Wiretap Act Covers Emails In Temporary Storage, Appeals Court Says

The law governing both private and governmental acquisition of Internet communications has been a perennial source of confusion for lawyers and service providers alike. Courts for years have struggled with questions such as whether a communication was "in transmission," and therefore subject to the rules of the Wiretap Act, or whether it was "in storage," and therefore subject to the less stringent Stored Communications Act (SCA). Indeed, the question has almost literally made heads spin, causing judges to change their minds in the same case after having already issued a decision. On August 11, the First Circuit, sitting en banc, added another decision to the mix. In United States v. Councilman, the court reversed an earlier panel decision and held that email messages stored temporarily as part of the transmission process are covered by the federal Wiretap Act, and that an email provider could be prosecuted under that Act for allegedly intercepting and copying his customers' emails before they were delivered. Though this was the result sought by government prosecutors and by some privacy advocates, the court's failure to clarify the boundaries between the Wiretap Act and the SCA could have unintended effects down the road both for Internet providers and for individual privacy rights.