*1 America, STATES UNITED
Appellant, COUNCILMAN, C.
Bradford
Defendant, Appellee. 03-1383.
No. Appeals, Court States
United Circuit.
First 8, 2004. Dec.
Heard 11, 2005. Aug.
Decided *2 En Banc
Oрinion LIPEZ, Judge. Circuit ques- important presents This case *3 must construction. We statutory tion e-mail of an interception decide whether transient electronic temporary, message the Wire- under offense storage states Appellate Drennan, Criminal A. John Electronic amended tap Justice, with Department Attorney, U.S. 1986, 18 Act of Privacy Communications Attorney, Sullivan, U.S. J. Michael whom government The §§ 2510-2522. Attor- U.S. Levenson, Assistant G. Paul does, Councilman and indicted believes Attorney, Ohm, Trial K. Paul ney, and disa- court The district theory. under that brief, Justice, on Department U.S. A indictment. dismissed greed and appellant. for affirmed. We of this court panel divided reverse.1 now banc and review en granted Zi- Good, Matthew whom with Andrew brief, were on Cormier & and Good sow I. appellee. for E-mail Internet An Introduction A. on P. Peter Swire and L. Bellia Patricia intercon- ais network The Internet Leahy, amicus J. Patrick for brief Senator Data transmitted computers. nected curiae. into down are broken Internet across the forwarded that are “packets” small Hofmann and Marcia Rotenberg Marc they reach until another computer to one Diffie, W. Edward for Whitfield on brief reconsti destination, they are where their Levine, Neu- G. Peter Felten, R. John Kerr, Surveil Internet S. Orin tuted. See Schneier, curiae. amici mann, Bruce and Act: Patriot the USA Law lance After Isn’t, U.L.Rev. 97 Nw. Big Brother E. Gonzalez and Carlos Kadidal Shayana (2003). on the Each 607, 613-14 se, brief, curiae. amici pro e-mail, Wide World e.g., Internet — for for Center on brief Kerr S. Orin its own messaging Web, instant —has Electronic Technology, Democracy and trans of data packets using protocol Privacy Foundation, Electronic another. Frontier place from one information mit As- Library Center, Simple American known as Information protocol The e-mail Union, (“SMTP”). sociation, Civil Liberties American Protocol MailvTransfer Studies, Security for National Center in an message composes user After a curiae. amici called a program program,2 e-mail client (“MTA”) formats agent
mail transfer BOUDIN, Judge, program Chief it to another and sends message Before packets SELYA, sends Circuit it and “packetizes” TORRUELLA on the Computers Judge, to the Internet. CYR, Circuit out Senior Judges, one to packets from HOWARD, pass then Circuit network LIPEZ, LYNCH, route along the computer another; each Judges. agent user a mail called 2. Sometimes assis- gratitude the acknowledge with We ("MUA”). amici curiae. tance packets stores the in memory, retrieves seem involved, rather it usually takes destinations, addresses of their final just seconds, a few with each intermediate and then determines where to send them step taking See, well under e.g., second. next. At various points packets are al., W. Houser et RFC 1865: EDI Meets reassembled to form original e-mail (Jan.1996), Internet http:// message, copied, and then repacketized for (“For wvTV.ietf.org/rfe/rfc1865.txt a modest the next leg of the journey. See J. Klen- amount of data with a dedicated connec sin, RFC 2821: Simple Mail Pro- Transfer tion, a message transmission would occur (Apr.2001), tocol http:// ”). a matter of seconds.... www.ietf.org/rfc/rfc2821.txt; Jonathan B. *4 Postel, RFC 821: Simple Mail Transfer B. Alleged Facts in the Indictment Protocol (Aug.1982), http:// (“RFC www.ietf.org/rfc/rfc821.txt ”). Defendant-appellee Bradford C. Council- Sometimes messages cannot be trans- man was Vice Interloe, Inc., President immediately ferred and must be saved which ran an online rare and out-of-print delivery. later Even when delivery im- listing book service. part As service, of its mediate, computers intermediate often re- gave Interloe book dealer customers an e- tain backup copies, which they delete later. mail address at the domain “interloc.com” This method of transmission is commonly and acted the provider. as e-mail Council- called “store and forward” delivery. managed man the e-mail service and the Once all the packets reach the recipi- subscription dealer list. server, ent’s mail they are reassembled According indictment, to the in January form the e-mail message. A mail delivery 1998, Councilman (“MDA”) directed Interloe agent em- accepts the message from ployees to intercept MTA, copy and the all incoming determines which user should communications to rеceive subscriber message, the dealers performs and from the ac- Amazon.com, tual an delivery by Internet placing retailer sells message that user’s books and products. mailbox. other One popular Interiors sys- MDA is “procmail,” which tems administrator controlled modified short the server’s programs procmail or scripts recipe that, called “recipe so files.” delivering before These recipe files can be message used various Amazon.com to the re- ways. For example, a procmail recipe cipient’s mailbox, can procmail copy would instruct the MDA to deposit mail ad- message place and the copy in a separate dressed to one address into another user’s mailbox that Councilman could access. (e.g., mailbox to send mail addressed to Thus, procmail would intercept and copy “help” to the tech support department), to all incoming messages from Amazon.com reject mail from addresses, certain or to they before were delivered to the recipi- make copies of certain messages. mailbox, ent’s therefore, and before the
Once the MDA intended deposited recipient has a could message read the message. into the recipient’s mailbox, This diversion recipient intercepted thousands of simply needs to use an messages, e-mail client рro- Councilman other In- gram to retrieve and read the message.3 terloe employees routinely read the e-mail While the journey from sender to recipient messages sent to Interloe subscribers in cases, In some the e-mail program client change does not present discussion. through accessed the World Wide Web. This inter- Act, arguing advan- commercial gaming hope in “electronic were messages e-mail cepted tage. U.S.C. defined storage,” not, aas 2510(17), History therefore § Procedural C. prohibition to the subject law, matter returned jury 2001, grand July On communica- electronic ... “intercepting] Council- against indictment a two-count 2511(1)(a). The dis tion[s],” 18 U.S.C. under him charged One Count man. motion initially denied court trict criminal federal general how began, preparation trial As vio- dismiss. conspiracy statute, for conspiracy recon sponte sua court ever, district 2511,4 Act, U.S.C. late then- light of communications, its decision sidered intercepting v. Hawai Konop case reeently decided con- their contents, using their disclosing (9th Cir. Inc., Airlines, ian providing person causing tents, and the district briefing, 2002). further After to di- to dis motion Councilman’s per- granted court contents communications’ vulge One, ruling ob- Count miss addressees.5 than other sons *5 interception, of moment not, at exploit to was conspiracy ject under communications” to “electronic Amazon.com of e-mail content v. Council books, States United of Act. Wiretap a list develop order dealers (D.Mass.2003). 319 F.Supp.2d com- man, 245 attain competitors, about learn par- and its for Interloc advantage mercial affirmed. court this of panel A divided company.6 Councilman, ent F.3d 197 373 States United concluded Cir.2004). majority undis- The to certain (1st stipulated parties, The com- “wire of worked definition recipe procmail that, because facts: puted storage” com- “electronic Interloc’s includes the confínes munication” within per- communi- “electronic procmail at which times definition all but puter; sys- prohi- Act’s not, the e-mail affecting does operations cation” formed apply not random “in the does “intercept[ion]” existed messages tem, on bition disks, or in “elec- briefly, hard (RAM) are, inor even memory access full system”; computer 200-04. Id. Interloc’s storage.” both, within traveling petition while message, government’s e-mail granted each court (1st commu- 793 an “electronic 385 wires, was banc. rehearing en through for 2510(12). is an curiam). this § Because Cir.2004) U.S.C. under (per nication” indict- dismissing order of an appeal indict- dismiss moved to Councilman re- our grounds, legal” “purely ment under an offense state failure to for ment under ed relevant amended was Act 4. The read have should 2511(1)(c), which § alleged Councilman’s after respects in supersed 2511(1)(b). No § 2511(1)(d) or § matter, indict- after and, for that conduct Coun errors. thesе corrected ing indictment ac- cited are statutes Accordingly, all ment. issue, as we this raised has cilman as of Code States cording the United only, that appeal sume, purposes otherwise. specified except where cor conspiracy charged the the indictment rectly. It errors. several contained indictment 5. The contents conspiracy to disclose alleged to vio- conspiracy alleged Two, which 6.Count communica intercepted unlawfully Act, 18 and Abuse Fraud Computer late 2511(1)(a), which § U.S.C. under tions (c)(2)(B), was 1030(a)(2)(C) and §§ conspira 2511(1)(c), and read have should government. by the voluntarily dismissed intercept- unlawfully contents cy to use novo, view is de United States v. Lopez- pies require us to construe the Act in his (1st Lopez, Cir.2002), and we favor. We find no basis to apply assume the truth of the alleged facts in the the fair warning doctrines. indictment, see Bank Nova Scotia v. States, 250, 261, United 487 U.S. 108 S.Ct. A. “Electronic Communication” 2369, 101 (1988). L.Ed.2d 228 The government contends that “elec- tronic communication” means says, what it
II.
and no
“any
less:
transfer of signs, sig-
The Wiretap Act of
specified,
in-
nals, writing, images, sounds, data, or in-
alia,
ter
the conditions under which law
telligence of any nature transmitted in
enforcement officers could intercept wire
whole or in part by wire, radio,
electro-
communications,
penalties
and the
for un-
magnetic, photo electronic or photooptical
private
authorized
interceptions of wire
system that affects interstate or foreign
communications. As
amended
commerce,” with four specific exceptions
Electronic Communications Privacy
ofAct
not relevant
2510(12).
here.
18 U.S.C.
Pub.L. No.
100 Stat. 1848
argues,
Councilman
however, that- Con-
(“ECPA”), the Act makes
anit
offense to
gress
intended
exclude any communica-
“intentionally
],
intercepte
endeavor[
to]
(even
tion
is in
momentary) electronic
intercept,
procure[
person
]
other
storage.
view,
In his
“electronic communi-
intercept
endeavor to intercept, any
cation[s]” under the Wiretap Act are limit-
wire, oral, or electronic communication.”
ed to communications traveling through
2511(1).
Two terms are at
*6
wires between computers.8 Once a mes-
issue here:
“electronic communication”
sage enters a computer, he says, the mes-
and “intercept.”
(at
sage ceases
least temporarily) to be an
Councilman contends that
the e-mail
electronic
protected
by the
messages he
not,
obtained were
when
Wiretap Act. He claims
Congress
con-
procmail
them,
copied
“electronic commu-
sidered communications in computers to be
nieation[s],” and moreover the
method
worthy of less protection than communica-
which they
copied
was
“inter-
tions wires because users have a lоwer
eept[ion]” under the Act. Because these
expectation
privacy
for electronic com-
contentions raise important questions of
munications that are in electronic storage
statutory construction with broad ramifica-
even fleetingly, and that the Act embodies
tions, we discuss in some detail the Act’s
this understanding.
text, structure,
legislative
and
history.
We conclude that
interpreta-
Councilman’s
1. Text
tion of the
Act
Wiretap
is inconsistent with
Congress’s intent. We then turn to
begin,
must,
We
we
with the statute’s
whether Councilman had fair warning that
text. United
Rosa-Ortiz,
States v.
the Act would be
(1st
construed
cover
his
Cir.2003).
As noted
alleged conduct in a
case,
criminal
above,
the statutory definition of “electron
whether the rule
lenity
prinei-
other
ic communication”
and,
is broad
taken
7. Formally known as Title III of the Omnibus
8. We understand Councilman to refer to com-
Crime
Control and Safe Streets Act of
munications in "wires” in order to exclude
90-351,
III,
Pub.L. No.
tit.
§§
computers,
within
rather
(codified
Stat. 211
as amended at 18 U.S.C.
than to exclude wireless connections.
2510-2522).
§§
happens
scrutiny,
often
under close
alone,
incoming
e-
As
appear
would
cover
plain.
is not so
plain
are be-
text
The statute
messages while
mail
explicit
contains no
indication that Con-
by the MTA.
ing processed
gress intended
exclude communications
however, that
argues,
Councilman
storage
from
transient
the definition of
exempts
electronic
plain text of
statute
communication,” and, hence,
“electronic
storage
are in
communications that
scope
from the
of the
Act. Coun-
Act. He con-
purview
of the
cilman,
it,
acknowledging
without
looks be-
of “electronic
tends that
the definition
yond the
face
the statute
makes an
alongside
read
communication” must be
leap.
Congress
He
inferential
infers
of “wire communication” and
the definition
intended to exclude communications in
by what the latter includes but the
limited
storage
transient
from the definition of
not. The
former does
ECPA amended
communication,” regardless
“electronic
1968 definition
“wire communication”
they are in the process
being
whether
includes
elec-
specify that “such term
delivered, simply
it did not
because
include
storage of
communication.” 18
storage”
the term “electronic
that defi-
101(a)(1)(D),
2510(1);
ECPA
U.S.C.
leap
plain
nition. This inferential
is not
contrast,
By
the defini-
man’s inferential based a canon L.Ed.2d 133 351 more appar- construction, justified. ently contrast, is The Russello stronger deliberate the simply particular inference, maxim—which is a appli applied, for example, to cation principle expressio statutory of the classic contrasting originally sections simultaneously unius est exclusio alterius—assumes that enacted in relevant re- Congress carefully deliberately spects.”) in acts including a part terms in one of statute structure, If the statute’s language, omitting them another. See Barn or circumstances of enactment differ from Co., 149, v. Peabody hart Coal 537 U.S. that idealized picture, the force is canon’s (2003) 168, 748, 154 S.Ct. L.Ed.2d 653 For example, diminished. if language (“We do not read the enumeration of one of provisions the two at issue is not paral case to another exclude unless it is fair lel, Congress may then not have envisioned suppose considered the un the two provisions closely would be possibility say named and meant to no to compared in present search of terms it.”). one and absent from the other. “The Rus- a
Sometimes
is
reasonable as
presumption—that
sello
presence
a
sumption;
gen
phrase
sometimes it is
not. “The
provision
one
and its
absence
expression
eral rule that the
thing
of one
is
Congress’[s] design—
another
reveals
subject
grows
exclusion
others is
to excep
weaker with each difference in the
tions. Like other
of statutory
canons
con
provisions
formulation
inspec
under
struction it
is
an aid
the ascertain
tion.” City Columbus v. Ours Garage &
law,
Inc.,
ment of the
meaning
Serv.,
424, 435-36,
and must Wrecker
536 U.S.
yield
contrary
whenever a
2226, 153
intention on the
(2002);
S.Ct.
L.Ed.2d 430
see
part of
States,
apparent.”
lawmaker
Clay
also
v. United
537 U.S.
Islands,
Springer
v. Gov’t Phil.
(2003)
277 U.S.
123 S.Ct.
75
separate subparagraphs.
in
may
“pre- merated
See
differently,
though it
be
Put
2510(12).
intentionally
§
Congress acts
18
The definition was
that
U.S.C.
sumed
disparate
or
in the
inclusion
purposely
part
as
from scratch
of
ECPA.
drafted
Russello,
exclusion,”
464 U.S.
101(a)(6),
§
100 Stat.
1848-49.
ECPA
rebut-
presumption
S.Ct.
Second, any expressio unius infer
That is the case here.
ted.
presence
from the
ence that can be drawn
First,
of “wire communi-
definitions
in
storage
clause
one defi
of
electronic
in
and “electronic communication”
cation”
nition
its
from another is
absence
The
parallel.
Act are not
compelling—and
a much more
tension with
clause
lengthy
in a single
former is defined
directly contrary—expressio unius infer
multiple independent crite-
specifies
statutory
from
same
provi
ence drawn
ria,
storage clause
the electronic
with
to,
how
and in fact
Congress
sions:
knew
end.
U.S.C.
tacked onto the
did,
four
explicitly
specific catego
exclude
2510(1).
hews
revised definition
§
ries of
the broad def
communications
closely
definition
original
to its
inition of “electronic communication.” See
Act;
simply
ECPA
amended
101(a)(6)(C).11
Congress
§
ECPA
Yet
by replacing
phrase
that definition
by
urged
never
the exclusion
Coun
added
transfer,”
with “aural
“communication”
“any electronic communication
cilman:
not relevant
making certain modifications
storage.”
interpretative
This
here, and,
course, adding
of
the clause
principle
applies:
then
“Where
term
“and such
includes
exceptions to
explicitly enumerates certain
storage
such communication.”10 See
general prohibition,
exceptions
additional
101(a)(1)(D),
§
100 Stat. at
ECPA
implied,
are not to be
the absence
contrast,
By
“electronic communication”
contrary legislative
intent.”
are
evidence
terms which
first defined
broad
Andrews,
28, 122
enu- TRW v.
534 U.S.
specific
four
exclusions
narrowed
ECPA,
foreign
or
"wire
state
communications
commu-
the definition of
or
10. Before
foreign
affecting
or
interstate
nications
communication” read:
term
elec-
commerce and such
includes
any commu-
"Wire communication” means
communication,
storage
but
of such
part through
made in whole or in
nication
por-
not include the radio
such term does
for
the use of
the transmission
facilities
telephone
tion of cordless
cable,
wire,
by the aid of
between the cordless
is transmitted
point
like
between the
or other
connection
telephone
unit.
handset and
base
origin
point
reception
fur-
and the
(1988).
2510(12)
operated by any person engaged
nished or
providing
oper-
carrier in
a common
1994, Congress deleted
exclusion of
11. In
ating
for
transmission
such facilities
conversations,
phone
see Communi-
cordless
foreign
communications.
interstate
Law
Enforcement
cations Assistance
2510(12) (1972).
As
amended
II,
202(a)(1),
tit.
Pub.L. No.
definition read:
ECPA in
later,
(1994),
years
and two
Stat.
any aural
communication” means
"Wire
for electronic funds trans-
added an exclusion
through
part
whole or in
information,
transfer made in
Antiterrorism and Effec-
fer
see
*9
of
1996,
for the transmission
the use of facilities
No.
Penalty Act of
Pub.L.
tive Death
cable,
wire,
by the
VII,
731(1)(C),
aid of
Stat.
tit.
point
Thus,
1214,
(1996).
the
or
like connection between
other
the time of the
(includ-
indictment,
reception
origin
point
alleged
and the
the
conduct
in a switch-
ing
separate
use of such connection
exclusions from the
the
had enacted five
communication,”
station)
by any
operated
ing
of "electronic
furnished
definition
them,
separate
providing
operating
one
on three
person engaged in
and deleted
the
of inter-
occasions.
for
transmission
facilities
(2001)
S.Ct.
2. Legislative History
or in
nal
the electronic files of the send-
er, while being communicated,
below,
As
explain
we
purpose of the
electronic
receiver,
mailbox of the
definition
broad
when
storage
was
printed into hardcopy,
to enlarge privacy
protections
when re-
for stored
tained in the files of
data under
Wiretap Act,
electronic mail
not to exclude
company
e-mail
administrative
stored during
purposes.
transmis-
Existing law
protection.
sion from
offers little
strong
those
protections. More-
over, Congress’s sole
purpose
adding
Id. at
c. The storage electronic in clause the which they are in temporary storage en definition of “wire communication” route to their which, destinations — original The version of the ECPA of out, turns are points often where it is 1986 included the definition of “electronic technologically to intercept easiest those storage” as today, it reads but did not communications—neither of thе Senate include in storage electronic the definition co-sponsors saw fit to mention this to of “wire Cong. communication.” 132 Rec. their colleagues, one, and no evidently, re- (June S7,991 1986). Neither Senator marked upon it. No document or legisla- Leahy’s floor upon statement introducing tor suggested ever the addition of the bill nor the staff bill summary men- storage clause to the defini- tioned voice mail in the context of the tion of “wire communication” would take Wiretap Act id.; amendments. See cf. messages in electronic storage out of the H.R.Rep. 99-647, No. at 63 (mentioning definition of “electronic communication.” mail voice in the context of Stored Com- Indeed, we doubt that Congress contem- Act). munications not, mail Voice had ap- plated the existential oddity that Council- parently, major subject been a of discus- man’s interpretation messages-— creates: sion in the context of the ECPA.12 by stipulation conceded to be electronic Similarly, Representative when Kasten- briefly cease to be elec- communications— meier introduced his identical bill in the tronic communications for very in- short House, he did not mention voice mail in his tervals, and then suddenly become elec- remarks. See 132 Cong. H4,039 Rec. communications again. Cf. (June 23, 1986). The electronic storage H.R.Rep. (“The No. at 35 term in clause the wire communications defini ‘electronic сommunication’ is intended tion appeared first in Senate committee cover a broad range ac- markup after the House had already tivities .... Communications consisting passed the bill without the clause. See 132 solely of data ... would be electronic (Oct. S14, 441 Cong. 1, 1986). Rec. Senator communications.”). Leahy, in his statement in support of the bill, amended specifically mentioned voice sum, In legislative history indicates mail, which he had not done his remarks that Congress included the electronic stor- earlier year, and the staff summary age clause the definition of “wire com- explained that one effect of the amended provision munication” for the sole reason “[wjire bill was that communications that, it, without access to voicemail would storage, mail, like voice remain wire com have been regulated solely by the Stored munications.” added).13 Id. (emphasis Indeed, Communications Act. that is exact-
If the addition of the electronic storage ly happened what when Congress later clause to the definition of “wire communi- removed the explicit reference to “elec- 12. example, For it was not mentioned in the exceptions contained Report OTA or DOJ’s comments in the House § 2511(2)(g), none of which are relevant here. hearings. or Senate Id. Nowhere suggest did it that electronic communications that briefly were tempo- summary ''[cjertain also noted that rary storage exempted from the cover- exempted are age of the bill. coverage from the of the bill” and listed the *12 in to an “inter- leged “wire the indictment be the definition of storage” from 2511(1) and Uniting (making it ception].”
communication” Ap- by Providing Strengthening “intentionally intercept! ], America an to en- offense and Intercept to Required Tools propriate any intercept, procure!] to deavor!] PATRIOT) (USA Act, Terrorism Obstruct person intercept to to other or endeavor 209(1)(A), II, tit. Pub.L. No. any ... intercept, electronic communica- (2001). A. See Robert 115 Stat. tion”). “intercept” The term defined the Law Pikowsky, An Overview acquisition broadly as “the aural or other September Post Electronic Surveillance wire, electronic, any of the contents of (2002) 11, 2001, Libr. J. 94 Law through use oral communication (“[T]he Act amended PATRIOT USA electronic, mechanical, or other device.” unambiguously and statutory scheme 2510(4). §Id. brought under the Stored Com- voicemail argument on appeal Councilman’s core Act.”). munications issue, because 3. Conclusion acquired, were transient electronic when commu- storage, they were not “electronic conclude that the term “elec
We therefore, and, transient includes section tronic communication” nication[s]” 2511(l)’s intrinsic to the storage that is “interception]” on prohibition communi process for such ap- did not any “electronic communication” That is consistent with cations. conclusion argument is the that we have ply. That v. Pharmat precedent. our See rejected in holding that e-mail Blumofe now (In rak, Privacy re Li Inc. Pharmatrak message not cease be an “electron- does (1st Cir.2003) (a rigid tig.), 329 F.3d during momentary ic communication” less dichotomy ... be “storage-transit intervals, to the communication intrinsic problems”);14 current apt than to address message which the resides process, at Network, Inc., also Hall EarthLink see storage. supra See transient electronic Cir.2005) (2d (reject n. 1 Part II.A. over ing arguments that “communication provide does appeal Councilman’s commu can be electronic Internet finding acqui- basis for other transit, it is not while nication while “interceptions]” “elec- were not sitions Consequently, storage”). in electronic sure, To be tronic communication^.” reject pro we this context Councilman’s “Congress in- argue that does Councilman “in transit” posed distinction between ‘intercept’ acquisitions to cover tended storage.” “in ” ‘contemporaneous with transmission.’ “Intercept” B. However, argument point his entire in his theory, as he writes is based on we conclude that though
Even brief, uniformly have under- that “[c]ourts messages at is temporarily stored e-mail negate the storage’ to stood ‘electronic communica sue here constitute electronic еle- with transmission’ ‘contemporaneous scope tions within ” ‘intercept,’ Act al- ment of a requires the conduct the statute also image web tracking Pharmatrak program an invisible arose from a Pharmatrak computer com- user's site. caused the surreptitiously information This transmitted server, directly web Pharmatrak's browsing activity third municate to a about users’ web user about the using which recorded information party. Web the service added sites activity. browsing id. 13-14. pages her their web an instruction download therefore “an e-mail in ‘electronic storage’ Any argument would entail a showing ... cannot definition acquired ‘con- that each transmission complete was at the ” *13 temporaneous with transmission.’ and, That time of acquisition therefore, that the argument simply on, a variation and definition of “intercept” does not cover the entirely within, subsumed primary his ar- acquisitions. Such a showing ap- would gument concerning “storage”' very pear to impossible since we have con- —'the argument rejected. that we have now cluded that the messages were electronic communications, and it is undisputed that Consequently, this appeal does im- not they were acquired while they were still en plicate question of whether the term route to the intended recipients. “intercept” only applies acquisitions occur contemporaneously with the trans- C. Intersection of the Act and mission a message recip- sender to the Stored Communications Act or, instead, ient extends to an event that occurs after a message has crossed the Thus far we have only considered (whatever finish line of transmission Act, that Wiretap not the Stored Communica- be). point may Pharmatrak, See Act, 329 F.3d tions §§ because at 21-22 (noting that the concept of a indictment alleged a violation of contemporaneity or requirement, real-time the former. Councilman ax*guesthat ac- which evolved in contexts, other factual quisition of electronic communications in may not be apt address involving issues temporary storage electronic regulated the application of the Wiretap Act by to elec the Stored Act. Communications From communications). We therefore this he infers that such acquisition is not need not question. decide that regulated United Act, the Wiretap that, Moran, (1st States v. 393 F.3d minimum, Cir. potential overlap implicates 2004) that, (noting in certain circum lenity rule of or other doctrines of “fair stances, an appellee is obliged, pain on of warning.” Consequently, we must delve waiver, to raise additional or alternative into the “complex, often convoluted” inter- bases for affirming a judgment); favorable section of the Wiretap Act and Stored Corp. Assocs., Raxton Inc., v. Anania 668 Communications Act. United States v. (1st Cir.1982) Smith, (emphasizing (9th Cir.1998). the imрortance of presentation “[t]he on
appeal of all justifications viable of a judg Stored Communications Act’s ment”). Coverage
That ends this aspect of the matter. While drafting the E CPA’s amend- Because the facts of this case and the ments to the Wiretap Congress also arguments before us do not invite consid- recognized that, with the rise of remote eration of either the existence or appli- computing operations and large databanks cability of a contemporaneity or real-time stored communications, requirement, we need not and do not threats to individual privacy extended well plunge into note, that morass. We beyond howev- the bounds of the Wiretap Act’s er, that even were prepared we to recog- prohibition against the “interception” of nize contemporaneity or real-time re- communications. These types of stored quirement step that we do not take including —a stored e-mail communications— today highly think it unlikely that messages protected —we —were Councilman could generate winning ar- Wiretap Therefore, Act. Congress con- gument in the circumstances this case. cluded that “the [in information these fall appear conduct Councilman’s possible open may be communications] Act’s Communications Stored under by law disclosure public use wrongful provision: criminal unau- main as as well authorities enforcement 99- in sub- S.Rep. No. provided parties.” (a) Except private Offense. thorized in 1986 (1986), (c) whoever— reprinted this section section 3555, 3557. au- U.S.C.C.A.N. without intentionally accesses (1) through which facility thorization II to the ECPA Title added individual intrusions potential these halt *14 provided; to referred commonly title, This privacy. Act,15 es- authoriza- an (2) intentionally Communications exceeds the Stored as accessing, for facility; punishments that new to access tion tablished authorization, of) (or excess without alters, prevents obtains, or thereby facility service communications electronic or electronic ato wire access authorized or ato wire obtaining access thereby in electronic while communication electronic communication electronic pun- be shall system in such storage 2701(a). Another § storage. ... ished. communications electronic bars provision time, 2701(a). At same § 18 U.S.C. any to “divulg[ing] providers service exempted arguably would Councilman commu- of a contents entity the or person pro- Act’s Communications by the Stored by that storage in electronic while nication (a) this exception: “Subsection vider 2702(a)(1). §Id. service.” con- to respect apply with does section by established protections entity privacy The or (1) by person authorized duct in- Act Communications Stored communica- or electronic a wire prоviding com- categories of two 2701(c). to apply to this tended Under § Id. service.” tions statutory term by the virtually defined 2701(c)(1) munications establishes § theory, storage”: provider “electronic a service for immunity complete author- alters, stor- prevents or “obtains, intermediate (A) temporary, that electronic is “in communica- electronic to” e-mail or access of a wire age ized Fraser, 352 trans- system. to the in its storage” incidental tion 2701(c) literally (“[W]e § thereof; read mission all protection II’s Title except from communication of such (B) storage pro- service by searches service communication by an court surmised viders.”). district backup protection purposes Council- covered 2701(a) have would § communication. such 2701(c)(1) ex- § but conduct man’s (incor- 2711(a) 2510(17); § § id. Councilman, F.Supp.2d him. empted into definitions Act porating at 320. Act). The first Communications Stored Com- the Stored provision A second here, refers relevant which category, en- or person “a prohibits Act munications a mes- such when storage, temporary an electronic tity providing after mailbox user’s in an e-mail sage sits di- knowingly public [from] to the has re- user but before transmission con- entity the or any person vulg[ing] server. mail message from trieved II of to Title We refer ECPA. I Title amended noted, ECPA I of the Title As 15. Communications Stored simply as Act,” ECPA we "Wiretap By Wiretap Act. Act. amended Wiretap Act аs mean of a tents communication while in electron- exception’s presents breadth striking ic storage that service.” 18 U.S.C. own, contrast to the Wiretap Act’s much 2702(a)(1). § too, provision, Yet this has provider narrower exception: service provider exceptions, permitting a It shall not be unlawful under chap- provider divulge an electronic communi- officer, ter for ... an employee, agent or person cation “to a employed authorized provider of a of wire or electronic com- or whose facilities are used to forward service, munication whose facilities are destination,” communication to its id. in the used transmission of wire or 2702(b)(4), or “as be necessarily electronic communication, to intercept, incident to the rendition of the service or disclose, or use that communication in protection to the of the rights property normal course of employment his provider service,” of that id. engaged while in any activity is a which 2702(b)(5). assume, dubitante, We necessary incident to the rendition of one or both of these provisions would ex- his service or the protection empt Councilman under *15 rights or property provider that service .... premise, argues On this he that if he is not liable under the Stored Commu 2511(2)(a)(i) added). Id. (emphasis It is Act, nications then he cannot be liable indisputable that Wiretap Act’s nar- under the Act either. Sinсe Con rower provider service exception would not gress package, enacted the ECPA as a he protect Councilman. alleged His conduct says, lay traps it did not intend to in the was clearly not necessary “a incident to overlap between the two titles. If conduct the rendition of his service or pro- to potentially falls under both titles is rights tection or property of the exempt them, from one of then that ex provider of that service.” If there were emption provides a "safe harbor" and the remaining, doubt it would be by resolved conduct does not violate the other title the Wiretap express Act’s provision that either. exceptions prohibitions to its are
We find
argument
this
unpersuasive.
In
those specifically listed within Wiretap
general,
if two
Act,
statutes cover the same
not those found in other laws. See 18
conduct, the government may
2511(1)
charge
(prohibitions
apply “[ex-
violation of either. See United
cept
States v.
as otherwise specifically provided in
Herring,
(11th
784,
788 n. 4
Cir.
this chapter
[the
1993) (en banc) (“The
2510-2522]”)
overlapping
§§
cover-
added).
(emphasis
age of the Wiretap Act and the Communi-
2. Fair Warning
cations Act
presents
[of
problem.
1934]
no
In
case,
such a
the prosecution has the
Councilman argues in the alternative
right to select the statute under which the
that the two titles are sufficiently confus-
indictment will
brought.”). Moreover,
ing
principles
of fair
require
warning
the exceptions in the Stored Communica- dismissal of the indictment.
princi-
Those
not,
tions
Act do
terms,
their
apply
ples
to
are expressed in the law through
the Wiretap Act. The
exception in three related doctrines: the
lenity,
rule of
2701(c)
specifically
application
limits its
vagueness doctrine,
prohibition
and the
“[sjubsection
by stating
(a)
against
unforeseeably expansive judicial
section does not apply ...
au-
conduct
constructions. See United States v. Lani-
(Em-
thorized”
provider.
er,
service
259,
520
266-67,
U.S.
1219,
117 S.Ct.
added).
phasis
2701(c)(1)
§The
provider
(1997);
83 Cir.2003). (1st using tradi- Hussein, 9, ous.” have construed 14-16 We 351 construction, particularly tional turn. tools of address each We history, lenity is therefore legislative Lenity See, a. e.g., inapplicable. Dixson v. United States, 491, 1172, 104 S.Ct. U.S. lenity, griev the rule Under (1984) (“If legislative 79 L.Ed.2d re statute is ambiguity penal in a ous history clarify statutory lan- fails favor. Lani the defendant’s solved lenity compel us guage, our rule of would er, 1219. “The S.Ct. U.S. petition- to construe the statute favor of ambigu statutory simple existence of some ers, as criminal in these defendants however, ity, is not sufficient warrant added). cases.”) (emphasis rule, of that for most statutes application Muscar ambiguous degree.” some are Furthermore, specifically an- Congress States, 524 U.S. ello v. United pro- ticipated (1998). 141 L.Ed.2d 118 S.Ct. faith, good misapprehend might, viders Rather, is a only applies rule if “there ability intercept or their lawful disclose uncertainty in ambiguity or grievous circumstances. certain (quota S.Ct. 1911 statute.” Id. with a problem addressed that omitted) (emphasis tion marks and citation broad, good faith defense: affirmative added). Furthermore, lenity “applies only (3) good on ... good A faith reliance if, which seizing everything from aid after 2511(3) per- ] faith determination that [§ derived, make no more can [a court] can be *16 a complained of[ ] mitted the conduct guess as to what intend than a civil or complete against any defense 50, 65, Koray, 115 ed.” Reno v. 515 U.S. brought under Wire- [the criminal action (1995) 2021, (quota 46 132 L.Ed.2d S.Ct. or tap any other law. Act] omitted); and accord tion marks citation 2511(3), 2520(d)(3).16 § Section 18 U.S.C. 928, Balint, v. 201 F.3d 935 States United turn, authorizes a communication ser- (“The (7th Cir.2000) lenity un rule of divulge a communication provider vice ambiguity us if the purported available to recipient four to one other than the nor through in a statute can be resolved Thus, Congress specified circumstances.17 construction.”). statutory mal methods contemplated might, providers that service faith,
Here,
limits of
good
misunderstand the
the statute contains
while
facts,
authority
particular
on a
set
ambiguity,
“griev-
it is not
their
some textual
(i)
2520(d)
authorized in section
originated with the 1968
as otherwise
16. Section
good
specified
2511(2)(a)
that “[a]
which
2517 ...
or
on the
(ii)
reliance on a court order or
origina-
faith
consent of the
with the lawful
2518(7) (emergen-
provisions
[18
any
reсipient
or
addressee
intended
tor or
cy
complete
a
de-
wiretaps)
constitute
] shall
communication;
of such
brought
civil or criminal action
fense
authorized,
(iii)
or
person employed or
to a
chapter.”
sec.
Pub.L. No.
under this
used,
facilities are
to forward
whose
2520,
802, §
and provided
statutory
rights
mechanism to
property
provider
of that
2511(2)(a)(i).
We
problem.
solve this
neither ex-
service.” 18 U.S.C.
The
pand
good
scope,
faith
nor
puts
defense’s
Act
provider
on notice of
it from a
prohibited
convert
fact-based affirmative
both the
conduct
nar-
and the
dismissing
defense to a basis for
provider
indict-
row
exception.
adequate
That is
ment
legal grounds.18
notice.
b. Vagueness
c. Unforeseeably expansive interpreta-
vagueness
The
doctrine bars en
tion
forcement of
statute whose terms are “so
Finally,
the third branch of
vague
intelligence
that men of common
warning
fair
doctrine “bars courts from
guess
must necessаrily
meaning
at its
applying a novel construction of
criminal
Lanier,
application.”
differ as to its
statute to conduct that neither the statute
(quotation
U.S.
vagueness, for ‘[i]n most English words
Hussein,
(citation omitted);
85 of doctrines Moreover, various the Act. soft routing automatic of type some less for prosecution bar not warning do of fair duplicate (for example, used is ware district Consequently, offense. automati that messages are employee’s all indictment. dismissing the boss), erred inter court employee’s cally sent the prohibition within of E-mail ception fur- Remanded vacated. Judgment Jarrod impossible.” virtually is ECPA with consistent proceedings ther Employer @ Work.com: White, E-Mail J. opinion. E-Mail, Ala. 48 Employee Mоnitoring of added); (1997) (emphasis 1079, 1083 L.Rev. with TORRUELLA, Judge, Circuit (quot 22 Pharmatrak, F.3d 329 see also joins Judge, CYR, Senior Circuit whom Thus, al approvingly). language ing this (Dissenting). alleged Councilman’s year before amost his Judge Lipez I commend Although noted had literature conduct, academic I opinion, majority and articulate erudite ECPA reading of under that, even for two same joining the impeded am routing ours, “automatic than narrower legally First, indictment reasons. du forwarded automatically that software” violation a criminal to establish insufficient messages would user’s of a copies plicate conspiracy violate § 371 for of 18 U.S.C. within of E-mail “interception as qualify insofar Act, U.S.C. That Id. ECPA.” prohibition alleged Councilman the e-mails this case.19 anticipated observation stor- “electronic retrieved have ac- 2510(17), when age,” III. therefore, Wiretap place, took tion does statute the text Although “interception,” element requisite Act’s term “electronic whether specify not United lacking. See includes communication” 197, 200- Councilman, v. States histo- legislative storage, in electronic Second, the alter- Cir.2004). and in (1st Congress indicates the ECPA ry of en by the banc reached native, result broadly. defined to be term intended pro- due Councilman deprives majority history confirms Furthermore, “fair warn- no law, he had because cess including elec- intend, by did consequences criminal potential ing” of the wire the dеfinition storage within tronic Lani- States United his actions. elec- exclude communications, thereby 1219, 137 259, 265, S.Ct. er, U.S. of elec- definition storage from *18 (1997). L.Ed.2d communications. tronic respec- of our juxtaposition the But for term that conclude therefore We in new not much views, there tive tran- includes communication” “electronic dissent and majority of the positions is intrinsic storage that sient ex- opinion by panel presented those that hence process, con- majority’s of the that, by reason cept in such message e-mail of an interception valid charges indictment clusion that under an offense storage is Games, Secret v. United States article, Inc. Jackson like says "White’s dissent 19. The Cir.1994), (5th it iden- Serv., time, thus at the scholarship available other that, under even possibility tified Council- suggested that forcefully have would prohibi- intercept view narrow case's at Post prohibited.” was conduct man’s -(Torruella, e-mail automatic tion, category of is a there J., not so. dissenting). That is situa- in some might, software routing implica- described article Although the tions, Act. violate Steve opinion Circuit of the Fifth tions violation, required wire, criminal we are cept, any oral, to dis- or electronic commu claim, 2511(1) process cuss Councilman’s due nication.” 18 (emphasis added). panel which the did not have to reach. See The term “electronic communica Councilman, 204 n. 7. “any tion” is defined as signs, transfer of sounds,
signals, writing, data, images, or intelligence nature transmitted I. wire, radio, or in part by whole electro stipulated by The facts of this case as magnetic, photoelectronic or photooptical the parties state that all times that “[a]t . 2510(12). system.” 18 U.S.C In con procmail performed opera- sendmail and trast, the term “wire communication” is issue, affecting tions email messages “any defined as aural transfer made in existed the random access part whole or in through the use of facili (RAM) disks, memory both, or in hard ties for the transmission of communica (Em- computer system.” within Interlock wire, cable, tions the aid of or other like added). phasis connection point between the origin Stripped jargon, of all technical the sole point reception ... furnished or legal presented by issue appeal this is operated by any person engaged in provid whether the information contained in this ing operating such facilities ... computer system is data that can be “in- term includes electronic stora tercepted” meaning within the of the Wire- ge22 such communication.” 18 U.S.C. tap Act. The answer question to that is not 2510(1) added). (emphasis be found the wringing prover- It Congress’ provide failure to bial warnings hands or dire of the Dooms- emphasized language in its definition of day that predicted to follow one or the “electronic communication” that incites the other Joy conclusion. Yvette Liebes- Cf. majority into engaging in what I believe to man, The Potential United Effects of be an judicial unfortunate act legislation States v. Councilman on the Confidentiali- that no amount of syllogization can camou- ty Attorney-Client E-Mail Communi- flage. The lacuna between the definition cations, Geog. Legal J. Ethics 893 of “wire communication” and that of “elec- (2005). Rather, the answer lies a dis- communication” can bridged passionate reading of legislation20 body it; that created jurispruden- upon which the criminal charges are based. “body tial English” does not suffice to fill The statute that charged Councilman is Although vacuum. nature abhors a with conspiring to provides violate for vacuum, it power has no legislative over criminal against sanctions “any person oversights. (a) intentionally intercepts,21 endeav- who— intercept, ors to or procures any other In finding legal the correct answer to person intercept or endeavor to inter- the non-existent dilemma major- which the *19 majority’s 20. As opinion, statutory in the storage” ref- broadly 22."Electronic defined as pre-2001 "(A) erences herein are to the any version of temporary, storage intemediate of a 71, maj. op. Act. See n.4. wire or electronic communication incidental thereof; (B) to the electronic transmission any storage 21. “intercept” The term by is defined as "the communication an aural acquisition or other of the pur- contents of communication service for wire, electronic, poses backup or oral protection of such communi- electronic, through mechanical, the use of 2510(17) cation.” 18 (emphasis 2510(4). or added). other device.” 18 U.S.C.
87
storage,
in
wheth-
are contained
exists,
no further
go
need
we
ity believes
storage
pre-or post-deliv-
occurs
which,
er such
Hart,
apropos
In re
own
than our
storage
if the
lasts
ery, and even
circumstances, we stated
present
of the
Farey-
v.
few mili-seconds. See
particular
Congress includes
that,
Theofel
“[w]hen
(9th
Jones,
1066, 1077-78
Cir.
359 F.3d
but
of a statute
in one section
language
2004)
v. Nation-
(post-delivery); Fraser
of the same
in another section
it
omits
Co.,
107,
F.3d
113-14
Mut. Ins.
352
wide
Congress
that
presumed
generally
it is
(3d Cir.2003)
(post-delivery); United
in the dis
intentionally
purposely
acts
1039,
Steiger,
v.
318 F.3d
1048-49
States
F.3d
or
328
inclusion
exclusion.”
parate
(11th Cir.2003) (on
drive), cert. de
hard
(1st Cir.2003)
v.
45,
(quoting Barnhart
49
1051,
2120,
nied,
123 S.Ct.
155
538 U.S.
452,
Co.,
438,
122
534 U.S.
Sigmon Coal
(2003); Konop v. Hawaiian
L.Ed.2d 1095
(2002)).
941,
908
Con
151 L.Ed.2d
S.Ct.
(9th
Airlines,
868, 878-79
Cir.
majority’s assertions
trary to the
denied,
2002) (on
server),
537
website
cert.
ought
ap
not
presumption
expressio unius
1292,
1193, 123
154 L.Ed.2d
U.S.
S.Ct.
question
was
language
because
ply
Games,
(2003);
Inc. v.
1028
Steve Jackson
statute,”
“new,
of a
self-contained
part
457,
Serv., 36 F.3d
States Secret
United
strong
73,
actually
it
“made
op. at
maj.
Cir.1994)
(5th
(pre-retrieval);
see
461-62
here,
amended a
when,
Congress has
er
Reyes,
F.Supp.
v.
922
also United States
language
certаin
to include
statute
(S.D.N.Y.1996)
(finding no inter
836
all,
of the Stat
some,
provisions
but not
messages were retrieved
ception where
Steiger,
v.
318
States
ute.” United
their re
prior
memories
pagers’
(11th Cir.2003)
(construing the
recipients because
by
trieval
intended
Act),
Privacy
Electronic Communications
storage”).
in “electronic
messages were
denied,
1051, 123
538 U.S.
S.Ct.
cert.
view,
majority’s
Contrary to the en banc
(2003);
also United
L.Ed.2d 1095
see
does not
interpretation
statute
our
(2 Cranch)
Fisher,
States
U.S.
Congress
con-
require that we assume
(“Where
(1805)
a law is
L.Ed.
evisceration of the
complete
templated
ex
unambiguous, whether
plain and
con-
protections for e-mail. When
privacy
terms,
general
limited
pressed
intra-computer “interceptions”
sidering the
intended to mean
should be
legislature
here,
rationally may well
at issue
and con
plainly expressed,
they
what
have
privacy
public’s
have concluded
construc
room is left for
sequently no
those between
rights,
specifically
or more
tion.”).
and its own
provider
an e-mail
rele-
particularly
principles
These
are
customers,
controlled
adequately
could be
crimi-
of federal
interpretation
vant to the
than
principles rather
by normal contract
“[fjederal
statutes,
crimes are de-
nal
“inter-
by
statute. Councilman’s
federal
courts,” and
not the
by Congress,
fined
was
customers’ e-mail
ception” of Interloc
should
construction”
“policies
thus
strict
engaged
interception
not akin to
Lanier, 520
at 267
our actions.
U.S.
guide
was unrelated
party who
an outside
6,n.
S.Ct.
contracting parties.
When
unknown to
every
provid-
an e-mail
signs up
court
It is not
coincidence
a customer
with
Interloc,
routinely is asked to
before us
he
passed upon the issue
er like
that has
privacy
on a
expressly sign
to that
off
opposite
read and
has reached
conclusion
expectations
his
which defines
majority:
agreement
that the
the en banc
If the
provider.
vis-á-vis
privacy
intercepting electronic
prohibition
Act’s
*20
he
decline
are
they
protections
inadequate,
apply
not
when
does
manipulations
legislative history
service and seek an alternative
the e-mail
they
him
service contract which will afford
secure results
were unable to
through
requires.
statutory
he
Neither
achieve
text.
protections
history
legislative
Act nor its
fore-
event,
any
panel
Id. In
I refer
in
Congress,
the inference that
its
closes
Councilman,
opinion
point.
on this
storage” from the
exclusion of “electronic
F.3d at 203-04.
communication,”
definition of “electronic
viewpoints
I believe that both
on the
to leave
matters to the exi-
intended
first issue before the en banc court have
If In-
gencies
contracting parties.
adequately expressed. Ultimately,
been
it
intercept
terloc did
its customers’ mes-
up
Supreme
is
to the
Court
determine
sages
privacy agreement,
in breach of a
correct, but, my
which
gov-
view the
contract,
remedy
not in the
lies
attempted
ernment has
to fish
awith
net
Wiretap Act.
that has
holes
it and is thus
need of
I
point
rummaging through
see no
repair.
legislative history of a statute whose lan
guage,
accurately,
or more
absence there
II.
of, speaks for itself.
the statute’s
“[WJhen
language
plain,
the sole function of the
Unfortunately, the matter does not end
disposition
courts—at least where the
re
here. As demonstrated
results
quired by the
text
absurd —is to previous
efforts
this and other courts to
according
enforce it
to its terms.” Dodd v. grapple
question,
with the statute in
—
States,
-,
-,
United
U.S.
125 lingering ambiguity that makes room for
2478, 2483,
(2005)
S.Ct.
At the time added). ted) Clearly, the soft- (emphasis he would Wiretap Act the violated was not “auto- ware used Councilman guide following to the had available have operates routing matic software” (1) in question, the statute conduct: his message is (1994) newly composed a “before (2) case the Jackson Games location.” Id. at any temporary (1996). saved and, Reyes case tangentially, article, like other scholar- 1083. White’s that would of these little There is time, thus would ship available fair notice Councilman givеn have forcefully suggested that Council- have which majority’s interpretation, en banc prohibited. was not man’s conduct “his- legislative on reliance requires itself E-Mail and Voice Greenberg, Thomas R. maze. Byzantine a that resembles tory” Federal Privacy and the Employee Mail: article cited 1997 law review Nor did the Statute, 44 Am. U.L.Rev. interpretation majority render by the (1994) (“Thus, imposed the limitations Quite op today foreseeable. adopted interceptions of wire and employer on examined in fact. That article posite, vanish once electronic communications Games, Jackson decision Steve Ac- storage. is in same determined 457, in the Fifth Circuit which Title III lia- cordingly, in order to avoid e private seizure pre-retrieval that the only access em- employer an need bility, board server did on a bulletin mails stored they have once ployee communications “intercept” under constitute an Hernández, stored.”); Ruel Torres been 2511(1)(a). wrote: White U.S.C. Privacy, 41 Computer ECPA and Online (1988-1989) (“In 17, 39 Fed. Comm. L.J. argument Rejecting appellant’s words, simply is no ECPA other there it is something before logically seizure entity providing person if the violation interception, constitute received should communication ser- a or electronic wire court held Jackson Games the Steve everything intentionally [in examines vice on the [bulletin E-mail stored or not storage] system, on the whether was no computer hard drive board’s] quality a control purpose is for transmission, and thus could longer in (internal check.”) marks omit- quotation meaning intercepted within not be ted). Thus, a to conceive I am at loss 2511(1)(a).... The narrow fair no- have had how would Councilman interpretation Fifth Circuit’s ness of the majority’s interpretation tice of the Follow important. “interception” time of his actions. rationale, there is Fifth ing the Circuit’s during window which good a narrow of a Finally, Congress’s provision may occur—the sec interception divulge E-mail inter- exception for those who faith they lohich mis- onds or mili-seconds because cepted before message excep- is saved narrow newly composed Wiretap Act’s construed the following liability an affirmative any temporary location tions to criminal Therefore, (citing 18 defense, unless some at 36-37 maj. op. see send command. 2520(d)(3)), Coun- routing software is irrelevant. type of automatic (for relied all an have to show he duplicate cilman should not example, used e-mails automatically divulge exceptions those messages are employee’s “reason- obtained, had no boss), because he intercep he employee’s sent to to do so would ably clear” indication prohibition of E-mail within tion Wiretap Act. otherwise violate virtually impossible. the ECPA *22 being held to a Councilman is level
knowledge expected which would not be judges who have dealt with this
problem, say nothing of “men [and Lanier, intelligence.” of common
women] 266, (quoting
520 U.S. S.Ct. 1219 Co.,
Connally v. Gen. Constr.
269 U.S.
(1926)).
46 S.Ct.
the issue
maj. op. (quoting Dipaolo, at 82 Sabetti v. (1st Cir.1994)), ais
garden need of a weed killer. stated,
For the reasons I respectfully
dissent. STATES, Appellee,
UNITED GÓMEZ-ROSARIO,
Fernando
Appellant, Defendant.
No. 03-2719. Appeals,
United States Court of
First Circuit. 5,May
Heard 2005. Aug.
Decided