Wiretap Act Does Not Cover Message 'in Storage' For Short Period (was Re: BNA's Internet Law News (ILN) - 2/27/03)

[Tim Dierks]

At 01:39 PM 2/27/2003 -0500, R. A. Hettinga wrote:
>At 9:01 AM -0500 on 2/27/03, BNA Highlights wrote:
> > WIRETAP ACT DOES NOT COVER MESSAGE 'IN STORAGE' FOR SHORT
> > PERIOD
> > BNA's Electronic Commerce & Law Report reports that a
> > federal court in Massachusetts has ruled that the federal
> > Wiretap Act does not prohibit the improper acquisition of
> > electronic communications that were "in storage" no matter
> > how ephemeral that storage may be. The court relied on Konop
> > v. Hawaiian Airlines Inc., which held that no Wiretap Act
> > violation occurs when an electronic communication is
> > accessed while in storage, "even if the interception takes
> > place during a nanosecond 'juncture' of storage along the
> > path of transmission."  Case name is U.S. v. Councilman.
> > Article at
> > <http://pubs.bna.com/ip/BNA/eip.nsf/is/a0a6m6y1k8>
> > For a free trial to source of this story, visit
> > http://web.bna.com/products/ip/eplr.htm

This would seem to imply to me that the wiretap act does not apply to any 
normal telephone conversation which is carried at any point in its transit 
by an electronic switch, including all cell phone calls and nearly all 
wireline calls, since any such switch places the data of the ongoing call 
in "storage" for a tiny fraction of a second.

  - Tim



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