Wiretap Act Does Not Cover Message 'in Storage' For Short Period

[Tim Dierks]

At 01:47 PM 3/2/2003 +0000, MindFuq wrote:
>* Tim Dierks <tim at dierks.org> [2003-03-02 12:27]:
> >
> > 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.
>
>I believe the reason behind the 'in storage' rule is that someone
>could protect non-transmitted information under the Wiretap Act by
>transmitting it needlessly.  Then they could say that because the
>information was transmitted, law enforcement now needs the more
>difficult to obtain wiretap permit just to search the premesis.

You may be correct as to intent, but the originally forwarded article says:

 > 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.

which includes the phrase "along the path of transmission."

In order to avoid overreaction to a nth-hand story, I've attempted to 
locate some primary sources.

Konop v. Hawaiian Airlines:
   http://laws.lp.findlaw.com/getcase/9th/case/9955106p&exact=1

My understanding is that Konop v. Hawaiian Airlines was a lawsuit by Robert 
Konop against his former employer, Hawaiian Airlines. Mr. Konop had 
operated a website where he published a variety of allegations about 
Hawaiian, and he restricted access to that site by username and password. A 
manager at Hawaiian gained the permission of two other employees of the 
airline to use their names in accessing the website; Konop found out about 
the access and sued Hawaiian. Among other grounds, he claimed that 
management viewing his site constituted an "interception" of electronic 
communications in violation of the wiretap act.

I won't go into any argument about the plausibility of this claim; I'll 
just summarize the legal proceedings thereafter. The federal district court 
which heard the case granted summary judgement against Konop on the wiretap 
claims; the 9th circuit court of appeals then reversed the district court's 
decision on the wiretap claims. Thereafter, the 9th circuit withdrew that 
opinion, then affirmed the district court's original judgement against 
Konop. Thus, the end result is that the wiretap claim does not hold. Why?

Amid other reasoning, the court refers to an old friend, Steve Jackson 
Games, Inc. v. United States Secret Service. In summary, the fifth circuit 
court determined that e-mail stored on a machine was not protected by the 
wiretap act, because an "electronic communication" cannot be "intercepted" 
in the same way that a "wire communication" can be. This reasoning has been 
upheld with respect to voicemail messages.

There is a footnote that specifically addresses the interesting question: 
that all electronic messages involve storage at some point, so the wiretap 
act is meaningless with respect to electronic communication. The crucial 
conclusion is:

>While this argument is not without appeal, the language and structure of 
>the ECPA demonstrate that Congress considered and rejected this argument. 
>Congress defined "electronic storage" as "any temporary, intermediate 
>storage of a wire or electronic communication incidental to the electronic 
>transmission thereof," 18 U.S.C. § 2510(17)(A), indicating that Congress 
>understood that electronic storage was an inherent part of electronic 
>communication. Nevertheless, as discussed above, Congress chose to afford 
>stored electronic communications less protection than other forms of 
>communication.


United States of America vs. Bradford S. Councilman:
   http://pacer.mad.uscourts.gov/dc/opinions/ponsor/pdf/councilman2.pdf

The Government charged Mr. Councilman with conspiracy to violate the 
wiretap act. Apparently, they claim that he used the contents of electronic 
mail passing through his service for commercial gain.

The judge seems quite aware of the implications of the decision and the 
effect of the Konop precedent, but dismisses the charge.

Based upon this rationale, it seems that one cannot be convicted of 
violating the wiretap act unless one actually taps into electric signals. 
For example, it would seem to continue to be illegal to intercept 802.11 RF 
signals, but possible not be illegal to plug a cable into an ethernet hub 
and copy all traffic on the subnet (since most hubs "store" packets 
internally for transmission), and perfectly OK to subvert a router to 
forward copies of all packets to you.

I'd be interested in any opinions on how this affects the government's need 
to get specific wiretap warrants; I don't know if the law which makes 
illicit civilian wiretapping illegal is the same code which governs the 
government's ability (or lack thereof) to intercept communications.

  - Tim



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