United States v. Councilman and the Scope of the Wiretap Act: Do Old Laws Cover New Technologies?

• Publication year: 2004
• Citation: Vol. 6 No. 2004

Dorothy Higdon Murphy⁰

I. Introduction

Considerable litigation continues to surround the Electronic Communications Privacy Act¹ ("ECPA") as courts struggle to develop an understanding of how the ECPA will accommodate advances in computer technology, namely electronic communication.² The ECPA, enacted by Congress in 1986, consists of two titles. Title I, commonly referred to as the Wiretap Act, pertains to the interception of wire, oral, and electronic communications.³ Title II, commonly referred to as the Stored Communications Act ("SCA"), applies to stored wire and electronic communication.⁴

Great emphasis is placed on the language of the Wiretap Act. Courts draw a distinction between "wire communication"⁵ and "electronic communication"⁶ because the definition of wire communication includes "electronic storage"⁷ while the definition of electronic communication does not.⁸ This distinction is significant in determining if and when electronic communication may be "intercepted."⁹ Courts have interpreted this distinction to mean that electronic communication that is in electronic storage cannot be intercepted under the Wiretap Act.¹⁰ The problem in applying the statute is that "[t]echnology has, to some extent, overtaken language. Traveling the [I]nternet, electronic communications are often—perhaps constantly—both 'in transit' and 'in storage' simultaneously, a linguistic but not a technological paradox."¹¹

In United States v. Councilman,¹² the First Circuit Court of Appeals addressed the complex issue of when the Wiretap Act protects electronic communication. In a split decision, the First Circuit upheld the district court ruling, holding that an Internet service provider ("ISP") does not violate criminal wiretap laws when it copies and reads customers' email messages without their consent.¹³ The First Circuit reasoned that the intercept provisions of the Wiretap Act did not apply due to the fact that the messages were held in electronic storage.¹⁴ As of October 5, 2004, a majority of the First Circuit judges voted to withdraw and vacate their prior judgment and rehear the case en banc.¹⁵

This Comment examines the First Circuit's decision in Councilman and argues that the court incorrectly interpreted and applied settled law to the unique facts of the case, thereby impermissibly allowing electronic communications that are characterized simultaneously as "in transit" and "in storage" to be acquired by ISPs without violating either the Wiretap Act or the SCA.¹⁶ This Comment proposes that in rehearing the case, the court should avoid a narrow construction of the Wiretap Act because such an interpretation leads to outcomes that are contrary to public policy. Furthermore, in rehearing the case, the court should construe the ECPA as a whole statute, not as two separate titles.

Parts I and II of this Comment examine the statutory background for the discussion. Part I provides an overview of the precursor to the ECPA, the Omnibus Crime Control and Safe Streets Act of 1968,¹⁷ and briefly outlines the historical events leading up to the enactment of the ECPA of 1986. Part II summarizes the amendments made to the Omnibus Crime Control and Safe Streets Act of 1968 by the ECPA of 1986.

Part III of this Comment discusses the Wiretap Act as it relates to interception of electronic communications. This Part considers the flawed reasoning the First Circuit employed in Councilman to determine that the defendant did not "intercept"¹⁸ electronic communications in violation of the Wiretap Act when software, installed at his request, allowed him to intentionally copy and read his customers' private email in order to gain a competitive advantage. This Part further argues that the First Circuit is correct in rehearing Councilman¹⁹ en banc because the panel misinterpreted and incorrectly applied settled case law to the unique facts of this case.

Part IV of this Comment examines the issues that the First Circuit should address when rehearing Councilman. First, this Part discusses whether the language of the Wiretap Act is ambiguous. Next, this Part explores those issues the court requested that the parties address: (1) "[w]hether the conduct at issue in this case could have been additionally, or alternatively, prosecuted under the Stored Communications Act"²⁰ and (2) "[w]hether the rule of lenity precludes prosecution in this case."²¹ In particular, this Part examines the SCA as it relates to stored electronic communications.

Part V of this Comment discusses the negative implications of the First Circuit's narrow reading of the Wiretap Act when read in conjunction with the SCA. This Part proposes that courts should take measures necessary to prevent electronic communications from being acquired by ISPs without consequence, under either the Wiretap Act or the SCA. Namely, courts should examine both titles of the ECPA concurrently and implement a test to determine which title of the ECPA is applicable to the electronic communication at issue.

II. Prior to the Enactment of the ECPA: The Omnibus Crime Control and Safe Streets Act of 1968

Congress enacted the Omnibus Crime Control and Safe Streets Act, the precursor to the ECPA, in 1968.²² Title III of the Omnibus Crime Control and Safe Streets Act was commonly referred to as the Federal Wiretap Act. The purpose of the Federal Wiretap Act was to "prohibit, on the pain of criminal and civil penalties, all interceptions of oral and wire communications, except those specifically provided for in the Act, most notably those interceptions permitted to law enforcement officers when authorized by court order in connection with the investigation of [certain] serious crimes."²³ These restrictions were intended to protect the important government interest in privacy of communication, "thereby encouraging the uninhibited exchange of ideas and information among private parties."²⁴ The Federal Wiretap Act was limited in that it only addressed the interception of wire and oral communications.²⁵ Prior to the enactment of the ECPA, courts interpreted "intercept" to mean the acquisition of a communication contemporaneous with transmission.²⁶

In 1984, Senator Leahy wrote to the Attorney General inquiring as to whether electronic communications were covered by the Federal Wiretap Act.²⁷ The Department of Justice ("DOJ") responded by stating that electronic communications are protected from acquisition "only where a reasonable expectation of privacy exists."²⁸ The DOJ further noted that "in this rapidly developing area of communications which range from cellular non-wire telephone connections to microwave-fed computer terminals, distinctions [whether there does or does not exist a reasonable expectation of privacy] are not always clear or obvious."²⁹

On September 19, 1985, Senators Leahy and Mathias, dissatisfied with the DOJ's response, introduced a bill for the ECPA of 1985.³⁰ Pursuant to Congress's order, the Office of Technology Assessment conducted a study in which they concluded that the legal protections for email in 1985 were "weak, ambiguous, or non-existent," and "electronic mail remain[ed] legally as well as technically vulnerable to unauthorized surveillance."³¹ Following a hearing conducted by the Subcommittee on Patents, Copyrights and Trademarks, a new bill superceded the ECPA of 1985 in order to reflect concerns raised by the Subcommittee.³² On June 19, 1986, Senators Leahy and Mathias introduced the new bill, stating that the existing law is "hopelessly out of date"³³ and has failed to keep up with developments in computer technology. After reviewing the bill, the Subcommittee amended it to clarify certain provisions. In a unanimous vote, the Subcommittee sent a favorable report on the ECPA of 1986, as amended, to the full Senate.³⁴

III. The Electronic Communications Privacy Act of 1986 Amends the Federal Wiretap Act

In 1986, Congress enacted the ECPA in order to update and expand the privacy protections in the 1968 Federal Wiretap Act.³⁵ The purpose of the ECPA is to "protect against the unauthorized interception of electronic communications . . . [and to] update and clarify Federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies."³⁶ The Subcommittee recognized that computers were used extensively to store and process information and that the "law must advance with the technology to ensure the continued vitality of the fourth amendment."³⁷

Prior to the enactment of the ECPA, the Federal Wiretap Act only protected wire and oral communications. The ECPA made a number of changes.³⁸ It amended (1) the definition of "wire communications" to include wire communications in "electronic storage," such as voicemail;³⁹ (2) the definition of "intercept" to cover "electronic communications;" (3) the variety of acts constituting interception from "aural acquisitions" to "aural or other acquisition;" (4) the definitions to include the terms "electronic communication," "electronic communications system," "electronic communication service," and "electronic storage;" and (5) the statute to provide that inadvertent interceptions were deemed not to be crimes under the ECPA.⁴⁰

The ECPA prohibits the intentional interception of wire, electronic, and oral communications.⁴¹ Moreover, the legislative history of the ECPA suggests that Congress sought to protect private electronic communications such as email.⁴²

IV. Title I of the ECPA: The Wiretap Act

A. Statutory Language and Interpretation

The Wiretap Act addresses the interception of wire, oral, and electronic communications.⁴³ Subject to certain exceptions, a criminal or civil cause of action under the Wiretap Act exists against 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;

(b) intentionally uses, endeavors to use, or procures any other person to use...