Interloc, runs an online rare and out-of-print book listing service, and as part of its services provides certain book dealer customers with an electronic mail address. In its ordinary course, an e-mail message (“e-mail”) is transferred from one computer to another before it reaches the addressee. During the transmission route, an e-mail is handed to a Message Transfer Agent (MTA), which stores the message locally. The message is routed through the network from one MTA to another until it reaches the recipient’s mail server, which accepts it and stores it in a location accessible to the recipient, at which point the final delivery is deemed to be completed. The final delivery process places the message into storage in a message store area. Usually a separate Mail Delivery Agent (“MDA”) is required to retrieve the e-mail from the MTA in order to make final delivery. Interloc used a program known as “procmail” as its MDA, which operates by scanning and sorting out e-mail and an MTA computer program known as “sendmail”. Interlock employees were directed by the defendant to edit their version of procmail to intercept and copy all incoming communications from one of their competitors - Amazon.com. As a result, all incoming messages from Amazon.com were intercepted, copied and stored before they were delivered to the members’ e-mail. Each time the operation was performed, the messages existed in the RAM or on hard disks or both within Interloc’s computer systems. The issue before the 1st Circuit was whether there was an ‘intercept’ of a communication within the meaning of the Wiretap Act. The Electronic Communications Privacy Act (“ECPA”) is divided into Title I, referred to as the “Wiretap Act”, 18 U.S.C. §§ 2510 – 2522 and Title II, commonly known as the “Stored Communications Act”, 18 U.S.C. §§ 2701 - 2711.
The defendant was indicted on two counts under the Wiretap Act, which inter alia provides for the imposition of criminal penalties on any person who intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication. In this case the defendant was indicted for conspiracy to violate § 2511, as the he had conspired to intercept the electronic communications, to intentionally disclose the contents of the intercepted communications in violation of § 2511(1)(a) and to use the contents of the unlawfully obtained electronic communication, in violation of § 2511(1)(c). The defendant was also charged with conspiracy to cause a person to divulge the content of the communications while in transmission to persons other than the addressees of the communications [§ 2511(3)(a)].
Analyzing the difference in the statutory definitions of ‘wire communications’ and ‘electronic communications’ in the Wiretap Act, the court found that the legislature had specifically included the words ‘electronic storage’ in the definition of ‘wire communication’, while excluding it from the definition of ‘electronic communications’. This led the court to infer that it was the Congress’ intent not to include ‘electronic storage of electronic communications’ under the protections of the Act. It defines ‘intercept’ 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.” There is therefore, a statutorily placed limitation on the scope of electronic communications that can theoretically be intercepted. The scope is reduced when the definition does not include electronic storage of such communications.
The court relied on the decision in Steve Jackson Games, Inc v United States Secret Service, 36 F.3d 457 (5th Cir, 1994) which dealt with the issue of unlawful intercept in the context of electronic communications. That court held that the seizure of sent but unretrieved e-mail did not constitute an intercept for the purposes of 18 U.S.C. § 2511(1)(a). It based its decision on the reading of the statute which reflected the Congress’ intention not to include ‘intercept’ in ‘electronic communications’ when those communications are in ‘electronic storage’.
It also cited the Ninth Circuit’s decision in Konop v Hawaiian Airlines Inc, 302 F.3d 868 (2002) holding that electronic communications in that case were not covered under the Wiretap Act as there was no ‘interception’. In that case the defendant had, with the permission of the authorised users, accessed electronic communications on a secure website. The court held that “for a website to be ‘intercepted’ in violation of the Wiretap Act, [the communications] must be acquired during transmission, not while in electronic storage.” They held that the Wiretap Act required ‘contemporaneousness’ - the act of interception must coincide or overlap with the process of transmission. On this issue, the court relied on United States v Steiger, 318 F.3d 1039 (11th Cir. 2003) which held that there was no ‘intercept’ under the Wiretap Act if there was no contemporaneous acquisition.
The Court found significant differences in the manner of functioning of the electronic communications in the present case as compared to Steve Jackson Games and Konop, - here the e-mails were accessed by the ‘procmail’ as they were being transmitted and in real time. However the defendant’s ‘procmail’ program operated to obtain the e-mails before their receipt by the intended recipients, while they were in a form of “temporary, intermediate storage.” The defendant’s activities were therefore out of the purview of 18 U.S.C. § 2511(a) and fell under the Stored Communications Act – under which he was not charged. It found that Congress’ intent was to give lesser protection to electronic communications in storage than to wire and oral communications in storage. The Stored Communications Act provides less protections than the Wiretap Act.
The court affirmed the district court’s dismissal of Count One of the indictment on the premise that no intercept occurred in this case, and therefore the Wiretap Act could not be violated.
The defendant’s argument that his conduct was lawful under the Stored Communications Act, 18 U.S.C. § 2701 and therefore outside the criminal provisions of the Wiretap Act, was not considered by the court. When granting the petition for rehearing en banc, while the court permitted the parties to raise other issues in their submissions, it specifically asked the parties to address the following questions: “whether the conduct at issue in this case could have been additionally, or alternatively, prosecuted under the Stored Communications Act and Whether the rule of lenity precludes prosecution in this case?”