Taking counsel from Councilman: E-mail message in transient electronic storage is an “electronic communication” under the ECPA

First Circuit reverses dismissal of indictment for surreptitiously copying third party e-mail messages.

The recent case of U.S. v. Councilman provides valuable insight into the First Circuit’s expansive reading of the definition of “electronic communication” under the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §2510, et seq.

Defendant Councilman worked for Interloc, Inc., an online rare and out-of-print book listing service. Customers of the service were provided with interloc.com e-mail addresses. Without the customers’ consent, Councilman directed that Interloc’s servers be configured to send Councilman a copy of every message sent to the customers from Amazon.com. The copies were intercepted during the split second they were located in temporary storage on Interloc’s server, and before they were sent to the customer’s account.

Councilman was indicted for conspiracy to violate § 2511 of the ECPA by, among other things, unlawfully intercepting electronic communications. The district court dismissed the indictment, holding that the messages, at the moment they were intercepted, did not meet the definition of “electronic communication” found at 18 U.S.C. §2510(12).

A three-judge panel of the First Circuit Court of Appeals affirmed the dismissal of the indictment. The government filed a motion requesting a hearing in banc, which was granted. On rehearing, the full court reversed the district court’s dismissal of the indictment.

Councilman had argued that the e-mail messages he was accused of intercepting, because they were being held in transient storage on the server when copied and sent to him, were not “electronic communications” as defined by the ECPA. The definition of “wire communication” (found at §2510(1) of the pre-USA PATRIOT Act version in effect at the time of the alleged crimes) specifically included electronic storage of communications. The definition of “electronic communication,” however, made no mention of data in electronic storage.

Applying the maxim of statutory construction known as expressio unius est exclusio alterius – which means “the expression of one is the exclusion of others” – Councilman argued that Congress specifically intended the definition of “electronic communication” to exclude data being held in electronic storage. If data in temporary storage on the server was excluded from the definition of “electronic communication,” Councilman argued, the charge of intercepting these e-mail messages in transient storage must fail as a matter of law.

The First Circuit rejected Councilman’s argument, concluding that the term “electronic communication” includes “transient electronic storage that is intrinsic to the communication process.”

To reach this conclusion, the court looked first at the plain text of the statute, scrutinizing Councilman’s argument that the inclusion of data in electronic storage in the definition of “wire communication” necessarily excluded it from the definition of “electronic storage.” The court was not persuaded by Councilman’s arguments that the statute should be construed in this manner. Given the “continuing ambiguity” in the statutory language, the court turned to the legislative history for guidance.

The court examined the various policies and concerns underlying the enactment of the ECPA. It explained that Congress gave a broad definition to “electronic storage” in order to enlarge privacy protections for stored data under the Act. Providing such a broad definition was not for the purposes of excluding e-mail messages stored during transmission. The court further noted that the presence of “electronic storage” in the definition of “wire communications” was to protect voicemail, and was not there to exclude e-mail from the definition of “electronic communication.”

Despite a strong dissent arguing for stricter statutory construction, the court held that the alleged conduct, as a matter of law, fell within the prohibitions of the ECPA. The case was returned to the district court for further proceedings.

U.S. v. Councilman, — F.3d —, 2005 WL 1907258 (1st Cir., August 11, 2005).

[Link to full opinion]