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

John S. Denker jsd at monmouth.com
Wed Mar 5 16:57:17 EST 2003


Tim Dierks wrote:

 > 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
[US v Councilman:]
 >  http://pacer.mad.uscourts.gov/dc/opinions/ponsor/pdf/councilman2.pdf

Well done.  Thanks.

 > 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.

0) IANAL.  But as to the question of "same code", the
answer is clearly "no".

1) As to government-authorized intercepts, see

http://www.eff.org/Privacy/Surveillance/Terrorism_militias/20011031_eff_usa_patriot_analysis.html

which gives a plain-language discussion of at least
eight different standards under which some sort of
authorization could be obtained.

Also note that neither Konop nor Councilman involved
government intercepts, so you can't learn anything about
authorized intercepts by studying them.  Also note that
post-9/11 laws have superseded everything you might
previously have known on the subject.

2) As to intercepts by civilians, it's wrong, and it
may be punishable under many different theories and
standards, including invasion of privacy, copyright
infringement, computer trespass, computer vandalism,
simple theft of things of value, and who-knows-what
else.

3) As to unauthorized intercepts by government agents,
in "theory" it is exactly the same as item (2), but
in practice your chance of seeing anybody punished
for it is comparable to your chance of seeing a State
Trooper ticketed for speeding, tailgating, weaving,
and failing to signal turns enroute to the donut shop.
They're doing God's work, you know;  why should mere
laws and bills of rights apply to them?  About the
best you can realistically hope for is the exclusionary
rule (illegally siezed evidence can't be used against
you) but I wouldn't necessarily count on that.

4) Crypto-related sidelight: I wonder what would
have happened if Konop had encrypted his sensitive
data. (eBook format or the like. :-)  Then could he
have used the draconian provisions of the DMCA
against his opponent (Hawaiian Airlines)?????


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