Decision further exposes loophole in Electronic Communications Privacy Act

A federal court in Utah has held that although evidence obtained through illegal interception of wire or oral communication would not be admissible at trial, any evidence obtained through illegal interception of an electronic communication is admissible.

A confidential FBI informant accessed defendant Jones’s email account without his permission and printed out several messages which she turned over to FBI agents. Based on these messages, the agents obtained a search warrant and arrested Jones. Before trial, Jones moved to suppress the evidence contained in the e-mail messages, as well as the evidence derived from the search warrant based on those messages.

Jones argued that Section 2515 of the federal Electronic Communications Privacy Act (“ECPA”) prohibited the court from considering this evidence which he argued was illegally obtained by the confidential informant. Section 2515 provides, in relevant part: “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 . . . if the disclosure of that information would be [prohibited].”

The court rejected Jones’s argument and denied the motion to suppress. Although the ECPA prohibits the introduction into evidence of wire or oral communications that may have been illegally obtained, the court held that the statute specifically excludes electronic communications from the statute’s suppression remedy. “Even though the [ECPA] prohibits the interception and disclosure of any wire, oral or electronic communication, the suppression remedy in §2515 applies only to intercepted wire and oral communications.”

U.S. v. Jones, — F.Supp.2d —, 2005 WL 850991 (D.Utah, April 12, 2005).