Defining an Intercept under Wiretap Act


The media has picked up on a case in the 9th Circuit that examines the definition of an “intercept” under the Wiretap Act. The district court judge in Bunnell v. Motion Picture Association of America found that a hacker had not “intercepted” messages when he simply copied messages being sent via company servers to a Google Mail account. The judge ruled that because the hacker “did not stop or seize” the messages, there was no intercept.

There are two reasons that such a decision should not stand. First, Judge Florence-Marie Cooper found that “under . . . the ordinary meaning of the word 'intercept,' [the hacker’s] acquisitions of the e-mails did not violate the Wiretap Act.” A quick look at the dictionary entry for the word “intercept,” however, seems to disagree. The second entry for intercept reads “to see or overhear (a message, transmission, etc., meant for another): We intercepted the enemy's battle plan.” The hacker in this case “saw or overheard” e-mail messages, so the “ordinary meaning” argument falls somewhat flat. This is particularly true when Section 2510(4) of the Wiretap Act defines the word “intercept” as being the “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.”

Second, the (seemingly) clear policy initiative of the Wiretap Act is that “Interception and disclosure of wire, oral, or electronic communications [are] prohibited.” It’s hard to fathom that Congress intended to allow such “copy and forward” procedures. Particularly when the headings in the Wiretap Act are as concerned with “disclosure” as “interception.”

While the 9th Circuit’s decision won’t be binding on other Circuits, it’s worth watching. A decision upholding the lower court will definitely lead to renewed privacy fears in both a criminal and civil vein.

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