U.S. v. Councilman

Citation418 F.3d 67
Decision Date11 August 2005
Docket NumberNo. 03-1383.,03-1383.
PartiesUNITED STATES of America, Appellant, v. Bradford C. COUNCILMAN, Defendant, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

John A. Drennan, Criminal Appellate Attorney, U.S. Department of Justice, with whom Michael J. Sullivan, U.S. Attorney, Paul G. Levenson, Assistant U.S. Attorney, and Paul K. Ohm, Trial Attorney, U.S. Department of Justice, were on brief, for appellant.

Andrew Good, with whom Matthew Zisow and Good & Cormier were on brief, for appellee.

Patricia L. Bellia and Peter P. Swire on brief for Senator Patrick J. Leahy, amicus curiae.

Marc Rotenberg and Marcia Hofmann on brief for Whitfield Diffie, Edward W. Felten, John R. Levine, Peter G. Neumann, and Bruce Schneier, amici curiae.

Shayana Kadidal and Carlos E. Gonzalez on brief, pro se, amici curiae.

Orin S. Kerr on brief for Center for Democracy and Technology, Electronic Frontier Foundation, Electronic Privacy Information Center, American Library Association, American Civil Liberties Union, and Center for National Security Studies, amici curiae.

Before BOUDIN, Chief Judge, TORRUELLA and SELYA, Circuit Judges, CYR, Senior Circuit Judge, LYNCH, LIPEZ, and HOWARD, Circuit Judges.

Opinion En Banc

LIPEZ, Circuit Judge.

This case presents an important question of statutory construction. We must decide whether interception of an e-mail message in temporary, transient electronic storage states an offense under the Wiretap Act, as amended by the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2522. The government believes it does, and indicted Councilman under that theory. The district court disagreed and dismissed the indictment. A divided panel of this court affirmed. We granted review en banc and now reverse.1

A. An Introduction to Internet E-mail

The Internet is a network of interconnected computers. Data transmitted across the Internet are broken down into small "packets" that are forwarded from one computer to another until they reach their destination, where they are reconstituted. See Orin S. Kerr, Internet Surveillance Law After the USA Patriot Act: The Big Brother that Isn't, 97 Nw. U.L.Rev. 607, 613-14 (2003). Each service on the Internet — e.g., e-mail, the World Wide Web, or instant messaging — has its own protocol for using packets of data to transmit information from one place to another. The e-mail protocol is known as Simple Mail Transfer Protocol ("SMTP").

After a user composes a message in an e-mail client program,2 a program called a mail transfer agent ("MTA") formats that message and sends it to another program that "packetizes" it and sends the packets out to the Internet. Computers on the network then pass the packets from one to another; each computer along the route stores the packets in memory, retrieves the addresses of their final destinations, and then determines where to send them next. At various points the packets are reassembled to form the original e-mail message, copied, and then repacketized for the next leg of the journey. See J. Klensin, RFC 2821: Simple Mail Transfer Protocol (Apr.2001), at http://www.ietf.org/rfc/rfc2821.txt; Jonathan B. Postel, RFC 821: Simple Mail Transfer Protocol (Aug.1982), at http://www.ietf.org/rfc/rfc821.txt ("RFC 821"). Sometimes messages cannot be transferred immediately and must be saved for later delivery. Even when delivery is immediate, intermediate computers often retain backup copies, which they delete later. This method of transmission is commonly called "store and forward" delivery.

Once all the packets reach the recipient's mail server, they are reassembled to form the e-mail message. A mail delivery agent ("MDA") accepts the message from the MTA, determines which user should receive the message, and performs the actual delivery by placing the message in that user's mailbox. One popular MDA is "procmail," which is controlled by short programs or scripts called "recipe files." These recipe files can be used in various ways. For example, a procmail recipe can instruct the MDA to deposit mail addressed to one address into another user's mailbox (e.g., to send mail addressed to "help" to the tech support department), to reject mail from certain addresses, or to make copies of certain messages.

Once the MDA has deposited a message into the recipient's mailbox, the recipient simply needs to use an e-mail client program to retrieve and read the message.3 While the journey from sender to recipient may seem rather involved, it usually takes just a few seconds, with each intermediate step taking well under a second. See, e.g., W. Houser et al., RFC 1865: EDI Meets the Internet (Jan.1996), at http://www.ietf.org/rfc/rfc1865.txt ("For a modest amount of data with a dedicated connection, a message transmission would occur in a matter of seconds. . . .").

B. Facts Alleged in the Indictment

Defendant-appellee Bradford C. Councilman was Vice President of Interloc, Inc., which ran an online rare and out-of-print book listing service. As part of its service, Interloc gave book dealer customers an e-mail address at the domain "interloc.com" and acted as the e-mail provider. Councilman managed the e-mail service and the dealer subscription list.

According to the indictment, in January 1998, Councilman directed Interloc employees to intercept and copy all incoming communications to subscriber dealers from Amazon.com, an Internet retailer that sells books and other products. Interloc's systems administrator modified the server's procmail recipe so that, before delivering any message from Amazon.com to the recipient's mailbox, procmail would copy the message and place the copy in a separate mailbox that Councilman could access. Thus, procmail would intercept and copy all incoming messages from Amazon.com before they were delivered to the recipient's mailbox, and therefore, before the intended recipient could read the message. This diversion intercepted thousands of messages, and Councilman and other Interloc employees routinely read the e-mail messages sent to Interloc subscribers in the hope of gaining a commercial advantage.

C. Procedural History

On July 11, 2001, a grand jury returned a two-count indictment against Councilman. Count One charged him under 18 U.S.C. § 371, the general federal criminal conspiracy statute, for conspiracy to violate the Wiretap Act, 18 U.S.C. § 2511,4 by intercepting electronic communications, disclosing their contents, using their contents, and causing a person providing an electronic communications service to divulge the communications' contents to persons other than the addressees.5 The object of the conspiracy was to exploit the content of e-mail from Amazon.com to dealers in order to develop a list of books, learn about competitors, and attain a commercial advantage for Interloc and its parent company.6

The parties stipulated to certain undisputed facts: the procmail recipe worked only within the confines of Interloc's computer; at all times at which procmail performed operations affecting the e-mail system, the messages existed "in the random access memory (RAM) or in hard disks, or both, within Interloc's computer system"; and each e-mail message, while traveling through wires, was an "electronic communication" under 18 U.S.C. § 2510(12).

Councilman moved to dismiss the indictment for failure to state an offense under the Wiretap Act, arguing that the intercepted e-mail messages were in "electronic storage," as defined in 18 U.S.C. § 2510(17), and therefore were not, as a matter of law, subject to the prohibition on "intercept[ing] . . . electronic communication[s]," 18 U.S.C. § 2511(1)(a). The district court initially denied the motion to dismiss. As trial preparation began, however, the district court sua sponte reconsidered its decision in light of the then-recently decided case of Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir.2002). After further briefing, the district court granted Councilman's motion to dismiss Count One, ruling that the messages were not, at the moment of interception, "electronic communications" under the Wiretap Act. United States v. Councilman, 245 F.Supp.2d 319 (D.Mass.2003).

A divided panel of this court affirmed. United States v. Councilman, 373 F.3d 197 (1st Cir.2004). The majority concluded that, because the definition of "wire communication" includes "electronic storage" but the definition of "electronic communication" does not, the Wiretap Act's prohibition on "intercept[ion]" does not apply to messages that are, even briefly, in "electronic storage." Id. at 200-04. The full court granted the government's petition for rehearing en banc. 385 F.3d 793 (1st Cir.2004) (per curiam). Because this is an appeal of an order dismissing an indictment on "purely legal" grounds, our review is de novo, United States v. Lopez-Lopez, 282 F.3d 1, 9 (1st Cir.2002), and we assume the truth of the facts alleged in the indictment, see Bank of Nova Scotia v. United States, 487 U.S. 250, 261, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988).


The Wiretap Act of 19687 specified, inter alia, the conditions under which law enforcement officers could intercept wire communications, and the penalties for unauthorized private interceptions of wire communications. As amended by the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, 100 Stat. 1848 ("ECPA"), the Act makes it an offense to "intentionally intercept[], endeavor[] to intercept, or procure[] any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication." 18 U.S.C. § 2511(1). Two terms are at issue here: "electronic communication" and "intercept."

Councilman contends that the e-mail messages he obtained were not, when procmail copied them, "electronic communication[s]," and moreover the method by which they were copied was not "intercept[ion]" under the Act. Because these...

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