1st Circuit Issues En Banc Opinion in Councilman Case

August 11, 2005. 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.

On the other hand, Marc Rotenberg, Executive Director of the EPIC, which participated as an amicus party, told TLJ that there is arguably a circuit split, and the Supreme Court is more likely to accept cases were the circuits are split. That is, on August 23, 2002, the U.S. Court of Appeals (9thCir) issued its opinion [39 pages in PDF] in Konop v. Hawaiian Airlines. In that case the Court held that the Wiretap Act only applies to "acquisition contemporaneous with transmission", not to acquisition of stored communications. The defendants acquired stored e-mail. This case is also reported at 302 F.3d 868. See also, story titled "9th Circuit Rules on Application of Wiretap Act and Stored Communications Act to Secure Web Sites" in TLJ Daily E-Mail Alert No. 498, August 26, 2002.

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.