United States v. Councilman and the Scope of the Wiretap Act: Do Old Laws Cover New Technologies?

June 16, 2012

In United States v. Councilman, the First Circuit Court of Appeals addressed the complex issue of when the Wiretap Act protects electronic communication. In a split decision, the First Circuit upheld the district court ruling, holding that an Internet service provider (“ISP”) does not violate criminal wiretap laws when it copies and reads customers’ email messages without their consent. The First Circuit reasoned that the intercept provisions of the Wiretap Act did not apply due to the fact that the messages were held in electronic storage. As of October 5, 2004, a majority of the First Circuit judges voted to withdraw and vacate their prior judgment and rehear the case en banc. This Comment examines the First Circuit’s decision in Councilman and argues that the court incorrectly interpreted and applied settled law to the unique facts of the case, thereby impermissibly allowing electronic communications that are characterized simultaneously as “in transit” and “in storage” to be acquired by ISPs without violating either the Wiretap Act or the SCA. This Comment proposes that in rehearing the case, the court should avoid a narrow construction of the Wiretap Act because such an interpretation leads to outcomes that are contrary to public policy. Furthermore, in rehearing the case, the court should construe the ECPA as a whole statute, not as two separate titles.