Bowden v. Kirkland & Ellis, 2011 WL 1211555 (7th Cir. April 1, 2011)
Two former employees of a law firm sued the firm for violation of the Electronic Communications Privacy Act, 18 USC 2510 et seq. and for violation of the Illinois Eavesdropping Act, 720 ILCS 5/14-2. The district court granted summary judgment in favor of the law firm. The former employees sought review with the Seventh Circuit. On appeal, the court affirmed the grant of summary judgment.
The court held that the former employees’ evidence of eavesdropping raised no more than a “theoretical possibility” of a violation. Even one of the strongest experts in the case triple hedged his testimony, saying the records “could indicate the potential that interception may have occurred.” So the grant of summary judgment was proper.
The plaintiffs had also raised an electronic discovery issue, namely a claim that the law firm spoliated evidence by destroying a server that contained phone records relevant to the case. The court rejected that argument, finding no credible evidence that the destruction was undertaken in bad faith.
Lewton v. Divingnzzo, 2011 WL 692292 (D.Neb. Feb. 18, 2011)
Defendant thought her ex-husband was abusing their daughter during visitations. To prove these allegations in the custody case, defendant sewed an electronic recording device into the little girl’s favorite teddy bear. After the daughter returned from visiting with her father, the mom would unstitch the teddy bear and download the recorded conversations onto her computer.
She tried using the transcribed recordings as evidence in the state court custody proceeding. But the judge would not let them into evidence because they violated Nebraska law. The father and others whose conversations were recorded via the teddy bear sued the mom under the federal Electronic Communications Privacy Act.
Both sides moved for summary judgment. The court ruled in favor of the father, finding that the surreptitious recording did not fit into any exception of the ECPA.
The ECPA provides a private right of action to any person whose wire, oral or electronic communication is intercepted, disclosed or intentionally used in violation of the ECPA. Looking to Eighth Circuit authority, the court observed that the ECPA prohibits all wiretapping that is not specifically exempted by the statute.
No doubt this was a tough case – a parent fearing for the safety of his or her child might have strong reasons to resort to eavesdropping to protect the child. But the court was hamstrung – “[w]hile the notion that a parent or guardian should be able to listen to a child’s conversations to protect the child from harm may have merit as a matter of policy, it is for Congress, not the courts, to alter the provisions of the statute.”
The court ordered the defendant and her father (who had transcribed the recordings) to pay $10,000 to each of the offended plaintiffs. The defendant’s lawyer who had distributed the recordings to the guardian ad litem and others was found to have violated the ECPA but was not ordered to pay any money damages.
U.S. v. Szymuszkiewicz, — F.3d —, 2010 WL 3503506 (7th Cir. September 9, 2010)
Seventh Circuit upholds conviction of employee who secretly intercepted his boss’s email.
A federal jury convicted the defendant, who was an IRS revenue officer, of violating the Wiretap Act (or the Electronic Communications Privacy Act, as some like to call it — 18 USC 2511(1)(a). He had snuck onto his boss’s computer and set a rule in Microsoft Outlook to autoforward copies of all incoming email to his own account.
The defendant sought review of his conviction with the Seventh Circuit. On appeal, the court affirmed. Judge Easterbrook’s opinion is interesting reading. It is a nice accompaniment to the 2005 decision from the First Circuit in U.S. v. Councilman.
The court rejected the defendant’s argument that the Wiretap Act required that the “interception” of the email be “contemporaneous” with its transmission: “[d]ecisions articulating such a requirement are thinking football rather than the terms of the statute.” (Such decisions would include Fraser v. Nationwide Mutual (3d Cir.), Steve Jackson Games v. Secret Service (5th Cir.), Konop v. Hawaiian Airlines (9th Cir.) and United States v. Steiger (11th Cir).
In any event, the court found that the defendant’s interception of the messages in this case was “contemporaneous by any standard.” The evidence showed that the Outlook rules, though set within the email client, operated on the server. A message to the boss would go to an email server in Kansas City, and then be “flung across the network” as packets making up two copies, one for the boss and one for the defendant. It was this copying on the server that was the unlawful interception.
If you’re at all interested in this case and the Wiretap Act, then you must check out Orin Kerr’s post at the Volokh Conspiracy, especially the comments to that post. Very erudite discussion.