In the recent case United States v. Councilman, a full federal appellate court based in Boston recently concluded that the interception of an email message in temporary, transient electronic storage does state an offense under the Wiretap Act, as amended by the Electronic Communications Privacy Act. The court therefore reinstated a criminal indictment that had been dismissed by a federal trial court.
Background
The defendant, Bradford Councilman, was the Vice President of Interloc, Inc., a company that hosted an out-of-print book listing service. Interloc provided book dealer customers an email address at the domain www.interloc.com and served as the email provider. The defendant managed the email service and the dealer subscription list.
As set forth in the indictment, in early 1998 the defendant directed Interloc employees to intercept and copy all incoming communications to subscriber dealers from Amazon.com. Interloc's systems administrator modified the server's procmail recipe such that, before delivering any message from Amazon.com to the recipient's mailbox, procmail would copy the message and put the copy in a separate mailbox that the defendant could access.
Therefore, procmail would intercept and copy all incoming messages from Amazon.com prior to delivery to the recipient's mailbox, and thus before the intended recipient could read the message. This tactic resulted in the interception of thousands of messages. The defendant and other Interloc employees regularly read the email messages sent to Interloc subscribers in the apparent hope of obtaining commercial advantage.
Interception of electronic communications
The defendant argued that the email messages, when copied by procmail, were not "electronic communications" under the law and that there was no illegal "interception." The full appellate court disagreed, ruling that the defendant's "interpretation of the Wiretap Act is inconsistent with Congress's intent."
The defendant's chief argument about electronic communications was that once a message enters a computer, it ceases to be an electronic communication under the Wiretap Act. He asserted that Congress considered communications in computers to be worthy of less protection than communications in wires because users have a lower expectation of privacy for communications that are in electronic storage.
The full appellate court, however, found that the purpose of Congress's broad definition of electronic storage was to "enlarge the privacy protections for stored data under the Wiretap Act, not to exclude email messages stored during transmission from those strong protections." In addition, the court pointed out that Congress added the notion of electronic storage to the definition of "wire communication" to protect voicemail, not to lesson protection for email. Accordingly, the court ruled that "electronic communications" under the Wiretap Act "includes transient electronic storage that is intrinsic to the communication process for such communications."
The defendant had argued that because electronic communications under the Wiretap Act were not at issue, there could not have been interception of such communications. Because the full appellate court ruled that indeed Wiretap Act electronic communications were at the heart of the case, such communications had been intercepted, and therefore rejected the defendant's interception argument.
Final word
Law enforcement authorities take seriously violations of law when it comes to electronic communications. Companies and individuals should take all appropriate steps not to run afoul of the law. The law in this area can be complex, and advice of skilled counsel should be sought when at all in doubt.
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 . 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 .
Disclaimer: This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
Reprinted here with permission from USAToday.com.