Privacy & Cybersecurity Law Blog

The United States Court of Appeals for the Seventh Circuit has rejected a defendant’s argument that the Wiretap Act’s prohibition on interception of communications applies only to an acquisition that is contemporaneous with the communication.  In United States v. Szymuszkiewicz, No. 07-CR-171 (7th Cir. Sept. 9, 2010), the defendant faced criminal charges under the Wiretap Act for having implemented an automatic forwarding rule in his supervisor’s Outlook email program that caused the workplace email server to automatically forward him a copy of all emails addressed to his supervisor.  The defendant argued that (i) the forwarding happened only after the email arrived at its intended destination and was thus not contemporaneous with the communication, (ii) the Wiretap Act prohibits only unauthorized contemporaneous interceptions (i.e., only interceptions of communications “in flight” as opposed to communications at rest or in storage), and (iii) only the Stored Communications Act applies to unauthorized access to non-contemporaneous communications.

Writing for a unanimous panel that included Circuit Judges Posner and Kanne, Chief Judge Easterbrook acknowledged that several other circuits have said that, to violate the Wiretap Act, an interception must be “contemporaneous” with the communication.   Fraser v. Nationwide Mutual Insurance Co., 352 F.3d 107, 113 (3d Cir. 2003); Steve Jackson Games, Inc. v. Secret Service, 36 F.3d 457 (5th Cir. 1994); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002); United States v. Steiger, 318 F.3d 1039, 1047 (11th Cir. 2003).  Decisions following those cases have sometimes reasoned that because the Stored Communications Act imposes penalties for clandestinely accessing information held “in electronic storage,” the Wiretap Act applies only to other communications, i.e., those “in flight” or “in transit.”  The panel in Szymuszkiewicz, however, rejected this line of reasoning on the ground that it had no support in the language of the Wiretap Act.  The court noted that its decision promotes the continued viability of the Wiretap Act in an era in which people increasingly rely on email, voice-over-IP ("VoIP") telephony and other communications technologies that depend on certain forms of storage of communications.