Magazine article Security Management

Legal Reporter

Magazine article Security Management

Legal Reporter

Article excerpt

Judicial Decisions

E-mail. A recent ruling by the Fifth Circuit Court of Appeals upheld a district court decision that the seizure of a computer containing unread electronic mail is not an unlawful intercept under the Electronic Communications Privacy Act.

Steve Jackson Games, Inc. (SJG), is a publisher of books, magazines, and computer games. In the mid-1980s, SJG generated an electronic bulletin board system (BBS) from one of its computers. The company used the BBS to post information about its business, games, and publications.

The BBS also operated as a communications system for SJG personnel, customers, and freelance writers. BBS users could send and receive private electronic mail (e-mail) messages. E-mail was stored on the BBS computer's hard drive until the addressees called the BBS and read their mail. The recipients could then choose to either store the messages on the BBS computer's hard drive or delete them.

In October 1988, Henry M. Kluepfel, CPP, director of a Bell Company called Network Security Technology, began investigating the unauthorized duplication and distribution of a file containing information about Bell's emergency call system. Kluepfel learned that the document was being disseminated through a private BBS operated by Loyd Blankenship of Austin, Texas. Blankenship was also an SJG employee and co-systems operator of SJG's BBS with the ability to review and delete data.

A representative of the U.S. Secret Service obtained a search warrant for SJG's premises and Blankenship's residence. Among the items seized was the computer used to run SJG's BBS. At the time of the seizure, 162 items of unread, private e-mail were stored on the hard drive.

SJG sued the Secret Service for violation of the Privacy Protection Act and the Electronic Communications Privacy Act (ECPA). The ECPA, which amends the Federal Wiretap Act, has two provisions. The first makes it illegal to intercept electronic communications. The second allows government officials to view stored electronic communications after obtaining a warrant.

The question in this case stems from the definition of the word "intercept." Before the prevalence of computers, the solution was simple; if someone was listening in on a conversation, that person was intercepting.

A new problem arises in this era of stored electronic information. When electronic data is being transmitted, it cannot be intercepted. If it is stored on the computer's hard drive, it is covered by the second half of the statute and can be read by authorized government officials after they have obtained the proper search warrant.

But if e-mail is sent from one individual to another, and is saved on a hard drive before it is read by its intended recipient, is it still in the process of being transmitted? In this case, the court established that the Secret Service had read undelivered e-mail. The court ruled, however, that the e-mail stored but not read was not "intercepted" under the law when the government seized it.

Because the Secret Service obtained a warrant to search the property, but not to seize computer information, the appeals court upheld the district court ruling that the Secret Service had violated the Privacy Protection Act and awarded damages of $51,040 to SJG. The court also found a violation of the second provision of the ECPA, which governs stored electronic material, and awarded damages of $1,000 per individual appellant, $195,000 in attorneys' fees, and $57,000 in costs for SJG.

The court also agreed with the lower court that the Secret Service did not violate the first provision of the ECPA because the communications were not intercepted while they were being transmitted.

Attorney Mark D. Rasch of Arent, Fox, Kintner, Plotkin & Kahn of Washington, D.C., says the case tests the ECPA statute as it applies to stored electronic data, and specifically tests the right of government agencies to seize private e-mail communications. …

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