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The Electronic Communication Privacy Act was passed nearly two decades ago. But judicial interpretations of this complex collection of statutes as they relate to communications over computer networks were relatively few during its first 15 years of existence. Significant decisions in this field of law, however, have begun to appear with increasing frequency over the past few years. One of the latest decisions is United States v. Ropp, 347 FSupp2d 831 (CD Calif., Oct. 7, 2004). The recent slew of case law in this area demonstrates that judicial attempts to implement Congress’ intent in enacting the Electronic Communication Privacy Act have not generated the smoothest of evolutions. Reviewing the origins and early history of the act will aid in understanding the difficulty faced by the courts. GENESIS OF THE ACT The ultimate framework of the ECPA can be traced to the Omnibus Crime Control and Safe Street Act of 1968, Title III of which (commonly referred to as the Wiretap Act) established a set of nationwide rules for eavesdropping on certain forms of communications. OCCSSA, however, was silent on the subject of how law enforcement could gain access to any of the various forms of electronic communications. With the implementation of the progenitor of the Internet in its final stages in 1969, this was an omission that would have to be resolved by subsequent legislation. OCCSSA was drafted, instead, in reaction to the U.S. Supreme Court’s holding in Berger v. New York, 87 U.S. 41 (1967), which invalidated New York’s existing eavesdropping statutes on federal constitutional grounds. Hence, OCCSSA was born under the constitutional blueprint of protecting, on Fourth Amendment grounds, the privacy of telephone communications and live person-to-person communications conducted under an expectation of privacy. In 1986, Congress created the ECPA in an attempt to address the privacy rights of electronic communications such as those occurring over networked computers, the protection of which had been ignored by OCCSSA. It has been stated that “the principal purpose of the ECPA amendments to Title III was to extend to ‘electronic communications’ the same protections against unauthorized interceptions that Title III had been providing for ‘oral’ and ‘wire’ communications,” Brown v. Waddell, 50 F3d 285, 289 (4th Cir, 1995). Despite this intended confluence, it has not been the best of marriages. Dissonance was inevitable by the very nature of the differing technologies involved. Telephonic communications (defined as “wire communications” under federal law) have been designed to occur in total privacy, which is not the case with most forms of electronic communications. The latter typically passes through an intermediary, such as an Internet Service Provider, where the communications sit available to be seen by anyone working at the ISP. To use a real-life analogy, most e-mail communications are like postcards; anyone whose path an e-mail crosses as it travels from sender to recipient can read the contents. The courts have long recognized the difficulty in interpreting the statutes in this area. In fact, the very first decision to attempt to broach the implications of the OCCSSA and ECPA as they related to Internet communications described this treacherous area of the law as “famous (if not infamous) for its lack of clarity.” Steve Jackson Games, Inc. v. U.S. Secret Service, 36 F3d 457, 462 (5th Cir, 1994). The 9th U.S. Circuit Court of Appeals subsequently opined that the 5th Circuit in Steve Jackson Games “might have put the matter too mildly � indeed, the intersection of the Wiretap Act and the Stored Communications Act is a complex, often convoluted, area of the law,” U.S. v. Smith, 155 F3d 1051, 1055 (9th Cir, 1998), cert den, 525 U.S. 1071. ‘ROPP’ An analysis of the facts in Ropp and the court’s reasoning in its decision provides additional ammunition to the argument that attempting to interpret this area of law is much like attempting to grab onto a handful of Jell-o, just when you think you have a firm grip, little streams of goo begin slipping through your fingers. Ropp tried to take a real-life fact pattern and force it to fit into a basic conceptual underpinning of the OCCSSA and ECPA. These basic precepts state that whenever an electronic communication is literally “in transit” from sender to recipient the only way such a communication may be “intercepted” is via a court-authorized eavesdropping warrant. Hence, any interception of such an “in transit electronic communication” without such a warrant is considered illegal eavesdropping. If, however, the electronic communication is merely “in storage” — such as an e-mail sitting in the ISP’s computer awaiting the “downloading” of the communication by the intended recipient or when that e-mail is stored in the computer’s hard drive of either the sender or the recipient of the e-mail — then acquisition of the communication at that point would not be as it is “in transit” and, therefore, no eavesdropping laws are violated. Thus, the circumstances under which an electronic communication is considered to be “in transit” as opposed to “in storage” becomes a critical determination. Unfortunately, when judges attempt to implement these theoretical interpretations of how electronic communications travel across networks such as the Internet into real-life scenarios, they often find themselves with a handful of Jell-o. BACKGROUND The defendant in Ropp was charged by the government with violating the federal Wiretap Act for viewing what was considered electronic communications “in transmission.” Specifically, the defendant, an insurance company employee, had placed a hardware device called a “KeyKatcher” on the cable that connects the keyboard to the central processing unit of his co-worker’s computer. This hardware device acts as what is known in the computer industry as a “key-logger.” That means the device records every keystroke typed into the keyboard, allowing anyone to later reconstruct everything that was typed. The government’s position in Ropp was that the electronic impulses traveling over the cable from the keyboard toward the CPU were literally “stripped” directly from the cable by the defendant’s installation of the key-logging device on the co-worker’s computer. The government argued that there could be no clearer instance of an electronic communication being intercepted “in transmission.” AFFECTING COMMERCE The district court recognized that these “electronic signals” between the co-worker’s keyboard and her computer’s CPU were intercepted in transmission. But the court was not necessarily willing to so easily concede that these “electronic signals” constituted “electronic communications” as that term is defined in the OCCSSA. The pertinent portion of that definition is located at 18 USC �2510(12):
‘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 that affects interstate or foreign commerce �

It was the “affects interstate or foreign commerce” clause of the definition that the district court found lacking in Ropp. Since the key-logger only intercepted the transmission of the electronic signals as they were moving from the keyboard to the computer’s monitor, this activity was not one that affected interstate or foreign commerce. In other words, this portion of the electronic transmission, if not intercepted by the defendant, would have only traveled internally within the same computer device, merely a few feet from the keyboard to the CPU to the monitor. The government countered that the co-worker’s computer was part of the insurance company’s networked system that connected to other systems, including the Internet. Since the victimized co-worker was “logged on” to the company’s network at the time the key-logging device was active, the defendant was intercepting electronic communications on an instrument that “affects interstate or foreign commerce,” the government claimed. In essence, the government disagreed with the court’s position that the electronic communication at the moment it was intercepted by the defendant had to actually be in the process of traveling on the wires connecting the “information superhighway” to fit the definition of “electronic communication” in the Wiretap Act. Instead, the government asserted that the mere fact that the co-worker’s computer was a device that could be involved in a communication that affects interstate or foreign commerce meant that the defendant intercepted an electronic communication under the Wiretap Act even though that communication had only traveled, at the point of interception, from the keyboard on its way to the computer’s monitor. In defending its position, the district court in Ropp noted that case law “offers little guidance in [the] circumstances” before it. Nevertheless, the court felt two prior federal decisions provided “some guidance, although for reasons that are apparent from the discussion of these cases, are not controlling.” OTHER CASES One of the cases used in reaching the Ropp decision was U.S. v. Scarfo, 180 FSupp2d 572 (DNJ, 2001). The facts in Scarfo, however, were significantly different. There, the key-logging device used by the FBI to see what the defendant was typing automatically stopped recording keystrokes whenever the modem was activated. Hence, it was highly unlikely the FBI would be accessing an electronic communication being typed into the computer just prior to it being sent over the Internet. The fact pattern in Ropp was radically different. The victim’s computer was “logged on” to the company’s network. The vast majority of e-mails sent by anyone typically consist of messages typed momentarily before the “send” button is pressed. Therefore, the likelihood of the key-logger in Ropp recording an electronic communication only moments before being sent over a computer network was substantially higher. The other decision relied on, in part, by the Ropp court was the relatively recent decision of U.S. v. Councilman, 373 F3d 197 (1st Cir, June 29, 2004). In Councilman, the 1st Circuit considered a different point in the “transmission process” of an e-mail than what was considered by the California court in Ropp. The latter court looked at the point of transmission from that of the sender’s computer. Councilman evaluated this process from the point of view of the recipient of an e-mail. The defendant in Councilman was a vice president of an online book distribution business that provided e-mail service to certain of its customers. In an apparent attempt to gain a competitive advantage the defendant directed some of his fellow employees to create a computer program that allowed the viewing of incoming e-mails being sent to its customers originating from Amazon.com before those e-mails were delivered to the intended recipients. The prosecution’s theory was that the defendant arranged for interception of his customers’ e-mail “in transit” prior to the e-mails reaching the inbox of the customers’ various e-mail accounts. The 1st Circuit, however, dismissed the eavesdropping count, finding that the e-mails had already “arrived” in the storage area of the computer belonging to the business, even though the e-mails had not yet been forwarded to the area of the computer where the customers could view their respective e-mails. Hence, the transmission process had ended and the communications were “in storage.” The Councilman decision received a considerable amount of negative commentary from several sources. Ultimately, the 1st Circuit this fall vacated the July decision and decided to rehear the matter en banc. An interesting irony is that the 1st Circuit’s decision to vacate Councilman occurred just two days before Councilman was cited as precedent in Ropp. Just another occasion in the evolution of this area of law when someone trying to interpret where the law exists at any given point of time and technology can wind up with melted Jell-o in his hands. CONCLUSION Lawrence Ng, the federal prosecutor handling the Ropp case, has stated that his office filed a motion for reargument. He anticipates his office will appeal if the decision is not reversed in the district court. It would appear almost certain that we presently exist at a point in time during which Electronic Communication Privacy Act and Wiretap Act issues relating to communications transmitted over the Internet are beginning to rapidly evolve. How much Jell-o will be lost in the process is anyone’s guess. Stephen V. Treglia is an assistant district attorney in Nassau County, N.Y., and chief of the office’s technology crime unit.

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