7th Circuit Court rules WI must pay for phone records obtained from Ameritech.

• Date: 31 July 2002

Byline: David Ziemer

A district attorney does not have Eleventh Amendment immunity from a suit, under the Electronic Communications Privacy Act, to compel payment for records from a telecommunications company, the Seventh Circuit held on July 22.

ECPA

In October 1986, Congress enacted the ECPA to "protect against the unauthorized interception of electronic communications."

Section 2703 of the Act sets forth the requirements for government access to private communications and states that electronic communications providers shall furnish certain records to governmental entities only under specific circumstances.

Section 2706 of the ECPA obligates a governmental entity obtaining electronic records under Section 2703 to "pay the person or entity assembling or providing such information a fee for reimbursement for such costs as are reasonably necessary and which have been directly incurred in searching for, assembling, reproducing, or otherwise providing such information."

As the District Attorney for Milwaukee County, E. Michael McCann occasionally obtains court orders requesting automated message accounting studies ("AMAs"), which are compilations of information detailing the origin of incoming telephone calls to a particular telephone number.

Pursuant to the ECPA, Ameritech requested reimbursement for the costs associated with compiling AMAs. McCann refused, maintaining that Ameritech is not entitled to reimbursement.

Ameritech sued McCann in his official capacity, seeking a declaratory judgment that McCann must comply with sec. 2706 of the ECPA. McCann moved to dismiss, arguing that the Eleventh Amendment barred Ameritech's suit.

U.S. District Judge Rudolph T. Randa granted the motion, concluding that the Eleventh Amendment exception to Ex Parte Young, 209 U.S. 123 (1908) did not apply because Ameritech named McCann in his official and not individual capacity.

Second, Randa reasoned that the res judicata effect of a declaration of rights under sec. 2706 would translate into a monetary damages award against the state. As a result, the court concluded that, although Ameritech requested prospective injunctive relief, its suit was the "functional equivalent" of a suit for damages and was therefore barred, under Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, (1997).

Finally, Randa found that sec. 2706 impermissibly burdened the state's special sovereign interest in law enforcement by requiring the expenditure of state funds in an area traditionally reserved to the states.

Ameritech appealed, and the Seventh Circuit reversed in a decision by Chief Judge Joel M. Flaum.

Official Capacity

The court...