Wiretap Act Prohibits Intercepting Emails Stored In Transit

In the courts’ continuing struggle with email, the First Circuit has ruled that the federal Wiretap Act does prohibit viewing emails that are in temporary storage before they are delivered.

Court have been struggling over whether “intercept” under the Wiretap Act, 18 U.S.C. Sec. 801-804, makes illegal the reading of emails in temporary storage as they are in transit to the recipient. Some courts have ruled that intercept can only mean while the messages are in transit not in storage.

The case involved Bradford Councilman, vice president of Interloc, Inc., which ran an online rare and out-of-print book listing service. As part of the service, the company offered an e-mail address at “interloc.com.” According to the indictment, Councilman directed employees to intercept and copy all communications to subscriber dealers from Amazon.com. The result was that Interloc could read the emails before they were delivered to the recipients, thus being able to gain commercial advantage.

Councilman was indicted for allegedly intercepting electronic communications under the Wiretap Act. He argued that the statute applied to messages as they were in transit and not in temporary storage. The problem courts have been facing is that the Wiretap Act makes it a crime for a person who “intentionally intercepts . . . [an] electronic communication’ which is defined as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by wire, radio, electromagnetic, photoelectronic or photooptical system.” This is in contrast to a “wire communication” that includes in its definition “and such term includes any electronic storage of such communication.”

The court concluded that “the term ‘electronic communication’ includes transient electronic storage that is intrinsic to the communication process, and hence that interception of an e-mail message in such storage is an offense under the Wiretap Act.”

In a dissent, Justices Torruelia and Cyr found that the definitions in the statute were controlling and that storage of an email excludes it from “interception.” “It is not by coincidence that every court that has passed upon the issue before us has reached a conclusion opposite to that of the en banc majority: that the Wiretap Act’s prohibition on intercepting electronic communications does not apply when they are contained in electronic storage, whether such storage occurs pre- or post-delivery, and even if the storage lasts only a few milliseconds.”

United States v. Bradford Councilman, No. 03-1383, First Cir. Court of Appeals, decided August 11, 2005.