United States v. Councilman

United States Court of Appeals
For the First Circuit

No. 03-1383

UNITED STATES OF AMERICA,

Appellant,

v.

BRADFORD C. COUNCILMAN,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.

Gary S. Katzmann, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, and Richard P.
Salgado, Senior Counsel, Computer Crime and Intellectual Property
Section, were on brief, for appellant.
Andrew Good, with whom Good & Cormier, was on brief, for
appellee.

June 29, 2004
 TORRUELLA, Circuit Judge. The United States appeals from

the district court's dismissal of Count One of the Indictment

against defendant Bradford C. Councilman ("defendant"). Count One

charged defendant with conspiring to engage in conduct prohibited

by various provisions of the Wiretap Act, 18 U.S.C. §§ 2510-2522,

in violation of 18 U.S.C. § 371. We affirm.

I. Facts

Defendant was Vice-president of Interloc, Inc.

("Interloc"). Interloc's primary business was as an online rare

and out-of-print book listing service. As part of its services,

Interloc provided certain book dealer customers with an electronic

mail ("e-mail") address and acted as the service provider. The

dealer was provided with an e-mail account ending in

"@Interloc.com".1

In May 1998, Alibris, a California corporation, acquired

Interloc. Defendant was Vice-president, shareholder and employee

of Interloc and Alibris. Among defendant's responsibilities was

the management of the Internet Service Provider ("ISP") and the

book dealer subscription list managed by Interloc.

1
Interloc also did business under the name Valinet. Valinet
functioned as an electronic service provider to the general public,
not just bookdealers, for a monthly fee using the domain name
@valinet.com. None of the e-mails at issue in this case were
addressed by its sender to any addressee using the domain
@valinet.com.

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 The parties stipulated to the following facts relevant to

the transfer of electronic messages by the Interloc systems. An e-

mail message, which is composed using an e-mail program, is

transferred from one computer to another on its way to its final

destination, the addressee. Building on the principle of store and

forward, the message is handed to a Message Transfer Agent ("MTA")

which stores the message locally. The message is routed through

the network from one MTA to another until it reaches the

recipient's mail server, which accepts it and stores it in a

location accessible to the recipient. Once the e-mail is

accessible to the recipient, final delivery has been completed.

The final delivery process places the message into storage in a

message store area. Often, a separate Mail Delivery Agent ("MDA")

will be required to retrieve the e-mail from the MTA in order to

make final delivery.

Interloc's computer facility used a program known as

procmail (short for process mail) as its MDA. Procmail operates by

scanning and sorting e-mail together with an MTA computer program

known as "sendmail."

According to the Indictment, on or about January 1998,

defendant directed Interloc employees to write computer code to

intercept and copy all incoming communications from Amazon.com to

subscriber dealers. The Interloc systems administrator wrote a

revision to the mail processing code called procmail.rc ("the

-3-
procmail"), designed to intercept, copy, and store, all incoming

messages from Amazon.com before they were delivered to the members'

e-mail, and therefore, before the e-mail was read by the intended

recipient. Defendant was charged with using the procmail to

intercept thousands of messages. Defendant and other Interloc

employees routinely read the e-mails sent to its members seeking to

gain a commercial advantage.

The procmail was designed to work only within the

confines of Interloc's computer. At all times that MTA sendmail

and MDA procmail performed operations affecting the e-mail system,

the messages existed in the random access memory (RAM) or in hard

disks, or both, within Interloc's computer systems. Each of the e-

mails at issue constituted an "electronic communication" within the

meaning of 18 U.S.C. § 2510(12).

Count One of the Indictment charged defendant with a

violation of 18 U.S.C. § 371 for conspiracy to violate 18 U.S.C.

§ 2511. Defendant allegedly conspired to intercept the electronic

communications, to intentionally disclose the contents of the

intercepted communications, in violation of 18 U.S.C. § 2511(1)(a),

and to use the contents of the unlawfully obtained electronic

communication, in violation of 18 U.S.C. § 2511(1)(c). Finally,

the government alleged that defendant had conspired to cause a

person to divulge the content of the communications while in

transmission to persons other than the addressees of the

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communications, in violation of 18 U.S.C. § 2511(3)(a).2 The

object of the conspiracy, according to the government, was to

exploit the content of e-mail from Amazon.com, the Internet

retailer, to dealers in order to develop a list of books, learn

about competitors and attain a commercial advantage for Alibris and

Interloc.3

Defendant moved to dismiss the Indictment for failure to

state an offense under the Wiretap Act, as the e-mail interceptions

at issue were in "electronic storage," as defined in 18 U.S.C.

§ 2510(17), and could not be intercepted as a matter of law. The

district court did not initially grant the motion to dismiss but,

upon further briefing by the parties, granted the motion and

dismissed Count One. The district court found that the e-mails

were in electronic storage and that, therefore, the Wiretap Act

could not be violated because the requisite "interception" was

lacking. United States v. Councilman, 245 F. Supp. 2d 319 (D.

Mass. 2003).

2
Count Two of the Indictment, which charged defendant with
conspiracy to violate 18 U.S.C. §§ 1030(a)(2)(C) and (c)(2)(B), was
dismissed at the request of the government after the district court
granted defendant's motion to dismiss Count One.
3
The stipulation signed by the parties also included a lengthy
definition of the term e-mail. In this appeal, we are more
concerned with the mechanism used to send and receive e-mail and
therefore highlight those sections of the stipulation.

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 II. Analysis

A. The Wiretap Act

We review questions of statutory interpretation de novo.

See United States v. Jones, 10 F.3d 901, 904 (1st Cir. 1993). The

issue in this case is whether there was an "intercept" of a

communication within the meaning of the Wiretap Act. In cases of

statutory construction we begin with the language of the statute.

See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999). We

determine the meaning of a word from the context in which it is

used. See Holloway v. United States, 526 U.S. 1, 6-7 (1999).

The Electronic Communications Privacy Act ("ECPA")

amended Title III of the Omnibus Crime Control and Safe Streets Act

of 1968, commonly known as the federal wiretap law. See Electronic

Communications Privacy Act, Pub. L. No. 99-508, 100 Stat. 1848

(1999). The ECPA was divided into Title I, commonly known as the

Wiretap Act, 18 U.S.C. §§ 2510-2522, and Title II, commonly known

as the Stored Communications Act, 18 U.S.C. §§ 2701-2711.4 The

amendments provided for the protection of electronic communications

along with oral and wire communications. See S. Rep. No. 99-541,

at 11 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3565.

4
The Wiretap Act and Stored Communications Act were amended again
by the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT
Act), Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001). All
references in this opinion are to the statute before it was
amended.

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 We begin our analysis by highlighting the difference

between the definitions of "wire communications" and "electronic

communications" in the Wiretap Act, mindful that the communications

at issue in this appeal are electronic in nature. Under 18 U.S.C.

§ 2510(1), a

"wire communication" means any aural transfer
made in whole or in part through the use of
facilities for the transmission of
communications by the aid of wire, cable or
other like connection between the point of
origin and the point of reception furnished or
operated by any person engaged in providing or
operating such facilities . . . and such term
includes any electronic storage of such
communication. . . .

18 U.S.C. § 2510(1). By comparison, "'electronic communication'

means 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." Id. at § 2510(12). No mention is made of electronic

storage of electronic communications. See generally In re Hart,

328 F.3d 45, 49 (1st Cir. 2003)("[W]hen Congress includes a

particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate

inclusion or exclusion.").

"Intercept" is defined as "the aural or other acquisition

of the contents of any wire, electronic, or oral communication

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through the use of any electronic, mechanical, or other device."

18 U.S.C. § 2510(4).

The statute that defendant is charged with conspiring to

violate, 18 U.S.C. § 2511, provides criminal penalties to be

imposed on "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." 18

U.S.C. § 2511(1)(a).

Relying on the language of the statute and the decisions

of our sister circuits, the district court held that Congress did

not intend for the Wiretap Act's interception provisions to apply

to communication in electronic storage. Councilman, 245 F. Supp.

2d at 321. The district court rejected "[t]he Government's

position . . . that the Wiretap Act applies to interceptions that

take place when the message . . . is 'in transit' or 'in process of

delivery.'" Id. Relying on the definition of electronic storage,

the district court held that no interception can occur while the e-

mails are in electronic storage and therefore, without the

requisite interception, the Wiretap Act could not be violated.

The scope of electronic communications that can

theoretically be intercepted is obviously reduced when the

definition does not include electronic storage of such

communications, as is the case with wire communications. In

addition, electronic storage includes a vast range of possible

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situations including "(A) any temporary, intermediate storage of a

wire or electronic communication incidental to the electronic

transmission thereof . . . ." 18 U.S.C. § 2510(17)(A). The

government argues that this section does not necessarily place the

e-mails in question in this case outside the interception

requirement of 18 U.S.C. § 2511(a).

The particular problem confronted in this case is what

has been called the "contemporaneous" problem in the intercept

requirement of the Wiretap Act. See In re Pharmatrak, 329 F.3d 9,

21-22 (1st Cir. 2003)(because the statute was written before the

widespread use of the Internet and other media prior opinions may

not be helpful in addressing current problems). The government

argues that given the particular nature of electronic

communications and the mechanisms used to retrieve them, 18 U.S.C.

§ 2511(a) is a proper foundation for Count One of the Indictment.

In addition, the government argues, cases from other circuits are

distinguishable on their facts because none used the procmail at

issue in this case.5 We have commented on the issue presented in

this case, see Pharmatrak, 329 F.3d at 21-22, but have not resolved

it.6

5
The government refers to the procmail as an e-mail syphon.
6
Pharmatrak did not resolve the issue because the interception
there was at the point where communications were being sent through
a wire to the website. The messages were not placed in any type of
storage before their interception, therefore skirting the
"contemporaneous" problem.

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 The first case to address the issue of unlawful intercept

in the context of electronic communications is Steve Jackson Games,

Inc. v. United States Secret Service, 36 F.3d 457 (5th Cir. 1994).

There, the plaintiff company sued the Secret Service because the

agency had seized a computer used to operate a bulletin board

system, but which also contained private, unretrieved electronic

mail. Id. at 459. The plaintiff provided its customers with the

ability to send and retrieve e-mail, which was stored on the

company's hard disk drive temporarily, until the recipient

retrieved the e-mail. Id. at 458. After seizing the computer, the

Secret Service allegedly opened the private e-mails, read them and

deleted them. The company sued, alleging, inter alia, a violation

of the Wiretap Act. Id. at 459-60.

The Fifth Circuit held that the seizure of sent but

unretrieved e-mail did not constitute an intercept for purposes of

18 U.S.C. § 2511(1)(a). See Steve Jackson Games, 36 F.3d at 461-

62. In reaching that conclusion, it relied on the difference in

the definitions of electronic and wire communication and the

definition of electronic storage. "Congress' use of the word

'transfer' in the definition of 'electronic communication,' and its

omission in that definition of the phrase 'any electronic storage

of such communication' (part of the definition of 'wire

communication') reflects that Congress did not intend for

'intercept' to apply to 'electronic communications' when those

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communications are in 'electronic storage.'" Id. (footnote

omitted); see also Fraser v. Nationwide Mut. Ins. Co., 352 F.3d

107, 114 (3d Cir. 2003) (adopting the reasoning in Steve Jackson

Games as to the meaning of intercept under the relevant version of

the Wiretap Act).

In contrast, Konop v. Hawaiian Airlines, Inc., 302 F.3d

868 (9th Cir. 2002), cert. denied, 537 U.S. 1193 (2003), concerned

a plaintiff, an employee of Hawaiian Airlines, who operated a

secure website which posted criticism of his employer. A vice-

president of the airline obtained permission from authorized users

to view the website. Plaintiff sued, alleging, inter alia, that

defendant had violated the Wiretap Act by violating the terms of

use of the website and entering a secure website under false

pretenses.

The Ninth Circuit, after granting panel rehearing,

reversed its earlier position that the electronic communications

were covered under the Wiretap Act. It did so because, in its

view, the conduct of the defendant did not constitute an intercept

as that term is defined. Konop, 302 F.3d at 876. Relying on Steve

Jackson Games, it held that "for a website such as Konop's to be

'intercepted' in violation of the Wiretap Act, it must be acquired

during transmission, not while in electronic storage." Id. at 878.

In doing so, it rejected the position the government takes in this

case, that, given the nature of e-mail, the Wiretap Act must apply

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to en route storage. Id. at 879 n.6. "While this argument is not

without appeal, the language and structure of the [Act] demonstrate

that Congress considered and rejected this argument." Id. The

court relied, as did the district court in this case, on the

expansive definition of the term "electronic storage" in 18 U.S.C.

§ 2510(17)(A). The dismissal of the Wiretap Act claim was

affirmed.

The government is correct that the electronic

communications at issue here were acquired in a different manner

than in Steve Jackson Games and Konop. Defendant's procmail

operated to obtain the e-mails before they were received by its

intended recipients. While the e-mail in Steve Jackson Games was

retrieved from storage in a computer and the website in Konop was

accessed under false pretenses, the e-mails in this case were

accessed by the procmail as they were being transmitted and in real

time. However, the presence of the words "any temporary,

intermediate storage" in 18 U.S.C. § 2510(17) controls. On the

facts of this case, it is clear that the electronic communications

in this case were in a form of electronic storage. It may well be

that the protections of the Wiretap Act have been eviscerated as

technology advances. See United States v. Steiger, 318 F.3d 1039,

1047-51 (11th Cir. 2003) (holding intercept did not occur because

there was no contemporaneous acquisition but commenting that under

the narrow reading of the statute few seizures will constitute

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interceptions under Wiretap Act). As the stipulation reached by

the parties states, "[a]t all times that sendmail and procmail

performed operations affecting the email messages at issue, the

messages existed in the random access memory (RAM) or in hard

disks, or both, within Interloc's computer system." When defendant

obtained the e-mails, they were in temporary storage in Interloc's

computer systems. There was also a stipulation that "[n]either

sendmail nor procmail performed functions that affected the emails

in issue while the emails were in transmission through wires or

cables between computers." This fact places the messages outside

the scope of 18 U.S.C. § 2511(a), and into temporary electronic

storage under 18 U.S.C. § 2510 (17)(A). Accord Steiger, 318 F.3d

at 1049; Konop, 302 F.3d at 878; Steve Jackson Games, 36 F.3d at

462; see also United States v. Moriarty, 962 F. Supp. 217 (D. Mass.

1997) (holding that for Wiretap Act provisions to be violated as

to electronic communications contemporaneous acquisition is

necessary); United States v. Reyes, 922 F. Supp. 818, 836 (S.D.N.Y.

1996) (same).

The government argues, and the dissent is persuaded by

this argument, that the legislative history of the statute

demonstrates that if an electronic communication is obtained while

it is simultaneously in transmission and in storage, then an

intercept occurs. Notwithstanding the fact that we find the

language of the statute unambiguous, exploring this contention

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merely confirms our position as to the meaning of the statute. The

government points to dicta in Pharmatrak as supporting the

conclusion that electronic communications are protected when they

are in storage, because by their nature, they exist in storage and

transit at the same time.

[T]he storage-transit dichotomy adopted by
earlier courts may be less than apt to address
current problems. As one court recently
observed, "[t]echnology has, to some extent,
overtaken language. Traveling the internet,
electronic communications are often -- perhaps
constantly -- both 'in transit' and 'in
storage' simultaneously, a linguistic but not
a technological paradox."

329 F.3d at 21-22 (quoting Councilman, 245 F. Supp. 2d at 321).

However, the legislative history of the Act clearly states that the

definition of intercept was not altered by the amendments. See S.

Rep. No. 99-541, at 12, reprinted in 1986 U.S.C.C.A.N. at 3566

(stating that "[t]he definition of 'intercept' under current law is

retained with respect to wire and oral communications except that

the term 'or other' is inserted after 'aural'"). Even assuming

arguendo that we should look outside the text, the government's

arguments based on the legislative history are unavailing.

The Wiretap Act's purpose was, and continues to be, to

protect the privacy of communications. We believe that the

language of the statute makes clear that Congress meant to give

lesser protection to electronic communications than wire and oral

communications. Moreover, at this juncture, much of the protection

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may have been eviscerated by the realities of modern technology.

We observe, as most courts have, that the language may be out of

step with the technological realities of computer crimes. However,

it is not the province of this court to graft meaning onto the

statute where Congress has spoken plainly.7 We therefore affirm

the district court's dismissal of Count One of the Indictment on

the premise that no intercept occurred in this case, and therefore,

the Wiretap Act could not be violated.

B. The Stored Communications Act

Defendant also argues that his conduct was lawful under

Title II of the ECPA, or the Stored Communications Act, 18 U.S.C.

§ 2701 et seq., and therefore outside the criminal provisions of

the Wiretap Act. Specifically he relies on the provider

exceptions, 18 U.S.C. § 2701(c)(1). Given our reading of the

Wiretap Act, we need not comment on this argument. We note,

however, that the intersection of the Wiretap Act and the Stored

Communications Act "is a complex, often convoluted, area of the

law." United States v. Smith, 155 F.3d 1051, 1055 (9th Cir. 1998).

Defendant's argument takes us beyond the charges in the Indictment.

Therefore, we need not stray beyond the text of the Wiretap Act

7
In fact, defendant is correct to make an argument, on due
process grounds, that he is entitled to the benefit of any
ambiguity in the statute. While we find there is no ambiguity in
Congress's language, in a criminal case we have the constitutional
obligation to define language narrowly. See, e.g., United States
v. Colón-Ortiz, 866 F.2d 6, 8 (1st Cir. 1989).

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into the Stored Communications Act because the government sought to

indict defendant only for conspiracy to violate Title I, 18 U.S.C.

§ 2511(a).

III. Conclusion

For the reasons stated above, the district court's order

dismissing Count One is affirmed.

"Dissenting Opinion follows"

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 LIPEZ, Circuit Judge (Dissenting). Unlike my colleagues,

I believe that the district court erred in dismissing the

indictment against Defendant-Appellee Bradford Councilman for

violating Title I of the Electronic Communications Privacy Act

(ECPA), Pub. L. No. 99-508, 100 Stat. 1848 (1986). To explain my

disagreement, I will present some background information on the

technology at issue and Congress's passage of the ECPA. That

background is critical to an understanding of the issue before us.

I will then set forth Councilman’s arguments as I understand them

and explain why I find them unpersuasive. I will then address the

government’s persuasive arguments. In discussing this material, I

will also respond to the reasoning of the district court and my

colleagues.

I. The Technology

The Internet consists of a network of inter-connected

computers in which data are broken down into small, individual

packets and forwarded from one computer to another until they reach

their destinations. See Orin S. Kerr, Internet Surveillance Law

After the USA Patriot Act: The Big Brother that Isn't, 97 Nw.U. L.

Rev. 607, 613-14 (2003). Each service on the Internet--e.g. e-

mail, web hosting, and instant messaging--has its own protocol for

using those packets of data to transmit information from one place

to another. I will focus solely on the e-mail protocol. After a

user composes a message in an e-mail program, a mail transfer agent

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("MTA") formats that message and sends it to another program that

"packetizes it" and sends those packets out to the Internet.

Computers on the network then pass the packets from one to another;

each computer along the route stores the packets in memory,

retrieves the address of their destination, and then determines

where to send it next based on the packet's destination. At

various points the packets are reassembled to form the original e-

mail message, copied, and then repacketized for the next leg of the

journey. See J. Klensin, RFC 2821 - Simple Mail Transfer Protocol,

available at http://www.faqs.org/rfcs/rfc2821.html (last accessed

May 19, 2004) (containing the standard for the Simple Mail

Transport Protocol). These intermediate computers occasionally

retain backup copies of the e-mails that they forward and then

delete those backups a short time later. The method of

transmission is commonly called "store and forward" delivery.

Once all the packets reach the recipient's mail server,

they are reassembled to form the e-mail message. A mail user agent

("MUA"), which in Councilman's case was a program called

"Procmail," then determines which user should receive the e-mail

and places the message in that user's mailbox. The MUA is

controlled by programs called "recipe files." These recipe files

can be used in a variety of ways and can, for example, instruct the

MUA to deposit mail addressed to one address into another user's

mailbox (i.e., to send mail addressed to "help" to the tech support

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department), to reject mail from certain addresses, or to make

copies of certain messages. Once the messages are deposited in a

mailbox, the end user simply needs to use an e-mail program to

retrieve and read that message. Councilman wrote a recipe file for

his MUA that caused all of the messages from Amazon.com to be

copied while the MUA was in the process of placing that message

into the recipient's mailbox, and to place these copies into his

own personal box.

II. The Legislative Context

Congress passed the 1968 Wiretap Act to "protect[] the

privacy of wire and oral communications, and [to] delineat[e] on a

uniform basis the circumstances and conditions under which the

interception of wire and oral communications may be authorized."

Gelbard v. United States, 408 U.S. 41, 48 (1972) (quoting S. Rep.

No. 90-1097, at 66 (1968), reprinted in 1968 U.S.C.C.A.N. 2153,

2153). By the mid-1980s, however, technology had outpaced the

privacy protections in the Act, creating uncertainty and gaps in

its coverage. As one member of the House Judiciary Committee

lamented:

[I]n the almost 20 years since Congress last
addressed the issue of privacy of
communications in a comprehensive fashion, the
technologies of communication and interception
have changed dramatically. Today we have
large-scale electronic mail operations . . .
and a dazzling array of digitized information
networks which were little more than concepts
two decades ago. These new modes of
communication have outstripped the legal

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 protection provided under statutory
definitions bound by old technologies.

Electronic Communications Privacy Act: Hearings on H.R. 3378 Before

the Subcomm. on Courts, Civil Liberties, and the Adminstration of

Justice of the House Comm. on the Judiciary, 99th Cong. 1 (1985-

1986) (statement of Chairman Kastenmeier); See also id. at 3

("[T]he American people and American businesses are no longer

assured that the law protects their right to communicate

privately.") (Statement of Sen. Leahy). Congress passed the ECPA

to remedy these perceived weaknesses and to update and expand the

privacy protections in the 1968 Act. See Sen. Rep. No. 99-541, at

1 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3555 ("The bill

amends the 1968 law to update and clarify Federal privacy

protections and standards in light of dramatic changes in new

computer and telecommunications technologies.").

Title I of the new act amended the 1968 Wiretap Act and

added new protections for electronic and digital technologies.

Section 101(c)(1)(A) added "electronic communications" to the

existing prohibitions against intercepting wire--which are

essentially telephone calls--and oral communications. As the House

report made clear, Congress intended to give the term "electronic

communication" a broad definition: "As a rule, a communication is

an electronic communication if it is neither carried by sound waves

nor can fairly be characterized as one containing the human voice

(carried in part by wire)." H.R. Rep. No. 99-647, at 35. Section

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101(a)(3) added "or other" to the definition of "intercept," which

had previously only referred to the "aural acquisition of the

contents of any . . . communication."8 Also relevant to this case,

albeit not at issue here, Section 101(c)(7) removed a phrase in the

Wiretap Act that limited the scope of the Act to communications

transmitted on common carriers. This amendment expanded the reach

of the Act's protections to private telephone and computer

8
Prior to the 1986 amendments, the Wiretap Act's definition of
"wire communication" read:

"[W]ire communication" means any communication
made in whole or in part through the use of
facilities for the transmission of
communications by the aid of wire, cable, or
other like connection between the point of
origin and the point of reception furnished or
operated by any person engaged as a common
carrier in providing or operating such
facilities for the transmission of interstate
or foreign communications.

The post-ECPA version of that definition read:

"[W]ire communication" means any aural
transfer made in whole or in part through the
use of facilities for the transmission of
communications by the aid of wire, cable, or
other like connection between the point of
origin and the point of reception (including
the use of such connection in a switching
station) furnished or operated by any person
engaged in providing or operating such
facilities for the transmission of interstate
or foreign communications or communications
affecting interstate or foreign commerce and
such term includes any electronic storage of
such communication.

Congress deleted the phrase "and such term includes any electronic
storage of such communication" in 2001.

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networks, including internal office networks, and cellular phones.

The amended Wiretap Act now reads, in pertinent part: "[A]ny person

who intentionally intercepts, endeavors to intercept, or procures

any person to intercept or endeavor to intercept, any wire, oral or

electronic communication . . . shall be punished . . . ." 18

U.S.C. § 2511(1).

Congress also recognized that, with the rise of remote

computing operations and large databanks of stored electronic

communications, the threats to individual privacy extended well

beyond the bounds of the Wiretap Act's prohibition against the

"interception" of communications. These stored communications--

including stored e-mail messages, stored financial transactions,

stored medical records, and stored pager messages--were not

protected by the Wiretap Act, presumably because the Act had been

interpreted to only prohibit "the contemporaneous acquisition of

[a] communication." See United States v. Turk, 526 F.2d 654, 658

(5th Cir. 1976). Therefore, Congress concluded that "the

information [in these communications] may be open to possible

wrongful use and public disclosure by law enforcement authorities

as well as unauthorized private parties." Sen. Rep. 99-541, at 3

(1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3557; see also United

States Congress, Office of Technology Assessment, Electronic

Surveillance and Civil Liberties 48-50 (1985) (theorizing that

communications service providers and banks could disclose private

-22-
information about their customers without federal liability and law

enforcement agents could seize these private communications with

only a modicum of procedural protections).

Congress added Title II to the ECPA to halt these

potential intrusions on individual privacy. This title, which is

commonly referred to as the Stored Communications Act, established

new punishments for any person who "1) intentionally accesses

without authorization a facility through which an electronic

communication service is provided; or 2) intentionally exceeds an

authorization to access that facility; and thereby obtains, alters,

or prevents authorized access to a wire or electronic communication

while it is in electronic storage . . . ." 18 U.S.C. § 2701(a).

The privacy protections established by the Stored

Communications Act were intended to apply to two categories of

communications: "those associated with transmission and incident

thereto" and those of "a back-up variety." H.R. Rep. No. 99-647,

at 68. The first category refers to temporary storage such as when

a message sits in an e-mail user's mailbox after transmission but

prior to the user retrieving the message from the mail server.

Importantly, however, this category does not include messages that

are still in transmission, which remain covered by the Wiretap Act.

Id. at 65 (stating that the Wiretap Act "prohibits . . . a provider

from divulging the contents of a communication while it is in

transmission."). The second category includes communications that

-23-
are retained on a server for administrative and billing purposes.

Communications service providers could use stored messages in this

category to restore a user's data in the event of a system crash or

to recover accidentally-deleted messages.

Defendant-Appellee Bradford Councilman was indicted on

July 11, 2001 for violating Title I of the ECPA, the Wiretap Act,

but was not charged with violating Title II, the Stored

Communications Act. Determining the legality of this indictment

requires us to explore the dividing line between these two titles.

Councilman claims that the e-mails at issue were stored

communications when they were being processed for delivery in his

company's computers, and, therefore, they were not the type of

"evanescent" transmissions, i.e., telephone calls traveling through

a wire, that the Wiretap Act addresses.9 Under his approach, an e-

mail would only be subject to the Wiretap Act when it is traveling

through cables and not when it is being processed by electronic

switches and computers during transit and delivery. According to

Councilman:

The reason that the stored v. evanescent
distinction is a key determinant of the extent
of privacy protection afforded by the ECPA to
both wire and electronic communications is
simply that, because of their lasting nature,
stored communications are inherently more
vulnerable to intrusion than evanescent

9
Webster's defines "evanescent" as "vanishing; fading away;
fleeting." Random House Webster's Unabridged Dictionary 670 (2d
ed. 1997).

-24-
 communications, which must be intruded upon
simultaneously with the communication, or not
at all.

The government focuses on the temporal nature of

Councilman's actions and argues that he violated the Wiretap Act

because he copied the e-mails "contemporaneously with their

transmission." In other words, he copied them in real time while

they were in the process of being delivered. Under its view, an

intercept is subject to the Wiretap Act between the time that the

author presses the "send" button and the time that the message

arrives in the recipient's e-mail box. Accordingly, the Wiretap

Act would apply to messages that are intercepted contemporaneously

with their transmission and the Stored Communications Act would

apply to messages that are accessed non-contemporaneously with

transmission.

As I discuss in greater detail in Section V, infra, the

line that we draw in this case will have far-reaching effects on

personal privacy and security. Congress concluded that stored

communications, while requiring protection, require fewer privacy

protections than those in transit. Therefore, the Wiretap Act

includes significant procedural protections which go beyond the

requirements of the Fourth Amendment itself and which are not

applicable to the Stored Communications Act. First, officers may

only obtain wiretap orders for investigations involving federal

felonies. See 18 U.S.C. § 2516(3). Second, in addition to

-25-
demonstrating that they have probable cause, the officers must

provide specific information regarding, inter alia, the types of

communications that would likely be intercepted, the individuals

whose conversations would be intercepted, the steps that the agents

took to avoid having to rely on a wiretap, and the steps that they

would take to avoid intercepting more information than is

necessary. 18 U.S.C. §§ 2518(1)-(4). Third, unless the court

grants a special extension, the wiretap may only last for the

shorter of thirty days or as long as is necessary to obtain the

necessary evidence. Id. § 2518(5). Fourth, the court may require

the Government to produce regular reports on the progress of its

wiretaps and to keep the tapes and transcripts of those wiretaps

under seal. Id. §§ 2518(6) & 8(a). Fifth, the court must notify

the target of the wiretap application--within a reasonable time--

that their communications may have been intercepted. Id. § 2518

(8)(d). Finally, if the officers violate any portion of these

rules, the evidence obtained through the wiretap is automatically

suppressed, even if the Government's actions did not violate the

Fourth Amendment. Id. § 2515.

The Stored Communications Act does not contain any of the

Wiretap Act's special protections. A federal law enforcement agent

could obtain access to such communications simply by obtaining a

-26-
warrant. 18 U.S.C. § 2703(a).10 The target of the investigation

does not need to be informed that the government accessed his or

her communications, id. at § 2703(b)(1)(A), and a defendant does

not have the right, outside of the Fourth Amendment, to seek to

suppress communications that were obtained in violation of the

Stored Communications Act.

It is also easier for private actors to access private

messages under the Stored Communications Act. Section 2702(a)

exempts, inter alia, "conduct authorized by the person or entity

providing a wire or electronic communications service" from the

prohibition against unauthorized access. Thus, a private actor

like Councilman may open a user's files and may read the e-mails

that are stored in that user's mailbox. But see 18 U.S.C. § 2702

10
According to the Stored Communications Act:

A Governmental entity may require the
disclosure by a provider of electronic
communication service of the contents of an
electronic communication, that is in
electronic storage in an electronic
communications system for one hundred and
eighty days or less, only pursuant to a
warrant issued using the procedures described
in the Federal rules of Criminal Procedure
. . . or equivalent State warrant.

18 U.S.C. § 2703(a). See also id. § 2703(b)(1) ("A governmental
entity may require a provider of remote computing service to
disclose the contents of any [stored e-mail] without required
notice to the subscriber or customer, if the governmental entity
obtains a warrant issued using the procedures described in the
Federal Rules of Criminal Procedure . . . or equivalent State
warrant . . . .").

-27-
(stating that service providers may not, with certain objections,

disclose stored communications that they access). The Wiretap Act

does not include any such broad exemption.11

III. Councilman's Arguments

A. The Plain Text

Councilman's primary argument, which was dispositive with

the district court and now with my colleagues, is that the plain

text of the ECPA exempts electronic communications that are in

storage from the purview of the Wiretap Act. In brief, he argues

that Congress included the term "electronic storage" in the ECPA's

definition of "wire communication" but failed to do so in the

definition of "electronic communication."12 That omission,

11
As noted, Title I of the Electronic Communications Privacy Act
amended the 1968 Wiretap Act. From this point forward, when I
refer to the "Wiretap Act," I mean the 1968 Wiretap Act as amended
by Title I of the ECPA. I will refer to Title II of the ECPA
simply as the Stored Communications Act.
12
"Electronic communication" is defined 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, but does not include--
(A) any wire or oral communication;
(B) any communication made through a tone-only
paging device;
(C) any communication from a tracking device
(as defined in section 3117 of this title); or
(D) electronic funds transfer information
stored by a financial institution in a
communications system used for the electronic
storage and transfer of funds.

-28-
according to Councilman, indicates that Congress intended to

exclude communications that are in storage from the definition of

"electronic communication" and, hence, from the scope of the

Wiretap Act. Moreover, Congress defined the term "electronic

storage" expansively to include "any temporary, intermediate

storage of a wire or electronic communication incidental to the

electronic transmission thereof." 18 U.S.C. § 2510(17). See

United States v. Councilman, 245 F. Supp. 2d. 319, 320 (D. Mass.

2003) (describing this definition as "extraordinarily--indeed,

almost breathtakingly broad"). Since the parties stipulated that

the e-mails in this case were "in the random access memory (RAM) or

in the hard disks, or both, within [Councilman's company's]

computer system" at the time of the interception, those e-mails

fall under the statutory definition of "in storage."

As so often happens under close scrutiny, the plain text

is not so plain. There is no explicit statement from Congress that

it intended to exclude communications that are in storage from the

definition of "electronic communication," and, hence, from, the

scope of the Wiretap Act. Councilman, without acknowledging it,

looks beyond the face of the statute and makes a non-textual,

inferential leap. He infers that Congress intended to exclude all

communications that are in storage from the definition of

"electronic communication," regardless of whether they are in the

18 U.S.C. § 2510(12).

-29-
process of being delivered, simply because it did not include the

term "electronic storage" in that definition. This inferential

leap is not a plain text reading of the statute.13

As I discuss in greater detail in Section IV, this

inferential leap ignores the rationale behind Congress's inclusion

of electronic storage in the definition of "wire communication."

Recognizing that telephone calls would no longer be protected by

the Wiretap Act after they were stored in voicemail, Congress

wanted to expand the scope of the Wiretap Act to embrace these

stored communications. Although this decision might indicate that

Congress did not intend to use the Wiretap Act to protect e-mails

after they have been delivered, it says nothing about Congressional

intent regarding e-mails that are still in transmission.

Furthermore, my colleagues use that maxim to impute meaning to the

statute that the legislative history does not support. Congress

13
My colleagues quote the maxim: "[W]hen Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion," see, e.g., In re Hart, 328 F.3d 45, 49
(1st Cir. 2003). This maxim is a canon of construction, see, e.g.,
Trenkler v. United States, 268 F.3d 16, 23 (1st Cir. 2001)
(characterizing the maxim as a canon of construction). This
reliance on the canon to support the inferential leap belies the
availability of a plain text argument. Cf. Springer v. Government
of Philippine Islands, 277 U.S. 189, 206 (1928) ("The general rule
that the expression of one thing is the exclusion of others is
subject to exceptions. Like other canons of statutory construction,
it is only an aid in the ascertainment of the meaning of the law,
and must yield whenever a contrary intention on the part of the
lawmaker is apparent.").

-30-
included electronic storage in its definition of wire

communications because it wanted voicemails to be protected under

the Wiretap Act after those messages were delivered. We should not

misconstrue this easily understood inclusion of post-delivery

voicemail storage as indicating an unstated intention to exclude

emails in transmission from the scope of the Wiretap Act. See Clay

v. United States, 537 U.S. 522, 523 (2003) (rejecting the notion

that Congress's failure to use a particular term in a definition

must have been deliberate when "one can readily comprehend why

Congress might have found it appropriate to spell out the meaning

of "final" in [one section] but not in [another]").

Moreover, Councilman ignores an important rule of

statutory interpretation: "Where Congress explicitly enumerates

certain exceptions to a general prohibition, additional exceptions

are not to be implied, in the absence of evidence of a contrary

legislative intent." Andrus v. Glover Constr. Co., 446 U.S. 608,

616-17 (1980). From the prohibition that, "No person shall

intentionally intercept an electronic communication," Congress

specifically excluded four categories of communications: 1) wire

and oral communications; 2) communications made through tone-only

paging devices; 3) communications from tracking devices; 4)

electronic funds transfer information stored by a financial

institution. 18 U.S.C. § 2510(12). Councilman's approach would

engraft an additional exclusion onto this list: "any communication

-31-
in electronic storage." A commonsensical reading of the statute

and a respect for our precedents preclude the implication of such

an exclusion without additional support in the legislative record.

See also American Tobacco Co. v. Patterson, 456 U.S. 63, 71 (1982)

("Statutes should be interpreted to avoid untenable distinctions

and unreasonable results whenever possible.").

In short, the plain text of the ECPA does not clearly

address the issue of whether a communication is still considered an

electronic communication when it is in electronic storage during

transmission. Given this ambiguity, I turn to Councilman's

arguments regarding Congressional intent and legislative history.

B. Congressional Intent and Legislative History

Without yielding on his plain meaning arguments,

Councilman claims that Congress intended to accord greater

protection to wire communications than to electronic

communications. Noting that § 2510(1) expanded the Wiretap Act's

coverage to stored voicemails, he sees that provision as indicative

of a Congressional intent to provide a lower degree of protection

to e-mails that are stored while they are being delivered. Without

citing any relevant evidence in the Congressional Record,

Councilman theorizes that Congress decided to provide greater

protections to wire communications because participants in

telephone calls may have a greater expectation of privacy than

participants in e-mail exchanges. As he puts it: "In Congress'

-32-
view, a lesser, non-constitutional degree of expectation of privacy

can or should attach to forms of communication that are not

evanescent, but rather are inherently subject to being stored by

non-parties to the communication."

The legislative history does not support this assertion.

To the contrary, the legislative history demonstrates that Congress

was deeply concerned about the emerging threats to privacy and the

failure of existing legal protections to cope with those threats.

See In re Pharmatrak, 329 F.3d 9, 18 (1st Cir. 2003) ("The

paramount objective of the Wiretap Act is to protect effectively

the privacy of communications."). Councilman’s approach, which

would apply the Stored Communications Act to e-mails during

delivery, is undermined--not supported--by legislative history

demonstrating that the purpose of the ECPA was to provide greater

protections to electronic communications under the Wiretap Act.

Congress requested a report from the Office of Technology

Assessment (OTA) shortly before undertaking its consideration of

the Wiretap Act in 1983. The report, Electronic Surveillance and

Civil Liberties, used stark language to describe the existing

privacy protections:

In the last 20 years, there has been a virtual
revolution in the technology relevant to
electronic surveillance. Advances in
electronics, semiconductors, computers,
imaging, databases and related technologies
have greatly increased the technical options
for surveillance activities . . . The existing
statutory framework and jurisdictional

-33-
 interpretations thereof do not adequately
cover new electronic surveillance
applications.

The report then identified threats associated with five different

types of surveillance--telephone, e-mail, electronic physical,

electronic visual, and database--and suggested statutory reforms to

protect individual privacy from those threats. This report was

important in shaping the ECPA. Congress repeatedly cited it during

its deliberations.

The stated purpose of the ECPA was 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." S. Rep. No. 99-541, at 1 (1986), reprinted in 1986

U.S.C.C.A.N. 3555, 3555. Congress repeatedly stressed the need for

new protections for both telephone and electronic communications.

See, e.g., id. at 5, reprinted in 1986 U.S.C.A.A.N. 3555, 3559

("[T]here are no comparable Federal statutory standards to protect

the privacy and security of communications transmitted by . . . new

forms of telecommunications and computer technology."); Id. at 4

(observing that existing protections for e-mail were "'weak,

ambiguous, or non-existent' and that 'electronic mail remains

legally as well as technically vulnerable to unauthorized

surveillance.'") (quoting Office of Technology Assessment,

Electronic Surveillance and Civil Liberties 45 (1985)); Id. at 3

-34-
("Electronic hardware making it possible for overzealous law

enforcement agencies, industrial spies and private parties to

intercept the personal or proprietary communications of others are

readily available in the American market today."); H.R. Rep. No.

99-647, at 34 (1986) (characterizing electronic mail as "one of the

most popular new computer services" and stating that through the

protections in the ECPA "electronic mail will be provided with

protection against interception").

Indeed, while the legislative history includes a few

statements regarding the balance between law enforcement and

individual liberty, the perceived need to protect privacy was the

overarching motivation for the bill. According to the Senate

Report:

[T]he law must advance with the technology to
ensure the continued vitality of the fourth
amendment. Privacy cannot be left to depend
solely on physical protection, or it will
gradually erode as technology advances.
Congress must act to protect the privacy of
our citizens. If we do not, we will promote
the gradual erosion of this precious right.

S. Rep. No. 99-541, at 5 (1986), reprinted in 1986 U.S.C.C.A.N.

3555, 3559 (1986). Congress did not express any desire to accord

less protection to electronic communications. In fact, one of the

authors of the ECPA said that the legislation constituted

a recognition that what is being protected is
the sanctity and privacy of the communication.
We should not attempt to discriminate for or
against certain methods of communication,
unless there is a compelling case that all

-35-
 parties to the communication want the message
accessible to the public.

132 Cong. Rec. H4039 (Statement of Rep. Kastenmeier).

Oddly, Councilman relies on legislative history that

actually undercuts his position when he quotes from the Senate

Report:

Nevertheless, because [copies of e-mails
retained on mail servers are] subject to
control by a third party computer operator,
the information may be subject to no
constitutional privacy protection. Thus, the
information may be open to possible wrongful
use and disclosure by law enforcement
authorities as well as unauthorized private
parties. The provider of these services can
do little under the current law to resist
unauthorized access to communications.

S. Rep. No. 99-541, at 3 (1986), reprinted in 1986 U.S.C.C.A.N.

3555, 3557 (1986). Rather than reflecting Congress’s comfort with

less privacy protection for electronic communications, the Senate

report cited the lack of constitutional protection as a

justification for creating greater, not lesser, statutory

protections for e-mails. There is no support in the legislative

record for the proposition that Congress intended to apply the

Stored Communications Act to e-mails that are stored during

transmission.

C. Other Precedents

Councilman's effort to support his plain text argument

with references to precedents outside of this circuit is also

unavailing. First, he cites Steve Jackson Games, Inc. v. United

-36-
States Secret Service, 36 F.3d 457 (5th Cir. 1994) in which the

Fifth Circuit considered a complaint against federal officers for

seizing a computer bulletin board system (BBS) that contained

unread e-mails. The court rejected the plaintiffs' claim that this

seizure constituted a violation of the Wiretap Act, holding that

the plain language of the statute--specifically, the omission of

the term "electronic storage" from the definition of "electronic

communication"--"reflects that Congress did not intend for

'intercept' to apply to 'electronic communications' when those

communications are in 'electronic storage.'" Since the messages

were being stored on the seized server, the Wiretap Act did not

apply. Id. at 462.

Councilman fails to account for the context of this case.

The Steve Jackson court was faced with the question of whether a

non-contemporaneous communication could be "intercepted" under the

Wiretap Act; it answered that question in the negative. That

holding is fully in line with the Government's position in this

case. In fact, the court went out of its way to note that

"intercept" was defined as contemporaneous in the context of an

aural communication under the old Wiretap Act, and that Congress

retained this definition when it passed the ECPA. Steve Jackson

Games, 36 F.3d at 461. See also Fraser v. Nationwide Mut. Ins. Co.,

352 F.3d 107, 113 (3d Cir. 2003) (citing Steve Jackson Games and

concluding that "[e]very circuit court to have considered the

-37-
matter has held that an 'intercept' under the ECPA must occur

contemporaneously with transmission."). The type of temporary

storage during delivery that is at issue in this case is irrelevant

to the post-transmission storage that was at issue in Steve Jackson

Games.

Councilman and the district court also cite Konop v.

Hawaiian Airlines, Inc., 302 F.3d 868, 878 n.6 (9th Cir. 2002), a

case in which the court rejected an attempt by a civil plaintiff to

broaden the scope of the Wiretap Act to encompass communications

stored on a website. In a footnote, the Konop court noted that

"[t]he dissent, amici, and several law review articles argue that

the term 'intercept' must apply to electronic communications in

storage because storage is a necessary incident to the transmission

of electronic communications," and "if the term 'intercept' does

not apply to the en route storage of electronic communications, the

Wiretap Act's prohibition against 'intercepting' electronic

communications would have virtually no effect." Although the court

found these argument appealing, it held that "the language and

structure of the ECPA demonstrate that Congress considered and

rejected this argument," and that the Act's broad definition of the

term "electronic storage" belied the plaintiff's interpretation of

the Wiretap Act. Id.

Again, context is important. The Konop court faced the

question of whether a company could be held liable for accessing

-38-
the employees' private secure website without authorization. Since

the data in a website are static and the Act requires interception

contemporaneous with a communication, id. at 878-79, it held that

data stored in a website cannot be considered to be illegally

intercepted under the Wiretap act by unauthorized access to that

website. It did not hold that electronic communications lose the

protection of the Wiretap Act as soon as they reach a computer.14

Like the Steve Jackson court, the Konop court reiterated the view

that an intercept under the Wiretap Act is defined as an

acquisition contemporaneous with transmission. Id. at 878.

Finally, Councilman briefly cites to dicta in United

States v. Steiger, 318 F.3d 1039 (11th Cir. 2003), which stated:

"'There is only a narrow window during which an E-mail interception

may occur--the seconds or mili-seconds before which a newly

composed message is saved to any temporary location following a

send command.'" Id. at 1050 (quoting Jarrod J. White, E-Mail

@Work.com: Employer Monitoring of Employee E- Mail, 48 Ala. L. Rev.

1079, 1083 (1997)). Councilman failed to note that the article

14
Councilman also argues that the government should be judicially
estopped from asserting that he violated the Wiretap Act since it
argued in favor of the holdings in Steve Jackson Games and Konop.
This argument is misguided. In fact, the government has
consistently argued that a communication needs to be intercepted
contemporaneously with transmission to violate the Wiretap Act.
See InterGen N.V. v. Grina, 344 F.3d 134, 144 (1st Cir. 2003)
("[T]he doctrine of judicial estoppel prevents a litigant from
pressing a claim that is inconsistent with a position taken by that
litigant either in a prior legal proceeding or in an earlier phase
of the same legal proceeding.") (emphasis added).

-39-
quoted by the Eleventh Circuit was discussing the impact of the

Steve Jackson decision on employers' obligations regarding e-mail.

Like the Steve Jackson court, the article did not discuss storage

during transmission, and it appears that the "temporary location"

referred to in the quoted sentence was an employee's e-mailbox.

Even if the language quoted by the Steiger court was part of its

holding, it would not support Councilman's interpretation of the

ECPA.

D. Our Precedent

Apparently recognizing that his narrow definition of the

Wiretap Act contradicts our Pharmatrak decision, Councilman

attempts to distinguish that case from this one by pointing out

that the defendant in that case did not operate an electronic

communication service, and by claiming that the communication in

that case was not "in storage." The first distinction is

irrelevant. While such operators have limited immunity under the

Stored Communications Act, see 18 U.S.C. § 2701(c)(1), the Wiretap

Act does not shield operators from liability for the type of

conduct at issue in this case.

The second distinction contradicts the rest of

Councilman's argument. The defendant company in Pharmatrak

installed software on Internet users’ computers to track the

websites that they visited and to log the information that they

sent to those websites. The program recorded this information in

-40-
real time and sent that data to one of Pharmatrak's computers for

processing. The captured information would qualify as being "in

storage" under Councilman's definition: it was either stored in

RAM or on a user's computer hard drive when the program accessed

it. We dismissed this distinction, however, focusing our analysis

on the temporal nature of the interception, and holding that the

defendant violated the Wiretap Act because "[t]he acquisition by

Pharmatrak was contemporaneous with its transmission by the

internet users." Id. at 22.15

Although we discussed the ongoing debate about how

strictly courts should construe the contemporaneity requirement, we

concluded that we did not have to resolve that issue because

"[e]ven those courts that narrowly read 'interception' would find

that Pharmatrak's acquisition was an interception." Id. We quoted

the Steiger court:

[U]nder the narrow reading of the Wiretap Act
we adopt . . ., very few seizures of
electronic communications from computers will
constitute 'interceptions.' . . . 'Therefore,
unless some type of automatic routing software

15
My colleagues attempt to distinguish the interception in
Pharmatrak from the interception here by claiming that the
communications in Pharmatrak "were not placed in any type of
storage before their interception." In fact, the Pharmatrak
defendant's Java/Javascript programs recorded the URLs that the
users visited, which means that they copied the users' web commands
before those commands were sent over the Internet. The web
commands were in the same type of temporary, intermediate, and
incidental storage that the e-mails at issue in this case were in
when they were intercepted; therefore, our conclusion that there
was an interception in Pharmatrak should control our analysis here.

-41-
 is used (for example, a duplicate of all of an
employee's messages are automatically sent to
the employee's boss), interception of E-Mail
within the prohibition of [the Wiretap Act] is
virtually impossible.'

Id. (quoting United States v. Steiger, 318 F.3d at 1050

(alterations in original). We then noted that Pharmatrak's program

would qualify under the Steiger definition because it effectively

was an automatic routing program. Id. Much like the data logging

program there, the Procmail recipe file here acted as an automatic

routing program. It analyzed all of the e-mails sent to

Councilman's mail server in real time and copied the relevant ones

while they were being delivered.

E. Vagueness

Finally, Councilman claims that even if his conduct

violated the Wiretap Act, the district court correctly dismissed

his indictment on vagueness grounds because the government's

interpretation of the act "criminalize[s] a broad variety of

conduct that is widely and reasonably understood to be lawful."

The vagueness doctrine reflects the fundamental notion

that "due process requires that criminal statutes put individuals

on sufficient notice as to whether their contemplated conduct is

prohibited." Sabetti v. DiPaolo, 16 F.3d 16, 17 (1st Cir. 1994)

(quoting United States v. Colón-Ortiz, 866 F.2d 6, 8 (1st Cir.

1989)). This standard is violated only when "a person of ordinary

intelligence examining [only] the language of the statute would be

-42-
in some way surprised that it prohibited the conduct in question."

Id. (internal quotations omitted). Mere textual ambiguity is not

sufficient: "If run-of-the-mill statutory ambiguities were enough

to violate the Constitution, no court could ever clarify statutes

through judicial interpretation." Id. at 18.

The Wiretap Act explicitly states that "any person who

intentionally intercepts . . . [any] electronic communication . . .

shall be punished . . . ." As the Government aptly observes in its

brief:

There is nothing about defendant’s conduct
that the average person would generally
consider innocent. There is nothing on the
face of the Wiretap Act that would lull a
person of average intelligence into believing
that an electronic communications provider may
intercept electronic mail and disclose its
contents for commercial purposes.

Although Councilman claims that his scheme to copy and review

incoming e-mails was no different than the monitoring and junk e-

mail filtering that employers, schools, and other institutions

routinely implement, he fails to note that these entities do so

with notice and the consent of their users, and, therefore, that

their conduct is not illegal. See 18 U.S.C. § 2511(2)(d) ("It

shall not be unlawful under this chapter for a person . . . to

intercept a wire, oral, or electronic communication . . . where one

of the parties to the communication has given prior consent to such

interception . . . ."). There is nothing vague about the Wiretap

-43-
Act, and Councilman should not have been surprised that his conduct

constituted an illegal interception.

IV. The Government's View

According to the Government’s view of the ECPA, "an

'intercept' occurs [and the Wiretap Act applies] when one acquires

an electronic communication contemporaneous with its transmission."

It is irrelevant that the transmission may have been in electronic

storage at the time of the acquisition. In my view, this

interpretation of the Act is consistent with Congressional intent,

precedent, and the realities of electronic communication systems.

The district court seemed to agree with one predicate of

the Government’s argument when it acknowledged that "technology

has, to some extent, overtaken language" and that "[t]raveling the

Internet, electronic communications are often--perhaps constantly

both 'in transit' and 'in storage' simultaneously." Councilman,

245 F. Supp. 2d at 321. This apt observation should have prompted

a different legal conclusion.

All digital transmissions must be stored in RAM or on

hard drives while they are being processed by computers during

transmission. Every computer that forwards the packets that

comprise an e-mail message must store those packets in memory while

it reads their addresses, and every digital switch that makes up

the telecommunications network through which the packets travel

between computers must also store the packets while they are being

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routed across the network. Since this type of storage is a

fundamental part of the transmission process, attempting to

separate all storage from transmission makes no sense.

Furthermore, in addition to storing the individual

packets during routing, intermediate computers must temporarily

store entire e-mail messages during transmission at various points

along the route from sender to recipient. The technical

specification for this type of e-mail transmission was adopted by

the group that was coordinating standards for the Internet in 1982,

see Jonathan B. Postel, RFC 821 - Simple Mail Transfer Protocol,

available at http://www.faqs.org/rfcs/rfc821.html (last accessed

May 19, 2004), and this standard for e-mail transmission was in use

well before Congress adopted the ECPA in 1986. Therefore, when

Congress acted, the fallacy of excluding from the scope of the

Wiretap Act a message in storage at the time of interception was

well-documented. The government's contemporaneous v. non-

contemporaneous dichotomy accommodates this aspect of electronic

technology; unlike Councilman’s approach, it also makes sense in

the real world.

The government's approach is also fully compatible with

the portions of the ECPA that Councilman highlights in his

argument. In a strange twist of logic, Councilman argues that

Congress's broad definition of the term "electronic storage"

supports his view that the e-mails at issue in this case were

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protected by the Stored Communications Act and not by the Wiretap

Act. Yet the legislative history demonstrates that Congress

adopted this broad definition to enlarge privacy protections for

personal data, not to exclude e-mails stored during transmission

from the strong protections of the Wiretap Act.

Responding to concerns raised in the OTA report, Congress

wanted to ensure that the messages and by-product files that are

left behind after transmission and messages stored in a user's

mailbox are protected from unauthorized access. The OTA identified

four states during which a stored e-mail message could be accessed:

1) in the sender's terminal; 2) in the recipient's terminal; 3) in

the recipient's paper files after the message was printed; and 4)

in the service provider's electronic files when retained for

administrative purposes. Electronic Surveillance, at 45. E-mails

in the sender's and recipient's terminals could be accessed by

"breaking into" those computers and retrieving the files. Id. at

48-49. As discussed in Section II, supra, the victim of such an

attack had few legal remedies for such an invasion prior to the

ECPA. The e-mails retained on the service provider's computers

after transmission, which the report noted are primarily retained

for "billing purposes and as a convenience in case the customer

loses the message," could be accessed and possibly disclosed by the

provider. Id. at 50. Prior to the ECPA, it was not clear whether

the user had the right to challenge such a disclosure. Id.

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Similar concerns applied to temporary financial records and

personal data retained after transmission. Id. Given that

background and evidence in the legislative history that Congress

incorporated much of the OTA's report in the legislation, it

appears that Congress had in mind these types of pre and post

transmission "temporary, intermediate storage of a wire or

electronic communication incidental to the electronic transmission

thereof," see 18 U.S.C. § 2510(17), when it established the

definition of "electronic storage." There is no indication that it

meant to exclude the type of storage used during transmission from

the scope of the Wiretap Act.

It is also telling that virtually none of the discussions

of electronic storage in House and Senate conference reports occur

within the context of message transmission or the Wiretap Act. If,

as the District Court and Councilman suggest, Congress intended to

narrow the scope of the Wiretap Act by adopting a broad definition

of "electronic storage," it would likely have discussed storage

during transmission while it discussed the new provisions in the

Wiretap Act.

In one of the few instances in which Congress discussed

message storage within the context of the Wiretap Act, it

explicitly distinguished messages in transit from messages in

storage. In the section of the report discussing the

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responsibilities of service providers to keep communications

confidential, the House Committee stated:

Section 2702(a) [the Stored Communications
Act] generally prohibits the provider of a
wire or electronic communication service to
the public from knowingly divulging the
contents of any communication while in
electronic storage . . . . Similarly section
2511(3) of title 18 [the Wiretap Act], as
amended, prohibits such a provider from
divulging the contents of a communication
while it is in transmission.

H.R. Rep. No. 99-647, at 65.

Likewise, there is nothing in the legislative record to

indicate that Congress intended to reduce the protection for

electronic communications by including the term "electronic

storage" in its definition of "wire communication." Instead, as

noted earlier, it appears that Congress included that provision in

the ECPA simply to expand the protections for voicemails. The

government's contemporaneous v. non-contemporaneous approach

recognizes that Congress had to specifically include stored

voicemails in the definition of "wire communication" to have the

Wiretap Act apply to those communications. Without the explicit

addition of voicemails to the scope of the Wiretap Act, these

communications would have been regulated by the Stored

Communications Act. Indeed, that is exactly what happened when

Congress 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

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Intercept and Obstruct Terrorism (USA PATRIOT) Act, P.L. 107-56

§ 209, 115 Stat. 283 (2001). See Konop, 302 F.3d at 878 ("By

eliminating storage from the definition of wire communication,

Congress essentially reinstated the pre-ECPA definition of

'intercept'--acquisition contemporaneous with transmission--with

respect to wire communications."); 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.").

This result creates an analogy between electronic and

wire communications: voicemails are to telephone calls in the wire

communication context as messages stored in mailboxes are to e-

mails in transit in the electronic communications context. See

Pharmatrak, 329 F.3d at 18 ("ECPA amended the Federal Wiretap Act

by extending to data and electronic transmissions the same

protection already afforded to oral and wire communications.");

Konop, 302 F.3d at 878 (Congress "accepted and implicitly approved

the judicial definition of 'intercept' as acquisition

contemporaneous with transmission."). The Government's approach to

the ECPA is faithful to this analogy. Acquisitions of conversation

stored in voicemailboxes, like messages stored in e-mailboxes, do

not occur contemporaneously with communications; therefore, neither

of these should be treated as intercepts under the Wiretap Act.

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Telephone wiretaps and acquisitions of e-mails through the use of

MUA recipe files, on the other hand, do occur contemporaneously

with communications and should be considered intercepts under the

Wiretap Act.

V. Existing Practices and Privacy Protections

The Government observes in its brief that its criminal

investigators would stand to gain by the court's adoption of

Councilman's interpretation: "If defendant's argument prevails, law

enforcement would not violate the Wiretap Act by capturing the

email without a wiretap order. Instead, law enforcement could rely

on lesser legal process, with lesser judicial oversight, than is

required under the Wiretap Act." As discussed in Section II,

supra, the Stored Communications Act does not require the

government to follow the procedures for obtaining a wiretap order.

Officers can seize stored records for any crime for which they can

get a search warrant; their search can extend to the limits of the

Fourth Amendment; they do not need to report the progress of their

search to courts; and defendants do not have an extra-

constitutional right to suppress evidence from illegal searches.

The Justice Department's current policy guidance

memorandum assumes that the type of communications at issue here

fall under the purview of the Wiretap Act. See United States

Department of Justice, Computer Crime and Intellectual Property

Section, "Searching and Seizing Computers and Obtaining Electronic

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Evidence in Criminal Investigations" § IV(d) (2002) ("Since its

enactment in 1968 and amendment in 1986, [the Wiretap Act] has

provided the statutory framework that governs real-time electronic

surveillance of the contents of communications.") (emphasis added);

Id. ("There is now a clear and uniform statutory distinction

between stored electronic and wire communications, which are

subject to [the Stored Communications Act], and contemporaneous

interceptions of electronic and wire communications, which are

subject to [the Wiretap Act]."). Therefore, it has been the

Government's position that it had to obtain judicial authorization

under the Wiretap Act to seize e-mails contemporaneously with their

delivery. That practice would likely change under Councilman’s

interpretation of the Act. For example, the government states in

its brief that "to implement wiretap orders on email accounts, the

Federal Bureau of Investigation usually relies on the communication

service providers to conduct the acquisitions." The providers use

MUA recipe files similar to the one in this case to intercept,

copy, and deliver the targeted e-mails to the government as they

are being delivered. Under Councilman's narrow interpretation of

the Act, the Government would no longer need to obtain a court-

authorized wiretap order to conduct such surveillance. This would

effectuate a dramatic change in Justice Department policy and mark

a significant reduction in the public's right to privacy.

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 Such a change would not, however, be limited to the

interception of e-mails. Under Councilman's approach, the

government would be free to intercept all wire and electronic

communications that are in temporary electronic storage without

having to comply with the Wiretap Act's procedural protections.

That means that the Government could install taps at telephone

company switching stations to monitor phone conversations that are

temporarily "stored" in electronic routers during transmission.

See United States Telecom. Ass’n v. FCC, 227 F.3d 450, 464 (D.C.

Cir. 2000) ("[In a digital telephone network,] a call is broken

into a number of discrete digital data packets, each traveling

independently through the network along different routes. Data

packets are then reassembled in the proper sequence at the call's

destination"); United States Congress, Office of Technology

Assessment, Electronic Surveillance in a Digital Age 33 (1995)

(stating that eighty percent of the telephone switches in the

United States in 1991 were digital); see also 18 U.S.C. § 1002

(requiring telephone companies to ensure that the government

retains the ability to intercept calls as the company installs new

technologies). It could install "packet sniffer," software,

computer programs that record the contents of all of the packets

traveling through a network, on the servers of Internet Service

Providers (ISPs) without having to comply with the Wiretap Act.

See Kerr, supra, at 651 ("[A] system administrator (or a

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twelve-year old computer hacker) can easily monitor all information

flowing through a particular point in a network by writing a simple

program.").

In short, Councilman's approach to the Wiretap Act would

undo decades of practice and precedent regarding the scope of the

Wiretap Act and would essentially render the Act irrelevant to the

protection of wire and electronic privacy. Since I find it

inconceivable that Congress could have intended such a result

merely by omitting the term "electronic storage" from its

definition of "electronic communication," I respectfully dissent.

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