§ 8.01 Wiretap Act (Title III)

• Jurisdiction: United States
• Publication year: 2020

§ 8.01 Wiretap Act (Title III)

[1] Introduction

Congress originally passed the Wiretap Act,¹ also known as "Title III," in 1968 to protect the privacy of wire and oral communications and to delineate the circumstances and conditions under which the interception of wire and oral communications may be authorized.² The Electronic Communications Privacy Act (the ECPA) amended the Wiretap Act in 1986 in order to "update and clarify Federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies,"³ by including, among other things, "electronic communications" in its coverage.⁴ In general, the Wiretap Act, as amended, prohibits the unauthorized interception, disclosure, or use of electronic, wire, and oral communications.⁵ It includes both criminal and civil remedies.⁶ Indeed, although a lesser criminal penalty may apply based on whether the intercepted communication was electronic, wire, or oral, the same civil remedies apply regardless of the type of communication. In contrast, the ECPA governs unauthorized access to stored communications.⁷

[2] Unauthorized Interception of Communications (18 U.S.C. § 2511)

[a] Elements

Section 2511(a) states that, "except as otherwise specifically provided in this chapter 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)." Thus, in order to establish a violation, the government must demonstrate that the defendant: (1) intentionally (2) intercepted (3) the contents of a wire, oral, or electronic communication (4) by use of a device. In turn, liability as premised under § 2511(1)(a) relies on the definitions of "electronic communication," for example, and "intercept"⁸ set forth in 18 U.S.C. § 2510.

[i] "Electronic Communication"

Section 2510(12) defines "electronic communication"⁹ as "any 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 that affects interstate or foreign commerce."¹⁰ Further, it is generally understood that "electronic communication" includes a diverse set of digital communications such as web cookies, URLs, and e-mails.¹¹ Further, the electronic communication that is intercepted must include "content."¹² The statute defines "content" as "any information concerning the substance, purport, or meaning of that communications."¹³

[ii] "Intercept"

The Wiretap Act defines an "intercept," in general, as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical or other device."¹⁴ Because the computer systems that process e-mail, text messages, instant messages, and other forms of written electronic communications record and save copies of the contents of the communications, a recurring issue is whether such communications were "intercepted" for purposes of the Wiretap Act. Most courts that have considered this issue have found that "intercepted" occurs only when such communications are acquired¹⁵ contemporaneously with their transmission.¹⁶ In other words, an individual who obtains access to a stored copy of the communication left behind after the communication reached its destination does not "intercept" the communication.¹⁷

For example, a Fifth Circuit court¹⁸ held that the government's acquisition of e-mail messages stored on an electronic bulletin board system, but not yet retrieved by the intended recipients, was not an "interception" under the Wiretap Act. The court observed that, prior to the enactment of the ECPA in 1986, the word "intercept" had been interpreted to mean the acquisition of a communication contemporaneous with transmission.¹⁹ The court further observed that Congress in passing the ECPA intended to retain the previous definition of "intercept" with respect to wire and oral communications while amending the Wiretap Act to cover interceptions of electronic communications. The court concluded that the textual difference evidences Congress's understanding that, although one could "intercept" a wire communication in storage, one could not "intercept" an electronic communication in storage.²⁰

The defendant in Epstein v. Epstein,²¹ "surreptitiously plac[ed] an auto-forwarding 'rule' on [her husband's] email accounts that automatically forwarded the messages on his email client to her."²² The timestamps on the husband-plaintiff's sent e-mails did not match the timestamps indicating when his wife received the e-mails forwarded as the result of this "rule." Yet, the Seventh Circuit concluded that, at the summary judgment stage, this did not "conclusively establish" that these e-mails had not been intercepted contemporaneously.²³ For, it held, "the interception of an email need not occur at the time the wrongdoer receives the email," but may also take place when the e-mail is "cop[ied] at the server."²⁴

Further, in Bourdreau v. Lussier,²⁵ the First Circuit held that captured screenshots from an employee's work computer depicting contents of inbox for his private e-mail, opened e-mails, and e-mails that defendant was in process of drafting, and which all contained timestamps that matched times on computer's clock, were insufficient to show contemporaneous interception of his communications, as required to establish that defendant's employer violated by § 2511 by installing screenshot-capturing software on the computer in the absence of expert evidence concerning the software's purported interception of defendant's communications.²⁶ The court found that determining whether the screenshots demonstrated prohibited contemporaneous interception required an understanding of what the software actually did, and on what sort of timescale it actually did it, when it captured a screenshot, what a web browser's progress bar actually indicated, and how e-mail provider auto-saved e-mails as a user drafted them.²⁷

However, the First Circuit, in United States v. Councilman,²⁸ disagreed with the aforementioned understanding and held that a communication in temporary, transient storage as part of the transmission process is not a "stored communication" and can be intercepted. In that case, the defendant intercepted and copied all incoming e-mail messages before they were delivered to the recipient's mailbox and, therefore, before the recipient could read the message.²⁹ Defendant moved to dismiss the indictment, arguing that, because at the time the messages were "intercepted," they existed "in the random access memory (RAM) or in hard disks, or both," within defendant's computer system and thus were not "electronic communications" under the Wiretap Act, but rather, were in electronic storage.³⁰ The district court and a First Circuit panel agreed, but the en banc court reversed.

First, according to the First Circuit, the ECPA did "not clearly state whether a communication is still an 'electronic communication' within the scope of the Wiretap Act when it is in electronic storage during transmission."³¹ Then, after looking at the legislative history behind the definition of "electronic storage," the court found that the "purpose of the broad definition of electronic storage was to enlarge privacy protections for stored data under the Wiretap Act, not to exclude email messages stored during transmission from those strong protections."³² Specifically, the court determined that Congress intended the definition of "electronic storage" to protect, under the Stored Communications Act, "messages and by-product files that are left behind after transmission, as well as messages stored in a user's mailbox" from unauthorized access.³³ Finally, the court concluded that the fact that Congress had, prior to the PATRIOT Act, chosen to define "wire communications," but not "electronic communications," as including communications in "electronic storage" to be insignificant:

"If the addition of the electronic storage clause to the definition of "wire communication" was intended to remove electronic communications from the scope of the Wiretap Act for the brief instants during which they are in temporary storage en route to their destinations—which, as it turns out, are often the points where it is technologically easiest to intercept those communications—neither of the Senate co-sponsors saw fit to mention this to their colleagues, and no one, evidently, remarked upon it. No document or legislator ever suggested that the addition of the electronic storage clause to the definition of "wire communication" would take messages in electronic storage out of the definition of "electronic communication." Indeed, we doubt that Congress contemplated the existential oddity that Councilman's interpretation creates: messages . . . briefly cease to be electronic communications for very short intervals, and then suddenly become electronic communications again."³⁴

Rather, the court concluded that the addition of the "electronic storage" element to the definition of "wire communication" was merely meant to protect voicemail messages under the Wiretap Act (as opposed to the Stored Communications Act). Based on this analysis of the legislative history, the First Circuit rejected a "rigid 'storage-transit dichotomy'" and found that a communication in "transient electronic storage that is intrinsic to the communication process for such communications" was not a stored communication for purposes of the ECPA.³⁵

The district court in In re Carrier IQ³⁶ adopted the reasoning of Councilman and held that the allegation that software installed on consumers' mobile devices by a software developer and device manufacturer ran code that intercepted incoming text messages and outgoing web queries and search terms...