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Intellectual Property Law: The TechKnowledgy Blog
Case highlights disagreement over interpretation of Wiretap Act
By Steve Cosentino
The 7th Circuit recently ruled on a wiretap case involving an employee who set up an Outlook auto forward rule to intercept email communications from his boss. US v. Szymuszkewicz (7th Circuit, 2010). The Court correctly ruled that this sort of email interception violated the Wiretap Act. However, dicta from Judge Eastbrook in the case has raised some interesting discussion regarding the requirement of contemporaneousness, or the lack thereof, under the Wiretap Act. In other words, does the interception of data need to occur at the same time as its transmission? Judge Eastbrook presented an interesting analogy comparing inbox access to using a code to intercept messages on an old fashioned answering machine. He concluded that such use could violate the Wiretap Act and thus contemporaneousness was not required. Courts and commentators disagree on this issue.
Orin Kerr presents an interesting analysis of the contemporaneousness requirement by discussing the history of the Wiretap Act, its purpose as a criminal procedure statute and its relationship to the Stored Communications Act. Kerr points out that the original Wiretap Act was passed in response to the landmark Berger v New Yorkcase, giving special privacy concerns to real time wiretapping. He discusses the procedure required for the government to obtain a court order permitting wiretapping and the fact that such an order is necessarily specified to cover a defined period of time. Thus, the Wiretap Act is meant to address active transmissions during a set time period. This contrasts with the Stored Communications Act, which addresses government access to computer data in storage.
From a practitioner's context in an employment matter, whether the Wiretap Act has a contemporaneous requirement and overlaps the Stored Communications Act is somewhat a matter of semantics. However, the statutes are viewed as codes of criminal procedure, as Kerr points out, and an interpretation that makes them overlap could produce odd results. For example, a properly obtained warrant under the Stored Communications Act could, at the same time, violate the Wiretap Act if the Wiretap Act is read to be broad enough to prohibit access to stored information. The practitioner should keep this controversy in mind when considering violations by employees under the statutes.
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