11/12. A collection of groups filed an amicus curiae brief [23 pages in PDF] with the U.S. Court of Appeals (1stCir) in USA v. Bradford Councilman, a criminal case involving the 1986 Electronic Communications Privacy Act (ECPA) and unauthorized accessing of the content of stored e-mail messages.

Background. On June 29, 2004 the U.S. Court of Appeals (1stCir) issued its split opinion holding that there was no violation of the Wiretap Act, as amended by the ECPA, when stored e-mail was accessed, because, since it was in storage, there was no interception within the meaning of the statute. See, story titled "1st Circuit Holds Wiretap Act Does Not Apply to E-Mail in Storage" in TLJ Daily E-Mail Alert No. 930, July 1, 2004.

The First Circuit, sitting en banc, will rehear the case on Wednesday, December 8, 2004, in Boston, Massachusetts. See, story titled "1st Circuit Grants Rehearing En Banc in Councilman Case" in TLJ Daily E-Mail Alert No. 992, October 7, 2004.

The defendant, Bradford Councilman, was an officer of a company that ran an online rare and out of print book listing service. The company also provided e-mail service to some of its book dealer customers. The U.S. Attorney alleged that Councilman used a program to intercept, copy and store e-mail messages from Amazon.com to the book dealer customers, and that Councilman read these messages to gain commercial advantage.

He was charged with violation of 18 U.S.C. § 371 for conspiracy to violate 18 U.S.C. § 2511. The District Court dismissed the charge.

Holding of the Three Judge Panel. The Appeals Court affirmed. The Appeals Court summarized the charge. "Defendant allegedly conspired to intercept the electronic communications, to intentionally disclose the contents of the intercepted communications, in violation of 18 U.S.C. § 2511(1)(a), and to use the contents of the unlawfully obtained electronic communication, in violation of 18 U.S.C. § 2511(1)(c). Finally, the government alleged that defendant had conspired to cause a person to divulge the content of the communications while in transmission to persons other than the addressees of the communications, in violation of 18 U.S.C. § 2511(3)(a). The object of the conspiracy, according to the government, was to exploit the content of e-mail from Amazon.com, the Internet retailer, to dealers in order to develop a list of books, learn about competitors and attain a commercial advantage ..."

18 U.S.C. § 371 provides that "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both."

18 U.S.C. § 2511(1) provides, in part, that "any person who (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5)."

The Appeals Court noted that 18 U.S.C. § 2510 contains definitions of both "wire communication" and "electronic communication". The definition of "wire communication" includes "any electronic storage of such communication", while the definition of "electronic communication" makes no reference to stored communications.

Thus, the Court concluded that no interception can occur while the e-mails are in electronic storage. And, since there is no interception, there is no violation of 18 U.S.C. § 2511.

The Appeals Court also commented that "The Wiretap Act's purpose was, and continues to be, to protect the privacy of communications. We believe that the language of the statute makes clear that Congress meant to give lesser protection to electronic communications than wire and oral communications. Moreover, at this juncture, much of the protection may have been eviscerated by the realities of modern technology. We observe, as most courts have, that the language may be out of step with the technological realities of computer crimes. However, it is not the province of this court to graft meaning onto the statute where Congress has spoken plainly."

Congressional Intent. The amicus brief argues that "the absence of the phrase ``electronic storage´´ in the definition of ``electronic communication,´´ when viewed in light of its inclusion in the definition of ``wire communication,´´ is akin to the dog that did not bark."

The brief argues that the Court of Appeals' holding that it reflects an intention to exclude stored electronic communications from the Wiretap Act's protections "badly misconstrues" the ECPA.

The amicus brief asserts that the "Congress added ``electronic storage´´ to the definition of wire communication not to lessen protections for stored e-mail, but rather to expand protections for one-time access to stored voicemail."

Fourth Amendment. The amicus brief also argues that there is a Fourth Amendment issue. It argues that there is an "intimate relationship" between the Fourth Amendment and the Wiretap Act that should "guide" the Court.

The brief puts it this way. "In Berger v. New York, 388 U.S. 41 (1967), the Supreme Court indicated that the Fourth Amendment triggers heightened scrutiny when surveillance is undertaken as ``a series or a continuous surveillance´´ rather than as ``one limited intrusion.´´ ... Under Berger, a statute that regulates ``a series or a continuous surveillance´´ must include special privacy protections or risk facial invalidity under the Fourth Amendment."

"Congress enacted the Wiretap Act soon after Berger, and drafted the statute with Berger in mind. ... Its statutory framework was designed to satisfy the Fourth Amendment in the context of ongoing surveillance."

"This brief concludes that "The Court should construe the temporal aspect of ``intercept´´ in 18 U.S.C. § 2510(4) to encompass ``continuous surveillance´´ as contemplated by Berger. Any statutory ambiguity should be resolved to synchronize the scope of the Wiretap Act with the Fourth Amendment concerns that animate it."

Stored Communications Act. The order granting rehearing en banc also posed the question of "Whether the conduct at issue in this case could have been additionally, or alternatively, prosecuted under the Stored Communications Act?" The amicus brief states that "it is uncertain but unlikely that the conduct at issue violated the Stored Communications Act."

Currently, 18 U.S.C. § 2701(a) contains the basic prohibition, while subsection (c) provides exceptions. Subsection (c)(1) provides that the basic prohibition does not apply to conduct authorized "by the person or entity providing a wire or electronic communications service". Councilman was an officer of the service provider.

The amicus brief reasons that "Councilman's conduct ... likely would be exempt from liability under the exception codified at 18 U.S.C. § 2701(c)(1). This exception states that conduct authorized by ``the person or entity providing a wire or electronic communication´´ is exempt from prosecution under Section 2701. This language was apparently intended to exempt ISPs and their employees from liability for looking through stored files stored on their own networks".

The amici are the Center for Democracy and Technology (CDT), the Electronic Frontier Foundation (EFF), the Electronic Privacy Information Center (EPIC), the American Library Association (ALA), the American Civil Liberties Union (ACLU), and the Center for National Security Studies (CNSS). The brief was written by Orin Kerr of the George Washington University School of Law.

11/12. Sen. Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee, filed an amicus curiae brief [22 pages in PDF] in USA v. Councilman. He too argues that stored e-mail is covered by the Wiretap Act, as amended by the ECPA.

This brief states that Sen. Leahy (at right) was "the original sponsor of the Senate version of the" the 1986 ECPA.

His brief argues that the "Congress passed ECPA to update the existing surveillance law framework for new technologies. Recognizing the threat to privacy posed by the continuous, systematic acquisition of electronic communications during their transmission, Congress extended existing prohibitions against the unauthorized ``intercept[ion]´´ of wire and oral communications, enacted in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ... to electronic communications. Congress intended for Title III to protect electronic communications, like telephone calls, during the entirety of the transmission phase. ECPA’s legislative history fully rebuts defendant’s contention that electronic communications move in and out of Title III’s umbrella depending on whether, at a precise moment in time, they are between or within the computers transmitting them to the user’s mailbox."

His brief was prepared by Peter Swire of Ohio State University's law school and Patricia Bellia of Notre Dame Law School.

Meanwhile, others have proposed legislative fixes. For example, on July 22, 2004, Rep. Jerrold Nadler (D-NY) and others introduced HR 4977, the "E-mail Privacy Protection Act of 2004". This bill would amend the Wiretap Act and the Stored Communications Act to provide that accessing stored e-mail communications, including by e-mail service providers, can constitute criminal violations. See, story titled "Rep. Nadler Introduces Bill to Criminalize Accessing Stored E-Mail" in TLJ Daily E-Mail Alert No. 950, August 2, 2004.

Also on July 22, Rep. Jay Inslee (D-WA) and others introduced HR 4956, the "E-mail Privacy Act of 2004". This bill also responds to the three judge panel's opinion in the Councilman case, and provides increased legal protection under the Criminal Code for stored e-mail communications. However, Rep. Inslee's bill would provide less onerous limitations upon the activities of e-mail service providers than Rep. Nadler's bill. See, story titled "Rep. Inslee Introduces E-mail Privacy Act" in TLJ Daily E-Mail Alert No. 950, August 2, 2004.

11/15. The White House press office announced that President Bush intends to nominate Jonathan Adelstein to be a Commissioner for the Federal Communications Commission (FCC) for the remainder of a five year term expiring on June 30, 2008. He has been an FCC Commissioner since 2002. See, release.

11/15. Diane Griffin was named Associate Chief of the Federal Communications Commission's (FCC) Wireline Competition Bureau. She has been Assistant Chief since October of 2001. Before that she held other positions in the former Common Carrier Bureau. Before going to work for the FCC she was an attorney in the Washington DC office of the law firm of Kilpatrick & Stockton. See, FCC release.

11/15. Secretary of State Colin Powell announced that he will resign. See, Colin Powell's letter to President Bush stating that he resigns, "effective at your pleasure". See also, statement by President Bush.

11/15. Secretary of Education Rod Paige announced that he will resign. See, Paige's letter to President Bush, and statement by President Bush.

11/15. Secretary of Energy Spencer Abraham announced that he will resign. See, Abraham's letter to President Bush, and statement by President Bush.

11/15. Secretary of Agriculture Ann Veneman announced that she will resign. See, statement by President Bush.

11/15. The Office of the U.S. Trade Representative (USTR) announced that it intends to negotiate free trade agreements (FTAs) with the United Arab Emirates (UAE) and Oman. See, USTR release. USTR Robert Zoellick wrote in a letter [6 pages in PDF] to the Senate that the UAE FTA will address intellectual property rights and electronic commerce, among other topics. See also, similar letter [PDF] to the Senate regarding the Oman FTA.

11/15. The Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) announced several corrections to its Report and Order that amends Part 15 of the FCC's rules for broadband over powerline (BPL) systems. This item is titled "Erratum", but lists four errata. See, Erratum [2 pages in PDF]. On October 28, 2004, the FCC released the text [86 pages in PDF] of its Report and Order. The FCC adopted, but did not release, this Report and Order at its October 14, 2004 meeting. This Report and Order is FCC 04-245 in ET Docket No. 04-37 and ET Docket No. 03-104. See also, story titled "FCC Adopts BPL Report and Order" in TLJ Daily E-Mail Alert No. 997, October 15, 2004.

11/15. The Federal Trade Commission (FTC) extended the deadline to submit comments in connection with its two day workshop titled "Peer to Peer File-Sharing Technology: Consumer Protection and Competition Issues". November 15 was the comment deadline. The new comment deadline is January 18, 2005. See, FTC notice of extension. The conference will be held on December 15-16, 2004 at the FTC Satellite Building, 601 New Jersey Ave., NW.

The House will meet at 2:00 PM. It will consider several items under suspension of the rules, including HR 4516, the "Department of Energy High-End Computing Revitalization Act of 2004". Votes will be postponed until 6:30 PM. See, Republican Whip Notice.

The Senate will meet at 12:00 NOON. It will consider the nomination of Frances Harvey to be Secretary of the Navy.

TIME CHANGE. 9:00 AM. The Senate Judiciary Committee will hold a hearing titled "Judicial Nominations". Thomas Griffith (nominated to be a Judge of the U.S. Court of Appeals for the District of Columbia), Paul Crotty (Southern District of New York), and Michael Seabright (District of Hawaii) will testify. Press contact: Margarita Tapia (Hatch) at 202 224-5225. Location: Room 226, Dirksen Building.

9:30 AM - 1:00 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Essential Checklist for Electronic Discovery". The speakers will be Kenneth Withers (Federal Judicial Center), Robert Eisenberg (CoreFacts), Magistrate John Facciola (U.S. District Court for the District of Columbia), Virginia Llewellyn (LexisNexis Applied Discovery), Jonathan Redgrave (Jones Day). See, notice. Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

10:00 - 11:30 AM. The Federal Communications Commission's (FCC) Media Security and Reliability Council will meet. The event will be webcast by the FCC. The public may submit written comments. See, notice in the Federal Register, July 15, 2004, Vol. 69, No. 135, at Page 42439. Location: FCC, 445 12th St. SW, Room TW-C305 (Commission Meeting Room).

11:00 AM. The Federal Communications Commission's (FCC) International Bureau will hold an event titled "Media briefing on the 10th Anniversary of the FCC’s International Bureau". Bureau Chief Don Abelson will speak. RSVP to Jacki Ponti at Jacki.Ponti@fcc.gov or Meribeth McCarrick at Meribeth.Mccarrick@fcc.gov. Location: FCC, 445 12th Street, SW, Room TW A-402/A-442.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Executive Committee will meet. Location: Wiley Rein & Fielding, 1776 K St., NW.

The House will meet at 10:00 AM. The House may consider HR 1417, the "Copyright Royalty and Distribution Reform Act of 2004", under suspension of the rules. The Senate approved this bill on October 6, 2004. See, story titled "Senate Approves Copyright Royalty and Distribution Reform Act" in TLJ Daily E-Mail Alert No. 992, October 7, 2004. See, Republican Whip Notice.

12:00 NOON. The National Emergency Number Association (NENA) will host a press conference regarding its Next Generation E-911 [PDF] initiative. For more information, contact Michelle Jones at 703 812-4600. Location. Lisagor Room, National Press Club, 529 14th St. NW, 13th Floor.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. Jon Cody, Legal Advisor to FCC Chairman Michael Powell, will speak. For more information, contact Catherine.Bohigian@fcc.gov. Location: Mintz Levin, 701 Pennsylvania Ave., NW.

The House will meet at 10:00 AM. The House may consider HR 1417, the "Copyright Royalty and Distribution Reform Act of 2004", under suspension of the rules. The Senate approved this bill on October 6, 2004. See, story titled "Senate Approves Copyright Royalty and Distribution Reform Act" in TLJ Daily E-Mail Alert No. 992, October 7, 2004. See, Republican Whip Notice.

9:00 AM - 3:00 PM. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) will host an event titled "U.S. India High Technology Cooperation Group Dialogue on Defense Technology, Data Privacy, and Export Licensing". See, invitation [PDF], registration form, and agenda. Location: DOC 1401 Constitution Ave., NW.

9:00 AM - 5:30 PM. Day one of a two day conference hosted by the American Bar Association's (ABA) Section of Antitrust Law titled "Fall Forum". See, event web site. Location. National Press Club, 529 14th St. NW, 13th Floor.

9:30 AM. The Senate Commerce Committee will hold a hearing on pending nominations. Press contact: David Wonnenberg at 202 224-2670 or david_wonnenberg @commerce.senate.gov. Location: Room 253, Russell Building.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in USTA v. FCC, No. 03-1414. This is petition for review of a final order of the FCC pertaining to number portability. See, brief [47 pages in PDF] of the FCC. Judges Sentelle, Randolph and Garland will preside. Location: Courtroom 20, Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Ctrl TX Tele Coop v. FCC, No. 03-1405. Judges Sentelle, Randolph and Garland will preside. Location: Courtroom 20, Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Covad Communications Co. v. Bell Atlantic Corp., No. 02-7057. Judges Ginsburg, Rogers and Tatel will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

11:00 AM. The Federal Communications Bar Association's (FCBA) Legislation Committee will host an event. The speaker will be Gregg Rothschild (Democratic Counsel, House Commerce Committee). He will speak on legislative issues. RSVP to Helene Marshall at hmarshall@wrf.com. Location: Wiley Rein & Fielding, 1776 K St., NW.

CANCELLED. The Federal Communications Bar Association's (FCBA) will host a breakfast. The speaker will be Jeff Carlisle, Chief of the Federal Communications Commission's (FCC) Wireline Competition Bureau.

The House may meet at 10:00 AM. See, Republican Whip Notice.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. The agenda includes receiving a report and recommendations from its broadband working group with regard to digital television and the FCC's DTV outreach campaign, receiving a report and recommendations from its consumer complaints, education and outreach working group, receiving a report and recommendations from its competition policy working group regarding consumer issues in competition policy, and receiving a report and recommendations from its homeland security working group regarding emergency communications. See, FCC notice [PDF] and notice in the Federal Register, October 29, 2004, Vol. 69, No. 209, at Pages 63152 - 63153. Location: FCC, 445 12th St. SW, Room TW-C305 (Commission Meeting Room).

9:30 -11:00 PM. The Progressive Policy Institute (PPI) will host a program titled "The Japanese Broadband Miracle: Are There Lessons for the United States?". The speakers will be Yasu Taniwaki (Economic Counselor and Telecommunications Attaché, Embassy of Japan) and Rob Atkinson (Director of the PPI's Technology and New Economy Project). A light breakfast will be served. RSVP to 202 547-0001 or PPIEvents@dlcppi.org. Location: 600 Pennsylvania Ave., SE, Suite 400.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to advise the DOS on policy and technical issues with respect to the International Telecommunication Union (ITU), and in particular, the December 15-17, 2004 meeting of ITU's Telecommunications Development Advisory Group (TDAG) in Geneva, Switzerland. See, notice in the Federal Register, November 5, 2004, Vol. 69, No. 214, at Page 64620. Location: DOS, Room 2533A.

TIME? Jonathan Zittrain (Harvard Law School) will give a lecture titled "Free Software and the Future of the Internet" as part of the Georgetown Law Colloquium on Intellectual Property & Technology Law. For more information, contact Julie Cohen at 202 662-9871 or jec@law.georgetown.edu, or Jay Thomas at 202 662-9925. Location: Georgetown University Law Center, 600 New Jersey Ave., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Minnesota Christian Broadcasters, Inc v. FCC, No. 03-1439. This case pertains to an auction for a construction permit for a new commercial FM station. Judges Edwards, Sentelle and Garland will preside. See, brief [26 pages in PDF] filed by the FCC on July 27, 2004. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) in response to Geophysical Survey Systems, Inc.'s (GSSI) request for a waiver of Part 15 of the FCC's rules to permit the higher power operation of ultra-wideband (UWB) non-contact ground penetrating radars (GPRs). See, FCC notice [2 pages in PDF]. This is ET Docket No. 04-374.

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