Summary

This case demonstrates that even claims based on a fundamental right such as the right to privacy must have some rational basis. The plaintiff in this action filed suit claiming, in part, that AOL had violated her right to privacy by identifying her, in response to a subpoena, as the account owner of an AOL account from which sexually suggestive messages had been posted and which included the telephone number of the plaintiff’s husband’s ex-wife. The court summarily dismissed the case.

Analysis

This case belongs high on any list of the most outrageous lawsuits. Terry Jessup-Morgan began a relationship with her husband, Phillip Morgan, while he was still married to Barbara Smith. After Smith and Morgan divorced, Terry Jessup-Morgan perpetrated the following Zeran-like hoax on her husband’s ex-wife, Barbara Smith, and then sued America On-Line when she was caught. Jessup-Morgan impersonated Barbara Smith by posting a message with the screen name "Barbeeedol" to an AOL message board, soliciting "just about any kind of sex I can have with someone other than myself," with the telephone number of Smith’s parents, where Smith was living with her children following her divorce. Jessup-Morgan was successful in causing the telephone to ring off the hook, and Smith retained an attorney to serve a civil subpoena on AOL, to learn the identity of the author. AOL complied with the subpoena, and disclosed that Jessup-Morgan was the holder of the account. Incredibly, Jessup-Morgan brought suit against AOL seeking $47 million in damages for claims including invasion of privacy and violation of the Electronic Communication Privacy Act, 18 U.S.C., §2707. The court held that, in fact, the ECPA specifically authorized the disclosure since it was "information pertaining to a subscriber . . . to [a] person other than a governmental entity." This is the provision which the Navy induced AOL to violate, unknowingly, in the McVeigh (/cases/mcveigh) case. Jessup-Morgan’s breach of contract and implied and expressed warranties claims, and her negligence, fraud, misrepresentation and invasion of privacy claims, as well as her Michigan state law claims, were all summarily rejected. She lost her contract claims against AOL because her own "egregious and intentionally harmful" breach of the contract preceded AOL’s terminating her account and providing identifying information.