 390, 333 A.2d at 681 (holding that "[i]n the interest of giving the full measure of protection to an individual's privacy, particularly as it relates to electronic eavesdropping, we shall insist upon a closer adherence to the Rhode Island statute than may be expected by those who interpret the federal legislation").

Accordingly, this Court declines to extend the contemporaneity rule to the RIWA and, applying the same reasoning as under this Court's interpretation of the federal statute, finds that Stoddard violated the state law when she intercepted Williams' emails, instant messages, and private website log-in credentials. See O'Brien, 774 A.2d at 99 (explaining that "[h]owever much we may look for guidance to cases interpreting federal wiretapping law, we are not bound to follow either federal or even our own decisions interpreting the federal wiretapping statute when we interpret Rhode Island's wiretapping statute, especially when we disagree with the reasoning or analysis used in such cases") (emphasis in original). Likewise, applying the same reasoning employed to find that Stoddard violated the use and disclosure provisions of the federal law, this Court finds that Stoddard also used and disclosed Williams' electronic communications in violation of the RIWA. See § 12-5.1-13(a).

2

The SCA

Williams claims that Stoddard violated the SCA when she accessed his email and social media accounts without his permission. The SCA provides a cause of action against anyone who "intentionally accesses without authorization a facility through which an electronic communication service is provided . . . and thereby obtains . . . authorized access to a wire or electronic communication while it is in electronic storage." 18 U.S.C. §§ 2701(a)(1), 2707(a).

The SCA incorporates the definitions set forth in the FWA, which defines "electronic communication service" as "any service which provides to users thereof the ability to send or receive wire or electronic communications." 18 U.S.C. § 2510(15); 18 U.S.C. § 2711(1). The term "electronic storage" is defined as "any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof" and "any storage of such communication by an electronic communication service for purposes of backup protection of such communication." 18 U.S.C. § 2510(17). Although the statute does not define "facility, " a number of federal courts have interpreted the term to include "facilities that are operated by electronic communication service providers and used to store and maintain electronic storage, " such as "a phone company, internet service provider, or electronic bulletin board system" that stores electronic information. Garcia v. City of Laredo, Tex., 702 F.3d 788, 792 (5th Cir. 2012) (quoting Freedom Banc Mortg. Servs., Inc. v. O'Harra, No. 2:11–CV–01073, 2012 WL 3862209, at *9 (S.D. Ohio Sept. 5, 2012)); Steiger, 318 F.3d at 1049. In contrast, the term does not include personal "'computers that enable the use of an electronic communication service.'" Garcia, 702 F.3d at 792 (quoting Freedom Banc Mortg. Servs., Inc., 2012 WL 3862209, at *9) (emphasis in original). Thus, the servers on which password-protected websites-such as Facebook and Williams' AOL email account-store electronic communications fall within the statute's definition of "facility." Putting all of these definitions together, it is clear that "e-mail stored on an electronic communication service provider's systems after it has been delivered, as opposed to e-mail stored on a personal computer, is a stored communication subject to the [SCA]." Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548, 555 (S.D.N.Y. 2008) (finding that the defendant's use of the plaintiff's log-in credentials to access the plaintiff's emails that were stored online in "Microsoft's Hotmail system" constituted obtaining electronic communications in violation of the SCA); see also Theofel v. Farey-Jones, 359 F.3d 1066, 1075-76 (9th Cir. 2004) (finding that email messages are protected from unauthorized disclosure by the SCA both before and after they are received by the intended recipient).

At trial, Stoddard unequivocally admitted to engaging in activities that clearly violate the SCA. Specifically, she testified that she used the keylogger program to obtain Williams' email and other private website passwords and then used those passwords to access Williams' password-protected accounts without his authorization. Moreover, Stoddard admitted that the primary reason that she installed the keylogger software was to learn Williams' log-in credentials and use them to access his accounts without his knowledge or consent. Consequently, Stoddard "intentionally accesse[d] without authorization a facility through which an electronic communication service is provided . . . and thereby obtain[ed] . . . authorized access to a[n] . . . electronic communication while it [was] in electronic storage." 18 U.S.C. § 2701(a); see also Miller v. Meyers, 766 F.Supp.2d 919, 923 (W.D. Ark. 2011) (finding civil liability under the SCA under substantially similar circumstances); see also Cardinal Health 414, Inc. v. Adams, 582 F.Supp.2d 967, 976 (M.D. Tenn. 2008) (holding that "where the facts indisputably present a case of an individual logging onto another's e-mail account without permission and reviewing the material therein, a summary judgment finding of [a SCA] violation is appropriate"). Stoddard thereby violated the SCA.

3

The Rhode Island Computer Crimes Law

Williams alleges that Stoddard intentionally accessed and copied his computer data without authorization, in violation of the Rhode Island Computer Crimes Law, §§ 11-52-3 and 11-52-4.1.

The Rhode Island Computer Crimes Law prohibits the intentional, unauthorized access to a computer network or any data contained therein as well as the unauthorized use of a computer network for the purpose of making "an unauthorized copy, in any form, including, but not limited to, any printed or electronic form of computer data." Secs. 11-52-3 and 11-52-4.1(a). The statute defines "computer network" as "a set of related, remotely connected devices and any communications facilities including more than one computer with the capability to transmit data among them through the communications facilities." Sec. 11-52-1(4). The internet itself "is a network of interconnected computers" over which data is transmitted by being "forwarded from one computer to another until [it] reach[es] [its] destination." Councilman, 418 F.3d at 69. The Rhode Island Computer Crimes Law defines "computer data" as "any representation of information, knowledge, facts, concepts, or instructions which . . . has been prepared and . . . has been processed in a computer or computer network." Sec. 11-52-1(3). Email and other electronic communications transmitted over the internet, therefore, qualify as "computer data" because such communications convey "information, knowledge, facts, concepts, or instructions" over computer networks as they travel through the internet. Id.

Thus, by gaining access to Williams' email and social media accounts without his authorization, Stoddard accessed a computer network and data thereon in violation of § 11-52-3. By making copies of Williams' communications from these accounts, which she then shared with Calise, Stoddard violated § 11-52-4.1's prohibition on making unauthorized copies of computer data.

4

Invasion of Privacy

Williams brings two claims against Stoddard under § 9-1-28.1, which codifies a right to privacy and creates a cause of action for violating an individual's privacy rights. Specifically, Williams argues that Stoddard's unauthorized access to his online accounts and electronic communications constituted an intrusion upon seclusion, and that Stoddard gave unreasonable publicity to his private life by sharing his online activity and communications with Calise, in violation of § 9–1–28.1(a)(1) and (3). He therefore seeks damages pursuant to § 9-1-28.1(b).

In order to establish a violation of a right to privacy under § 9–1–28.1(a)(1), which protects the individual's right "to be secure from unreasonable intrusion upon one's physical solitude or seclusion, " Williams must show that Stoddard engaged in "an invasion of something that is entitled to be private or would be expected to be private, " and that the invasion would have been "offensive or objectionable to a reasonable man." Following the trend adopted by the majority of courts and the Second Restatement of Torts, our Supreme Court has interpreted our privacy law's protection of "physical solitude or seclusion" broadly, such that the statute's scope is not limited to intrusions that occur in a geographic place. Washburn v. Rite Aid Corp., 695 A.2d 495, 500 (R.I. 1997) (interpreting the scope of § 9–1–28.1(a)(1) to extend to unauthorized disclosure of an individual's confidential prescription drug records); see also Restatement (Second) Torts § 652B (1977) (explaining that the tort of intrusion upon seclusion encompasses a "physical intrusion into a place in which the plaintiff has secluded himself, " as well as "some other form of investigation or examination into [the victim's] private concerns, as by opening his private and personal mail"); Lisnoff v. Stein, 925 F.Supp.2d 233, 240 (D.R.I. 2013) (finding that a patient's disclosures to her doctor during private therapy sessions qualified as "private seclusion" under § 9–1–28.1(a)(1)).

To state a cause of action under § 9–1–28.1(a)(3), which provides the right "to be secure from unreasonable publicity given to one's private life, " Williams must show "(1) 'publication' (2) of a 'private fact' (3) '. . . which would be offensive or objectionable to a reasonable man of ordinary sensibilities.'" Pontbriand v. Sundlun, 699 A.2d 856, 864 (R.I. 1997) (quoting § 9–1– 28.1(a)(3)(A)(i)–(ii), (b)). "The term 'publication, ' . . . does not require that the information be disseminated in a newspaper but merely that it be repeated to a third party." Id. A fact is private under this statute if Williams "actually expected [it] to remain private" and if "society would recognize this expectation of privacy as reasonable and be willing to respect it." Id. at 865. Whether a private fact "would be offensive or objectionable to a reasonable man of ordinary sensibilities" depends on whether the disclosure is "of the sort that could be expected to inflict harm on the person whose private affairs are made points of public discussion." Id. "This issue, of course, involves a factual determination of what would be offensive or objectionable in the context of this case." Id.

Recognizing that both sections (a)(1) and (a)(3) of § 9-1-28.1 require a reasonable expectation of privacy, Stoddard argues that Williams' invasion of privacy claims must fail on the grounds that he had no such expectation of privacy in the computer on which Stoddard recorded his online activity. As support for this argument, Stoddard asserts that she, not Williams, owned the computer and that Williams knew that Stoddard also had access to it. This argument, however, is immaterial because Williams does not claim to have a privacy interest in the computer. Rather, Williams claims a right to privacy in his electronic communications and online activity. The computer was merely a portal through which Williams accessed his personal electronic communications and online data. Cf. Riley v. California, 134 S.Ct. 2473, 2493, 189 L.Ed.2d 430 (2014) (likening cell phones to computers and finding that individuals have a Fourth Amendment privacy right to their internet-based data accessed therefrom). Consequently, the ownership of the computer is of no import in determining whether Stoddard violated the Rhode Island privacy statute.[7, ] [8]

Courts have widely recognized that individuals have an objectively reasonable expectation of privacy in their password-protected electronic communications and other online activity. See, e.g. United States v. Hamilton, 701 F.3d 404, 408 (4th Cir. 2012) (noting that "people have a reasonable expectation of privacy in their emails because emails today, in common experience, are confidential") (internal quotations omitted); United States v. Lucas, 640 F.3d 168, 178 (6th Cir. 2011) (recognizing that "individuals have a reasonable expectation of privacy in the content of emails stored, sent, or received through a commercial internet service provider"); R.S. ex rel. S.S. v. Minnewaska Area Sch. Dist. No. 2149, 894 F.Supp.2d 1128, 1142 (D. Minn. 2012) (holding that the plaintiff had "a reasonable expectation of privacy to her private Facebook information and messages, " which were password-protected and in her exclusive possession). Indeed, the primary purpose of requiring passwords to access certain websites, such as email accounts, is to maintain the privacy of the accountholder and to prevent other people from accessing and manipulating the data and communications available on those websites. Similarly, individuals have an objectively reasonable expectation of privacy in internet-based sexual activity, including web-based electronic communications of a sexual nature as well as visits to pornographic webpages. See Lawrence v. Texas, 539 U.S. 558, 567 (2003) (noting that "sexual behavior" is "the most private human conduct"). As such, Williams' expectation of privacy from Stoddard in his website passwords, password-protected electronic communications, and internet-based sexual activity was objectively reasonable.

Moreover, the evidence before the Court demonstrates that Williams "actually expected" his online activity "to remain private" from Stoddard. Pontbriand, 699 A.2d at 865. In particular, Williams and Stoddard's trial testimony revealed that Williams used password-protected websites to communicate over the internet, never voluntarily shared his passwords with Stoddard, and engaged in much of the online activity at issue in this case when Stoddard was not present, all in an effort to prevent her from discovering his online activity.

Given Williams' actual and reasonable expectation of privacy in his electronic communications and online activity, this information constitutes "something that is entitled to be private or would be expected to be private" under § 9-1-28.1(a)(1), as well as "private fact[s]" under § 9-1-28.1(a)(3). See id. at 865 (explaining that a fact is private under § 9-1-28.1(a)(3) if it was "actually expected . . . to remain private" and if "society would recognize this expectation of privacy as reasonable and be willing to respect it"). By disclosing the details of Williams' online activity and electronic communications to Calise, Stoddard publicized the information. See id. at 864 (explaining that "[t]he term 'publication, ' . . . does not require that the information be disseminated in a newspaper but merely that it be repeated to a third party"). Stoddard therefore gave "unreasonable publicity . . . to [Williams'] private life" and violated his "right to be secure from unreasonable intrusion upon [his] physical solitude or seclusion." Secs. 9-1-28.1(a)(1), (3).

5

Civil Liability for Criminal Conduct

Williams also brings a claim against Stoddard pursuant to § 9-1-2, which allows victims of crimes to bring civil suits to recover damages caused by the defendant's criminal conduct. In bringing this claim, Williams alleges that Stoddard violated the criminal provisions of the Wire Fraud Act, the Identity Theft Act, and the fraud provision of the Rhode Island Computer Crimes Law by impermissibly obtaining his email and social media account log-in credentials and accessing those accounts with the intent of depriving him of his privacy and employment.

The Identity Theft Act establishes a criminal penalty for unlawfully and knowingly transferring, possessing, or using a means of identification of another person during and in relation to one or more predicate felonies enumerated in the statute. 18 U.S.C. § 1028A. Williams alleges that Stoddard's violation of the Wire Fraud Act serves as the predicate offense underpinning her violation of the Identity Theft Act. The Wire Fraud Act provides that

"[w]hoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both." 18 U.S.C. § 1343.

Thus, "the essential elements of a . . . wire fraud violation are (1) a scheme to defraud, (2) money or property as the object of the scheme, and (3) use of . . . wires to further the scheme." United States v. Dinome, 86 F.3d 277, 283 (2d Cir. 1996) (internal quotations omitted). Moreover, the statute carries with it a mens rea of "knowing and willing participation in a scheme or artifice to defraud with the specific intent to defraud." United States v. Czubinski, 106 F.3d 1069, 1073 (1st Cir. 1997).

Relying primarily on the First Circuit's statement in Czubinski that "confidential information may constitute intangible 'property' and that its unauthorized dissemination or other use may deprive the owner of its property rights, " Williams argues that his private online communications qualify as "property" under the statute. Id. at 1074 (emphasis added). Williams' reading of Czubinski, however, stretches that court's reasoning too far. The court clearly indicated that only information with some monetary value, such as "'[c]onfidential business information, '" would constitute property under the Wire Fraud Act. Id. at 1074-75 (quoting Carpenter v. United States, 484 U.S. 19, 26 (1987)); see also Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 766 (2005) (holding that in order to qualify as a property interest under the Due Process Clause, the interest must "have some ascertainable monetary value") (internal citation omitted). None of the information that Stoddard collected from Williams' online activity relates to a business venture or has any inherent monetary value. Therefore, Stoddard did not violate the Wire Fraud Act with respect to her actions to obtain Williams' log-in credentials because the log-in credentials do not constitute a property interest of which Stoddard could have acted to defraud Williams.

Moreover, Williams has failed to show that Stoddard acted with the intent necessary to violate the Wire Fraud Act. Stoddard testified at trial that her intention in accessing Williams' email and social media accounts was only to confirm her suspicions that he was being unfaithful to her. Williams presented no evidence disproving this testimony. This Court, therefore, finds credible Stoddard's uncontroverted testimony that she had no intention of using Williams' online activity to deprive him of his employment until after she had accessed it and came to believe that Williams had engaged in unprofessional conduct on the job. Consequently, Stoddard did not have the "specific intent to defraud" that is required for a violation of the Wire Fraud Act. Czubinski, 106 F.3d at 1073; see also 18 U.S.C. § 1343. Because Stoddard did not violate the Wire Fraud Act, she did not violate the Identity Theft Act, which requires a predicate felony.

The fraud provision of the Rhode Island Computer Crimes Law is substantively similar to the federal Wire ...


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