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

[Arnold G. Reinhold]

At 4:57 PM -0500 3/5/03, John S. Denker wrote:
>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".

I2ANAL, but I don't think that's clear at all, unless your are 
talking about specific paragraphs within the Wiretap Act and the 
Stored Communications Act.

>
>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post-9/11 laws have superseded everything you might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.

The Konop decision specifically talks about government intercepts. 
See section B7, for example. They even discuss the post 9/11 
situation in B6.

>
>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.

Add the Railway Labor Act in this case.

>
>
>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)?????
>

There are some who would argue that the simple password protection 
scheme Knopp used would be a "technological protection" covered under 
DMCA.  However, the penalty for access to protected material, as 
opposed to trafficking in technology, is a $2000 fine, which may not 
seem draconian to an airline.


Arnold Reinhold

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