In the recent case of DirecTV v. Mike Tregory, a federal appellate court in Florida has held that DirecTV (DTV) does not have a private right to bring legal action under 18 U.S.C. section 2520(a) against people who possess devices used to intercept satellite transmission in violation of criminal statute 18 U.S.C. section 2512(1)(b).

DTV provides satellite television programming to millions of subscribers. In so doing, DTV encrypts its satellite transmissions to prevent unauthorized viewing of pay-per-view and premium programs. The customers of DTV in turn purchase access devices from DTV to decrypt the satellite transmissions.

According to the court record, some people illegally circumvent these security measures and intercept the satellite transmissions and avoid paying any fees to DTV. Many times these people are aided by companies that market "pirate access devices" that permit users to decrypt the satellite transmissions of DTV. The intentional manufacture, distribution, possession, and advertising of pirate access devices is a criminal offense under 18 U.S.C. section 2512.

DTV obtained records that apparently demonstrated that defendant Treworgy purchased two pirate access devices. DTV then filed suit against Treworgy, arguing that Section 2520(a) creates a private right of action against a person in possession of access devices in violation of Section 2512(1)(b). Treworgy successful convinced the trial court to dismiss this aspect of the case against him, by contending that a private right of action does not arise simply based on possession of access devices.

The case then proceeded on appeal. The impact of the appeal has fairly far-reaching consequences, as DTV represented that it has about 1,800 complaints pending in federal trial courts in Florida alone in which DTV has alleged that a defendant violated Section 2512. Unfortunately for DTV, its appeal did not work out as planned.

The appellate court closely examined the language of Section 2520(a) and Section 2512(1)(b) and concluded that "the plain language of these provisions addresses two distinct concerns." According to the court, "Section 2520(a) provides a civil remedy for the victim of the theft of an electronic communication." Whereas, "Section 2512(1)(b) provides a criminal punishment for those involved in trafficking devices used for the theft of electronic communications without the need of proof that any person has yet been injured by that illegal commerce."

To be a plaintiff under Section 2520(a), one must be "any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used. . ." The defendant is "the person or entity which engaged in that violation." The appellate court concluded that "Congress chose to confine private civil actions to defendants who had 'intercepted, disclosed, or intentionally used" a communication and "not to the possession of prohibited devices."

Thus, DTV was held not to be able to proceed in a lawsuit against Treworgy for simply possessing access devices. More is required in this case, and in other cases DTV seeks to pursue. While possession of a pirate access device will not necessarily create liability, it is not difficult to imagine that most people who have acquired these devices actually use them for interception purposes. If that can be proven, the legal trouble then will begin.

Eric Sinrod is a partner in the San Francisco office of Duane Morris (www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. His column appears Wednesdays at USATODAY.com. His Web site is www.sinrodlaw.com, and he can be reached at ejsinrod@duanemorris.com. To receive a weekly e-mail link to Mr. Sinrod's columns, please send an e-mail with the word Subscribe in the Subject line to ejsinrod@duanemorris.com.

Reprinted here with permission from USAToday.com.