Intercept

Intercept is defined in the Electronic Communications Privacy Act (ECPA) as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” 18 U.S.C. § 2510(4). As the Ninth Circuit stated in Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 876 (9th Cir. 2002) (citations omitted):


 * “Standing alone, this definition would seem to suggest that an individual ‘intercepts’ an electronic communication merely by ‘acquiring’ its contents, regardless of when or under what circumstances the acquisition occurs. Courts, however, have clarified that Congress intended a narrower definition of ‘intercept’ with regard to electronic communications."

See also O’Brien v. O’Brien, 2005 WL 322367 (Fla. App. 5th Dist. Feb. 11, 2005) (“The federal courts have consistently held that electronic communications, in order to be intercepted, must be acquired contemporaneously with transmission and that electronic communications are not intercepted within the meaning of the Federal Wiretap Act if they are not retrieved from storage”); Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 461-62 (5th Cir. 1994) (“Critical to the issue before us is the fact that, unlike the definition of ‘wire communication,’ the definition of ‘electronic communication’ does not include electronic storage of such communications. . . . 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’. . . reflects that Congress did not intend for ‘intercept’ to apply to ‘electronic communications’ when those communications are in ‘electronic storage’”).

By interpreting the term “intercept” narrowly, the courts have essentially made it impossible to apply the ECPA to keylogger software. As stated in United States v. Steiger, 318 F.3d 1039, 1050 (11th Cir.), ''cert. denied,'' 538 U.S. 1051 (2003):


 * “[T]here is only a narrow window during which an E-mail interception may occur – the seconds or milli-seconds before which a newly composed message is saved to any temporary location following a send command. Therefore, unless some type of automatic routing software 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 ECPA] is virtually impossible.”

To avoid any possible implication of the ECPA, when the FBI in United States v. Scarfo, 180 F. Supp. 2d 572 (S.D.N.Y. 2001) installed a keystroke logging device on the computer of suspected bookie, it configured the software to cease operations if the modem was being used, thus, preventing interception of messages being transmitted over an interstate computer system. The court said the keylogger software did not violate the ECPA because of its cessation when the modem was being used.

In United States v. Ropp, 347 F. Supp. 2d 831 (C.D. Cal. 2004), the court held that the interception of keystroke transmissions from the wire connecting the keyboard to the CPU was not an “electronic communications” under the ECPA, since it occurred before the transmission reached the interstate computer network. The court deemed relevant the fact that the keystrokes of an email are temporarily stored in the computer until the messages is completed; then and only then is the messages transmitted over the network as a complete message. Intercepting the individual keystrokes before they are contained in a completed email message do not fall within the ECPA.

Finally, in O’Brien v. O’Brien, 2005 WL 322367 (Fla. App. 5th Dist. Feb. 11, 2005), a wife used spyware to see if her husband was cheating on her. The software “secretly took snapshots of what appeared on the computer screen, and the frequency of these snapshots allowed [the spyware] to capture and record all chat conversations, instant messages, e-mails sent and received, and the websites visited by the user of the computer.” Applying a Florida state statute, which was pattered after the ECPA, the court held that there was an illegal wiretap “because the particular facts and circumstances. . . reveal that the electronic communications were intercepted contemporaneously with transmission.” Taking regularly spaced “snapshots” of screens makes it unlikely that this conclusion is actually true.