1st Circuit Holds Wiretap Act Does Not Apply to E-Mail in Storage
June 29, 2004. The U.S. Court of Appeals (1stCir) issued its split opinion in USA v. Bradford Councilman, a criminal case involving the Electronic Communications Privacy Act (ECPA) and unauthorized accessing of the content of stored e-mail messages.
The Court held 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.
Judge Torruella wrote the opinion for the three judge panel. Judge Cyr joined. Judge Lipez wrote a long and adamant dissent. The opinion reflects the difficulties in applying the language of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (which addressed wiretaps in the context of analog telephone networks) and the 1986 ECPA (which addressed electronic communications) to more recent internet based communications technologies.
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.
A grand jury of the U.S. District Court (DMass) returned an indictment of Bradford Councilman. Only Count I is at issue in this appeal. It alleges violation of 18 U.S.C. § 371 for conspiracy to violate 18 U.S.C. § 2511.
The Appeals Court summarized Count I. "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 ..."
The District Court dismissed Count I. See, opinion at 245 F. Supp. 2d 319. The Appeals Court affirmed.
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 majority 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, 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 majority 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."
This case is USA v. Bradford Councilman, No. 03-1383, an appeal from the U.S. District Court for the District of Massachusetts, Judge Michael Ponsor presiding.
Judge Lipez wrote in dissent that this "approach to the Wiretap Act would undo decades of practice and precedent regarding the scope of the Wiretap Act and would essentially render the Act irrelevant to the protection of wire and electronic privacy. Since I find it inconceivable that Congress could have intended such a result merely by omitting the term ``electronic storage´´ from its definition of ``electronic communication,´´ I respectfully dissent."
Related Cases. On May 9, 2003, the U.S. Court of Appeals (1stCir) issued its opinion in In Re Pharmatrak Privacy Litigation, reversing a District Court summary judgment in a case brought under the ECPA involving web site monitoring. This case is also reported at 329 F.3d 9. See also, story titled "1st Circuit Holds Monitoring Web Site Traffic Can Violate Wiretap Act" in TLJ Daily E-Mail Alert No. 659, May 12, 2003.
On August 23, 2002, the U.S. Court of Appeals (9thCir) issued its opinion [39 pages in PDF] in Konop v. Hawaiian Airlines. In that case the Court held that the Wiretap Act only applies to "acquisition contemporaneous with transmission", not to acquisition of stored communications. The defendants in the present case only acquired stored e-mail. This case is also reported at 302 F.3d 868. See also, story titled "9th Circuit Rules on Application of Wiretap Act and Stored Communications Act to Secure Web Sites" in TLJ Daily E-Mail Alert No. 498, August 26, 2002.
opinion in Steve Jackson Games, Inc. v. United States Secret Service,
36 F.3d 457 (5th Cir. 1994).