Monday, November 04, 2013

Spyware, GPS and Haunting

This post examines an opinion a U.S. District Court judge in California recently issued in two civil cases filed in federal court: Maddalena v. Toole, 2013 WL 5491869 (U.S. District Court for the District of California 2013).   

Earlier, the judge consolidated the two cases, presumably under Rule 42 of the Federal Rules of Civil Procedure, which lets a judge “join for hearing or trial or any other matters” two or more cases that “involve a common question of law or fact”.

The cases this federal judge consolidated are

Peggy Robinson v. Derrick John Toole, No. 13–cv–06007–ODW(RZx) (C.D. Cal. filed August 15, 2013) and Marianne Maddalena v. Derrick John Toole, No. 13–cv–04873–ODW(RZx) (C.D. Cal. filed July 5, 2013). (ECF No. 21.) Both Plaintiffs' claims center around Defendant Derrick Toole's carefully-executed cyberstalking, which spanned the course of at least two years.

Maddalena v. Toole, supra.

In this opinion, the judge is ruling on Toole’s motion to dismiss the “Plaintiffs' Complaints as time-barred.”  Maddalena v. Toole, supra.  Federal courts have held that a motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure is the appropriate way to raise a claim that the statute of limitations has run, which means the civil cause of action can no longer be brought.

As to how the cases arose, the judge began his analysis of Toole’s motion by explaining that from October of 2009

through at least January 2011, Toole used spyware programs, GPS devices, and other technology to pry into every last detail of Plaintiffs' lives. Toole commenced his haunting of Plaintiffs' lives by monitoring his girlfriend Marianne Maddalena's electronic communications. . . . Eventually, Toole expanded his cyberstalking to Maddalena's work life and began electronically monitoring Peggy Robinson, Maddalena's coworker and friend. . . .

Maddalena v. Toole, supra. 

Since he was dealing with two separate cases, the judge then outlined the facts that led to each, respectively, beginning with Maddalena, who met Toole in “late 2007” and

dated [him] on and off for several years. . . . On October 6, 2009, Toole -- without Maddalena's knowledge -- installed the Spectorsoft eBlaster spyware program on her laptop. . . .Toole used Spectorsoft to send himself a direct report of Maddalena's every email and instant message. . . . Toole also sent himself hourly reports of her Internet activity, ultimately gathering over 7,000 reports. . . .

In March 2010, Toole installed Spector Pro spyware on Maddalena's work computer. . . . Then, in April, he installed a GPS tracking device on her car. . . . Effectively, Toole tracked Maddalena's every keystroke and physical movement. . . . By late 2010, Toole began to unravel her personal relationships by impersonating her via emails and text messages to her friends and family. . . .

[I]n January 2011, Maddalena realized someone had been intercepting her emails when she received a reply to an email that she knew she had not sent. . . . On January 25, 2011, Maddalena hired the computer company Mac SOS to investigate her suspicions. . . . Mac SOS discovered Spectorsoft on her laptop. . . . 

Maddalena confronted Toole who admitted installing the spyware on her laptop. . . . But Maddalena did not yet know about the spyware installed on her other computers or GPS tracking on her car. . . .

Maddalena hired counsel in February 2011, and reported the incident to the FBI in March 2011. . . . On September 19, 2011, the FBI conducted a formal search of Toole's home. 

Two days later, the FBI informed Maddalena that Toole had carefully curated a database of her messages, emails, texts, and other private electronic data. . . . This news came as a shock to [her]. . . . Since then, Maddalena has been diagnosed with Post Traumatic Stress Disorder and is regularly attending therapy. . . .

After meeting with the FBI, Maddalena claims she continued to learn the `type and extent of [Toole's] secretive infiltrations. that are the basis of this action.  . . . For instance, [she] learned that since 2010, her mother and sister had been receiving countless hurtful emails from Maddalena, in which she had accused them of being bad mothers. . . . 

Maddalena never sent these emails. . . . In retrospect, Maddalena considers this her first indication of how Toole used spyware to steal her identity and dismantle her personal relationships. . . .

Finally, on November 1, 2012, Toole was convicted of a felony for his illegal electronic monitoring. . . . At the restitution hearing on January, 11, 2013, Maddalena `realized the need to bring a civil suit for damages which were not compensated through the criminal proceeding.’ . . . Accordingly, on July 5, 2013, Maddalena filed this Complaint. . . .

Maddalena v. Toole, supra. 

That brings us to Peggy Robinson, ”Maddalena’s co-worker and confidante,” who

also fell victim to Toole's wrongdoings. . . . In early 2010, Toole broke into Robinson's work offices and installed spyware on her laptop computer, effectively gaining access to her email, Skype, and G–Chat accounts. . . . As he did with Maddalena, Toole printed and stored the entirety of Robinson's electronic communications at his house. . . .

Robinson `began to discover’ in January 2011, that Toole had used spyware and other tracking devices to invade her personal and professional life. . . . At this time, `through conversations with each other,’ Maddalena and Robinson discovered that Toole had read Robinson's G–Chats and emails. . . . 

Robinson then reported the incident to the FBI through her counsel. . . . During the September, 2011 search of Toole's home, the FBI found plastic tubs filled with hard copies of Robinson's online communications. . . . Robinson then filed her Complaint on August 15, 2013. . . .

Maddalena v. Toole, supra.  You can read more about the facts in the cases in the news stories you can find here and here.

In their complaints, Maddalena and Robinson “allege[d] various state-law-tort claims” and claims for damages under three federal statutes: the Electronic Communications Privacy Act, 18 U.S. Code § 2510; the Stored Communications Act, 18 U.S. Code § 2701; and the Computer Fraud andAbuse Act, 18 U.S. Code § 1030Maddalena v. Toole, supra.  A federal district court would not have subject-matter jurisdiction to hear the state-law claims (which could be heard by a California state court) but would have jurisdiction to hear the three federal claims.  However, as Wikipedia explains, under the principle of pendent jurisdiction the federal court can take jurisdiction of the state-law claims; the principle is based on efficiency, i.e., it is reasonable to let the federal court resolve all of the claims, as long as there is at least one “anchor” federal claim.

The judge began his analysis of Toole’s motion to dismiss the federal claims as barred by the applicable statutes of limitations by noting that the three federal claims all have

two-year statutes of limitations. To recover civil damages for a violation of 18 U.S. Code § 2510, a party must file within two years after the date upon which a claimant has a `reasonable opportunity’ to discover the violation. 18 U.S. Code § 2520(e).  For 18 U.S. Code § 2701, a civil action runs only for two years after the date upon which the claimant `first discovered or had a reasonable opportunity to discover the violation.’ 18 U.S. Code § 2707(f). The applicable statute of limitations for 18 U.S. Code § 1030 explains that an action must be raised `within two years of the date of the act complained of or the date of the discovery of the damage.’ 18 U.S. Code § 1030(g).

Maddalena v. Toole, supra. 

Here, Toole argued that the plaintiffs’ federal claims accrued, or came into existence,

when [they] discovered the illegally installed spyware in January 2011, and therefore the two-year statutes of limitations have passed. . . . 

Plaintiffs contend that although they initially suspected Toole's actions in January 2011, they did not discover every technological mechanism used to spy on them, nor `the extent of Toole's secretive infiltrations,’ until September 21, 2011, when the FBI explained the findings from their raid of Toole's home. . . . Therefore, Plaintiffs argue, September 2011, is the proper accrual date.

Maddalena v. Toole, supra. 

The district court judge began his analysis of the arguments by explaining that

[l]ike many statutes of limitation, the statutes at issue in this action do not require that the claimant have actual knowledge of the violation. Rather, 18 U.S. Code § 2520(e), § 2707(f), and1030(g) demands only that the claimant have had a reasonable notice to discover the violation. 

One court has explained that the statute of limitations for 18 U.S. Code § 2520(e) will bar a suit if the plaintiff `had such notice as would lead a reasonable person either to sue or to launch an investigation that would likely uncover the requisite facts.’ Sparshott v. Feld Entm't, Inc., 311 F.3d 425 (U.S. Court of Appeals for the District of Columbia Circuit 2002). . . . 

Maddalena v. Toole, supra. 

He then found that Toole was correct because the plaintiffs had a

reasonable opportunity to discover the violations long before the FBI investigation in September 2011. Maddalena certainly had a reasonable opportunity to discover Toole's illegal activity on January 25, 2011, when she discovered the Spectorsoft software on her computer. 

In fact, Maddalena acknowledges in her Complaint that she actually discovered Toole was responsible for the installation of Spectorsoft when she confronted him. . . . Thus, beyond a reasonable opportunity, Maddalena had actual knowledge of Toole's illegal electronic monitoring. . . .

Similarly, Robinson had sufficient notice of Toole's misconduct by January 2011. Robinson admits that she `[began] to discover the illegal use of . . . spyware on her computers’ in early January, 2011. . . . 

Robinson asserts that `Through conversations with each other Maddalena and [Robinson] came to discover that [Toole] was privy to information that could not possibly be obtained by normal means.’ . . .Thus, Robinson also had actual knowledge of Toole's illegal electronic monitoring in January 2011.

Maddalena v. Toole, supra. 

He also rejected the plaintiff’s argument that the

`secretive technological nature’ of Toole's wrongdoing prevented them from fully discovering the arsenal of spyware he installed and the extent to which he was monitoring their activities is irrelevant. 

A victim of wiretapping does not need to discover every type and means of the defendant's misconduct. See Sparshott v. Feld Entm't, Inc., supra (rejecting plaintiff's argument that defendant's use of technologically different means of wiretapping did not put her on notice of his wrongdoing and explaining that the earlier incidents gave her a `reasonable opportunity to discover later violations’).

Further, a plaintiff need not even know the exact perpetrator of an injury to have sufficient notice to bring suit. See Dyniewicz v. U.S., 742 F.2d 484, 486–87 (U.S.Court of Appeals for the 9th Circuit 1984.) 

Here, it is sufficient that Plaintiffs were aware of the immediate injury giving rise to their federal claims-the secretly-installed spyware. And although it took a `full-throttle’ FBI investigation to uncover the full extent of Toole's actions, the January 2011 discovery of Spectorsoft was enough notice for Plaintiffs to bring suit.

Maddalena v. Toole, supra. 

And the district court judge explained that

taking legal action or launching an investigation indicates that a plaintiff has been made reasonably aware of the defendant's misconduct. Sparshott v. Feld Entm't, Inc., supra. Plaintiffs fit squarely within this rule.

In February 2011, after the spyware discovery, Maddalena `hired legal counsel to advise her and they reported this incident to the FBI.’ . . . Although Maddalena did not bring a civil suit at that time, by March 2011 she had spoken with two different attorneys and participated in the FBI investigation. . . .

Both of these actions make clear that by January 2011, Plaintiffs had sufficient notice of Toole's cyberstalking to `sue or to launch an investigation that would likely uncover the requisite facts.’ Sparshott v. Feld Entm't, Inc., supra.   

At the very latest, Plaintiffs were on notice by February or March of 2011, when they had enough information regarding Toole's cyberstalking to enlist help from legal counsel and the FBI. Even if the Court accepted the later date of March 2011, as the accrual date the two-year statutes of limitation would have run almost five months before Plaintiffs' filing dates.

Maddalena v. Toole, supra. 

The judge therefore held that

[b]ased on the timeline offered by Plaintiffs in the Complaint, the Court is compelled to believe that January 2011, is the proper accrual date under the applicable statutes of limitation. Because Plaintiffs waited almost two-and-a-half years to file their complaints, their actions are time-barred.

Maddalena v. Toole, supra. 

So, Toole won, here.  The judge dismissed the Plaintiffs’ respective claims “with prejudice,” which means they cannot be brought again.  Maddalena v. Toole, supra.  He dismissed their claims under California state law without prejudice, which means they can try to pursue those claims in a state court.  Maddalena v. Toole, supra. 

1 comment:

Anonymous said...

Dear Ms. Brenner,

When the law fails or is shamefully inadequate as it is in cases like this. Justice is not served and the criminal is free to spread their poison to other victims and continue with their current victims...

The plaintiffs in these two cases, by their wealth, had another course of action available to them that was substantially cheaper than the lawyers and unlike the lawyers... is swift justice.

Just a Sir Arthur Conan Doyle's character Sherlock Holmes sometimes pursued his villains using means outside the law. Both women could have hired one of the local not so upstanding Private Investigators or shady lawyer to act as their agent in this manner.

A few thousand dollars in cash on a local biker bar can purchase a lot of baseball bat time for scum like Mr. Toole.

Cyber criminals do not expect retribution to come to their door. Especially to have all of their electronics stolen from them or to be physically assaulted by a brute squad.

With a very clear message as to what their limits are in the future and specifically what is now out-of-bounds.

What are they going to say to the police?

"Officer, officer while committing a felony crime my victims beat me senseless and stole my criminal tools..."

No they can't say a thing. If they did they would be charged from their confession and then when in jail all of the other real nasty criminals would use them as a Nancy for letting a 'sheep' (aka victims) get the upper hand on them.

Sometime the law will work to grind down these sociopaths and psychopaths. When it doesn't you now have to resort to sub rosa methods.