The United States Court of Appeals for the Fifth Circuit addressed the legality of the seizure of a computer used for an electronic bulletin board system (BBS) operated by Steve Jackson Games, Inc. (SJG). The central question was whether this seizure, which included private electronic mail not yet read by recipients, violated the Federal Wiretap Act. The court affirmed the district court's ruling that the seizure did not constitute an unlawful intercept under the Act.
The case stems from an investigation initiated by Henry Kluepfel concerning unauthorized distribution of a text file related to Bell's emergency call system, which led to the involvement of the Secret Service. A warrant was obtained to search SJG's premises on suspicions of federal crimes, including violations of laws against interstate transportation of computer access information and stolen property. The warrant permitted the seizure of computer hardware, software, and related documents. On March 1, 1990, the Secret Service executed the warrant, seizing the computer operating the BBS, which facilitated both public and private communications for its users.
At the time of seizure, the Secret Service accessed 162 items of unread private email stored on a bulletin board system (BBS), which were directed to the individual appellants. The district court determined that Secret Service personnel read and deleted these private emails, despite the agency's denials. In May 1991, the appellants filed a lawsuit against the Secret Service and the United States, alleging violations of the Privacy Protection Act and the Federal Wiretap Act, including both Title I (prohibiting the intentional interception of electronic communications) and Title II (prohibiting unauthorized access to stored electronic communications). The court ruled that the Secret Service breached the Privacy Protection Act, awarding $51,040 in actual damages to SJG, and violated Title II of the ECPA, awarding each individual appellant $1,000 in statutory damages. Additionally, the court granted the appellants $195,000 in attorneys' fees and roughly $57,000 in costs. However, it found that the Secret Service did not "intercept" the emails in violation of Title I of the ECPA because the acquisition of the email contents was not simultaneous with their transmission. The primary legal issue is whether seizing unread emails stored on a BBS constitutes an "intercept" under 18 U.S.C. 2511(1)(a). This statute, part of the 1968 Federal Wiretap Act, was amended in 1986 to include electronic communications. The definition of "intercept" involves the aural or other acquisition of communication contents using electronic or mechanical devices. The appellants had additional damage claims that were later settled, and the Secret Service withdrew its cross-appeal. The definition of "electronic communication" encompasses a broad range of transmitted data, excluding certain types such as cordless phone communications and tone-only paging device communications. Title I of the ECPA raised the maximum statutory damages for unlawful interception from $1,000 to $10,000, while Title II allows for recovery of actual damages and a minimum of $1,000 for violations.
Individual appellants were awarded $1,000 in Title II statutory damages under 18 U.S.C. § 2510(4). The district court determined, based on the precedent set in United States v. Turk, that the Secret Service did not intercept communications since it did not acquire them contemporaneously with their transmission. In Turk, the government obtained an audio recording of a past conversation, which was not considered an "intercept" because it lacked contemporaneous acquisition by the government. Although appellants concur with Turk's definition of "intercept," they argue it does not apply to scenarios where government action prevents delivery of communications prior to receipt. They assert that information stored on bulletin boards could be considered "intercepted" under the Electronic Communications Privacy Act (ECPA), despite not being in transit, claiming that a contrary interpretation undermines Congress's intent to protect electronic communications.
Appellees counter that Title II governs the seizure of stored electronic communications, and appellants have already received damages under this title. The resolution hinges on the interpretation of "intercept," which was broadened by the ECPA in 1986 to include various forms of acquisition beyond mere aural means. The definitions of "aural" and "electronic communication" highlight that electronic communications cannot be acquired through hearing. The Act defines "aural transfer" as any communication containing human voice, while "wire communication" encompasses any aural transfer transmitted via wire or similar means, including electronic storage. Understanding these definitions is critical for applying the ECPA accurately.
An "electronic communication" is defined as any transmission of signs, signals, writing, images, sounds, data, or intelligence via various systems, excluding wire or oral communications, as per 18 U.S.C. 2510(12). Unlike "wire communication," the definition of "electronic communication" does not encompass electronic storage. Electronic storage refers to the temporary storage of a wire or electronic communication during its transmission. Under the Wiretap Act, wire and electronic communications are treated differently; the exclusionary rule applies to intercepted wire communications, including those in electronic storage, but not to electronic communications. The scope of crimes investigable through surveillance of electronic communications is broader than those limited to temporary storage of wire communications.
The legislative intent is clear that "intercept" does not apply to electronic communications when they are in electronic storage, as indicated by Congress's wording choices. While the primary goal of statutory interpretation is to determine legislative intent from the statute's language, the complexity of the Wiretap Act prompts consideration of its legislative history. This history confirms that Congress did not change the definition of "intercept" for electronic communications compared to prior definitions for wire communications. Accessing stored electronic communications requires a search warrant, while stored wire communications necessitate a court order under stricter requirements.
The amendment adding "or other" after "aural" clarifies that intercepting the nonvoice portion of wire communications, such as data or digitized content, is illegal. Title II of the Electronic Communications Privacy Act (ECPA) applies to the Secret Service's actions in this case, as it prohibits unauthorized access to stored wire or electronic communications. Specifically, 18 U.S.C. § 2701(a) states that it is unlawful to intentionally access without authorization a facility providing electronic communication services, leading to unauthorized access to communications in electronic storage. The district court ruled that the Secret Service violated this provision, a conclusion the agency does not contest. Furthermore, there is no legislative intent in the ECPA to allow conduct prohibited under Title II to serve as a basis for civil remedies under Title I. Distinct substantive and procedural requirements exist for accessing stored communications versus intercepting them: a warrant suffices for accessing communications in storage for less than 180 days, while a court order is needed for interception. Additionally, interception mandates minimization requirements to limit irrelevant seizures, which are absent for accessing stored communications. The minimization requirement ensures that law enforcement limits the interception of unrelated conversations, which is not a concern when accessing stored data, as the contents are already available for review.
Interception of electronic communications poses a significant risk of accessing irrelevant communications, which is less pronounced in stored electronic communications due to available technology allowing for targeted keyword searches. The Secret Service claimed to use such searches, although the district court disagreed. Court orders for intercepting communications are strictly regulated regarding duration, limited to a maximum of thirty days (18 U.S.C. 2518(5)), unlike stored communications, which lack similar restrictions. Additionally, while there are specific limitations on the types of crimes that can be investigated through intercepts (18 U.S.C. 2516), no such limitations exist under Title II of the Electronic Communications Privacy Act (ECPA). Access to stored electronic communications requires relevance to a legitimate law enforcement inquiry (18 U.S.C. 2703(d)), indicating that Congress did not intend to impose the stricter interception requirements on access to stored communications. The appellants argued that the reference in 2701(c) to 2518 suggested overlap between Titles I and II of the ECPA, but this perspective overemphasizes the significance of that reference. Congress intended to differentiate between wire and electronic communications, requiring a warrant for stored electronic communications (18 U.S.C. 2703) and a court order for stored wire communications under 2518. Section 2703 outlines the conditions for government access to electronic communications based on their storage duration, specifying access protocols for communications stored for 180 days or less and those stored longer. Section 2704 allows governmental entities to require service providers to maintain duplicates of requested electronic communications. The judgment is affirmed.
