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A highly anticipated decision interpreting the interaction of the federal Wiretap Act, 18 USC ��2510, et. seq., and the Electronic Communication Privacy Act, 18 USC ��2701 et.seq., was issued last month by the 1st U.S. Circuit Court of Appeals in U.S. v. Councilman, 418 F3d 67 (Aug. 11). In what might otherwise be seen as excessive bravado, the majority in this 5-2 opinion acknowledged the “broad ramifications” of its decision. The circuit’s ruling reversed the course of prior case law in this emerging field, so much so that the minority opinion felt it necessary to boldly remark that “the majority engag[es] in … an unfortunate act of judicial legislation that no amount of syllogization can camouflage.” The significance of the latest Councilman ruling can only be fully appreciated by tracing the origins of the litigation, for it was not decided in the vacuum of a single case. Rather, the numerous decisions issued by both the federal trial and appellate courts during the course of this prosecution were interwoven within the tapestry of other court rulings issued across the country. BACKGROUND The defendant in Councilman was vice president of an online book distributing company. The company also provided e-mail service to some of its customers. The defendant allegedly instructed his employees to write a computer program to search all incoming e-mails from Amazon.com to any of the company’s e-mail service customers. Once such e-mails were spotted, rather than forward them to the place in the company’s computer network where its customers’ “inboxes” were located, they were redirected to another area of the computer system so the e-mails could be read by employees to gain a competitive advantage. The defendant was charged with one count of conspiracy to violate the Wiretap Act in that he conspired to intercept and use the contents of the e-mails and caused such e-mails to be transmitted to persons other than the intended recipients. A pretrial motion sought dismissal of the indictment because the customers’ e-mails were diverted not as they traveled over “computer wires” outside the company’s network, but only after those e-mails had arrived within the storage areas of the company’s network. Since the e-mails had already reached the confines of the company’s network, they were no longer “in transit,” but in “electronic storage.” The grounds for the requested dismissal were based on the different statutory treatment given to “wire communications” (those involving the human voice) as opposed to “electronic communications” (virtually any other data or information that travels via phone or computer). The term “wire communication” was first defined in the Wiretap Act, which was created as part of the Omnibus Crime Control and Safe Street Act of 1968. The Electronic Communication Privacy Act (ECPA), enacted in 1986, introduced the definition of “electronic communication” and also redefined wire communication to include “any electronic storage” of such voice communications. Hence, the clear legislative intent was that any communication involving the human voice intercepted either in transit from sender to recipient or held in any form of “electronic storage” would be a violation of federal eavesdropping laws. What became the focus in Councilman was the absence of the phrase “any electronic storage” in the definition of electronic communication. (New York state’s eavesdropping statutes, incidentally, mirror this same distinction.) It was the defendant’s position in his motion to dismiss that since the e-mails in question had arrived within the memory chips and hard drives of the company’s network when they were diverted, copied and reviewed by employees before being sent to the intended recipients, these communications were already in electronic storage. Since seizing a communication in “electronic storage” only violates the Wiretap Act, the defendant claimed he did not violate federal eavesdropping law. The trial court originally denied defendant’s motion but later reevaluated its position, sua sponte, in a decision reported at U.S. v. Councilman, 245 FSupp2d 319 (D. Mass, 2003). The trial court found the need to reconsider its original decision due to a recent holding by the 9th Circuit in Konop v. Hawaiian Airlines, Inc., 302 F3d 868 (2002). TEMPORARY OR TRANSITORY? In Konop, the court ruled that any form of electronic storage, even lasting as briefly as mere nanoseconds, fits within the definition of “temporary storage” as contained in the Wiretap Act, 18 USC 2510 (17), i.e., “any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof.” The trial court in Councilman determined this definition to be “extraordinarily — indeed almost breathtakingly — broad,” holding that despite the defendant’s act of having his customers’ e-mails intercepted and diverted, their location at the time of the defendant’s interception fit within the definition of “temporary storage” once the e-mails arrived in the company’s system. The court dismissed the conspiracy to eavesdrop count. The prosecution appealed to the First Circuit, arguing that the defendant’s e-mail interceptions occurred not while in “temporary storage” but “transitory storage,” which therefore deserved protection under federal eavesdropping laws. This was an inventive description of the allegedly illegal activity performed by the defendant because the term “transitory storage” exists nowhere in the federal statutes. Irrespective of the government’s imaginative argument, the 1st Circuit affirmed the trial court’s dismissal, U.S. v. Councilman, 373 F3d 197 (2004), in a 2-1 decision. This appellate ruling faced considerable criticism, and three months after its issuance the full 1st Circuit announced in U.S. v. Councilman, 385 F3d 793 (2004), that it had voted to withdraw and revoke the three-judge panel’s decision and agreed to rehear the matter anew en banc. DRAMATIC REVERSAL Ten more months went by until last month’s 5-2 decision was announced, and, as expected, the appellate court reversed the trial court’s dismissal, reinstated the indictment and remanded for further proceedings. But it was the basis for the court’s holding that will draw considerable analysis and controversy in the months ahead. Given the full complexities and implications of the circuit’s 24-page decision, it is apparent that the majority struggled mightily with finding some way to justify its result. One of the truly shining moments from last month’s decision was its description of how e-mail travels over the Internet. It is arguably the most detailed and articulate analysis by a federal court to date, making such highly technical concepts probably understandable to even the most severely tech-challenged reader. In summary, the court noted that e-mails are repeatedly copied and stored over the Internet on numerous computers as they travel from sender to recipient (commonly known as the “store and forward” approach). The significance of this point can be easily overlooked. What this analysis subtly pointed out was the potential danger of the position previously taken in Konop holding that any form of “temporary storage” would exempt an electronic communication from being considered “in transit,” exempting it from prosecution as an eavesdropping of that communication. Taken to its extreme, Konop could be used by any hacker to avoid prosecution for intercepting electronic communications from the dozens, or even hundreds, of places an electronic communication resides, usually for “mere nanoseconds,” over the Internet. Of greater importance, Konop could be interpreted to require the prosecution prove in a hacking case that the communication was not intercepted while in such temporary storage. CONTROVERSIAL ANALYSIS When the 1st Circuit tried to explain away the disparity between “wire” and “electronic” communications regarding the phrase “any electronic storage,” however, the majority probably directed what the minority called “judicial legislation that no amount of syllogization can camouflage.” The majority initially analyzed the “plain meaning” of the two statutory definitions finding that merely because Congress omitted the phrase “any electronic storage” from the definition of electronic communication did not necessarily evince the legislature’s intent to exempt that concept from such communications. The majority next turned to a “canon of statutory construction” that when Congress includes a provision in one set of parallel statutes but omits it from the other, this demonstrates legislative intent that the provision was meant to be excluded. But the majority determined that even the application of this precept to the two statutory definitions was inconclusive, ruling that: (1) the definitions of wire and electronic communication are not necessarily parallel provisions, and (2) the term electronic communication was intended to be so broadly defined so as to include the phrase “any electronic storage” even though it was never included in the definition. One of the significant factors cited by the majority in support of its conclusions was the observation that since the terms wire and electronic communications were enacted at different times, congressional intent may not be so clear. The minority strongly took this position to task by commenting that the very fact that Congress only created the term electronic communication long after it had defined wire communication — and added the phrase “any electronic storage” to the definition only when it created and defined the term electronic communication — was, if anything, an even clearer expression of its intent to distinguish the two statutory definitions. It is difficult to find fault with the minority opinion on this issue. The minority, however, will not be completely without its critics. The dissenters argued that the majority’s position was contrary to several prior federal decisions. Upon closer inspection, however, none of those cases dealt with the issue of “transitory storage” raised in Councilman. Rather, all of the cases cited by the minority involved electronic communications accessed only after they were already secured in their storage location. CONCLUSION For law enforcement purposes, Councilman may solve many problems. It appears to provide a bright-line standard that an electronic communication is not considered to be in “electronic storage” until it arrives at its final storage destination. What last month’s ruling continues to demonstrate, however, is that our system of government is still years, if not decades, away from developing a full technological and legal grasp of the very difficult issues raised when creating a legal framework consistent with long-standing privacy issues conceptualized by U.S. society. For example, had the defendant in Councilman waited to make copies of the e-mails only after they had arrived in his customers’ inboxes, the First Circuit’s ruling would have had no effect on the district court’s dismissal because the e-mails would no longer be in “transitory storage.” This is a reality that even the Konop court felt compelled to recognize, “until Congress brings the laws in line with modern technology, protection … will remain a confusing and uncertain area of law.” Unfortunately for the 9th Circuit, the courts may be the better conduit for such a result than relying on legislation. Technology and democracy, by their very natures, work at completely incongruous speeds. To survive, the technology industry must move at a blindingly rapid pace. Our legislative process requires an informed public to press its legislators to resolve existing problems, a process that often works in an elephantine fashion. And yet relying on the judicial branch to resolve these issues will still make fitting a square peg into a round hole seem like child’s play in comparison to the challenges to be faced ahead. The temptation will be great for courts to resolve individual fact patterns with inconsistent leaps in legal logic to justify particular results. While that may or may not have happened in Councilman, the hope is that individual court decisions will be fashioned in a grander scheme of considering the future consequences of such rulings, a task as daunting as probably any previously faced in U.S. jurisprudence. Stephen V. Treglia is an assistant district attorney in the Nassau County District Attorney’s Office and chief of the technology crime unit.

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