No liability for Earthlink under the ECPA

In a decision handed down January 25, 2005, the United States Court of Appeals for the Second Circuit held that Earthlink did not violate the Electronic Communications Privacy Act,18 U.S.C. 2510 et seq., when it continued to receive email directed to a former customer’s account after service to that customer had been terminated.

The facts of this case go all the way back to 1997. Plaintiff Hall’s Earthlink service was terminated after Earthlink incorrectly concluded that he was sending spam from his account. Email sent to Hall’s erstwhile Earthlink account simply remained there, and after a few months’ time, Earthlink forwarded to Hall’s non-Earthlink account a batch of some 600 messages that had accumulated on Earthlink’s servers.

Because no good deed goes unpunished, Hall sued Earthlink alleging several causes of action, among them that Earthlink violated a provision of the Federal wiretap law, also known as the Electronic Communications Privacy Act (ECPA) which prohibits, among other things, the intentional interception of any electronic communication. Hall claimed that by continuing to receive the messages after the account closed, Earthlink “illegally intercepted” messages intended for him.

The district court disagreed with Hall, and found in favor or Earthlink, holding that Earthlink’s actions did not constitute an intentional interception. Hall appealed to the Second Circuit.

The Second Circuit upheld the district court’s decision in favor of Earthlink. In its opinion, the court elaborated on the reasons why Earthlink’s actions did not give rise to liability under the ECPA. The court emphasized a portion of the ECPA known as the “ordinary course of business exception,” which eliminates one’s liablity for eavesdropping whenever he or she uses a device in — you guessed it — the ordinary course of his or her business.

The important question, then, was whether collecting email in a former customer’s account was an activity that Earthlink did in the ordinary course of its business. Hall, of course, characterized Earthlink’s actions as “intentionally seizing” and tried to argue that such conduct would not fall in the ordinary course of business. Earthlink countered with evidence that it was its practice in 1997 to continue to receive and store e-mails on its servers after accounts were cancelled, and that it did not have the ability to bounce e-mail back to senders when messages were sent to a closed account.

Hall v. Earthlink Network, Inc., No. 04-0384-CV, 2005 WL 147139 (2d Cir, Jan. 25, 2005).