New Developments in Councilman [5:47 pm]
In a closely watched case governing Internet privacy, a federal appeals court has reinstated a criminal case against an e-mail provider accused of violating wiretap laws.
The First Circuit Court of Appeals, in a 5-2 vote, ruled Thursday that an e-mail provider who allegedly read correspondence meant for his customers could be tried on federal criminal charges.
From the opinion:
In sum, the legislative history indicates that Congress included the electronic storage clause in the definition of “wire communication” provision for the sole reason that, without it, access to voicemail would have been regulated solely by the Stored Communications Act. Indeed, that is exactly what happened when Congress later removed the explicit reference to “electronic storage” from the definition of “wire communication” in the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, Pub. L. No. 107-56, tit. II, Â§ 209(1)(A), 115 Stat. 272, 283 (2001). See Robert A. Pikowsky, An Overview of the Law of Electronic Surveillance Post September 11, 2001, 94 Law Libr. J. 601, 608 (2002) (”[T]he USA PATRIOT Act amended the statutory scheme and unambiguously brought voicemail under the Stored Communications Act.”).
We conclude that the term “electronic communication” includes transient electronic storage that is intrinsic to the communication process for such communications. That conclusion is consistent with our precedent. See Blumofe v. Pharmatrak, Inc. (In re Pharmatrak Privacy Litig.), 329 F.3d 9, 21 (1st Cir. 2003) (a rigid “storage-transit dichotomy . . . may be less than apt to address current problems”); Footnote see also Hall v. EarthLink Network, Inc., 396 F.3d 500, 503 n.1 (2d Cir. 2005) (rejecting arguments that “communication over the Internet can only be electronic communication while it is in transit, not while it is in electronic storage”). Consequently, in this context we reject Councilman’s proposed distinction between “in transit” and “in storage.”
[...] Councilman’s core argument on appeal is that because the messages at issue, when acquired, were in transient electronic storage, they were not “electronic communication[s]” and, therefore, section 2511(1)’s prohibition on “intercept[ion]” of any “electronic communication” did not apply. That is the argument that we have now rejected in holding that an e-mail message does not cease to be an “electronic communication” during the momentary intervals, intrinsic to the communication process, at which the message resides in transient electronic storage. See supra Part II.A.
Councilman’s appeal does not provide any other basis for finding that the acquisitions were not “intercept[ions]” of “electronic communication[s].” To be sure, Councilman does argue that “Congress intended ‘intercept’ to cover acquisitions ‘contemporaneous with transmission.’” However, his entire argument on this point is based on the theory, as he writes in his brief, that “[c]ourts uniformly have understood ‘electronic storage’ to negate the ‘contemporaneous with transmission’ element of a Wiretap Act ‘intercept,’” and therefore “an e-mail in ‘electronic storage’ . . . cannot by definition be acquired ‘contemporaneous with transmission.’” That argument is simply a variation on, and entirely subsumed within, his primary argument concerning “storage” — the very argument that we have now rejected.