A Plaintiff sued her former employer alleging violations of the Federal Wiretap Act, the Indiana Wiretap Act and the Stored Communication Act. The facts at issue involved the Plaintiff’s email and banking passwords being recorded by keylogger software on a company computer, allowing the Defendants to access the Plaintiffs email and banking information. Rene v. G.F. Fishers, Inc., 2011 U.S. Dist. LEXIS 105202 (S.D. Ind. Sept. 16, 2011).
The Defendants brought a motion to dismiss, which was granted on the Federal Wiretap cause of action, but denied on the state and Stored Communication Act causes of action. Rene, at *18.
Federal Wiretap Act
The Federal Wiretap Act makes it a crime to intercept electronic communication and also allows for civil damages for an interception. Rene, at *5.
The Federal Wiretap 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.” Rene, at *5, citing 18 U.S.C. § 2510(4). The interception must be “contemporaneously with the communication.” Id.
The Court held that the capturing of keystrokes was not enough for a violation of the Federal Wiretap Act. Rene, at *5. Specifically, keystrokes are not an “electronic communication” under the statute, because the transmission is internally within a computer and not affecting interstate commerce. Rene, at *6-7. As such, the cause of action failed.
The state wiretap act was a different story.
Indiana Wiretap Act
Furthermore, the state wiretap act defined “interception” as “the intentional recording or acquisition of the contents of an electronic communication by a person other than a sender or receiver of that communication, without the consent of the sender or receiver, by means of any instrument, device, or equipment under this article.” Rene, at *10, Ind. Code 35-33.5-1-5.
As the Court noted, “[T]hese definitions are hardly identical.” Rene, at *11.
Moreover, the Indiana statute did not require the communication be transmitted on a system affecting interstate commerce. Rene, at *11.
As the Court explained:
Yet a critical phrase is absent from the IWA — while the FWA requires that a communication be transmitted by a system “affecting interstate or foreign commerce,” the IWA does not include this restriction. This Court’s holding that Rene’s FWA claim fails turns on this important phrase. Absent this phrase, the transmitting system at issue — the cord between keyboard and computer — may satisfy the system requirements for an “electronic communication” under the FWA. Likewise, the system at issue may satisfy the requirements for “electronic communication” under the IWA. Thus, even if the federal requirement of “contemporaneous interception” is grafted on to the statute, the clear absence of this phrase would change the applicable standard for an “interception” under the IWA. While the FWA requires that the interception occur contemporaneously with transmission by a system affecting interstate commerce, the IWA appears to merely require that the interception occur contemporaneously with transmission by a system. For this reason, even if, as the Defendants’ claim, interpretation of the IWA follows federal case law as far as the text allows, Rene’s IWA claim survives.
Rene, at *11-12.
Stored Communications Act
The Defendants claimed the Stored Communication Act cause of action for accessing the Plaintiff’s email failed, because the email messages accessed were not in “electronic storage.” Rene, at *13.
The Stored Communications Act (“SCA”) prohibits “intentionally accessing without authorization a facility through which an electronic communication service is provided,” and accessing an “electronic communication while it is in electronic storage.” Rene, at *13, citing 18 U.S.C. § 2701(a).
“Electronic storage” is as “any temporary, intermediate storage of a[n] . . . electronic communication incidental to the electronic transmission thereof,” and “any storage of such communication by an electronic communication service for purposes of backup protection of such communication.” Rene, at *13, citing 18 USC § 2510(17)(A) and 18 USC § 2510(17)(B).
The Defendants argued that regardless of whether email messages were opened or not, the messages were not in “electronic storage.” Rene, at *13-14.
The Court avoided wading too deep into the issue of whether open email messages are in “electronic storage.” The Court stated that “at a minimum email messages that have reached the addressee’s inbox, but which have yet to be opened by the addressee, are in “temporary, intermediate storage.” Rene, at *14-15. The Court specifically found:
Insofar as an email message waiting to be downloaded had yet to travel the channel between server and local computer, it remained in temporary, intermediate storage incident to transmission. Similarly, inasmuch as an email waiting in an inbox has yet to be accessed by the addressee, even though it may be kept after viewing only on the regional server, it too has yet to travel to its ultimate destination.
Rene, at *16.
The Court found the Plaintiff had alleged enough for her SCA claim to survive with her claims the Defendants had made unauthorized access to her email. Rene, at *17-18.
Bow Tie Thoughts
Privacy, and personal communications being disclosed, is an ever-growing battleground in Court. The fact two different definitions of “interception” can result in one cause of action surviving where another fails is telling of the complexity of these cases.
The 25-year-old Stored Communication Act excels at causes lawyers and judges to engage in Cirque du Soleil style mental acrobatics. The issue of whether or note “electronic storage” includes open webmail messages results in courts analyzing 21st Century email technology to a statute passed in 1986. These issues will continue to be litigated and Congress may ultimately update the Stored Communication Act to reflect the advances in technology.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.