In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1347
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID S. SZYMUSZKIEWICZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 07-CR-171—Lynn Adelman, Judge.
ARGUED JUNE 2, 2010—DECIDED SEPTEMBER 9, 2010
Before EASTERBROOK, Chief Judge, and POSNER and
KANNE, Circuit Judges.
EASTERBROOK, Chief Judge. David Szymuszkiewicz
was in trouble at work. His driver’s license had been
suspended for driving while drunk. This threatened his
job because, as a revenue officer, Szymuszkiewicz was
required to travel to delinquent taxpayers’ homes. He
worried he might be fired. One response, a jury found,
was to monitor email messages sent to his supervisor,
2 No. 10-1347
Nella Infusino. She found out by accident when being
trained to use Microsoft Outlook, her email client. She
discovered a “rule” that directed Outlook to forward to
Szymuszkiewicz all messages she received. Szymusz-
kiewicz was convicted under the Wiretap Act for inten-
tionally intercepting an electronic communication. See
18 U.S.C. §2511(1)(a). The district judge denied his
motion for a judgment of acquittal. 2009 U.S. Dist. L EXIS
60755 (E.D. Wis. June 30, 2009).
The district judge rightly rejected Szymuszkiewicz’s
attack on the sufficiency of the evidence. He had both
motive and opportunity; direct evidence is not required.
Szymuszkiewicz had access to Infusino’s computer
when she left her desk and could have set up a
forwarding rule while she was away. Szymuszkiewicz
denies knowing of Outlook’s capacity for rules, but
other IRS employees testified that this was common
knowledge, and one witness testified that Szymusz-
kiewicz was sophisticated about computers. A motive to
spy could foster a motive to learn the necessary steps.
Szymuszkiewicz maintains the forwarding must have
been a mistake. He occasionally stood in as acting man-
ager, and so emails to Infusino would sometimes reach
him legitimately. But agents found emails to Infusino
stored in a personal folder of Szymuszkiewicz’s Outlook
client—in other words, Szymuszkiewicz not only re-
ceived the emails but also moved them from his inbox to
a separate folder for retention—which is not what
would have happened had all of Szymuszkiewicz’s
access been legitimate.
No. 10-1347 3
Although forwarding lasted three years, most of the
emails discovered on Szymuszkiewicz’s computer
were sent in the first half of each year, and none
discusses his employment. He did not learn anything
worthwhile. But an intentional interception is enough;
the prosecutor need not show that the spy obtained
valuable information. In re Pharmatrak, Inc., 329 F.3d 9,
23 (1st Cir. 2003); United States v. Townsend, 987 F.2d
927 (2d Cir. 1993). The jury could have chosen to be-
lieve Szymuszkiewicz’s contention that he received
Infusino’s emails legitimately, or by mistake, but the
evidence supported the more sinister inference that he
obtained them intentionally and without her knowledge.
Szymuszkiewicz contends that he should have been
charged under the Stored Communications Act, 18
U.S.C. §§ 2701–12, rather than the Wiretap Act. He
asserts that the rule on Infusino’s computer directed the
email system to forward her emails to him only “after
the message arrive[d].” As a result, he says, he did not
“intercept” anything, for (at least in football) “intercep-
tion” means catching a thing in flight, and any mes-
sage would have reached its destination (Infusino’s
inbox) before a copy was made for him. The Stored
Communications Act covers illegitimate access to infor-
mation that has come to rest on a computer system,
making it the right statute, Szymuszkiewicz concludes.
It is risky to defend against one crime by admitting
another. A court may be tempted to order a technical
correction in the judgment if proof of one offense estab-
lishes all elements of the other. (Szymuszkiewicz’s sen-
4 No. 10-1347
tence, 18 months’ probation, could have been meted out
under the Stored Communications Act, which allows
a year’s imprisonment for even the least serious vio-
lation. 18 U.S.C. §2701(b)(2)(A). And the sentencing
guidelines for the two crimes, though not identical,
both place a person low on the sentencing table.) But
it is unnecessary to pursue that possibility, because
Szymuszkiewicz’s argument is based on the belief that
Infusino’s computer did the forwarding after each email
arrived there. The evidence permitted the jury to find,
however, that every message to Infusino went through
the IRS’s regional server in Kansas City, and that the
server retained the message in its own files and dis-
patched two copies: one for Infusino and another
for Szymuszkiewicz. Outlook’s default is for an email
client to send all rules to the server, which implements
them. Only a rule that cannot be executed fully by the
server requires help from a client machine. Microsoft
Corporation, E-Mail Rules Protocol Specification [MS-
OXORULE] §1.3.3 (2010). The prosecutor introduced a
log from the Kansas City server showing that, when a
message to Infusino arrived, the server sent a copy to
Szymuszkiewicz within the same second; no action by
Infusino’s computer was necessary. The log shows that
the rule Szymuszkiewicz created was implemented on
the server side (per Outlook’s norm), rather than the
client side. The copying at the server was the unlawful
interception, catching the message “in flight” (to use
Szymuszkiewicz’s preferred analogy).
What’s more, it does not matter which computer did
the copying. To see why, we need to take a brief foray
No. 10-1347 5
into the world of packet switching, the method by
which nearly all electronic communications between
computers are now sent. When the Wiretap Act was
enacted in 1968, the normal communications path-
way was circuit switching: the telephone company’s
machinery (initially switchboards, then mechanical sole-
noids, and finally computers) would establish a single
electronic pathway, or circuit, between one tele-
phone and another. Computers can communicate over
dedicated circuits, but usually they break each message
into packets, which can be routed over a network
without the need to dedicate a whole circuit to a single
message.
Each packet contains some of the message’s content,
plus information about the packet’s destination. Each
packet travels independently, moving from router to
router within a network to find a path toward the
ultimate destination. The Wikipedia entry on packet-
switched networks contains a helpful description, plus
citations to technical references. The routers, and the
computers on both ends, arrange the packets (and their
address information), and resend as necessary, so that
at least one copy of each of the message’s many
packets reaches its goal. Lost packets can be repeated, and
a whole message can be transmitted by sending each
packet through a different route. Every packet may go
by a different route. Only at the end are the pieces put
back together and an intelligible communication formed.
The path of any particular packet, and the order in
which it arrives at the end, is irrelevant to the success
of the communication. Computers use a recipe known as
6 No. 10-1347
a protocol that enables them to agree on how packets
are formatted and reassembled. The three principal
protocols for email are POP, IMAP, and SMTP, standing
for Post Office Protocol, Internet Message Access
Protocol, and Simple Mail Transfer Protocol.
One copy of each email sent to Infusino thus would
be broken into packets and routed to Kansas City, where
a server would reassemble it. Two copies of each mes-
sage—one for Infusino, one for Szymuszkiewicz—then
would be flung across the network. The pace of transmis-
sion would depend on the packets’ travel, not just the
order in which they were originally generated. If, for
example, more packets were lost for one message
than another, or if one message’s packets traveled
through more-congested routers, the messages would
arrive at different times. Transmission speed also
depends on the email protocol selected. The time at
which each recipient obtained each message also
depended on whether the recipient’s computer was
connected to the Outlook server when the message
reached the server. This would be so both for Outlook’s
proprietary protocol and for most email systems in use.
See Microsoft Corporation, Mailbox Synchronization
Protocol Specification [MS-OXCSYNC] (2010); Internet
Engineering Task Force, Internet Message Access Protocol,
RFC no. 3501 (v. 4 rev. 1, 2003). The server would hold
the message until each client connected.
Szymuszkiewicz’s understanding of “interception” as
“catching a thing in flight” is sensible enough for
football, but for email there is no single “thing” that flies
No. 10-1347 7
straight from sender to recipient. When sender and re-
cipient are connected by a single circuit, and the spy puts
a “tap” in between, the football analogy makes some
sense (though the tap does not prevent the recipient
from getting the message; the spy gets a copy, just as
Szymuszkiewicz did). For email, however, there are no
dedicated circuits. There are only packets, segments of
a message that take different routes at different times.
The Wiretap Act’s definition of “interception” comprises
packet-switch technology as well as circuit-switch tech-
nology. See United States v. Councilman, 418 F.3d 67 (1st
Cir. 2005) (en banc). It defines “interception” as “aural
or other acquisition of the contents of any wire, elec-
tronic, or oral communication through the use of any
electronic, mechanical, or other device.” 18 U.S.C. §2510(4);
see also Doe v. Smith, 429 F.3d 706 (7th Cir. 2005).
An “electronic communication” is, in turn, “any transfer
of signs, signals, writing, images, sounds, data, or intelli-
gence of any nature transmitted in whole or in part by
a wire, radio, electromagnetic, photoelectronic or photo-
optical system that affects interstate or foreign com-
merce.” 18 U.S.C. §2510(12). (We omit irrelevant excep-
tions.) Email messages are transfers of writings, and
forwarding enabled Szymuszkiewicz to acquire those
writings’ contents. The difference between circuit-
switch and packet-switch transmission methods thus
is irrelevant under §2510. We agree with Councilman’s
conclusion on that subject (as well as its conclusion
that the Stored Communications Act does not repeal
any part of the Wiretap Act by implication; each statute
is fully enforceable according to its own terms).
8 No. 10-1347
Several circuits have said that, to violate §2511, an
interception must be “contemporaneous” with the com-
munication. Fraser v. Nationwide Mutual Insurance Co.,
352 F.3d 107, 113 (3d Cir. 2003); Steve Jackson Games,
Inc. v. Secret Service, 36 F.3d 457 (5th Cir. 1994); Konop v.
Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002); United
States v. Steiger, 318 F.3d 1039, 1047 (11th Cir. 2003).
Szymuszkiewicz sees this as support for his “in flight”
reading, but it is not. “Contemporaneous” differs from
“in the middle” or any football metaphor. Either the
server in Kansas City or Infusino’s computer made
copies of the messages for Szymuszkiewicz within a
second of each message’s arrival and assembly; if both
Szymuszkiewicz and Infusino were sitting at their com-
puters at the same time, they would have received
each message with no more than an eyeblink in be-
tween. That’s contemporaneous by any standard. Even
if Infusino’s computer (rather than the server) was
doing the duplication and forwarding, it was effectively
acting as just another router, sending packets along to
their destination, and Councilman’s conclusion that the
Wiretap Act applies to messages that reside briefly in
the memory of packet-switch routers shows that the
Act has been violated.
In saying that the rerouting of the information
was contemporaneous with the transit of each email, we
do not imply agreement with any statement that the
interception must be “contemporaneous.” Decisions
articulating such a requirement are thinking football
rather than the terms of the statute. There is no timing
requirement in the Wiretap Act, and judges ought not
No. 10-1347 9
add to statutory definitions. Lockhart v. United States,
546 U.S. 142, 146 (2005); Union Bank v. Wolas, 502 U.S. 151,
158 (1991); H.J. Inc. v. Northwestern Bell Telephone Co.,
492 U.S. 229 (1989); Guerrero-Perez v. INS, 242 F.3d 727,
736–37 (7th Cir. 2001). Forget about packet switching
and email for a moment, and think about 1968-vintage
telephony, with an old-fashioned answering machine
containing an old-fashioned tape recorder on the
receiver’s end (which is how what today is called
“voicemail” used to be set up). Perkins, the phone sub-
scriber with an answering machine, could call his
own number and key in a code to have his messages
replayed from the tape. Suppose Smith learned the
code, called Perkins’s number, and listened to all of the
messages on the answering machine. That means of
acquiring the contents of a phone call is as effective
as placing a “tap” on the phone line outside Perkins’s
house, or placing a hidden transmitter on the bottom
of Perkins’s phone, and comes within the definition of
“interception” in §2510(4) even though the acquisi-
tion is not contemporaneous with the message. Under
the statute, any acquisition of information using a
device is an interception. And if getting access to an
answering machine’s contents is an interception, so is
getting access to an email inbox’s contents by auto-
mated forwarding.
The Stored Communication Act imposes its own penal-
ties for clandestinely accessing information held “in
electronic storage.” 18 U.S.C. §2701(a). Playing back the
messages on the answering machine would violate
the Stored Communications Act—but this does not imply
10 No. 10-1347
that the activity does not violate the Wiretap Act too.
Overlapping criminal statutes are nothing new. The
two statutes have different definitions, different
penalties, and different provisions for civil suit; they
establish different rules for when (if at all) improperly
acquired information may be used in court. There is no
need to invent “contemporaneity” to keep them apart.
Our understanding of the Wiretap Act is essential to
phone privacy as well as email security. Many phone
calls today are made by digitizing speech and trans-
ferring the result by packet switching. Transmission by
packet switching allows for multiple simultaneous mes-
sages over a single circuit and so is cheaper than circuit
switching. The adoption of packet switching is not
limited to “voice over IP” services such as Vonage or
Skype. The fourth-generation protocol for mobile phones,
being introduced this year in the United States, is one
part of an effort to transmit all voice communications
by IP (“Internet Protocol”, a packet-switched method)
before many more years have passed. See 3rd Genera-
tion Partnership Project, All-IP Network (AIPN) Feasibility
Study, Technical Report no. 22.978 rel. 8 (Dec. 2008). The
“interception” of a communication sent in packets must
be done by programming a computer to copy the
contents it sends along (and reassemble them later),
which was exactly what Szymuszkiewicz told Infusino’s
computer to do with her incoming emails. In saying that
the Wiretap Act’s definitions treat the acquisition of
emails as an interception, we ensure that the Act applies
to packet-switched phone calls too.
No. 10-1347 11
Only one more point requires attention. The “intercep-
tion” prohibited by §2511(1)(a) is the acquisition of a
communication’s contents “through the use of any elec-
tronic, mechanical, or other device.” 18 U.S.C. §2510(4). The
Wiretap Act defines an “electronic, mechanical, or other
device” as
any device or apparatus which can be used to
intercept a wire, oral, or electronic communication
other than—
(a) any telephone or telegraph instrument, equip-
ment or facility, or any component thereof,
(i) furnished to the subscriber or user by a
provider of wire or electronic communication
service in the ordinary course of its business
and being used by the subscriber or user
in the ordinary course of its business or fur-
nished by such subscriber or user for connec-
tion to the facilities of such service and used
in the ordinary course of its business; or
(ii) being used by a provider of wire or elec-
tronic communication service in the ordinary
course of its business, or by an investigative
or law enforcement officer in the ordinary
course of his duties;
(b) a hearing aid or similar device being used
to correct subnormal hearing to not better than
normal.
18 U.S.C. §2510(5). Szymuszkiewicz argues, citing two
cases, that the “device” used to intercept a communica-
12 No. 10-1347
tion must differ from the device the intended audience
uses to receive the message. See Crowley v. Cybersource,
Inc., 166 F. Supp. 2d 1263, 1269 (N.D. Cal. 2001); Ideal
Aerosmith, Inc. v. Acutronic USA, Inc., 2007 U.S. Dist. L EXIS
91644 (W.D. Pa. Dec. 13, 2007).
This argument does Szymuszkiewicz no good. The
intended audience was Infusino, so on the approach of
these decisions her computer was not a “device.” But
the server in Kansas City counts as a device; so does
Szymuszkiewicz’s own computer. And if we exclude
the Kansas City server on the ground that it was integral
to the legitimate transmission of the emails, Szymusz-
kiewicz’s computer remains. He thus accessed nonpublic
messages by means of a device capable of understanding
them but unnecessary to the communication itself.
United States v. Chiavola, 744 F.2d 1271, 1275 (7th Cir.
1984); In re John Doe Trader No. 1, 894 F.2d 240 (7th Cir.
1990).
More than that: we don’t see any need to search for
a device that is different from, or not integral to, the
legitimate communication. Crowley and Ideal Aerosmith
added this “different device” requirement to the stat-
utory text to avoid what those judges thought would
otherwise be a rule that made ordinary usage of a tele-
phone or computer criminal. These judges feared that,
unless the “device” must be extraneous to a proper
communication, a person answering his own phone
at home, and holding a conversation with a friend,
would violate the Wiretap Act by acquiring the content of
his own conversation using his own phone (a “device”).
No. 10-1347 13
This fear just shows why it is a mistake to read
snippets of a statute in isolation. For another section of
the Wiretap Act declares that “it shall not be unlaw-
ful . . . for a person . . . to intercept a wire, oral or elec-
tronic communication where such person is a party to
the communication or where one of the parties . . . has
given prior consent.” 18 U.S.C. §2511(2)(d). So acquiring
the contents of one’s own conversation, and sharing them
over a speakerphone, is not unlawful, no matter what
the word “device” means. It is better to follow the
statute than to make up limitations to avert imaginary
problems. Thus Szymuszkiewicz acquired the emails
by using at least three devices: Infusino’s computer
(where the rule was set up), the Kansas City server
(where the rule caused each message to be duplicated
and sent his way), and his own computer (where the
messages were received, read, and sometimes stored).
AFFIRMED
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