The defendant attempted to intercept electronic communications in alleged violation of 18 U.S.C § 2511 (1) (a), known as the Wiretap Act. This Act was written to protect the privacy of electronic, oral, and wire communications. The defendant installed a device called a KeyKatcher. This device was placed on the cable that connects the keyboard to the central processing unit (CPU). The KeyKatcher records the electronic impulses that are sent to the CPU when a key is depressed. These impulses can be translated into text so that a transcript of everything that was typed can be obtained. The court addressed the issue of whether Ropp was liable under the Wiretap Act for intercepting “electronic communications”. The Act defined “electronic communications” as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or part by a wire, radio, electromagnetic, photoelectric or photooptical system that affects interstate or foreign commerce”. 18 U.S.C § 2511 (1) (a). Ropp argued that because the intercepted communications only took place on a local system, the communications did not affect “interstate or foreign commerce”.
The Government argued that because each day the computer is “logged” onto the company’s nation-wide computer network, the transmissions are in interstate commerce. Thus any signals transmitted from the keyboard to the computer while it is “logged on” are in interstate commerce.
The court disagreed, relying on United States v. Scarfo, 180 F. Supp. 2d 572 (D.N.J. 2001) and United States v. Councilman, 373 F.3d 197 (1st Cir. 2004). In Scarfo, the District Court found that the Act would only apply to signals transferred through the modem and over a telephone or cable line. Scarfo 180 F. Supp. 2d at 582. In Councilman, the First Circuit Court of Appeals found that data transmitted over interstate lines was not “intercepted” during transmission, but in temporary storage. Councilman, 373 F.3d at 203. This Court stated that while neither case was completely on point, if keystrokes not transmitted beyond a computer were not covered, and communications transmitted on interstate lines but temporarily “parked” in storage were not covered, than Ropp’s interception of keystrokes that never reached a network could not be covered.
Based on that reasoning, it held that the communications at issue were not “electronic communications” because the system on which they were intercepted “did not affect interstate or foreign commerce.” The system in this case was “the local computer’s hardware—the CPU, hard drive, and peripherals (like the mouse and keyboard)—and the software programs such as the operating system and the email programs.” While this local system was connected to a network that affects interstate or foreign commerce, the transmissions that were intercepted never traveled on that network. Therefore, the Court concluded there was no violation of the Wiretap Act.