Employment Law Daily Claim that Fox News surveilled, hacked former host who reported sexual harassment found implausible
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Wednesday, May 23, 2018

Claim that Fox News surveilled, hacked former host who reported sexual harassment found implausible

By Lorene D. Park, J.D.

Dismissing a former Fox News anchor’s claims that, in retaliation for her complaints of sexual harassment, she was subjected to electronic and physical surveillance and had her electronic devices hacked, a federal district court in New York found that her Wiretap Act and Stored Communications Act claims were not plausible because she did not allege any actual interception of communications. While a forensic exam may have suggested the “capability of” remote access or monitoring of her communications, that was not enough to make her claims plausible. The court also dismissed her emotional distress claims (Tantaros v. Fox News Network, LLC, May 18, Daniels, G.).

The employee, a former anchor, host, and political analyst for Fox News, claimed that for years she and other female employees faced “rampant” sexual harassment from senior executives, including Roger Ailes, the company’s former CEO who is now deceased. For example, he once looked her up and down and smirked, saying “[w]e need to get you a tighter dress.”

According to the employee, she complained several times to a senior executive VP from 2015 through April 2016, and the defendants retaliated by targeting her for electronic and physical surveillance. She believed Fox News hacked her personal computer and gained unauthorized access to her Gmail account. She further alleged that two days after Ailes remarked on her outfit, Fox News asked her and others to provide their personal laptops to the IT department to be formatted for a “Live Tweet Session” being held during a presidential address. Soon thereafter, while she was live on air and could not change her password, she allegedly received Gmail notices that someone had “logged into her account.” She claimed the notices were “extremely stressful and distracting” and were sent to throw her “off her game in front of millions of viewers.”

The employee claimed a forensic exam of her computer revealed malware “likely giving whomever placed it the ability to access her communications, documents, and personal email.” The exam also allegedly revealed that Fox News used an outdated system for her work-issued Blackberry enabling it to turn on the microphone or camera without her knowledge or consent. She claimed Fox surreptitiously recorded its employees without consent. She asserted that she saw black SUVs parking by her residence and recognized one driver as a member of Ailes’s personal security detail. She claimed a Fox News contributor and former NYPD detective admitted that he was hired to spy on her and dig up dirt on her and other accusers. She also believed that after she was suspended from Fox News (allegedly for reporting sexual harassment) Fox News tried to “wipe” her Blackberry and delete emails.

In addition to the allegations of surveillance, the employee claimed that she was targeted for harassment and smear campaigns on the Internet, including the use of fake social media accounts (”sockpuppet” accounts) to discredit her or influence public perception and the manipulation of online images to make her appear “overweight or out of shape.”

“Speculation and conjecture.” Though in prior proceedings the court refused to characterize the employee’s claims as frivolous and denied the defendants’ motion for sanctions, the court now dismissed the complaint under Rule 12(b)(6), finding her amended complaint “based primarily on speculation and conjecture.”

No actual interception of communication. The employee claimed the defendants violated the Wiretap Act by surveilling her and using the fruits of that surveillance to “emotionally torture” her, but she failed to allege a basic element: an actual interception of her wire, oral, or electronic communications. While a forensic exam revealed malware that suggested a “capability of” remote access or monitoring of her communications, she didn’t allege that any defendant actually intercepted or tried to intercept any of her communications. The mere capability of doing so was not enough to state a claim.

Likewise, the employee’s Stored Communications Act claim failed because, even if one ignored the weight of authority holding that the SCA does not apply to communications stored on personal devices, she did not plausibly allege facts showing that any defendant unlawfully accessed her emails, text messages, or other communications stored on her personal computer or work-issued Blackberry. Again, vague, speculative, and conclusory allegations about malware were not enough.

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