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]

Fallwell.com back in the hands of gripe site owner

Fourth Circuit reverses earlier decision of district court which had found in favor of TV evangelist Jerry Falwell.

Apellant Lamparello developed a website at www.fallwell.com that was critical of Reverend Jerry Falwell’s political views. The home page contained a disclaimer stating that the site was not affiliated with Reverend Falwell or his ministry, and provided a link to Reverend Falwell’s site. Lamparello never sold any goods or services from fallwell.com.

Reverend Falwell sent cease and desist letters to Lamparello in 2001 and 2003, demanding that Lamparello stop using fallwell.com. After receiving these letters, Lamparello filed a declaratory judgment action, asking the court to determine that the use of fallwell.com did not infringe on Reverend Falwell’s rights. Reverend Falwell countersued, claiming, among other things, trademark infringement and cybersquatting. The district court sided with Reverend Falwell, and ordered the domain name transferred. Lamparello sought review.

On appeal, the Fourth Circuit reversed. It held that the district court had wrongly found trademark infringement, as there was no likelihood of confusion between the respective sources of website content. The court emphasized that Lamparello’s website in no way resembled Falwell’s, and that Lamparello had created the site only as a forum for criticizing ideas. Most importantly, the parties did not offer similar goods or services. There had been no actual confusion, which was made clear by reports of certain visitors to Lamparello’s site who “quickly realized that Reverend Falwell was not the source of the content therein.”

The court also determined Reverend Falwell had failed to demonstarte that Lamparello had registered the domain name with a bad faith intent to profit. Such a showing is necessary to a claimant’s success under the ACPA, 15 U.S.C. §1125(d). Of particular importance was the fact that Lamparello had used the domain name “for purposes of comment, [and] criticism,” such use constituting a “bona fide noncommercial or fair use” under the ACPA.

The balance of the various “bad faith factors” found at 15 U.S.C. §1125(d)(1)(B)(i) also weighed in favor of Lamparello. Specifically, as noted in the portion of the opinion dealing with trademark infringement, the court found that there was no likelihood of confusion as to the source or affiliation of the website content. Further, Lamparello had never attempted to sell, to Reverend Falwell or anyone else, the rights in the fallwell.com domain name, nor had he engaged in the practice of registering numerous domain names.

The court’s opinion addressed several other issues raised by the parties not necessary for the final determination. For example, the opinion includes a thorough analysis of the initial interest confusion doctrine. Such an analysis was not necessary, as the Fourth Circuit has never adopted the initial interest confusion doctrine. In any event, the case is an interesting and thought-provoking read on a modern issue of trademark law.

For a more thorough analysis, be sure read Professor Eric Goldman’s remarks over at his Technology & Marketing Law Blog.

See also Mark Partridge’s post on the case at his Guiding Rights Blog.

Lamparello v. Falwell et al., No. 04-2011 (4th Cir., August 24, 2005).

Data on school computers not automatically subject to inspection under Tennessee Public Records Act

Plaintiff-appellant Brennan filed suit against the Giles County Board of Education after it refused his request under Tennessee’s Public Records Act to inspect data on certain computers owned by the school system. Brennan’s request included all e-mail sent and received with the computers, as well as all websites visited with them.

The lower court held an in camera review of the requested information and concluded that the Act did not require it be made available for public inspection. Brennan sought review in the Tennessee Court of Appeals, which affirmed the lower court’s decision.

Brennan had asked the court to develop a per se rule under the Public Records Act which would automatically render data stored on school-owned computers subject to public inspection. The court declined to draw such a bright line, holding that the legislature did not intend for all such records to be subject to “public perusal.”

The court relied heavily on the Florida case of Times Publishing Co. v. City of Clearwater, 830 So.2d 844 (Fla.App.2002), which interpreted Florida’s nearly-identical statute on the issue. The court held that the language of the Tennessee statute, which provides for inspection of documents “made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency,” precludes inspection of private or personal communications.

Instead of developing a per se rule for the conditions under which documents on school-owned computers become subject to inspection, the court held that such matters should be reviewed on a case-by-case basis. Accordingly, the lower court was correct in conducting the in camera review.

Brennan v. Giles County Bd. of Education, 2005 WL 1996625 (Tenn.Ct.App., August 18, 2005).

Case demonstrates court’s reaction to glitches in electronic case filing

Eighth Circuit overturns ruling against party whose counsel did not receive electronic notification of court orders.

In the recent case of American Boat Co. v. Unknown Sunken Barge, which was a tort action against the United States, the U.S. District Court for the Eastern District of Missouri granted summary judgment against plaintiff American Boat on September 2, 2003. American Boat moved for reconsideration, but the motion was denied on November 5, 2003.

Although they were signed up for the court’s electronic filing system, local counsel for American Boat did not receive notification of the order denying the motion for reconsideration. Lead counsel, who was not signed up for electronic filing and therefore expected to get a paper copy of the order, never received such paper copy. He first learned of the order when he checked the PACER system on March 4, 2004.

Because the time for appeal had passed, American Boat filed a motion to reopen the time for filing an appeal. The district court denied the motion to reopen, finding that notice of the November 5 order was received, notwithstanding counsel’s statements to the contrary.

American Boat moved for reconsideration of the denial of the motion to reopen. It submitted an affidavit of a computer expert who stated “with near to absolute certainty” that the notification e-mail to local counsel never arrived. During the pendency of this motion to reconsider, lead counsel signed up for the court’s electronic filing system. He never received electronic notification, however, when the court denied the motion on August 12, 2004.

In light of the continuing problems with electronic notification, American Boat filed a second motion to reconsider the denial of the motion to reopen. This time it submitted the affidavit of another computer expert which stated that lead counsel did not receive email notification of the denial of the motion to reconsider. The district court denied this motion as well, and American Boat sought review with the Eight Circuit Court of Appeals, which reversed and remanded.

The appellate court noted that the district court correctly presumed the delivery of email messages since they showed up as entries on the clerk’s docket sheet. However, the appellate court concluded that the district court abused its discretion in denying American Boat an evidentiary hearing on whether the presumption of delivery had been rebutted, and remanded to the district court for such a determination.

The court observed that the newness of the electronic filing system made it likely there were glitches yet to be worked out. Furthermore, the fact that attorneys who had not signed up for electronic notification did not receive paper copies demonstrated possible flaws in the system. Finally, one of the government’s attorneys in the matter also reported not receiving electronic notification. In light of these factors, American Boat had “made a sufficient showing to at least be entitled to an evidentiary hearing on the issue of whether they have adequately rebutted the presumption [of delivery].”

American Boat Co. v. Unknown Sunken Barge, — F.3d —, 2005 WL 1949693 (August 16, 2005).

No ex parte restraining order in American Girl typosquatting case

Court expresses doubt over personal jurisdiction, likelihood of success on merits.

On July 28, 2005, an employee of the well-known doll maker American Girl accidentally discovered that the domain name amercangirl.com had been registered and was being used for links to pornographic and other adult content. Understandably upset by this act of apparent “typosquatting,” American Girl filed suit in federal court in Wisconsin against the domain name registrar Nameview, and the unknown “John Doe” registrant, alleging violation of the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d). American Girl sought an ex parte temporary restraining order against the use of the domain name, asking that the domain name be disabled and transferred.

The court denied ex parte injunctive relief. It noted first that it was “uncertain whether [it had] personal jurisdiction over either defendant.” Without such jurisdiction, the court could not enter such an in personam restraint against the defendants. The lack of personal jurisdiction was evident: the John Doe defendant’s only contact with the forum was its “passive” website. Nameview’s website was more interactive, but there was nothing in the record to show that it had “purposefully availed” itself to Wisconsin law by registering a domain name for anyone in the state.

Even if American Girl had established that the court could exercise personal jurisdiction over the defendants, it noted that there was no likelihood of success in an action against Nameview. It held that “[a] registrar who simply accepts the registration of a domain name generally is not liable for . . . violations of the ACPA.” By simply registering the domain name, and not engaging in “collusion, or some other affirmative malfeasance,” Nameview would not be liable for unlawful typosquatting.

After denying American Girl’s request for an ex parte restraining order, the court generously offered the advice of filing an in rem proceeding pursuant to 15 U.S.C. §1125(d)(2)(A) in the home district of either Nameview or Verisign, the registry for the .com TLD. The court suggested that such a proceeding might be appropriate in a situation such as this, where there would be apparent difficulty in getting personal jurisdiction over the unknown defendant John Doe.

American Girl, LLC v. Nameview, Inc., — F.Supp.2d —-, 2005 WL 1939834 (E.D.Wis., August 9, 2005).

Trademark on Supplemental Register no help in domain name proceeding

A WIPO administrative panel recently denied a request to transfer the domain name oilchanger.com, finding that the complainant had failed to prove the essential element of enforceable trademark rights in the domain name.

Oil Changer, Inc., operator of numerous oil changing facilities in California, claimed that its registration of the marks OIL CHANGER and OIL CHANGERS on the Supplemental Register with the United States Patent and Trademark Office served as prima facie evidence of its ownership and the validity of the marks. However, the panel refused to recognize any such presumption for marks on the Supplemental Register.

The panel determined that registration on the Supplemental Register was an admission that the marks were not inherently distinctive at the time the applications for them were filed. Further, the panel determined that registration on the Supplemental Register was evidence that there were no common law rights at the time of the applications. Finally, there was insufficient evidence in the record to show that the complainant’s marks had acquired secondary meaning.

Oil Changer, Inc. v. Name Admin., Inc., Case No. D2005-0530 (July 28, 2005).

No reasonable expectation of privacy in Internet subscriber information

Court dismisses civil suit against city and police officers for obtaining information about AOL subscriber without warrant.

Plaintiff Freedman used his AOL e-mail account to anonymously send a message to two other residents of his Connecticut town. The message contained the statement “The end is near,” and the recipients interpreted this as a threat to their safety. They immediately filed a police report.

A Detective Young and an Officer Bensey drafted an affidavit and application for a search warrant to seek information that would help them identify who sent the complained-of e-mail. Without submitting the paperwork to the state’s attorney’s office or a judge, Young faxed it to AOL’s legal department. A week later, AOL provided Freedman’s name, address, phone numbers, and various pieces of information relating to his account with AOL, including his screen names. No charges were ever filed.

Angry that his subscriber information had been released, Freedman filed suit against AOL, the City of Bridgeport, Detective Young, and Officer Bensey. (The case against AOL was transferred to federal court in Virginia.) Freedman argued, among other things, that the release of his account information was an intrusion into his privacy that violated his Fourth Amendment rights.

The defendants moved for summary judgment, arguing that Freedman’s Fourth Amendment rights could not have been violated, because he did not have a reasonable expectation of privacy in his subscriber information. The court agreed, and granted the motion for summary judgment on this issue.

Freedman was unable to show that any expectation of privacy he had regarding his subscriber information was objectively reasonable. The court pointed to three different reasons why one would not reasonably expect his or her subscriber information to be private for Fourth Amendment purposes.

First, by signing up for service, a subscriber knowingly discloses information to the ISP, which is accessed and used by the ISP to provide services. Second, AOL’s terms of service provided that AOL would release subscriber information “in special cases such as a physical threat to [its customer] or others.” Such a provision was especially relevant given the underlying facts of this case. Third, the Electronic Communications Privacy Act, 18 U.S.C. §2510 et seq. provides that subscriber information can be divulged in situations where the risk of physical injury justifies its release.

Given these factors, one should not reasonably believe that his or her subscriber information would be private for Fourth Amendment purposes. With no reasonable expectation of privacy, Freedman’s Fourth Amendment claim was without merit.

Freedman v. America Online, et al., 2005 WL 1899381 (D.Conn., August 9, 2005).

In the Land of the Midnight Semantics

(I hope that loyal readers of this weblog will forgive a brief foray off-topic.)

In the recent case of Crane v. State, — P.3d —-, 2005 WL 1926464 (Alaska App., 2005), the Alaska Court of Appeals was asked to examine whether there are substantive differences between the terms “counselor” and “attorney”.

Petitioner Crane was charged with drunk driving. While awaiting trial, he asserted that the court had no jurisdiction over him because he could not obtain the assistance of counsel, as there were no “counselors at law” in Alaska. He contended that there is a legal distinction between “counselors at law” and “attorneys” and that there were no “counselors at law” available to him because Alaska only licenses “attorneys”.

In rejecting Crane’s arguments, the court issued a somewhat lengthy opinion examining the history of the relevant terms. It discussed the etymology of the various words, looking to their origins in French, and also the ways in which the terms had been used in early sources such as the Blackstone Commentaries.

The court noted that the common law did in fact distinguish between “attorneys” and “counselors at law”, but concluded that this distinction no longer exists in Alaska. Instead, attorneys perform both functions. The court further noted that in 1976, the legislature repealed the statute that specified the procedure for admission to the practice of law in Alaska, but gave rule-making authority to the Board of Governors of the Alaska Bar Association, so that the admission procedure could be specified by court rule.

Crane v. State, — P.3d —-, 2005 WL 1926464 (Alaska App., August 12, 2005).

Court zaps ISP’s request to prohibit TV network’s use of CURRENT trademark

Injunctive relief denied in trademark suit against Current TV, as court finds broadband services and television network services “not related or only tangentially related.”

Plaintiff Current Communications provides broadband over power line (BPL) services to about 2,100 customers in the Cincinnati, Ohio area. It owns several trademarks used in connection with these services. Defendant Current Media operates the new television network Current TV, which seeks to “democratize” television by airing content that users have submitted through the Internet.

Current Communications sued Current Media for, among other things, trademark infringement, and asked the court to prohibit Current Media from using the word “Current” in connection with its newly-launched network. The court denied the plaintiff’s request, and refused to enter an injunction.

The court went through a thorough analysis of the “likelihood of confusion” factors to determine that injunctive relief would not be proper. Current Communications had not shown that it would likely succeed on the merits of its trademark infringement claim.

One of the likelihood of confusion factors was the extent to which the services provided by the plaintiff and defendant were related. The court concluded that the parties are not direct competitors, “[n]or is it likely that they will become direct competitors.” Accordingly, the court concluded that there was no likelihood of confusion as to the source of the parties’ services, and injunctive relief would not be proper.

Current Comm. Group, LLC v. Current Media, LLC, 2005 WL 1847215 (S.D.Ohio, Aug. 2, 2005).