U.S. v. Councilman

Citation: United States v. Councilman, 245 F.Supp.2d 319 (D. Mass. 2003), aff’d, 373 F.3d 197 (1st Cir. 2004), rev’d on rehearing en banc, 418 F.3d 67 (1st Cir. 2005).

Facts
The case involved an e-mail service provider, Interloc, Inc., that sold out-of-print books. According to the appellate court’s ruling, Interloc used software to intercept and copy e-mail messages sent to its subscribers (who were dealers looking for buyers of rare and out-of-print books) by competitor Amazon.com. The e-mail was intercepted and copied prior to its delivery to the recipient so that Interloc officials could read the e-mails and obtain a competitive advantage over Amazon.com.

Interloc Vice President Bradford Councilman was charged with violating the Wiretap Act.

The court’s majority opinion noted that the parties stipulated that, at all times that the Interloc software was performing operations on the e-mails, they existed in the random access memory or in hard drives within Interloc’s computer system.

The case turned on the distinction between the e-mail being in transit, or in storage (and therefore governed by a different law). The government argued that the e-mails were copied contemporaneously with their transmission, and therefore were intercepted under the meaning of the Wiretap Act.

First Appellate Decision
On June 29, 2004, the First Circuit Court of Appeals ruled (2-1) that an e-mail service provider did not violate federal wiretapping statutes when it intercepted and read subscribers’ e-mails to obtain a competitive business advantage. The ruling upheld the decision of a lower court to dismiss the case.

Judges Torruella and Cyr concluded that the e-mails were in temporary storage in Interloc’s computer system, and therefore were not subject to the provisions of the Wiretap Act. They further stated that


 * We believe that the language of the statute makes clear that Congress meant to give lesser protection to electronic communications than [[wire communications|wire] and oral communication. Moreover, at this juncture, much of the protection may have been eviscerated by the realities of modern technology. . . . However, it is not the province of this court to graft meaning onto the statute where Congress has spoken plainly.”

In his dissent, Judge Lipez stated, conversely, that he did not believe Congress intended for e-mail that is temporarily stored as part of the transmission process to have less privacy than messages as they are in transit. He agreed with the government’s contention that an “intercept” occurs between the time the author hits the “send” button and the message arrives in the recipient’s in-box. He concluded that


 * Councilman’s approach to the Wiretap Act would undo decades of practice and precedent . . . and would essentially render the act irrelevant.... 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.”

First Circuit En Banc Decision
The U.S. Department of Justice appealed the court’s decision, and several civil liberties filed a “friend of the court” brief in support of the government’s appeal. In August 2005, the First Circuit Court of Appeals, sitting en banc, overturned the previous decision 5-2 and remanded the case to the trial court. [ http://www.eff.org/legal/cases/US_v_Councilman/councilman_decision.pdf United States v. Councilman,] 418 F.3d 67 (1st Cir. 2005). The court held that:


 * Although the text of the statute does not specify whether the term "electronic communication" includes communications in electronic storage, the legislative history of the ECPA indicates that Congress intended the term to be defined broadly. Furthermore, that history confirms that Congress did not intend, by including electronic storage within the definition of wire communications, to thereby exclude electronic storage from the definition of electronic communications. Id. at 85. >[ http://www.eff.org/legal/cases/US_v_Councilman/councilman_decision.pdf]

Postscript
On remand, Councilman was acquitted by a jury.