Caselaw

Electronic Communications Privacy Act

§ 4-1 Damages

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§ 4-2 Disclosure of E-mail

Andersen Consulting LLP. v. UOP, 991 F. Supp. 1041 (N.D. Ill. 1998).
A private corporation with employee e-mail and Internet access was not a provider of services "to the public." It therefore did not violate the unauthorized disclosure provisions of ECPA by disclosing the e-mail of a hired consultant who was permitted to use the system because it did not come under the purview of § 2702 of the Stored Communications Access Statute.

§ 4-3 Exclusion Remedy

United States v. Smith, 155 F.3d 1051 (9th Cir. 1998).
The court’s distinction between interception and access "explains the absence of an exclusion remedy among the Stored Communications Act's provisions. The act of merely 'access[ing]' a communications facility would not alone produce the contents of any wire communication that might be suppressed; hence, an exclusion provision in the Stored Communications Act is unnecessary. The actual intercept[ion]" [sic] of a wire communication, however, could yield suppressible evidence; hence, pursuant to § 2515, the contents of any such communication illegally intercepted may not be introduced in any official proceeding."

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§ 4-4 Interception

United States v. Councilman, 245 F. Supp. 2d 319 (D. Mass. 2003).
Defendant was charged in count one of a two-count indictment with conspiracy to violate 18 U.S.C.S. § 2511(1) and (3)(a) through the interception of certain electronic communications traveling through an electronic mail service operation and attempting to use them improperly for commercial gain. Based upon a stipulation with the federal government, defendant moved to dismiss count one on the ground that the alleged criminal conduct involved, at most, improper acquisition of electronic communications that were "in storage" at the time within defendant's company's computer system. After originally denying the motion, the Court reconsidered its decision and agreed to dismiss count one based on the holding in Konop v. Hawaiian Airlines Inc., 302 F.3d 868 (9th Cir. 2002), which stated that no violation of the Wiretap Act, 18 U.S.C.S. § 2511, occurs when an electronic communication is accessed during storage, even if the interception takes place during a nano-second "juncture" of storage along the path of transmission.

Konop v. Hawaiian Airlines Inc., 302 F.3d 868 (9th Cir. 2002).
The Wiretap Act protects electronic communications from interception when stored to the same extent as when in transit, thus allowing a lawsuit where the defendant wrongfully obtained a password to view content on a password-protected web site.

Fraser v. Nationwide Mut. Ins. Co., 135 F. Supp. 2d 623 (E.D. Pa. 2001).
Plaintiff employee worked as an insurance agent for defendant insurance companies. After plaintiff employee drafted a letter warning that agents might leave defendants over objectionable policies, defendants searched plaintiff employee's stored e-mail and determined that the letter was sent to a competing insurance company. Defendants terminated plaintiff employee. Plaintiffs sued defendants, but the trial court granted defendants summary judgment on all counts. The Court reasoned that Defendants did not violate federal statutes, either the Wiretap Act or the Stored Communications Act, by reading plaintiff employee's stored e-mail, because the federal statutes only prohibited interception and access of communications while in the course of transmission. The Court clarified this by stating that the retrieval of an e-mail message from post-transmission storage, where the message remains after transmission is complete, does not constitute interception or access.

Amati v. City of Woodstock, 176 F.3d 952 (7th Cir. 1999).
Taping of police department telephone lines without the consent of department employees is permissible within the "ordinary course of business" exception to the Wiretapping Statute, (referred to by the court as "Title III of the Omnibus Crime Control and Safe Streets Act").

Bartnicki v. Vopper, 200 F.3d 109 (3rd Cir. 1999).
Under 18 U.S.C. § 2511 (which prohibits the intentional disclosure or use of an unlawfully intercepted electronic communication), plaintiff sued two radio stations, their reporter, and the individual who furnished the tape recording, for civil damages for the disclosure of portions of an intercepted phone conversation. The defendants argued that the ECPA provisions imposing damages and counsel fees for the use and disclosure of intercepted material on those who played no part in the interception was unconstitutional. The court held that the 1st Amendment does bar a civil damage action brought against the defendants, stating, "We therefore hold that the Wiretapping Acts fail the test of intermediate scrutiny and may not constitutionally be applied to penalize the use or disclosure of illegally intercepted information where there is no allegation that the defendants participated in or encouraged that interception." Nevertheless, the dissenting opinion noted that the decision not only invalidates a portion of the federal statute and the counterpart portion of the Pennsylvania statute, it, by necessary implication, spells the demise of a portion of more than twenty other state statutes.

Bohach v. City of Reno, 932 F. Supp. 1232 (D. Nev. 1996).
An "electronic communication" cannot be "intercepted" when it is in "electronic storage." The storage is not part of the "communication," thus there is no "intercept" when electronic communications are retrieved from electronic storage. The retrieval of messages in electronic storage is governed by the statutory scheme set forth in 18 U.S.C. § 2701–2711, and is not subject to the more restrictive wiretap statute found at 18 U.S.C. § 2510–2522.

United States v. Reyes, 922 F. Supp. 818 (S.D.N.Y. 1996).
Pressing a button on a pager to access its memory is not an "interception" within the meaning of the ECPA. The retrieval of numbers from a pager’s memory is an access of stored electronic communications governed under 18 U.S.C. § 2703 (Stored Communications Access Statute). Therefore, officers accessing numbers stored in a pager’s memory without "justifi[cation] under the 4th Amendment executed a search in violation of the ECPA." Exceptions to the warrant requirement apply to the ECPA as they would apply to any warrantless search.

Brown v. Waddell, 50 F.3d 285 (4th Cir. 1995).
The court held that the "investigative technique" of using a clone pager to intercept numeric transmissions intended for a suspect's digital display pager, could not be considered the use of a "pen register" pursuant to the provisions of the ECPA.

Steve Jackson Games, Inc. v. U.S. Secret Service, 816 F. Supp. 432 (W.D. Tex. 1993), aff’d, 36 F.3d 457 (5th Cir. 1994).
The court offered two interpretations of "interception" or "acquisition of aural communications": (1) "an activity engaged in at the time of the oral communication which causes such communication to be overheard by uninvited listeners" — requiring that "acquisition" occur at the time the recording is made;" or (2) that an "aural acquisition" is accomplished only when two steps are completed — the initial acquisition by the device and the hearing of the communication by the person or persons responsible for the recording. Either of these definitions would require participation by the one charged with an "interception" in the contemporaneous acquisition of the communication through the use to the device.

Steve Jackson Games, Inc. v. U.S. Secret Service, 36 F.3d 457 (5th Cir. 1994).
Seizure of stored electronic mail is not an interception within the meaning of the Wiretapping Statute. (The assumption is that interception requires activity contemporaneous with transmission.)

United States v. Meriwether, 917 F.2d 955 (6th Cir. 1990).
An officer does not "intercept" the displayed phone numbers on a pager when he does not utilize any electronic, mechanical, or other device as proscribed by the statute. Conversely, if an officer has lawful possession of a paging device (i.e., by warrant), "when the [officer] presses the digital display button, he [becomes] a party to the communication." Moreover, seizure of a telephone number from a pager is not an interception within the meaning of the Wiretapping Statute. The pager emits a signal when the transmission over the system has ceased. Subsequent retrieval of the message was not an interception.

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§ 4-5 Interception vs. Access

United States v. Smith, 155 F.3d 1051 (9th Cir. 1998).
The government unsuccessfully argued that "interception" required contemporaneity. However, the court held that the word "intercept" entails actually acquiring the contents of a communication, whereas the word "access" merely involves being in position to acquire the contents of a communication. [Making access a "lesser included" offense of interception.] (The reasoning was based on the inclusion of "communication in storage" within the definition of wire communication, thus subjecting the communication to the possibility of being intercepted.)

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§ 4-6 Pagers

United States v. Reyes, 922 F. Supp. 818 (S.D.N.Y. 1996).
Officers turned on a pager lawfully in their possession and retrieved its stored messages. They argued that exigent circumstances allowed the search of the pager’s contents; i.e., pagers have a limited memory, and the pager "would refuse to accept incoming messages if its storage capacity was full." However, the court held that since the warrant did not authorize officers to access the memory of the pager, the officer created the exigency through the unlawful act of turning on the pager. He, therefore, cannot "claim the benefit of the exigent circumstances exception."

Brown v. Waddell, 50 F.3d 285 (4th Cir. 1995).
The court held that the "investigative technique" of using a clone pager to intercept numeric transmissions intended for a suspect's digital display pager, could not be considered the use of a "pen register" pursuant to the provisions of the ECPA.

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§ 4-7 Reasonable Expectation of Privacy

United States v. Hambrick, 55 F. Supp. 2d 504 (W.D. Va. 1999), aff’d, 225 F.3d 656 (4th Cir. 2000).
A subscriber has no reasonable expectation of privacy in the transactional records maintained by his Internet service provider. The ECPA does not represent a legislative determination of a reasonable expectation of privacy in non-content information released by ISPs. Additionally, the Stored Communications Access Statute of the ECPA does not provide for the relief requested in this case, namely in the form of suppression.

Bohach v. City of Reno, 932 F. Supp. 1232 (D. Nev. 1996).
Police had no expectation of privacy in their use of a computerized alpha paging system provided by the police department. Factors considered in arriving at this holding include: "its primary though not exclusive purpose, the restrictions placed on the contents of messages, the limited number of persons with whom one can communicate using it, and the fact that police departments routinely and properly record their communications with the public."

United States v. Meriwether, 917 F.2d 955 (6th Cir. 1990).
There is no reasonable expectation of privacy in use of a pager that provides phone numbers of persons calling the pager’s owner. As the actual confidentiality of a message to a pager is quite uncertain, the defendant’s misplaced trust that the message actually would reach the intended recipient is not protected.

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§ 4-8 Search Warrants

United States v. Kennedy, 81 F. Supp. 2d 1103 (D. Kan. 2000).
Even if the ECPA was violated (as the § 2703(d) order was based on inadequate government application), suppression of subscriber information obtained with the warrant is not a remedy for such a violation (under § 2707 of the Stored Communications Access Statute).

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§ 4-9 Seizure of E-mail

Davis v. Gracey, 111 F.3d 1472 (10th Cir. 1997).
Even if seizure of the defendant’s computers by officers, and the consequential seizure of third-party e-mail housed on them were in violation of § 2701, as the defendant was a provider of e-mail service to third parties — where the computers in question were instrumentalities of the crime for which the defendant was being investigated — the court finds the officers are entitled to a good faith defense based on good faith in the warrant authorizing the seizure.

§ 4-10 Subpoenas

FTC v. Netscape Communications Corp., 46 Fed. R. Serv. 3d (Callaghan) 920 (N.D. Cal. 2000).
A subpoena issued for pre-trial discovery purposes in a civil action does not fall within the definition of "trial subpoena" as contemplated by § 2703(c)(1)(C) of the ECPA.

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§ 4-11 Subscriber Information

McVeigh v. Cohen, 983 F. Supp. 215 (D.D.C. 1998).
During the course of an investigation of the plaintiff, the U. S. Navy obtained information regarding the plaintiff’s member profile from AOL without complying with the provisions of the ECPA requiring compulsory process. The Navy’s investigator did not identify himself as a representative of the Navy when speaking with AOL. McVeigh filed a motion for preliminary injunction to prevent the use of the information obtained from AOL "in violation of the ECPA" against him in a discharge proceeding. The Navy argued that the substantive provision of the statute that McVeigh cited, 18 U.S.C. § 2703 (c)(1)(B), puts the obligation on the online service provider to withhold information from the government, and therefore there was no cause of action against the Navy under the ECPA. The court reasoned, however, that the Navy solicited a violation of the ECPA by AOL, because they knew or should have known that by providing subscriber information without a warrant, AOL was breaking the law. "Section 2703 (a) and (b) imposes [sic] on the government a reciprocal obligation to obtain a warrant or the like before requiring disclosure."

Tucker v. Waddell, 83 F.3d 688 (4th Cir. 1996).
The government is not civilly liable for the allegedly wrongful disclosure of subscriber information by a service provider under 18 U.S.C. § 2703(c), which covers only the service providers' responsibilities in disclosing information, not the government's responsibilities. Therefore, there is no cause of action. The court adds (in dicta) that the government may be civilly liable for violations of 18 U.S.C. § 2703(a) or (b), both of which impose obligations on government.

In re Grand Jury Subpoenas to Southwestern Bell Mobile Sys., Inc., 894 F.
Supp. 355 (W.D. Mo. 1995).
In the 1994 amendment to the Electronic Communications Privacy Act (ECPA), in describing the type of information that can be obtained by grand jury subpoena, the phrase "telephone toll billing records" was not intended to limit the scope of the telephone billing records to be produced by the service provider to only long distance records. All non-content billing records maintained by the service provider — regardless of an actual toll imposed or not imposed on the subscriber — may be obtained.

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§ 4-12 Voice Mail

United States v. Smith, 155 F.3d 1051 (9th Cir. 1998).
The act of retrieving another's voice mail message from a voice mail server and then recording it on an audiotape is not an "access" of a stored communication. It is an "interception," therefore governed by the Wiretap Act.

United States v. Moriarty, 962 F. Supp. 217 (D. Mass. 1997).
Contrary to U.S. v. Smith, 155 F.3d 1051 (9th Cir. 1998), cert. denied, 525 U.S. 1071 (1999), the District Court of Massachusetts held that listening to a stored voice mail message does not qualify as an interception. Based conclusion on premise that voice mail message can only be intercepted while in transmission, not after it has been stored for later retrieval. It was not argued, nor did the court address, the inclusion of "stored communication" within the definition of "wire communication" — the defining point in Smith.

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§ 4-13 Wiretapping

United States v. Scarfo, 180 F. Supp. 2d 572 (D.N.J. 2001).
Pursuant to two search warrants, Federal Bureau of Investigation agents installed on one defendant's computer a "key logger system" (KLS) that recorded the keystrokes entered on the computer's keyboard and, thus, captured the "passphrase" needed to open an encrypted file. From the evidence gathered from the investigation, the defendant was charged and prosecuted for gambling and loansharking. The defendant moved for discovery of the workings of KLS and argued for suppression of evidence because wiretap authorization, 18 U.S.C.S. § 2510, was required for use of the KLS. The Court denied the defendant’s motion, concluding that no wiretap authorization was required for use of the KLS because the program did not record information while the computer's modem was in use.

Watkins v. L.M. Berry & Co., 704 F.2d 577 (11th Cir. 1983).
The phrase "ordinary course of business" cannot be interpreted so broadly as to mean anything that interests a company. A personal call may not be intercepted "in the ordinary course of business" except to the extent necessary to guard against unauthorized use of the telephone or to determine whether a call is personal or not. In addition, knowledge of the capability of monitoring alone cannot be considered implied consent. Consent to monitoring phone calls may be limited. It is up to the trier of fact to determine the scope of consent and to decide whether and to what extent an interception exceeded that consent.

United States v. Turk, 526 F.2d 654 (5th Cir. 1976).
No new and distinct interception occurs when the contents of a communication are revealed through the replaying of a previous recording. An "interception" occurs only when the acquisition of the communication (e.g., through use of a recording device) is contemporaneous with the transmission of the communication.

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