8/11. The U.S. Court of Appeals (1stCir) issued its divided en banc opinion in US v. Councilman, a landmark case involving the Wiretap Act, the Stored Communications Act, and unauthorized accessing of e-mail communications.

The government prosecuted Bradford Councilman under the Wiretap Act for accessing the e-mail of other people. The District Court, and the majority of a divided three judge panel of the Court of Appeals, held that the Wiretap Act does not apply to stored e-mail, as opposed to e-mail in transit. And now, a divided en banc panel reached the opposite conclusion: the Wiretap Act does apply to e-mail in transient storage.

The significance of this case lies not in whether Councilman spends some time in detention and performing community service. Rather, it goes to the law that protects the privacy of e-mail communications, not only from invasions by service providers, but also from law enforcement authorities (LEAs).

In addition to the Wiretap Act prohibition, there is a Stored Communications Act (SCA) prohibition. However, the SCA provides an exemption for service providers. Hence, this case affects how much privacy e-mail users have from intrusions by internet service providers and e-mail service providers.

This case also affects LEA intrusion upon privacy. While the government can obtain access under both the Wiretap Act, and under the SCA, and both statutes require an order issued by a judge upon a finding of probable cause, there a several additional protections associated with the Wiretap Act.

The three judge panel was made up of Judges Juan Torruella, Conrad Cyr and Kermit Lipez. Torruella wrote the majority opinion, which Cyr joined. Lipez wrote a dissent. The en banc panel included these three Judges, and Judges Boudin, Selya, Lynch and Howard. In the en banc review, Lipez won the support of all four additional Judges. So, he wrote the majority en banc opinion, while Torruella wrote a dissent, which Cyr joined. The final split was 5-2.

Facts of the Case. The defendant, Bradford Councilman, was an officer of a company named Interloc that ran an online rare and out of print book listing service. The company also provided e-mail service to some of its book dealer customers.

The U.S. Attorney alleged that in 1998 Councilman used a program to intercept, copy and store e-mail messages from Amazon.com to the book dealer customers, and that Councilman read these messages to gain commercial advantage.

More specifically, Judge Lipez's en banc opinion states that "Councilman directed Interloc employees to intercept and copy all incoming communications to subscriber dealers from Amazon.com, an Internet retailer that sells books and other products. Interloc's systems administrator modified the server's procmail recipe so that, before delivering any message from Amazon.com to the recipient's mailbox, procmail would copy the message and place the copy in a separate mailbox that Councilman could access. Thus, procmail would intercept and copy all incoming messages from Amazon.com before they were delivered to the recipient's mailbox, and therefore, before the intended recipient could read the message. This diversion intercepted thousands of messages, and Councilman and other Interloc employees routinely read the e-mail messages sent to Interloc subscribers in the hope of gaining a commercial advantage."

District Court. A grand jury of the U.S. District Court (DMass) returned a two count criminal indictment of Councilman on July 11, 2001. Only Count I, the Wiretap Act allegation, is at issue in this appeal. It alleges violation of 18 U.S.C. § 371 for conspiracy to violate 18 U.S.C. § 2511. However, the District Court dismissed Count I. Its opinion is also reported at 245 F. Supp. 2d 319.

See, story in this issue, at right, titled "So, Just What Are All These Statutory Sections Cited in the Councilman Case?"

Three Judge Panel. The three judge panel issued its split opinion on June 29, 2004. See, story titled "1st Circuit Holds Wiretap Act Does Not Apply to E-Mail in Storage" in TLJ Daily E-Mail Alert No. 930, July 1, 2004.

The majority noted that 18 U.S.C. § 2510 contains definitions of both "wire communication" and "electronic communication". The definition (at the relevant time) of "wire communication" included "any electronic storage of such communication", while the definition of "electronic communication" made no reference to stored communications.

The reasoning of Judge Torruella for the majority of the three judge panel, in a nutshell, is as follows. § 511 bans interception of "wire" or "electronic" communications. The § 2510(1) definition of "wire communication" is "any aural transfer", including "electronic storage of such communication". The definition includes analog phone calls and VOIP calls, which are not at issue in this case. And, the § 2510(14) definition of "electronic communication" is "any transfer of signs, signals, writing, images, sounds, data", but not including "any wire or oral communication". This definition includes e-mail, which is at issue in this case. But, notably, the definition of "electronic communication" does not include storage of such communications. Since, the Congress included the "electronic storage" reference in the definition of "wire communication", but did not include it in the definition of "electronic communication", this means that the § 2511 ban interception on interception does not apply to stored electronic communications (i.e., stored e-mail).

En Banc Panel. Judge Lipez, writing for the five judge majority of the en banc panel concluded that "the term ``electronic communication´´ includes transient electronic storage that is intrinsic to the communication process, and hence that interception of an e-mail message in such storage is an offense under the Wiretap Act."

Hence, he concluded that the District Court erred in dismissing Count I of the indictment, and the three judge panel was incorrect in its reasoning affirming the District Court.

Judge Lipez rejected the earlier analysis of Torruella, and similar arguments advanced by Councilman, regarding statutory construction. Lipez wrote that "The statute contains no explicit indication that Congress intended to exclude communications in transient storage from the definition of ``electronic communication,´´ and, hence, from the scope of the Wiretap Act."

Lipez wrote that "the purpose of the broad definition of electronic storage was to enlarge privacy protections for stored data under the Wiretap Act, not to exclude e-mail messages stored during transmission from those strong protections. Moreover, Congress's sole purpose in adding electronic storage to the definition of "wire communication" was to protect voice mail, and not to affect e-mail at all."

He also wrote that "the legislative history indicates that Congress included the electronic storage clause in the definition of ``wire communication´´ provision for the sole reason that, without it, access to voicemail would have been regulated solely by the Stored Communications Act. Indeed, that is exactly what happened when Congress later removed the explicit reference to ``electronic storage´´ from the definition of ``wire communication´´ in the" USA PATRIOT Act in 2001.

Next, Lipez found that there was an "intercept". But, Lipez did not explain

Lipez also rejected Councilman's argument that his actions are regulated by the SCA, and that he therefore cannot be prosecuted under the Wiretap Act. Lipez concluded that one act can violate both the Wiretap Act and the SCA. And, Lipez rejected arguments that the statute is vague, and that Councilman should not be prosecuted under due process and fairness grounds.

Count I is reinstated. Councilman now faces trial for violation of the Wiretap Act.

Judge Torruella, who wrote the majority opinion for the three judge panel, wrote a lengthy dissent to the majority opinion of en banc panel. He restated the arguments contained in his opinion for the three judge panel.

TLJ spoke with Orrin Kerr, a professor of law at George Washington University, on August 12. He said that this "is a very narrow decision, and one that leaves open a lot of issues for Congress." He said that the "big one" is "What is the meaning of intercept for an internet communication?" He added that this question may have to be addressed by the Congress through legislation.

Department of Justice Brief. The Department of Justice (DOJ) argued in its August 2004 brief [PDF] urging en banc review that Judge Torruella's analysis is contrary to the meaning of the statute, and the intent of the Congress. It also argued that Torruella's analysis, if allowed to stand, would weaken the privacy accorded to e-mail communications. Finally, it argued that the opinion of the three judge panel is in conflict with the Pharmatrak opinion.

On May 9, 2003, the U.S. Court of Appeals (1stCir) issued its opinion in In Re Pharmatrak Privacy Litigation, reversing a District Court summary judgment in a case brought under the ECPA involving web site monitoring. This case is also reported at 329 F.3d 9. See also, story titled "1st Circuit Holds Monitoring Web Site Traffic Can Violate Wiretap Act" in TLJ Daily E-Mail Alert No. 659, May 12, 2003.

The DOJ wrote that "if the Wiretap Act does not cover e-mail in electronic storage during transmission, the Act's protections against private and government surveillance of e-mail would, in the word of the panel itself, be ``eviscerated.´´"

DOJ brief states, in footnote 2, that the "Congress removed the reference to ``electronic storage´´ from the definition of "wire communication" as a part of the USA PATRIOT Act ..." The DOJ brief does not elaborate further in this footnote.

The DOJ brief argues that "This decision is exceptionally important, warranting rehearing en banc, because it would remove a large portion of real-time interceptions of e-mail from the coverage of the Wiretap Act. As a result, such e-mail would be covered solely by the Stored Communications Act, with it lesser protections. This means that Internet service providers would be free to access the private e-mail of their customers without criminal liability under either Act; that criminals and corporate spies could monitor private e-mail without violating the Wiretap Act; and that the government would be able to gain access to e-mail in transit without following the Act's extra-constitutional strictures. Moreover, now that Congress has deleted from the definition of "wire communications" (see n.2, supra) communications that are in electronic storage, the government, under the panel's decision, could even eavesdrop on telephone calls (whenever digital transmission is involved) without running afoul of the Act." (Parentheses in original.)

The DOJ brief does not reference voice over internet protocol (VOIP) communications. Rather it goes on to discuss digital switches. "Thus, under the rule adopted by the panel, phone calls could be captured without violating the Wiretap Act, so long as eavesdroppers did so from one of several switches."

Also, the DOJ has declined several opportunities more recently to clarify its views regarding accessiong transient caching associated with VOIP communications. See, related story in this issue titled "US v. Councilman and VOIP Communications".

Amicus Briefs. Sen. Patrick Leahy (D-VT) was active in the passage of the Electronic Communications Privacy Act of 1986, which enacted much of the language now at issue. He submitted an amicus curiae brief [22 pages in PDF] for the en banc panel urging reversal. He is now the ranking Democrat on the Senate Judiciary Committee (SJC). Peter Swire, a law professor at Ohio State University, and Patricia Bellia, a law professor at Notre Dame University, represented him.

See also, story titled "Sen. Leahy Files Amicus Brief in US v. Councilman" in TLJ Daily E-Mail Alert No. 1,019, November 16, 2005.

The Center for Democracy and Technology (CDT), Electronic Frontier Foundation (EFF), Electronic Privacy Information Center (EPIC), American Library Association (ALA), American Civil Liberties Union (ACLU), and Center for National Security Studies (CNSS) filed an amicus curiae brief [13 pages in PDF] on September 2, 2004, urging en banc review, and an amicus curiae brief [23 pages in PDF] in November 2004 on the merits. Orin Kerr, a law professor at George Washington University, represented these groups on both briefs. Peter Swire was also counsel on the September brief.

See also, story titled "Amicus Brief Argues that Wiretap Act Covers Accessing Stored E-Mail" in TLJ Daily E-Mail Alert No. 1,019, November 16, 2005.

Legislative Proposals. The Councilman case resulted in several bills being introduced in the summer of 2004. For example, on July 22, 2004, Rep. Jerrold Nadler (D-NY) and others introduced HR 4977 (108th Congress), the "E-mail Privacy Protection Act of 2004". This bill amends the Wiretap Act and the Stored Communications Act, to provide that accessing stored e-mail communications, including by e-mail service providers, can constitute criminal violations. See, story titled "Rep. Nadler Introduces Bill to Criminalize Accessing Stored E-Mail" in TLJ Daily E-Mail Alert No. 950, August 2, 2004.

Also on July 22, 2004, Rep. Jay Inslee (D-WA) and others introduced HR 4956 (108th Congress), the "E-mail Privacy Act of 2004". Like Rep. Nadler's bill, HR 4977, this bill responds to the opinion in USA v. Councilman, and provides increased legal protection under the Criminal Code for stored e-mail communications. However, Rep. Inslee's bill would provide less onerous limitations upon the activities of e-mail service providers. See, story titled "Rep. Inslee Introduces E-mail Privacy Act" in TLJ Daily E-Mail Alert No. 950, August 2, 2004.

Sen. Leahy introduced S 936, the "E-Mail Privacy Act of 2005", on April 28, 2005. See, story titled "Leahy and Sununu Introduce E-Mail Privacy Act" in TLJ Daily E-Mail Alert No. 1,128, May 4, 2005.

Likelihood of Further Review. Bradford Councilman can file a petition for writ of certiorari with the Supreme Court. The Supreme Court has the discretion to take or reject the case.

Peter Swire, who wrote briefs in this case, told TLJ that "my guess is that the Supreme Court will not take the case." He pointed out that the DOJ, numerous interest groups, Sen. Leahy, and five judges all agreed.

This case is U.S. v. Bradford Councilman, U.S. Court of Appeals for the 1st Circuit, App. Ct. No. 03-1383, an appeal from the U.S. District Court for the District of Massachusetts, Judge Michael Ponsor presiding. Judge Lipez wrote the en banc opinion of the Court of Appeals, in which Judges Boudin, Selya, Lynch and Howard joined. Judge Torruella wrote a dissenting opinion, in which Judge Cyr joined.

8/11. The facts of U.S. v. Councilman involve the accessing e-mail communications by service providers. The briefing addresses e-mail. The Court's opinions address e-mail. However, there is also the related issue of accessing voice over internet protocol (VOIP) communications.

Circuit switched analog voice communications, or old fashioned phone calls, do not involve storage. The Wiretap Act was written with these calls in mind. As the Department of Justice (DOJ) pointed out in its August 2004 brief [PDF], this has changed with digital switches.

In addition, there is now packet switching by internet protocol (IP). One of the applications that rides over the internet is voice over IP (VOIP). This DOJ brief does not mention VOIP communications. And, the court did not address VOIP communications.

Two attributes of VOIP technology are notable at this time for the purpose of analyzing the law pertaining to intercepting or accessing VOIP communications. First, the technology facilitates user storage of conversations and data. Second, the nature of IP communications involves transient caching of packets by service providers. Thus, the question arises as to whether law enforcement authorities (LEAs) can access cached or stored VOIP packets under the Stored Communications Act (SCA), or whether the LEAs must proceed under the Wiretap Act, as they are required for old fashioned phone calls, and pursuant to the just issued opinion in U.S. v. Councilman, for e-mail.

It is important to note that e-mail is a § 2510(14) "electronic communication", while phone calls and VOIP calls involve "aural transfer", and hence, are a § 2510(1) "wire communication". The Court construed the meaning of "electronic communication", not "wire communication".

That the DOJ prosecuted Bradford Councilman, and submitted the arguments that it did regarding "electronic communications", may suggest that the DOJ would extend the same analysis to "wire communications". However, the DOJ has conspicuously passed up many opportunities to state this.

§ 209 of the PATRIOT Act and Wire Communications. VOIP communications are an "aural transfer" within the meaning of § 2510(1), and hence, are a "wire communication". Thus, an "intercept" of a VOIP call falls under the Wiretap Act.

The PATRIOT Act in 2001 contained an amendment that deleted the clause "and such term includes any electronic storage of such communication" from the § 2510(1) definition of "wire communication". Moreover, the 2001 amendment added the word "wire" to § 2703 regarding government access to store communications. § 2703 now provides, in part, that "A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication ..."

Thus, the argument exists the while VOIP communications in transit are covered by the Wiretap Act, VOIP communications in storage, including transient caching by service providers, and systematic caching, now fall under the SCA provisions.

Peter Swire, a law professor at Ohio State University, testified at the House Judiciary Committee's Subcommittee on Crime's hearing on the PATRIOT Act on April 21, 2005. He argued that § 2703 is now quite broad. He wrote in his prepared testimony [12 pages in PDF] that "Section 209 sweeps far more broadly than has been publicly discussed. What if the contents of ordinary telephone calls become stored as a matter of routine? This storage is likely to become far more common with the imminent growth of Voice over Internet Protocol ("VoIP") telephone calls. VoIP uses the packet-switching network of the Internet to connect telephone calls rather than the traditional circuit-switching used by established phone systems."

Swire also wrote that "A second technological change with VoIP is the likelihood that there will be systematic ``caching,´´ or storage, of telephone communications at the network level. One existing product, for instance, is called ``CacheEnforcer.´´ CacheEnforcer stores communications for a group of users, such as for a company or a network operated by a university."

Laura Parsky, a Deputy Assistant Attorney General in the DOJ's Criminal Division, testified at the same hearing. She could have addressed the issues raise by Swire. But she did not, either in her prepared testimony, or in response to questions from the Subcommittee. Rep. Howard Coble (R-NC) and Rep. Bill Delahunt (D-MA) both questioned her about the issues raise by Swire. However, she provided evasive non-responsive answers.

See also, story titled "House Crime Subcommittee Holds Hearing on § 209 of PATRIOT Act, Stored Communications and VOIP" in TLJ Daily E-Mail Alert No. 1,125, April 29, 2005.

Also, Patrick Rowan of the DOJ spoke at a panel discussion on Capitol Hill on June 30, 2004, titled "The Patriot Act and E-Surveillance". He said nothing about surveillance of VOIP communications. TLJ spoke with Rowan after the event, and asked him questions regarding § 209 of the PATRIOT Act and accessing VOIP communications under the Wiretap Act and the SCA. He stated he had no answers for any of these questions.

TLJ spoke with Peter Swire on August 12. He said that the just issued en banc opinion in the Councilman case clarifies the definition of "electronic communication". In contrast, "§ 209 of the PATRIOT Act involves ``wire communication´´. That means communications involving the human voice." He added that "the lower standards of the PATRIOT Act still apply to stored wire communications", and that "nothing in Councilman explicitly protects stored voice communications".

Perhaps the DOJ has not yet formed at opinion regarding the legal consequences of § 209.

Perhaps the DOJ plans to use the SCA to access cached VOIP communications, but does not wish to publicly disclose this prior to the extension of the sunsetted provisions.

Perhaps the DOJ has no intent to use the SCA to access VOIP, but wishes to protect itself from allegations of violations of the Wiretap Act for its legitimate, non VOIP related, exercise of authority under the SCA. That is, the FBI could obtain an order under the SCA to obtain from a service provider records stored by a person under surveillance. But, there could be an audio file among, or attached to, these stored files. And, the FBI wishes to be able to assert § 209 to avoid the conclusion that it violated the Wiretap Act.

Whatever the case, the DOJ has on several occasions conspicuously avoided revealing what its understanding of, and plans for, § 209 are.

Back in April, Laura Parsky uttered the phrase, "much ado about technology". This is an allusion to the title of a play attributed to William Shakespeare, "Much Ado About Nothing". Perhaps she meant to suggest that Swire's testimony, and articles such as this, are much ado about nothing.

PATRIOT Act Extension. Both the House and Senate have approved bills that permanently extend § 209, without modification. The Senate approved S 1389 on July 29, 2005. The House approved HR 3199 on July 21, 2005. See also, story titled "House Approves PATRIOT Act Extension Bill" in TLJ Daily E-Mail Alert No. 1,180, July 22, 2005.

House Judiciary Committee staff met with reporters on Monday afternoon, July 11, 2004 to discuss HR 3199, the "USA PATRIOT and Intelligence Reform Reauthorization Act of 2005", which had just been introduced. The full Committee amended and approved this bill on Wednesday, July 13. The full House further amended and approved this bill on July 21. HR 3199 permanently extends § 209 of the PATRIOT Act, without modification.

TLJ asked HJC staff about the deliberations regarding § 209. A Committee staff member stated that HR 3199 does not amend § 209 because that would involve writing legislation regarding issues involved in the Councilman case, and the Committee does not legislate on matter under review in the courts.

The Councilman case involves interpretation of the "electronic communication" definition in the Wiretap Act. And, this affects e-mail. In contrast, § 209 of the PATRIOT Act involves the "wire communication" definition in the Wiretap Act. And, this affects voice communications, including VOIP. Yet the statement by HJC staff suggests that the HJC staff understands that the two issues are related.

What Difference Does it Make Whether LEAs Use the Wiretap Act or the SCA? For an LEA to intercept or access communications under the Wiretap Act or the SCA, it must first obtain an order from a judge upon a finding of probable cause.

However, there are additional things that are required for a Wiretap Act order that are not required for a SCA order. A wiretap order can only be issued if the investigation involves one of the enumerated crimes that can serve as a predicate for the issuance of a wiretap order. Although, this is a huge and growing list. Also, a wiretap order also requires the involvement of a high ranking official of the DOJ.

There is also the matter of suppression of evidence illegally obtained. That is, 18 U.S.C. § 2515, titled "Prohibition of use as evidence of intercepted wire or oral communications", applies to wiretaps, but not to the accessing of stored communications.

§ 2515 provides that "Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter."

This not only provides some protection to people whose communications have been intercepted or accessed. It also provides legal clarity. That is, legal clarity comes when judges write opinions construing statutes. Many of these opinions are written because there a motion to suppress evidence has been filed. There are many opinions construing the Wiretap Act because of the suppression statute.

Finally, it should be noted that the statutory provisions regarding stored communications also draw distinctions between read and unread e-mail and between newer and older e-mail, and provide that some access is available with a mere subpoena.

What Difference Does it Make Whether Service Providers' Access to Stored VOIP Communications Falls Under the Wiretap Act or the SCA? There is also the matter of internet service providers and VOIP service providers accessing cached VOIP communications. § 2701(c) of the SCA exempts service providers.

Hence, if the Criminal Code, as amended by § 209, takes the accessing of stored wire communications, including VOIP, by service providers, out from under the Wiretap Act, and regulates such access only under the SCA, then service providers are free to eavesdrop on their customers, provided that they access only stored or cashed files.

And perhaps, there is a issue regarding how, as a practical matter, such an interpretation would interact with the § 212 provision of the PATRIOT Act regarding "Emergency disclosure of electronic communications to protect life and limb".

Such an interpretation would appear to eviscerate the Wiretap Act's protection for voice communications, just as the three judge panel's opinion in the Councilman case eviscerated the historic protection for e-mail. And the courts may find such an interpretation untenable. However, for now, the court and the DOJ have remained silent on this issue.

8/11. The following is a cursory and incomplete listing of the statutory sections that are pertinent to U.S. v. Councilman, and the issues raised by this case. The subject is complicated by the circumstance that Bradford Councilman committed the acts at issue in 1998, and was indicted in July of 2001, just before the Congress enacted the USA PATRIOT Act. This Act amended some of the pertinent sections.

If one looks at a current copy of the Criminal Code, some of the key sections have changed since July of 2001, when Councilman was charged. The law that applies to Councilman is the pre-PATRIOT Act version of the Criminal Code.

The majority of the three judge panel relied in its analysis upon a clause that was deleted by § 209 of the PATRIOT ACT. Moreover, the amending language was also sunsetted by the PATRIOT Act. And furthermore, the Congress is now considering bills that may extend the sunsetted provisions.

Wiretap Act. The count of the complaint at issue alleges conspiracy to violate the Wiretap Act. 18 U.S.C. § 371 is the conspiracy section. 18 U.S.C. § 2511 bans unauthorized intercepts of wire, oral and electronic communications.

That is, Title 18 of the U.S. Code is the Criminal Code; Chapter 119 of Title 18 is titled "Wire and Electronic Communications Interception and Interception of Oral Communications"; and, §§ 2510-2522 comprise Chapter 119. Chapter 119 pertains to wiretaps. § 2510 contains definitions. § 2511 makes it a crime to "intercept" any "wire, oral, or electronic communication".

18 U.S.C. § 371 provides that "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both."

18 U.S.C. § 2511(1) provides, in part, that "any person who (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5)."

18 U.S.C. § 2510 contains definitions of "wire communication", "electronic communication", and "intercept".

§ 2510(1) now provides that a "wire communication" means "any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce".

However, the enactment of the PATRIOT Act deleted an additional clause that provided that "and such term includes any electronic storage of such communication". This was accomplished by § 209 of the PATRIOT Act. § 209 made other noteworthy changes. § 209 is one of the sunsetted provisions. Both the House and Senate have approved bills that permanently extend § 209, without modification. The Senate approved S 1389 on July 29, 2005. The House approved HR 3199 on July 21, 2005. See also, story titled "House Approves PATRIOT Act Extension Bill" in TLJ Daily E-Mail Alert No. 1,180, July 22, 2005.

§ 2510(14) provides that "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, but does not include ... (A) any wire or oral communication".

§ 2510(4) provides that an "intercept" means "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".

These above quoted sections pertain to unlawful wiretaps. The Wiretap Act also contains procedures that the government must follow to conduct lawful wiretaps. See especially, 18 U.S.C. § 2516, titled "Authorization for interception of wire, oral, or electronic communications".

Stored Communications Act. There is a separate legal regime for stored communications. That is, Chapter 121 of Title 18 is now titled "Stored Wire and Electronic Communications and Transactional Records Access". This is the Stored Communications Act (SCA). It was enacted as part of the Electronic Communications Privacy Act of 1986 (ECPA). §§ 2701-2712 comprise Chapter 121. It was amended by § 209 of the PATRIOT Act.

§ 2701 contains the criminal prohibition. It provides that "whoever --
  (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or
  (2) intentionally exceeds an authorization to access that facility;
and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished ..."

But, § 2701(c) provides an exemption for "conduct authorized -- (1) by the person or entity providing a wire or electronic communications service". That is, an ISP or e-mail service provider can access stored e-mail without violating the SCA. And of course, the Councilman case is about the legality under the Wiretap Act of service providers accessing stored e-mail.

§ 2703 now provides, in part, that "A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant ..." (Emphasis added. § 209 of the PATRIOT Act added the words "wire or".)

§ 209 of the PATRIOT Act provides, in full, as follows:

"Title 18, United States Code, is amended--
  (1) in section 2510--
    (A) in paragraph (1), by striking beginning with `and such´ and all that follows through `communication´; and
    (B) in paragraph (14), by inserting `wire or´ after `transmission of´; and
  (2) in subsections (a) and (b) of section 2703--
    (A) by striking `CONTENTS OF ELECTRONIC´ and inserting `CONTENTS OF WIRE OR ELECTRONIC´ each place it appears;
    (B) by striking `contents of an electronic´ and inserting `contents of a wire or electronic´ each place it appears; and
    (C) by striking `any electronic´ and inserting `any wire or electronic´ each place it appears."

The first thing that § 209 of the PATRIOT Act did was amend 18 U.S.C. § 2510, which is the definitional section of Chapter 119. It deleted the reference to stored communications in the definition of "wire communication". It deleted the clause "and such term includes any electronic storage of such communication".

The second thing that § 209 of the PATRIOT Act did was amend 18 U.S.C. § 2703, which is now titled "Required disclosure of customer communications or records".

The House will not meet on Monday, August 1 through Monday, September 5. See, House calendar and Republican Whip Notice.

The Senate will not meet on Monday, August 1 through Monday, September 5. See, Senate calendar.

The Supreme Court is between terms. The opening conference of its October 2005 Term will be held on September 26, 2005.

9:00 AM. Day one of a two day conference hosted by the U.S. Patent and Trademark Office (USPTO) titled "Celebration of Independent Inventors". Stephen Pinkos, the Deputy Under Secretary of Commerce for Intellectual Property, will speak at 9:00 AM. Jon Dudas, the head of the USPTO, will speak at 12:30 PM. See, USPTO notice. Location: USPTO, 600 Dulany Street, Alexandria, VA.

Effective date of the Federal Communications Commission's (FCC) final rules implementing Section 207 of the Satellite Home Viewer Extension and Reauthorization Act of 2004. The FCC adopted its Report and Order on June 6, 2005, and released on June 7, 2005. It is FCC 05-119 in MB Docket No. 05-89. See, notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Pages 40216 - 40225.

Day two of a two day conference hosted by the U.S. Patent and Trademark Office (USPTO) titled "Celebration of Independent Inventors". See, USPTO notice. Location: USPTO, 600 Dulany Street, Alexandria, VA.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) portion of its order and NPRM regarding the extension of 911/E911 regulation to interconnected voice over internet protocol (VOIP) service providers. The FCC adopted, but did not release, this order and NPRM on May 19, 2005. The FCC released the text [90 pages in PDF] of this order and NPRM on June 3, 2005. See, story titled "FCC Releases VOIP E911 Order" in TLJ Daily E-Mail Alert No. 1,148, June 6, 2005, and story titled "FCC Sets Deadlines for Comments on VOIP NPRM" in TLJ Daily E-Mail Alert No. 1,167, July 5, 2005. See, FCC notice (DA 05-1905) [3 pages in PDF].

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Third Further Notice of Proposed Rule Making (NPRM), adopted on December 20, 2004, regarding whether to defer or eliminate the requirement in the rules that certain applications for equipment authorization received on or after January 1, 2005, specify 6.24 kHz capability. This item is FCC 04-292 in WT Docket No. 99-87 and RM-9332; See, notice in the Federal Register, June 15, 2005, Vol. 70, No. 114, at Pages 34726 - 34729.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Advanced Technology Program Advisory Committee. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Page 43844.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Pages 43844-43845.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Board of Overseers of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Pages 43845-43846.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Judges Panel of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Pages 43846-43847.

Deadline to submit comments to the Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC) regarding its meeting of August 23-24, 2005. See, notice in the Federal Register, August 9, 2005, Vol. 70, No. 152, at Pages 46182 - 46183.

9:00 AM - 12:00 NOON. The Department of Homeland Security (DHS) will host a briefing on its new programs for acquiring information technology services and commodities. For more information, call 202 282-8010. Location: Ronald Reagan Auditorium.

2:00 - 4:00 PM. The Department of States' (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the CITEL Permanent Consultative Committee I, Telecommunication Standardization. See, notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Page 40414. Location: undisclosed. The DOS states that "Access to these meetings may be arranged by contacting Julian Minard at minardje at state dot gov.

2:00 - 4:00 PM. The Department of States' (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for ITU-T Study Group 3's Working Party on Charging and Accounting Principles. See, notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Page 40414. Location: undisclosed. The DOS states that "Access to these meetings may be arranged by contacting Julian Minard at minardje at state dot gov.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Trade Secrets: Case Law Update". The speaker will be Milton Babirak (Babirak Vangellow & Carr). The price to attend ranges from $70-$125. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Deadline to submit comments in response to, and notices of intent to participate in proceedings on, the Copyright Office's (CO) settlement proposal for the adjustment of certain royalty rates for use of the cable statutory license. See, notice in the Federal Register, July 20, 2005, Vol. 70, No. 138, at Pages 41650 - 41652.

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