E-Mail Privacy: A High-Wire Act

E-Mail Privacy: A High-Wire Act

Publications

I. Introduction

What happens when advances in technology overtake advances in the law? The First Circuit's recently-vacated decision in United States v. Councilman, 373 F.3d 197 (1st Cir.), reh'g en banc granted, 385 F.3d. 793 (2004), provides an interesting illustration.

In Councilman, a panel of the First Circuit, by a two-to-one vote, affirmed the dismissal of a count charging an employee of an electronic mail (“email”) service provider with conspiracy to violate various provisions of the Wiretap Act.[1] The defendant allegedly had intercepted the emails of his employer’s customers while they were “in transit” to their intended recipients.[2] Relying on the parties’ stipulations and the plain language of the Wiretap Act, the majority affirmed the District Court’s ruling that, at the time of their acquisition, the emails were in “temporary storage” on the provider’s computer system and, therefore, no “intercept[ion]” had occurred.[3] The majority explained:

We believe that the language of the [Wiretap Act] makes clear that Congress meant to give lesser [privacy] protection to electronic communications than wire or oral communications. Moreover, at this juncture, much of the protection may have been eviscerated by the realities of modern technology. We observe … that the language [of the Wiretap Act] may be out of step with the technologies of computer crimes. However, it is not the province of this court to graft meaning onto the statute where Congress has spoken plainly.[4]

Although the First Circuit has vacated the panel opinion for rehearing en banc, Councilman raises important questions about email privacy. In particular, what level of protection against the unlawful interception of email did Congress actually intend to provide in the Electronic Communications Privacy Act of 1986 ("ECPA")?[5] What level of protection currently exists? Should email users have the same expectation of privacy in “live” email and wire communications as they do in "live" oral communications? Should the technical manner in which electronic and wire communications are transmitted affect the level of privacy protection that the law provides?

This article reviews the relevant facts and implications of Councilman against the historical backdrop of Katz v. United States, 389 U.S. 347 (1967)("Katz"); its statutory progeny, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III");[6] and other recent decisions relating to the Wiretap Act’s application to email. It then outlines some technology and privacy concerns that Congress should consider in ultimately resolving the broader questions that Councilman presents.

II. Statutory Background

In the early years of telephonic communications, the courts did not perceive the government’s use of electronic surveillance techniques to have any Fourth Amendment implications. In Olmstead v. United States, 277 U.S. 438 (1928), the Supreme Court held that the interception of telephone conversations through the use of a wiretap did not constitute a search or seizure because nothing tangible was seized and no premises were entered or searched.[7] In Goldman v. United States, 316 U.S. 129 (1942), the Supreme Court addressed the constitutionality of electronic bugs. As in Olmstead, it held that because no physical trespass had occurred, law enforcement officers were permitted to place a listening device against the wall of a room next to the one occupied by the target of an investigation.[8]

In 1967, the Supreme Court reversed its prior position on the constitutionality of electronic surveillance. In Katz, the Court held that law enforcement officers’ placement of a bug in a public telephone booth used by a target constituted a “search and seizure” under the Fourth Amendment.[9] The court reasoned that because the target had a reasonable expectation of privacy in his conversation in the phone booth, law enforcement officers were required to obtain a warrant to intercept it.[10] The court explicitly overturned Olmstead and Goldman, stating that "the 4th Amendment protects people, not places."[11]

In his oft-quoted concurrence, Justice Harlan articulated a two-part test for determining whether the Fourth Amendment protects the privacy of an individual’s communications: (1) the individual must exhibit an actual expectation of privacy, and (2) that expectation must be one that society recognizes as reasonable.[12]

In 1968, Congress responded to Katz by enacting Title III to protect the privacy of wire and oral communications and to define the circumstances and conditions under which the interception of wire and oral communications may be authorized.[13] Congress noted that the “tremendous scientific and technological developments that have taken place in the last century have made possible today the widespread use and abuse of electronic surveillance techniques. As a result of these developments, privacy of communication is seriously jeopardized by these techniques of surveillance.”[14]

Among other things, Title III made it a crime to “intentionally intercept[]. . . any wire or oral communication.”[15] Congress incorporated the Katz standard into the statute by defining “oral communication” as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.”[16]

By 1986, it had become clear that Title III was not sufficient to address the technological advances that had been made in electronic communications. Thus, Congress enacted the ECPA, which amended Title III to extend its application to electronic communications, including email.[17] The genesis of the ECPA was a statement from the Department of Justice to Senator Patrick Leahy that Title III would only cover interceptions of email where “a reasonable expectation of privacy exists … which [in the case of email is] not always clear or obvious.”[18] By enacting the ECPA, Congress sought to strike a “fair balance between the privacy expectations of American citizens and the legitimate needs of law enforcement agencies.”[19]

The ECPA was divided into two parts: the Wiretap Act, 18 U.S.C. §§ 2510-2522, and the Stored Communications Act (“SCA”), 18 U.S.C. § 2701-2711. Among other things, the Wiretap Act amended Title III to make it unlawful to intercept, or to procure any other person to intercept, “any oral, wire, or electronic communication.”[20] It also made it unlawful to use or disclose an allegedly intercepted communication.[21] The Act defines “intercept” as the “acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.”[22]

At the time of Councilman’s conduct and prior to its amendment by the USA PATRIOT Act,[23] the Wiretap Act defined “wire communication” as:

[A]ny aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any person engaged in providing or operating such facilities… and such term includes any electronic storage of such communication.[24]

The Wiretap Act’s definition of “electronic communication” was and remains more limited. The Act defines “electronic communication” as:

[A]ny transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system.[25]

The Wiretap Act defines “electronic storage” as:

(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communications service for purposes of backup protection of such communication.[26]

The SCA, unlike the Wiretap Act, is not directed at the interception of communications, but the unauthorized and intentional accessing of communications stored by electronic communications services,[27] including Internet service providers (“ISPs”). The SCA’s legislative history reflects that it was designed to address, “the growing problem of unauthorized persons deliberately gaining access to, and sometimes tampering with, electronic or wire communications that are not intended to be available to the public.”[28] Except as provided in 18 U.S.C. § 2701(c), the SCA authorizes civil relief and criminal penalties against anyone who:

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided or (2) intentionally exceeds an authorization to access that facility and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage …[as that term is defined under 18 U.S.C. § 2510(17)].[29]

Several important differences exist between the privacy protection of communications provided by the Wiretap Act and that afforded by the SCA. First, under the Wiretap Act, the government may obtain an order authorizing the interception of communications only to investigate federal felonies.[30] Second, the Wiretap Act imposes a higher burden on the government to justify its acquisition of an individual’s communications than the SCA does.[31] In order to intercept communications under the Wiretap Act, the government must submit a detailed application for a court order authorizing such interception. Among other things, the application must: (1) specify the offense under investigation;[32] (2) establish probable cause to believe that the facilities from which the communications are sought to be intercepted are being used in connection with the commission of the offense under investigation;[33] (3) describe the type of communication to be intercepted;[34] (4) identify all persons whose communications are to be intercepted;[35] (5) state whether or not other investigative techniques have been tried and failed, or why those untried techniques reasonably appear to be unlikely to succeed or to be too dangerous;[36] (6) specify all previous applications for wiretap orders covering the same persons or facilities that are known to the applicant;[37] and (7) describe how the interception will be conducted to minimize acquisition of communications outside the scope of the order.[38]

Under the SCA, by contrast, to obtain stored communications, the government at most needs to obtain a search warrant or alternatively, may proceed by subpoena; may do so to investigate any federal crime; and is not required to show that other investigative techniques have been exhausted.[39] A search warrant is only needed if the electronic or wire communications have been held in electronic storage by an electronic communications service for 180 days or less.[40] Unread emails, for example, that have been stored by an ISP for more than 180 days may be acquired by subpoena, in lieu of a warrant, provided that the government notifies the ISP’s subscriber or customer.[41] Finally, the SCA contains an exception from criminal liability for “the person or entity providing a wire or electronic communications service,” which is broader than the analogous exception for such a provider under the Wiretap Act.[42]

Since the ECPA’s passage, several courts have grappled with the question of when electronic communications, including email, are “intercept[ed]” within the Wiretap Act’s meaning. In Steve Jackson Games, Inc. v. U.S. Secret Service, 36 F.3d 457 (5th Cir. 1994), for example, the government seized a computer from a bulletin board operator and acquired stored copies of private emails that had been sent to, and stored on, the bulletin board.[43] The stored emails were read and deleted by the government agents before they were read by their intended recipients.[44] The District Court held that the government’s acquisition of the communications was not an unlawful intercept, because it was not “contemporaneous with their transmission.”[45]

On appeal, plaintiffs argued that an “intercept” had occurred because the government had both acquired the plaintiffs’ email communications prior to their delivery and prevented their delivery.[46] The Fifth Circuit rejected this argument and focused instead on the textual differences in the ECPA’s definitions of “wire communication” and “electronic communication.”[47] The Court emphasized that, “unlike the definition of ‘wire communication,’ the definition of ‘electronic communication’ does not include electronic storage of such communications.[48] It further found that “Congress’s use of the word ‘transfer’ in the definition of ‘electronic communication,’ and its omission in that definition of the phrase ‘any electronic storage of such communication’... reflects that Congress did not intend for ‘intercept’ to apply to ‘electronic communications’ when those communications are in ‘electronic storage.’”[49] The Court held that because the emails were stored on plaintiffs’ computer, no unlawful “intercept” had occurred.[50]

In Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), the Ninth Circuit applied similar reasoning to hold that a defendant employer did not “intercept” information stored on its employee’s secure website in violation of the Wiretap Act where the employer obtained unauthorized access to that information.[51] The Court concluded that for an electronic communication to be “’intercepted’... it must be acquired during transmission, not while it is in electronic storage.”[52] The court found its conclusion to be “consistent with the ordinary meaning of ‘intercept,’ which is ‘to stop, seize or interrupt in progress or course before arrival.’”[53]

One year later, in In re Pharmatrak, Inc., 329 F.3d 9 (1st Cir. 2003), the First Circuit held that the use of an Internet “cookie,” which sent users’ personal information to Pharmatrak’s server at the same time the users accessed certain websites, constituted an “intercept[ion]” under the Wiretap Act.[54] Because the communications at issue were acquired contemporaneously with their transmission – unlike in Steve Jackson Games and Konopwhere the acquisitions were made “a substantial amount of time after [the] material was put in electronic storage” – the First Circuit held that the storage/transit dichotomy discussed in those earlier cases did not arise.[55] The First Circuit expressed concern, however, that the “storage-transit dichotomy adopted by earlier courts may be less than apt” in the wake of widespread usage of the Internet and the World Wide Web, given that “electronic communications are often – perhaps constantly – both ‘in transit’ and ‘in storage’ simultaneously...”[56]

III.United States v. Councilman

Bradford Councilman was the Vice-President of Interloc, Inc., an Internet-based rare book listing service that also acted as an email service provider to certain of its subscribers.[57] In January 1998, Councilman allegedly directed Interloc employees to revise Interloc’s email processing code so that it could intercept, copy, and store all incoming messages from Amazon.com, one of Interloc’s competitors.[58] While a program called a mail delivery agent (“MDA”) was in the process of placing the messages into the users’ mailboxes and before Interloc’s subscribers read them, Councilman allegedly used this program to intercept and read thousands of email messages addressed to Interloc’s subscribers from Amazon.com for commercial advantage.[59] Based on this conduct, the government charged Councilman with conspiracy to intercept, disclose and use electronic communications in violation of the Wiretap Act.[60]

Councilman denied that his conduct violated the Wiretap Act and the parties stipulated to the nature of the technology associated with his conduct.[61] In particular, they agreed that: (1) email is transmitted by a “store and forward” process; (2) after a user composes an email message, a mail transfer agent (“MTA”) formats the message and sends it in packets to the Internet; (3) the network then passes the packets from one computer to another; (4) each computer stores the packets in memory and then forwards them to their next stop en route to the email’s destination; (5) once all the packets of the email reach the recipient’s mail server, they are reassembled and a MTA sends the email to the appropriate user’s mailbox; and (6) an MDA is often required to retrieve the email from the MTA in order to make final delivery.[62] They further stipulated that at the time Councilman allegedly intercepted the emails, they were “in the random access memory (RAM) or in hard disks… within Interloc’s computer system.”[63]

Councilman moved to dismiss on the basis that the indictment failed to state an offense under the Wiretap Act because the emails were in “electronic storage” and, therefore, could not have been intercepted as a matter of law.[64] After initially denying Councilman’s motion to dismiss, the District Court reconsidered its decision in light of Konop.[65] In its decision after reconsideration, the Court first noted that under the Wiretap Act, at the time Councilman was indicted, “wire communication” was defined to include communications in electronic storage, while “electronic communication” was not. The District Court then found that the emails underlying Councilman’s indictment were in “electronic storage” at the time they were accessed and copied, and, therefore, were not within the Wiretap Act’s scope.[66] The Court explained:

“Storage” means storage, in whatever form and for however long. This conclusion is not only supported by the definition contained within the statute, but complies with the rule of lenity applicable to criminal cases… it is clear that the wire [sic] communications at issue in this case were not “intercepted”… but were merely taken out of storage.[67]

The government appealed, arguing that the critical inquiry in determining whether an “intercept” had occurred was not whether an email was in “electronic storage” at the time of its acquisition, but rather whether its acquisition occurred “contemporaneously with [its] transmission.”[68] Even if an email were temporarily stored on a server during its transmission, the government contended, the Wiretap Act applied, as long as the email was still en route to its final destination.[69] The government further contended that because Councilman had intercepted and copied emails while they were still in the delivery stream, he had violated the Wiretap Act.[70]

In June 2004, however, a divided three-judge panel of the First Circuit disagreed, on the ground that the emails were “stored communications.”[71] The panel majority acknowledged that the acquisition of the emails raised the “contemporaneous problem” because in Councilman, unlike in earlier cases, the emails were accessed “as they were being transmitted and in real time.”[72] Nevertheless, the Court held that because the emails at issue were accessed from “electronic storage,” which includes “any temporary intermediate storage,” and “[n]o mention is made [in the Wiretap Act] of electronic storage of electronic communications,” there was no violation of the Wiretap Act.[73] Based on these textual distinctions, the Court reasoned that Congress must have intended to afford less protection to the privacy of electronic communications than to that of wire communications.[74]

Judge Kermit Lipez vehemently dissented and warned that the “line that we draw in this case will have far-reaching effects on personal privacy and security.”[75] He asserted that the majority’s view 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.”[76] Judge Lipez found the lack of any reference to “electronic storage” in the definition of “electronic communication” to be less significant because the phrase was included in the definition of “wire communications” for a specific purpose, namely, to include voicemail within the Wiretap Act’s coverage.[77] Voicemail is a wire communication that is stored after is has been transmitted to its recipient. Judge Lipez reasoned that the fact that Congress had sought to include post-transmission storage of communications, such as voicemail, within the Wiretap Act’s coverage said nothing about the level of protection Congress intended to provide to communications that were stored during transmission.[78] He further agreed with the government’s position that an “intercept” of an electronic communication under the Wiretap Act requires an acquisition “contemporaneous with its transmission,” and found that the acquisitions of email at issue met this requirement.[79]

The Department of Justice submitted a petition for rehearing en banc, arguing that under the majority’s reasoning, “in the seconds in which email makes its way from the sender to the recipient, its coverage by the [Wiretap] Act depends on whether, at any given instant, it is in some form of momentary electronic storage.”[80] It further complained that if interception of email during a brief period of storage, i.e., a few nanoseconds, was not covered by the Wiretap Act, but only by the SCA, “criminals and corporate spies could monitor private email without violating the Wiretap Act.”[81] It also contended that because ISPs are specifically exempted from the SCA,[82] they “would be free to access the private email of their customers without criminal liability under [either the Wiretap Act or the SCA].”[83]

Following the release of the First Circuit panel’s decision, the interest in changing it created some strange bedfellows. Several civil libertarian groups and privacy advocates, including the American Civil Liberties Union and the Electronic Frontier Foundation, submitted an amicus brief in support of the Department of Justice’s request for a rehearing en banc. These groups complained that the decision threatened to broaden the government’s power to acquire email that is still in transit.[84] Prior to Councilman, the Department of Justice understood that the government needed to obtain a judicial order under Title III to obtain access to an individual’s live email,[85] the privacy of which was afforded roughly the same protections as contemporaneous oral and wire communications.[86] Under Councilman’s reasoning, however, such email would be “stored communications” governed, if at all, by the less stringent requirements for government acquisition contained in the SCA.

Senator Patrick Leahy, the original sponsor of the Senate version of the ECPA, also submitted an amicus brief in support of a rehearing en banc, arguing that the majority’s interpretation of the ECPA was inconsistent with its legislative history.[87] Senator Leahy explained that he had introduced the ECPA to “provide consistent legal treatment across different communications technologies.”[88] He further noted that during the Congressional debates on transmission and storage, it was never contemplated that intermittent storage during the transmission phase would affect the transmission’s protection under the ECPA.[89]

In October 2004, the First Circuit agreed to rehear the appeal in Councilmanen banc, withdrew the opinion and dissent released on June 29, 2004, and vacated its judgment.[90] It also ordered the parties to brief two issues: (1) “[w]hether the conduct at issue in [the case] could have been additionally, or alternatively, prosecuted under the [SCA]” and (2) “[w]hether the rule of lenity precludes prosecution in [the] case.”[91] On December 8, 2004, the First Circuit, sitting en banc, heard oral arguments.[92] As of the date of this article’s submission, the First Circuit has not yet ruled.

IV. Current Uncertainty

However the First Circuit ultimately rules in Councilman , the broader policy questions the case presents require further clarification by Congress of the scope of the Wiretap Act, in light of the ECPA and recent changes in communications technologies. At least two bills already have been introduced in the House. One, the “Email Privacy Act of 2004,” seeks to amend the definition of “intercept,” under 18 U.S.C. § 2510(4), to include “the acquisition of the contents of the communication through the use of an electronic, mechanical, or other device, at any point between the point of origin and the point when it is made available to the recipient.”[93] Another, the “Email Privacy Protection Act of 2004,” seeks to amend Section 2510(12)’s definition of “electronic communication” to include “any temporary, intermediate storage of that communication incidental to the electronic transmission thereof.”[94]

Consideration of such bills provides Congress with an opportunity to re-examine the reasons it decided to extend Title III’s application to electronic communications in 1986. Councilman probably illustrates what happens when technology overtakes the language of a statute and causes it to have unintended consequences.[95] That is, Congress probably intended to protect the privacy of email communications to the same extent that it had previously protected the privacy of contemporaneous oral communications, but failed to acknowledge the technological realities of email transmission in drafting the ECPA.[96]

Alternatively, it may be, as the Councilman majority originally found, that Congress concluded that an email in transmission simply does not warrant the same degree of privacy protection as a person’s contemporaneous oral communication. As discussed above, Title III was originally enacted to protect communications as to which a subjective expectation of privacy that society recognizes as reasonable exists.[97] Society’s expectation of privacy in contemporaneous, oral communications may be based largely on its understanding that unless an individual authorizes a third party to participate in or to record his conversation, its privacy is maintained and no tangible record exists. The communication is evanescent and exists only in the memories of the speaker and the communication’s intended recipient.

These features of contemporaneous, oral communications, however, are noticeably absent in email communications. By its nature, an email is not fleeting; it is recorded as soon as its author presses “send.” In addition, the email communication is inevitably disclosed to an ISP during its transmission from its author to its intended recipient.[98] The sender, therefore, arguably should expect that a record of the communication will be generated and that its confidentiality will be more vulnerable to intrusion by third parties. Indeed, if the sender understands how email is actually transmitted, he knows that an ISP will have access to his communication even during the transmission process and any expectation that he has in the privacy of his communication may, therefore, be unreasonable.

Perhaps even more importantly, technology is advancing to the extent that any expectation that society previously had in the privacy of a telephone communication may no longer be reasonable, in the absence of further legislative action. Although some telecommunications companies are still using “circuit switching” technology, in which a dedicated circuit or channel is established for the duration of the voice communication and no data is stored in the transmission, others are now using “packet switching” technologies,[99] including Voice Over Internet Protocol (“VOIP”).[100] In fact, VOIP, which uses the Internet to connect telephone calls, is already available on approximately 20% of all new phones shipped to U.S. businesses in 2004 and is expected to be available on over 50% of all new phones by 2007.[101] Because some temporary storage of a VOIP communication occurs incidental to its transmission, it also may be simultaneously “in transit” and “in storage,” and thus present issues relating to its privacy similar to the ones presented by email.

If the First Circuit were to adopt the reasoning of the majority’s withdrawn decision in Councilman, the Wiretap Act arguably would not apply to the unauthorized acquisition of VOIP and email communications as long as their acquisition occurred during the nanoseconds in the transmission process in which the data is stored. Further, the provisions of the SCA, rather than the Wiretap Act, would apply in determining the lawfulness of any government acquisition.[102]

Any future consideration by Congress of the privacy of wire and electronic communications should certainly account for these technological realities. In particular, Congress should finally determine whether the dichotomy between communications “in transit” and those “in storage,” delineated by the courts in applying the Wiretap Act’s “intercept” requirement, is a distinction worth preserving in all situations.

V. Conclusion

Congress will be the ultimate arbiter of whether the Wiretap Act will protect the privacy of email and VOIP communications during transmission. In the meantime, white-collar criminal practitioners should familiarize themselves with the technological realities of email and VOIP to position themselves to launch technology-based challenges, where appropriate, to criminal charges under the ECPA.



[1] Id. at 198-99; see 18 U.S.C. §§ 2510 – 2522.

[2] Councilman, 373 F.3d at 198-99.

[3] Id. at 203-04.

[4] Id.

[5] Pub. L. No. 99-508, 100 Stat. 1848 (1986).

[6] Pub. L. No. 90-351, 82 Stat. 197 (1968), as amended, 18 U.S.C. § 2510 et seq.

[7] Id. at 466.

[8] Id. at 135.

[9]Katz, 389 U.S. at 353.

[10]Id. at 352-53.

[11] Id. at 351, 353.

[12]Id. at 361.

[13] S. Rep. No. 90-1097, reprinted in 1968 U.S.C.C.A.N. 2112, 2153 (stating that "Title III was drafted to... conform with Katz v. United States").

[14]Id. at 2154.

[15] 18 U.S.C. § 2511.

[16]Id. § 2510(2) (emphasis added).

[17]Seeid. § 2511(1)(a)(prohibiting the intentional interception of “wire, oral, or electronic communication”).

[18] S. Rep. No. 99-541, at 4 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3558.

[19]Id. at 3559.

[20]18 U.S.C. § 2511(1)(a).

[21] Id. § 2511(1)(c)-(d).

[22]Id. § 2510(4).

[23] The USA PATRIOT Act amended the Wiretap Act and the SCA by removing the words “electronic storage” from the definition of “wire communication” in 18 U.S.C. § 2510 and substituting “wire or electronic” for the word “electronic” in 18 U.S.C. § 2703, thereby ensuring that stored wire communications, such as voice mail, are covered by the same rules as those that apply to stored electronic communications. See USA PATRIOT Act, Pub. L. No. 107-56 § 209, 115 Stat. 272, 283 (2001). The USA PATRIOT Act is scheduled to expire on December 31, 2005. Id. § 224.

[24] 18 U.S.C. § 2510(1) (emphasis added), amended by 18 U.S.C. § 2510 (2001).

[25] Id. § 2510(12).

[26]Id. § 2510(17).

[27] The ECPA defines “electronic communications service” as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” 18 U.S.C. § 2510(15).

[28] S. Rep. No. 99-541, at 35, reprinted in 1986 U.S.C.C.A.N. at 3589.

[29] 18 U.S.C. §§ 2701(a), 2707(a).

[30] Under the Wiretap Act, the government may seek an order to intercept electronic communications to investigate any federal felony, while it may seek an order to intercept oral or wire communications only to investigate certain enumerated federal felonies. Compare id. § 2516(3) with id. § 2516(1)(c).

[31]Compareid. §§ 2516-2518 withid. § 2703.

[32] Id. § 2518(1)(b)(i).

[33]Id. § 2518(3)(d).

[34]Id. § 2518(1)(b)(iii).

[35]Id. § 2518(4)(a).

[36]Id. § 2518(1)(c).

[37] Id. § 2518(1)(e).

[38]Id. § 2518(5).

[39]Id. § 2703; Fed. R. Crim. Proc. 41.

[40]See 18 U.S.C. § 2703(a).

[41]Seeid. §§ 2703(a), (b)(1)(B).

[42] Compare id. § 2701(c)(1) (providing for blanket exception from criminal liability under the SCA for communications service provider) withid. § 2511(2)(a)(i) (providing for exception from criminal liability under Wiretap Act where wire or electronic communication provider “intercept[s], disclose[s] or use[s] [the] communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service”).

[43]Id. at 458.

[44]Id.

[45] Id. at 460. The District Court relied on United States v. Turk, 526 F.2d 654 (5th Cir. 1976), a pre-ECPA case in which police officers had seized several audio tapes from an automobile that also contained cocaine and firearms. Id. at 656. With neither a warrant nor the automobile owner's consent, the police listened to the tapes, one of which recorded a private telephone conversation between the defendant Turk and the automobile owner. Id. Among other things, Turk argued that by listening to the tape, the officers had impermissibly “intercepted” his oral communication in violation of Title III. The court acknowledged that "[n]o explicit limitation of coverage to contemporaneous 'acquisitions' appears in the Act." Id. at 658. Nevertheless, the court found that Title III’s legislative history, combined with the ordinary definition of intercept, suggested that Congress was concerned primarily with the “activity engaged in at the time of the oral communication” rather than the time at which the communication is heard. Id. Thus, the court determined that an “interception” under Title III required the use of a surveillance device “contemporaneous with the communication,” and found no violation of Title III. Id. at 658 n.3, 659.

[46] Turk, 526 F.2d at 460-61.

[47]Id.

[48] Id. at 461.

[49]Id. at 460-61.

[50]Id. at 460-62.

[51] Id. at 878.

[52] Id.

[53]Id. (citing Webster’s Ninth New Collegiate Dictionary 630 (1985)). The Konop Court commented, in dicta, on the argument that because storage is necessarily incidental to the transmission of electronic communications, the term “intercept” must apply to electronic communications in storage while en route to their destinations. Id. at 879, n.6. While acknowledging that the argument was “not without appeal,” it stated that the ECPA’s language, including its definition of “electronic storage” to include “temporary intermediate storage…incidental to the electronic transmission,” and structure demonstrate that Congress “had chosen to afford stored electronic communications less protection than other forms of communication.” Id.

[54] Id. at 14.

[55]Id. at 21-22.

[56]Id. at 22 (quoting United States v. Councilman, 245 F. Supp. 2d 319, 321 (D. Mass. 2003)).

[57]Councilman, 373 F.3d at 198.

[58]Id. at 199.

[59]Id. at 199, 205.

[60] The government likely did not seek to indict Councilman under the SCA because he would appear to fall under the exception for Internet service providers. See 18 U.S.C. § 2701(c)(1) (stating that the provisions of the SCA do not apply to conduct “authorized…by the person or entity providing a wire or electronic communications service”); see also United States v. Councilman, 245 F. Supp.2d at 320 (“the defendant … could not be prosecuted under [the SCA] because he is exempted pursuant to 18 U.S.C. § 2701(c)(1)”). Councilman applied the Wiretap Act as it existed prior to its amendment by the USA PATRIOT Act. Councilman, 373 F.3d at 200 n.4.

[61]Councilman, 373 F.3d at 199.

[62]Id.; see also id. at 204-5.

[63] Id. at 203.

[64]Id. at 200.

[65]Councilman, 245 F. Supp.2d at 320.

[66]Id. at 320-21.

[67]Id. at 321.

[68] Brief for the Appellant at 23, Councilman (No. 03-1383).

[69]Id. at 16-17, 30-31.

[70]Id. at 16, 19-20.

[71]Councilman, 373 F.3d at 204.

[72]Id. at 202-03.

[73]Id. at 201, 203.

[74] Id.

[75]Id. at 208.

[76]Id. at 219.

[77] Id. at 210; see also Pub. L. No. 107-56, § 209 (provision of USA PATRIOT Act titled “Seizure of Voicemail Messages Pursuant to Warrants”).

[78]Councilman, 373 F.3d at 207 (citing legislative history indicating that “the Wiretap Act, not the SCA, prohibits a provider from ‘divulging the contents of a communication while it is in transmission’”) (emphasis added).

[79]Id. at 215-16.

[80] Petition for Rehearing En Banc at 6, Councilman (No. 03-1383)

[81]Id. at 5-6, 14.

[82]See 18 U.S.C. § 2701(c).

[83] Brief for the Appellant at 14, Councilman (No. 03-1383).

[84] See Supplemental Brief for the Center for Center for Democracy and Technology, the Electronic Frontier Foundation, the Electronic Privacy Information Center, the American Library Association, the American Civil Liberties Union, and the Center for National Security Studies as Amici Curiae in Support of the United States in Favor of Reversal, Councilman (No. 03-1383).

[85]See Councilman, 373 F.3d at 218; see also Brief for the Appellant at 36-38, Councilman (No. 03-1383).

[86] The Wiretap Act provides for some differences in the protection of electronic communications. For example, the Act provides for statutory suppression of unauthorized interception of wire communications, but not for electronic communications. See 18 U.S.C. §§ 2515, 2518(10)(a). In addition, the Act requires high-level Justice Department approval for orders permitting the interception of wire communications, but contains no such approval requirements for orders permitting the interception of electronic communications. See id. §§ 2516(1), (3).

[87] Brief of Amicus Curiae Senator Patrick J. Leahy at 3, Councilman (No. 03-1383).

[88] Id. at 4.

[89] Id. at 13.

[90]United States v. Councilman, 385 F.3d 793 (1st Cir. 2004).

[91] Id.

[92]Id.

[93] H.R. 4956, 108th Cong. (2004).

[94] H.R. 4977, 108th Cong. (2004). Both bills were referred to the House Subcommittee on Crime, Terrorism and Homeland Security on August 4, 2004 and lapsed with the close of the 108th Congress in December 2004.

[95]See Councilman, 245 F. Supp.2d at 321 (“technology has, to some extent, overtaken language. Traveling the internet, electronic communications are often – perhaps constantly – both ‘in transit’ and ‘in storage’ simultaneously).

[96]See, e.g., H.R. Rep. No. 99-647, at 34 (stating the by including “electronic communications” within the Wiretap Act’s scope, “electronic mail will be provided with protection against interception”).

[97]SeeKatz, 389 U.S. at 361.

[98] See, e.g., Orin S. Kerr, Internet Surveillance Law After the USA PATRIOT Act: The Big Brother That Isn’t, 97 Nw. U. L. Rev. 607, 628-29 (2003).

[99] As in e-mail, packet-switching telecommunications technology involves the breakdown of a communication into packets and the reassembly of the data prior to delivery. See Peter P. Swire, Correspondence, Katz is Dead. Long Live Katz, 102 Mich. L. Rev. 904, 911 (March 2004).

[100]SeeVerizon Introduces Voice Transmission Over Packet Switching Provided by Nortel Networks, Nortel Networks, athttp://www.nortelnetworks.com/corporate/news/newsreleases/2002c/07_02_02_verizon.html (July 2, 2002); Peter Grant, Ready for Prime Time, Wall St. J., Jan 12, 2004, at R7.

[101] See Swire, supra note 99, at 911; Grant, supra note 100.

[102] The provision of the USA PATRIOT Act removing “electronic storage” from the definition of “wire communications” and substituting “wire and electronic communications” for “electronic communications” in the SCA is scheduled to expire December 31, 2005. Seesupra note 23. At that time, Congress will either renew this provision or allow it to lapse. If Congress renews the provision, the issues raised in Councilman regarding coverage for electronic communications that are both “in storage” and “in transit” will continue to apply to wire communications as well. If Congress allows the provision to lapse, stored wire communications will, once again, be covered by the Wiretap Act. The issues raised in Councilman would then no longer apply to wire communications because there would be no practical difference between protections afforded wire communications “in storage” and “in transit”; both would be protected under the Wiretap Act.

This article originally appeared in White Collar Crime 2005, a National Institute publication of the American Bar Association Center for Continuing Legal Education and Criminal Justice Section.

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