Wiretap Act Does Not Cover Communications 'In Storage' Even If Stored for Short Period

The federal Wiretap Act, 18 USC '2511, does not govern the improper acquisition of electronic communications that were "in storage" no matter how ephemeral that storage may be, the U.S. District Court for the District of Massachusetts ruled Feb. 12. United States v. Councilman, 2003 1225 [D Mass, 2003].

In light of the U.S. Court of Appeals for the Ninth Circuit's decision in Konop v. Hawaiian Airlines, Inc., 12 ILR (P&F) 92, 302 F3d 868 (9th Cir 2002), the court found it had improperly denied defendant Bradford S. Councilman's motion to dismiss the first count of an indictment against him alleging he improperly acquired electronic communications that were in storage in his company's computer system. It therefore reversed the ruling, granting the motion to dismiss.

     In Konop, a 2-1 majority of the Ninth Circuit ruled that no Wiretap Act violation occurs when an electronic communication is accessed while in storage, "even if the interception takes place during a nanosecond 'juncture' of storage along the path of transmission," the court said. If the Konop decision is correct, said the court, the first count of the indictment against Councilman must be dismissed.

     Electronic communications "in storage" are governed by the Stored Communications Act, 18 USC '2701, from which the defendant is exempt under Section 2701(c)(1) as a "person or entity providing a wire or electronic communications service" since he operated an e-mail service, according to the court. The definition of "electronic storage" includes "any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof" and "any storage of such communication by an electronic communication service for purposes of backup protection of such communication," the court said. "Given this definition, there can be no serious question that the communications underlying the indictment in this case were 'in storage' at the time the defendant is alleged to have intercepted them." The parties had stipulated that the communications were in either the random access memory or the hard disks of the company's computer system.

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