Course No. 9200 711 001
Th 6:30 - 9:30 p.m.
|Professor Jay Dratler, Jr.||
Room 231D (IP Alcove)
|Copyright © 2000, 2001, 2002, 2004, 2007 Jay Dratler, Jr. For permission, see CMI.|
Steve Jackson Games, Inc. v. United States Secret Service36 F.3d 457, 1994 U.S. App. LEXIS 30323 (5th Cir. 1994)
[*458] Rhesa Hawkins Barksdale, Circuit Judge:
The narrow issue before us is whether the seizure of a computer, used to operate an electronic bulletin board system, and containing private electronic mail which had been sent to (stored on) the bulletin board, but not read (retrieved) by the intended recipients, constitutes an unlawful intercept under the Federal Wiretap Act, 18 U.S.C. § 2510, et seq., as amended by Title I of the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, Title I, 100 Stat. 1848 (1986). We hold that it is not, and therefore AFFIRM.
The district court's findings of fact are not in dispute. Appellant Steve Jackson Games, Incorporated (SJG), publishes books, magazines, role-playing games, and related products. Starting in the mid-1980s, SJG operated an electronic bulletin board system, called "Illuminati" (BBS), from one of its computers. . . .
Central to the issue before us, the BBS also offered customers the ability to send and receive private E-mail. Private E-mail was stored on the BBS computer's hard disk drive temporarily, until the addressees "called" the BBS (using their computers and modems) and read their mail. After reading their E-mail, the recipients could choose to either store it on the BBS computer's hard drive or delete it. . . .
In October 1988, Henry Kluepfel, Director of Network Security Technology (an affiliate Bell Company), began investigating the unauthorized [*459] duplication and distribution of a computerized text file, containing information about Bell's emergency call system. In July 1989, Kluepfel informed Secret Service Agent Foley and an Assistant United States Attorney in Chicago about the unauthorized distribution. In early February 1990, Kluepfel learned that the document was available on the "Phoenix Project" computer bulletin board, which was operated by Loyd Blankenship in Austin, Texas; that Blankenship was an SJG employee; and that, as a co-systems operator of the BBS, Blankenship had the ability to review and, perhaps, delete any data on the BBS.
On February 28, 1990, Agent Foley applied for a warrant to search SJG's premises and Blankenship's residence for evidence of violations of 18 U.S.C. §§ 1030 (proscribes interstate transportation of computer access information) and 2314 (proscribes interstate transportation of stolen property). A search warrant for SJG was issued that same day . * * *
The next day, March 1, the warrant was executed by the Secret Service, including Agents Foley and Golden. Among the items seized was the computer which operated the BBS. At the time of the seizure, 162 items of unread, private E-mail were stored on the BBS, including items addressed to the individual appellants. Despite the Secret Service's denial, the district court found that Secret Service personnel or delegates read and deleted the private E-mail stored on the BBS.
Appellants filed suit in May 1991 against, among others, the Secret Service and the United States, claiming, inter alia, violations of the Privacy Protection Act, 42 U.S.C. § 2000aa, et seq.(1); the Federal Wiretap Act, as amended by Title I of the Electronic Communications Privacy Act (ECPA), 18 U.S.C. §§ 2510-2521 (proscribes, inter alia, the intentional interception of electronic communications); and Title II of the ECPA, 18 U.S.C. §§ 2701-2711 (proscribes, inter alia, intentional access, without authorization, to stored electronic communications).(2)
The district court held that the Secret Service violated the Privacy Protection Act, and awarded actual damages of $ 51,040 to SJG; and that it violated Title II of the ECPA by seizing stored electronic communications without complying with the statutory provisions, and awarded the statutory damages of $ 1,000 to each of the individual appellants. And, it awarded appellants $ 195,000 in attorneys' fees and approximately $ 57,000 in costs. But, it held that the Secret Service did not "intercept" the E-mail in violation of Title I of the ECPA, 18 U.S.C. § 2511(1)(a), because its acquisition of the contents of the electronic communications was not contemporaneous [*460] with the transmission of those communications.
As stated, the sole issue is a very narrow one: whether the seizure of a computer on which is stored private E-mail that has been sent to an electronic bulletin board, but not yet read (retrieved) by the recipients, constitutes an "intercept" proscribed by 18 U.S.C. § 2511(1)(a).
Section 2511 was enacted in 1968 as part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, often referred to as the Federal Wiretap Act. Prior to the 1986 amendment by Title I of the ECPA, it covered only wire and oral communications. Title I of the ECPA extended that coverage to electronic communications.(3) In relevant part, § 2511(1)(a) proscribes "intentionally intercepting . . . any wire, oral, or electronic communication", unless the intercept is authorized by court order or by other exceptions not relevant here. Section 2520 authorizes, inter alia, persons whose electronic communications are intercepted in violation of § 2511 to bring a civil action against the interceptor for actual damages, or for statutory damages of $ 10,000 per violation or $ 100 per day of the violation, whichever is greater. 18 U.S.C. § 2520.(4)
The Act defines "intercept" as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. § 2510(4). The district court, relying on our court's interpretation of intercept in United States v. Turk, 526 F.2d 654 (5th Cir.), cert. denied 429 U.S. 823, 97 S.Ct. 74, 50 L.Ed.2d 84 (1976), held that the Secret Service did not intercept the communications, because its acquisition of the contents of those communications was not contemporaneous with their transmission. In Turk, the government seized from a suspect's vehicle an audio tape of a prior conversation between the suspect and Turk. (Restated, when the conversation took place, it was not recorded contemporaneously by the government.) Our court held that replaying the previously recorded conversation was not an "intercept", because an intercept "requires participation by the one charged with an ‘interception' in the contemporaneous acquisition of the communication through the use of the device."
Appellants agree with Turk's holding, but contend that it is not applicable, because it "says nothing about government action that both acquires the communication prior to its delivery, and prevents that delivery." (Emphasis by appellants.) Along that line, appellants note correctly that Turk's interpretation of "intercept" predates the ECPA, and assert, in essence, that the information stored on the BBS could still be "intercepted" under the Act, even though it was not in transit. They maintain that to hold otherwise does violence to Congress' purpose in enacting the ECPA, to include providing protection for E-mail and bulletin boards. For the most part, appellants fail to even discuss the pertinent provisions of the Act, much less address their application. Instead, they [*461] point simply to Congress' intent in enacting the ECPA and appeal to logic (i.e., to seize something before it is received is to intercept it).
But, obviously, the language of the Act controls. * * * As appellees note, the issue is not whether E-mail can be "intercepted"; it can. Instead, at issue is what constitutes an "intercept".
Prior to the 1986 amendment by the ECPA, the Wiretap Act defined "intercept" as the "aural acquisition" of the contents of wire or oral communications through the use of a device. 18 U.S.C. § 2510(4) (1968). The ECPA amended this definition to include the "aural or other acquisition of the contents of . . . wire, electronic, or oral communications. . . ." 18 U.S.C. § 2510(4) (1986) (emphasis added for new terms). The significance of the addition of the words "or other" in the 1986 amendment to the definition of "intercept" becomes clear when the definitions of "aural" and "electronic communication" are examined; electronic communications (which include the non-voice portions of wire communications), as defined by the Act, cannot be acquired aurally.
Webster's Third New International Dictionary (1986) defines "aural" as "of or relating to the ear" or "of or relating to the sense of hearing". And, the Act defines "aural transfer" as "a transfer containing the human voice at any point between and including the point of origin and the point of reception." 18 U.S.C. § 2510(18). This definition is extremely important for purposes of understanding the definition of a "wire communication", which is defined by the Act as
Critical to the issue before us is the fact that, unlike the definition of "wire communication", the definition of "electronic communication" does not include electronic storage of such communications.(5) "Electronic storage" is defined as
We could stop here, because[,] indisputably, the goal of statutory construction is to ascertain legislative intent through the plain language of a statute—without looking to legislative history or other extraneous sources. But, when interpreting a statute as complex as the Wiretap Act, which is famous (if not infamous) for its lack of clarity, . . . we consider it appropriate to note the legislative history for confirmation of our understanding of Congress' intent.
As the district court noted, the ECPA's legislative history makes it crystal clear that Congress did not intend to change the definition of "intercept" as it existed at the time of the amendment. The Senate Report explains:
Our conclusion is reinforced further by consideration of the fact that Title II of the ECPA clearly applies to the conduct of the Secret Service in this case. * * *
Title II generally proscribes unauthorized access to stored wire or electronic communications. Section 2701(a) provides:
As stated, the district court found that the Secret Service violated § 2701 when it
First, the substantive and procedural requirements for authorization to intercept electronic communications are quite different from those for accessing stored electronic communications. For example, a governmental entity may gain access to the contents of electronic communications that have been in electronic storage for less than 180 days by obtaining a warrant. See 18 U.S.C. § 2703(a). But there are more stringent, complicated requirements for the interception of electronic communications; a court order is required. See 18 U.S.C. § 2518.
Second, other requirements applicable to the interception of electronic communications, such as those governing minimization, duration, and the types of crimes that may be investigated, are not imposed when the communications at issue are not in the process of being transmitted at the moment of seizure, but instead are in electronic storage. For example, a court order authorizing interception of electronic communications is required to include a directive that the order shall be executed "in such a way as to minimize the interception of communications not otherwise subject to interception". 18 U.S.C. § 2518(5). Title II of the ECPA does not contain this requirement for warrants authorizing access to stored electronic communications. The purpose of the minimization requirement is to implement "the constitutional obligation of avoiding, to the greatest possible extent, seizure of conversations which have no relationship to the crimes being investigated or the purpose for which electronic surveillance has been authorized". James G. Carr, The Law of Electronic Surveillance, § 5.7(a) at 5-28 (1994).
Obviously, when intercepting electronic communications, law enforcement officers cannot know in advance which, if any, of the intercepted communications will be relevant to the crime under investigation, and often will have to obtain access to the contents of the communications in order to make such a determination. Interception thus poses a significant risk that officers will obtain access to communications which have no relevance to the investigation they are conducting. That risk is present to a lesser degree, and can be controlled more easily, in the context of stored electronic communications, because, as the Secret Service advised the district court, technology exists by which relevant communications can be located without the necessity of reviewing the entire contents of all of the stored communications. For example, the Secret Service claimed (although the district court found otherwise) that it reviewed the private E-mail on the BBS by use of key word searches.
Next, as noted, court orders authorizing an intercept of electronic communications are subject to strict requirements as to duration. An intercept may not be authorized "for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days". 18 U.S.C. § 2518(5). There is no such requirement for access to stored communications.
Finally, as also noted, the limitations as to the types of crimes that may be investigated through an intercept, see 18 U.S.C. § 2516, have no counterpart in Title II of the ECPA. See, e.g., 18 U.S.C. § 2703(d) (court may order a provider of electronic communication service or remote computing service to disclose to a governmental entity the contents of a stored electronic communication on a showing that the information sought is "relevant to a legitimate law enforcement inquiry").
In light of the substantial differences between the statutory procedures and requirements for obtaining authorization to intercept electronic communications, on the one hand, and to gain access to the contents of stored electronic communications, on the other, it is most unlikely that Congress intended to require law enforcement officers to satisfy the more stringent requirements for an intercept in order to gain access to the contents of stored electronic communications.(7) [*464]
At oral argument, appellants contended (for the first time) that Title II's reference in § 2701(c) to § 2518 (which sets forth the procedures for the authorized interception of wire, oral, or electronic communications) reflects that Congress intended considerable overlap between Titles I and II of the ECPA. As stated, § 2701(a) prohibits unauthorized access to stored wire or electronic communications. Subsection (c) of § 2701 sets forth the exceptions to liability under subsection (a), which include conduct authorized:
18 U.S.C. § 2701 (c) (emphasis added)(8)
Appellants overemphasize the significance of this reference to § 2518. As discussed in notes 6-7, supra, it is clear that Congress intended to treat wire communications differently from electronic communications. Access to stored electronic communications may be obtained pursuant to a search warrant, 18 U.S.C. § 2703; but, access to stored wire communications requires a court order pursuant to § 2518. Because § 2701 covers both stored wire and electronic communications, it was necessary in subsection (c) to refer to the different provisions authorizing access to each.
For the foregoing reasons, the judgment is AFFIRMED.
2. [court's footnote 2] Kluepfel, the
Assistant United States Attorney, and Agents Foley and Golden were also
sued. In addition to the statutory claims, appellants also claimed
violations of the First and Fourth Amendments to the United States Constitution.
And, in September 1992, they added state law claims for conversion
and invasion of privacy. Prior to trial, the claims against the
individuals were dismissed, and appellants withdrew their constitutional
and state law claims.
4. [court's footnote 5] Title I of
the ECPA increased the statutory damages for unlawful interception from
$ 1,000 to $ 10,000. On the other hand, as noted, Title II authorizes
an award of "the actual damages suffered by the plaintiff and any profits
made by the violator as a result of the violation, but in no case . .
. less than the sum of $ 1000". 18 U.S.C. § 2707(c). As discussed,
the individual appellants each received Title II statutory damages of
5. [court's footnote 6] Wire and electronic
communications are subject to different treatment under the Wiretap Act.
The Act's exclusionary rule, 18 U.S.C. § 2515, applies to the interception
of wire communications, including such communications in electronic storage,
see 18 U.S.C. § 2510(1), but not to the interception of electronic communications.
See 18 U.S.C. § 2518(10)(a); United States v. Meriwether,
917 F.2d 955, 960 (6th Cir.1990); S.Rep. No. 99-541, 99th Cong., 2d Sess.
23 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3577. And, the types
of crimes that may be investigated by means of surveillance directed at
electronic communications, 18 U.S.C. § 2516(3) ("any federal felony"),
are not as limited as those that may be investigated by means of surveillance
directed at wire or oral communications. See 18 U.S.C. § 2516(1)
(specifically listed felonies).
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6. [court's footnote 7] Stored wire
communications are subject to different treatment than stored electronic
communications. Generally, a search warrant, rather than a court order,
is required to obtain access to the contents of a stored electronic communication.
See 18 U.S.C. § 2703(a). But, compliance with the more stringent
requirements of § 2518, including obtaining a court order, is necessary
to obtain access to a stored wire communication, because § 2703 expressly
applies only to stored electronic communications, not to stored wire communications.
See James G. Carr, The Law of Electronic Surveillance, § 4.10, at
4-126 - 4-127 (1994) (citing H.R.Rep. No. 99-647, 99th Cong., 2d Sess.
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7. [court's footnote 8] The ECPA legislative
history's explanation of the prohibitions regarding disclosure also persuades
us of the soundness of Turk's interpretation of "intercept" and
our understanding of the distinctions Congress intended to draw between
communications being transmitted and communications in electronic storage.
In describing Title II's prohibitions against disclosure of the
contents of stored communications, the Senate Report points out that §
2702(a) (part of Title II) "generally prohibits the provider of a wire
or electronic communication service to the public from knowingly divulging
the contents of any communication while in electronic storage by
that service to any person other than the addressee or intended recipient."
S.Rep. No. 99-541, 97th Cong. 2nd Sess. 37, 1986 U.S.C.C.A.N. 3555,
3591 (emphasis added). It then goes on to state that § 2511(3) of
the Wiretap Act, as amended by Title I of the ECPA, "prohibits such a
provider from divulging the contents of a communication while it is
in transmission". Id. (emphasis added).
8. [court's footnote 10] Section 2703
sets forth the requirements for governmental access to the contents of
electronic (but not wire) communications. For electronic communications
that have been in electronic storage for 180 days or less, the government
can gain access to the contents pursuant to a federal or state warrant.
18 U.S.C. § 2703(a). For communications that are maintained
by a remote computing service and that have been in storage for more than
180 days, the government can gain access by obtaining a warrant, by administrative
or grand jury subpoena, or by obtaining a court order pursuant to § 2703(d).
18 U.S.C. § 2703(b).