DETROIT — This city’s former mayor is venturing into uncharted legal territory with his recent suit challenging the release of his text messages that led to his downfall. That’s what several attorneys and legal experts said after reviewing the recent complaint filed by ex-Detroit Mayor Kwame Kilpatrick, who alleges that the city’s one-time communications provider violated his privacy and constitutional rights by releasing his text messages in a civil lawsuit.
Those messages — which revealed he lied about an affair and his role in the firing of a police officer in a police whistleblower trial — triggered criminal charges, costing Kilpatrick his job and law license, 99 days in jail and a $1 million fine.
Kilpatrick alleges that SkyTel Inc. released the texts without his or the city’s consent or knowledge, in violation of several privacy laws, including the federal Stored Communications Act — a 1986 law that dictates under what conditions electronic communications can be released. Kilpatrick v. SkyTel Inc., No. 2009-13 (Hinds Co., Miss., Cir. Ct.).
“This is a fairly cutting-edge use of the statute,” said Stefan Jouret, a data privacy and security issues attorney at Boston’s Deutsch Williams Brooks DeRensis & Holland, who said the law was meant to protect the privacy of “innocent users of telecommunications . . . .This was not intended to protect unscrupulous public officials accused of perjury.”
Will it work?
“It has legs,” Jouret said of the complaint. “He does have an issue.”
But it’s a novel issue, with very little case law on the books supporting it, said Leonard Deutchman, a former Philadelphia prosecutor of 20 years who investigated and prosecuted cybercrimes.
“The law, as it stands now, is against Kilpatrick,” said Deutchman, who is now general counsel for LDiscovery LLC. He cited a recent 9th U.S. Circuit Court of Appeals ruling that held that a wireless phone company violated federal law when it released a police officer’s text messages — some of them sexually explicit — to his employer. Quon v. Arch Wireless Operating Co. Inc., No. 07-55282. But that ruling is too case-specific to apply to Kilpatrick, he said.
Then there’s O’Grady v. Superior Ct., 139 Cal. App. 4th 1423 (Calif. 6th Ct. App. 2006), which held that the Stored Communications Act bars civil litigants from obtaining electronic communications. But the majority of courts don’t agree with O’Grady, Deutchman said.
Still, Kilpatrick may have a case, said Mark McCarty, a technology and telecommunications litigator at Atlanta’s Alston & Bird. “On a purely technical basis, his claim seems to have some facial appeal if there was no consent and the facts are that SkyTel simply produced the information solely on the basis of a civil subpoena,” McCarty said.
An attorney for SkyTel, Thomas Plunkett of Birmingham, Mich.’s Williams, Williams, Rattner & Plunkett, said that SkyTel was compelled by court orders to release the text messages. He would comment no further.
Editor’s note: Tresa Baldas’ husband, M.L. Elrick, reported on the text messages for the Detroit Free Press.
