## Facts

- Clifton S. Freedman, an America Online, Inc. (AOL) subscriber, alleged law enforcement improperly obtained his subscriber information.
- Fairfield, Connecticut detectives William Young and David Bensey prepared a Connecticut Superior Court search-and-seizure warrant application seeking Freedman’s AOL subscriber records.
- The warrant application lacked a judicial signature and was never submitted to a judge to be subscribed and sworn; the court treated it as a legal nullity.
- Young completed the warrant application; Bensey signed the application as an affiant, later claiming he was merely a witness.
- Young and Bensey faxed the unsigned, unsubmitted warrant application to AOL without further communication.
- AOL faxed Freedman’s subscriber information to Young, including identifying and account-related data (e.g., address, phone numbers, account and billing information, and other screen names).
- The detectives acted within the scope of their employment as Town of Fairfield police officers.
- Freedman sued under Title II of the Electronic Communications Privacy Act (ECPA) and sought partial summary judgment on liability on specified counts against the individual officers (and related claims).

## Issues

1. Whether transmitting an unsigned, unsubmitted “warrant application” to an ISP and obtaining subscriber information constitutes action without a valid warrant for purposes of Title II of the ECPA.
2. Whether an officer can avoid liability by characterizing the transmission as a non-coercive request or by asserting factual disputes about an ECPA emergency-disclosure theory.
3. Whether any genuine dispute of material fact existed concerning Detective Bensey’s role in preparing and transmitting the defective warrant application.

## Decision

- The court granted in part and denied in part Freedman’s motion for partial summary judgment.
- The court held the warrant application was a legal nullity because it was not judicially signed or submitted for judicial verification.
- The court found no genuine dispute of material fact that Bensey signed as an affiant; his attempt to characterize his role as merely witnessing Young’s signature was rejected.
- The court concluded that the officers’ submission of the defective warrant application and resulting acquisition of subscriber information could support liability on the aspects resolved by the partial grant, while leaving other issues for later proceedings.

## Legal Principles

- A document purporting to be a warrant application that is not submitted to a judge and lacks a judicial signature is not a valid warrant and may be treated as a legal nullity.
- On summary judgment, a party cannot create a triable issue by characterizing conduct inconsistently with unambiguous documentary evidence (e.g., an officer’s signature as an affiant).
- Under Title II of the ECPA, the absence of valid legal process is material where law enforcement represents that it has judicial authorization and obtains subscriber information based on that representation; defenses tied to alternative disclosure theories may not defeat summary judgment absent a genuine factual dispute on the points decided.

## Conclusion

The court partially resolved liability against the individual detectives by ruling that the purported warrant was void and that one detective’s affiant role was undisputed, while reserving remaining defenses and other issues for subsequent litigation.


Freedman v. America Online, Inc., 303 F. Supp. 2d 121 (D. Conn. 2004)