The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Before the court is a motion to preclude respondent Cablevision from disclosing any records in its possession which relate to Ms. Lavonne Brown, and a Letter in Response to Petitioner's Memorandum in Support of Application for Disclosure Pursuant to FRCP Rule 27, filed by Ms. Lavonne Brown. Ms. Brown argues that it is a violation of her constitutional rights, including her right to privacy, for her internet service provider, Cablevision, to disclose any information pertaining to her internet service account. She also argues that petitioner "has no case." (Letter in Resp., dated Oct. 30, 2006.)
Petitioner filed a Petition to Perpetuate Testimony on July 26, 2006. The petition alleges that an unknown individual accessed the e-mail accounts of seven of petitioner's employees. (Petition ¶ 9, 12.) One of the employees whose e-mail account was accessed was Jan Love, the chief executive of petitioner's Women's Division. (Petition ¶ 9.) The petition alleges that the unknown individual accessed Ms. Love's e-mail account and sent - in Ms. Love's name - an e-mail to three other employees, implying that the employees were going to be terminated. (Petition ¶ 9.) On June 8, 2006, an e-mail was sent that said "Ha, Ha, Ha -- Guess who's positions will be eliminated on Monday, June 12th. Sorry for this. But you all should have done better work and had better attitudes! Good luck elsewhere!" (See Petition Exh. A.)
Once petitioner learned that Ms. Love's e-mail account had been accessed, petitioner's network administrator attempted to determine the identity of the person who sent the unauthorized e-mail message. (Petition ¶ 10.) The network administrator discovered that an unknown individual had, without authorization, accessed the e-mail accounts of seven employees between June 4 and June 8, 2006. (Petition ¶ 10.) The network administrator located the internet protocol ("IP") address of the unknown individual and reviewed records to determine whether accounts had been previously accessed through that IP address. (Petition ¶ 10, 12.) The network administrator determined that from April 21 through April 27, 2006, the individual with that IP address had accessed seven employee accounts on eleven occasions. (Petition ¶ 12.) The network administrator used an internet website to find the internet service provider ("ISP") for the IP address in question. Optimum Online of Cablevision Systems was identified as the internet service provider. (Petition ¶ 13.)
Petitioner contacted Cablevision and requested that Cablevision disclose the identity of the user with the IP address in question. Cablevision replied that it would not do so unless required to by court order. (Petition ¶ 14.) In addition, Cablevision told petitioner that it had a practice of deleting electronic records which would permit Cablevision to identify the person with the IP address in question, within 90 days of the e-mail transaction. (Petition ¶ 15.)
On August 7, 2006, the undersigned entered an order directing Cablevision to preserve the information sought in the petition, pending further order of the court. (See Order of Judge E. Thomas Boyle, dated August 7, 2006.)
On September 5, 2006, the undersigned entered an order granting the petition to perpetuate testimony. On September 15, 2006 - but before any disclosure pursuant to the September 5, 2006 order - Ms. Lavonne Brown, acting pro se, came before the court with an Order to Show Cause, moving for an order enjoining petitioner from all attempts to perpetuate testimony from Cablevision and preventing Cablevision from disclosing records relating to her. (Mem. In Supp. Of Order to Show Cause.) Ms. Brown had received notification from Cablevision stating that it was going to disclose documents relating to Ms. Brown, in accordance with a court order. In a letter dated September 8, 2006, Cablevision said the information would be disclosed if the company did not receive a court order from Ms. Brown or her attorney. (See Letter from Cablevision to Ms. Brown, dated September 8, 2006.) On September 15, 2006, Judge Hurley entered an order preventing Cablevision from producing any records that relate to Ms. Brown until the undersigned had an opportunity to further address the matter. (Order of Judge Hurley, dated September 15, 2006.)
A conference was held before the undersigned on October 18, 2006. Ms. Brown did not appear, although notified. On October 25, 2006, petitioner filed a Memorandum in Support of Application for Disclosure Pursuant to FRCP Rule 27, arguing that petitioner is entitled to relief pursuant to 18 U.S.C. 2701, the Stored Communications Act, and 18 U.S.C. 2707, which provides for a civil cause of action for violation of the Act. (See Mem. In Supp. of App. for Discl. at 2.) Petitioner argues that the petition has been plead in accordance with Fed. R. Civ. P. Rule 27. (Mem. In Support of App. for Discl. at 4.)
In a Letter in Response to Petitioner's Memorandum in Support of Application for Disclosure Pursuant to FRCP Rule 27, filed on November 2, 2006, Ms. Brown argues that the disclosure of her personal information by Cablevision will violate her right to privacy and her constitutional rights. (Letter in Response, dated October 30, 2006.) In its Reply, petitioner argues that Ms. Brown has not stated a constitutional basis for denying the requested relief. Also, petitioner argues that although Ms. Brown argues that she has not committed any wrongdoing, the purpose of the petition is simply to obtain discovery in order to identify the unknown individual as a party defendant in this action. (See Petitioner's Reply Mem. At 3-4.)
I. Stored Communications Act
The first issue is whether petitioner is bringing this claim under the proper statute.
Petitioner claims relief pursuant to the Stored Communications Act ("SCA), 18 U.S.C. Section 2701. See Kaufman v. Nest Seekers, LLC, 2006 WL 2807177, at *3 (S.D.N.Y. Sept. 26, 2006). 18 U.S.C. Section 2707 provides ...