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EFF Amicus Brief in Support of Plaintiff-Appellant Robert Konopagainst petition for rehearing en banc, in Konop v. Hawaiian Airlines (Mar. 19, 2000)INTRODUCTIONThe Electronic Frontier Foundation ("EFF") files this brief in support of appellant Robert Konop's ("Konop") opposition to appellee Hawaiian Airlines' ("Hawaiian") petition for rehearing and suggestion for rehearing en banc, pursuant to Fed. R. App. P. 29. The parties have consented to EFF'S filing this amicus brief. EFF is a non-profit, public-interest group dedicated to the protection of civil liberties on the Internet. EFF is based in San Francisco, California, and maintains a major website at <http://www.eff.org>. Ten years ago, few would have imagined the World Wide Web ("web") as it exists today, much less its use for private communication like that between Konop and his fellow pilots. Fortunately, when Congress enacted the 1986 Electronic Communications Privacy Act ("ECPA"), it intended that federal law "advance with technology to ensure the continued vitality of the Fourth Amendment." S. Rep. No. 541, 99th Cong., 2d Sess. at 5 (1986) ("Senate Report"). Consistent with this intent, Konop v. Hawaiian Airlines, 236 F.3d 1035 (9th Cir. 2001) protects individuals' ability to use websites for private communication. For EFF's purposes, the panel's key holding is that ECPA "protects electronic communications from interception when stored to the same extent as when in transit." Id. at 1046.1 Hawaiian and amici argue that the panel decision conflicts with settled law, but the purported conflict is minimal. To EFF's knowledge, neither precedent nor ECPA contemplates private website communication. Indeed, much of this supposedly settled law is poorly reasoned, due to reliance on the erroneous decision in Steve Jackson Games Co. v. U.S. Secret Service, 36 F.3d 457 (5th Cir. 1994). EFF does not argue that the panel's construction is perfectly consistent with every ECPA provision. But ECPA, especially the intersection of Title I, amending 18 U.S.C. §2510 et seq. ("Title I") and Title II, 18 U.S.C. §2701 et seq. ("Title II"), "is a complex, often convoluted, area of the law." United States v. Smith, 155 F.3d 1051, 1055 (9th Cir. 1998), cert. denied, 525 U.S. 1071 (1999) (citations and internal quotation marks omitted). 2 Given the technological changes since ECPA's enactment, some inconsistency should be expected. The answer to Hawaiian and amici's concerns is the same here as in Smith: the prohibitions of Title I and Title II "are not . . . temporally different. . . ; rather, the terms are conceptually . . . different." Id. at 1058 (access is "lesser included offense" of interception). The attempt "to divide the statutory provisions cleanly between" those concerning in-progress communications and those concerning in-storage communications was not viable in Smith, and it is not viable here. Ibid. ARGUMENTThe critical issue here is whether Hawaiian intercepted electronic communications within the meaning of §2511(a). There is no doubt that Konop's communications were, prima facie, "electronic communication." §2510(12). Under the panel decision, electronic communications in storage remain electronic communications subject to interception. Hawaiian and amici argue that the definition of "electronic communication" excludes such communications while in "electronic storage." §2510(17). They further contend that the panel's application of "intercept" to stored electronic communications conflicts with settled law. According to Hawaiian, Title I and Title II are related as follows: Title I applies while electronic communications are in transit; Title II applies while they are in electronic storage. Because Konop's communications were "stored" on his website, Title II applies, not Title I. This Court refuted this approach in Smith. The panel decision in Konop applies Smith's conceptual approach. The only additional factor here is that the definition of "electronic communication" does not expressly state that electronic communications include such communications while in electronic storage. Yet the very nature of electronic communications and the language and purpose of ECPA compel that electronic communications in storage remain electronic communications subject to interception per Title I.
Konop's argument is simple. He used his website to communicate privately with other pilots; Hawaiian, through Mr. Davis, first accessed the website without authorization and then acquired the contents of Konop's electronic communications. Thus, Hawaiian accessed Konop's private website in violation of §2701(a)(2), and intercepted Konop's private electronic communications in violation of §2511(a).
Konop's argument is consistent with this Court's application of Title I and Title II in Smith to voicemail. There, this Court rejected the argument that stored wire communications could not be intercepted merely because they were stored. In so doing, this Court rejected the supposed requirement that communications can only be intercepted contemporaneously with their transmission. As against the government's argument that "intercept" and "access" are temporally different, this Court held that the terms are conceptually different: "access" is a "lesser included offense" of "interception." "Access" means being able to acquire communications contents; "intercept" means actually doing so (by means of a device). Smith, 155 F.3d at 1058. Thus, Smith noted that Title II's prohibition on unauthorized access might have been violated by making unauthorized use of a password and "roaming about" the voicemail system without intercepting message "contents," but that once Smith's message was "retrieved and recorded," the line between Title II and Title I had been crossed and an "interception" occurred. Ibid. Notably, despite its arguments here and in Smith, the government itself has used quite similar reasoning. In United States v. Moriarty, 962 F.Supp. 217 (D.Mass. 1997) (case involving access to stored voicemail messages), the government distinguished "interception" and "access" by arguing that §2701 "only requires 'access,' which, by implication, does not necessitate the acquisition of the communication." Id. at 219. The government then gave an example: "a person could violate 18 U.S.C. §2701 by entering the Justice Department's computer system and altering the codes that would allow access to e-mail by authorized users. This would be a violation even though confidential e-mail messages were never intercepted. Such conduct would not violate 18 U.S.C. §2511(1)(a)." Ibid (quoting government brief) (emphasis in original). The government's argument in Moriarty is this Court's reasoning in Smith. Indeed, the government's argument implies that stored e-mail can be intercepted.
Attempting to avoid Smith's logic, Hawaiian claims that the definition of "electronic communication," §2510(12), excludes "stored electronic communications." On this view, even if Hawaiian acquired communications contents within the statutory meaning of intercept, Konop's communications were not "electronic communications" subject to interception. This argument, which relies primarily on the Fifth Circuit's decision in Steve Jackson Games, is wholly unpersuasive.
Nothing in §2510(12)'s definition of "electronic communication" compels or suggests that communications in "electronic storage" cease to be "electronic communication[s]" under the statute. The definition does not expressly include electronic communications in electronic storage, but Congress's express exclusion of stored electronic funds transfer information from the definition of electronic communications indicates that stored electronic communications are covered by the definition. Konop, 236 F.3d at 1045-46. To say that the statutory definition of "electronic communication" excludes "electronic communications" while in "electronic storage" would render meaningless the very concept of "stored electronic communications." If "electronic communications" are not "electronic communications" while in "electronic storage," then whatever is stored would have to be "stored" something else. Yet ECPA expressly refers to "electronic communication while . . . in electronic storage." E.g., §2701(a)(2). Indeed, Title II is titled "Chapter 121: Stored Wire and Electronic Communications and Transactional Records Access." It is absurdity to think that electronic communications are not electronic communications while in electronic storage. This absurdity is underscored by the definition of "electronic storage." §2510(17)(a) ("any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof"). An electronic communication like an e-mail is stored and forwarded through multiple computers and is intermittently in "electronic storage" during transmission. Under Hawaiian's approach, the data between temporary storage locations would be "electronic communication," but the data while in temporary storage "incidental" to transmission would not. Thus, one communication would almost randomly alternate between being and not being an electronic communication, an absurd result. Rather, the term "electronic storage" is relevant to the application of Title II, not to whether a communication is for statutory purposes an electronic communication.
In Steve Jackson Games, the Fifth Circuit held that the seizure of private, unread e-mail stored on a computer bulletin board was not an interception proscribed by §2511(a). Id. at 460 (footnote omitted). A central holding in the case was that stored electronic communications were excluded from the definition of "electronic communication" and not susceptible to interception under Title I. Remarkably, this reasoning rests almost entirely on negative inference from the definition of "wire communication," which includes "any electronic storage." §2510(1). The Fifth Circuit contrasted ECPA's definition of "electronic communication" as a "transfer" of signals, and noted that "unlike the definition of 'wire communication,' the definition of 'electronic communication' does not include electronic storage of such communications." 36 F.3d at 461. By contrast, the Konop panel properly reasoned that the inclusion of "in electronic storage" in the definition of "wire communication" was intended "not for purposes of contrast, but for clarification." Konop, 236 F.3d at 1045. Wire communications are not necessarily stored; the paradigmatic wire communication is a telephone call. Also, telephone calls in 1986 were largely analog, while voicemail is typically digital. Thus, Congress had two reasons for specifying that wire communications remain wire communications while in electronic storage: because they normally were not stored, it was unclear whether they were covered while in electronic storage; because storage into voicemail converts the human voice into digitized sound, it would be unclear whether voicemail is wire or electronic communication. Senate Report at 12 (specifying that "conversion of a voice signal to digital form . . . does not render the communication non-wire"). In contrast, electronic communications normally are in and out of electronic storage. Moreover, electronic communications are always digital. It was therefore unnecessary for Congress to specify that electronic communications remain electronic communications while in electronic storage, but it was necessary to do so for wire communications. The Fifth Circuit thus misread the import of the statutory definitions when it concluded that electronic communications in storage were not interceptible electronic communications.
Next, Hawaiian and amici argue that interception can only occur during transmission. Thus, Hawaiian could not intercept Konop's communications because they were in storage. This so-called "contemporaneity" requirement is also based on Steve Jackson Games, and is also unpersuasive. The Fifth Circuit misread its earlier decision in United States v. Turk, 526 F.2d 654 (5th Cir. 1976), an oral-communication case, and misapplied Turk to the different situation of electronic communication.
ECPA contains a single definition of "intercept" with no "contemporaneity" requirement. Id. at 658 (definition of "intercept" contains "[n]o explicit limitation of coverage to contemporaneous 'acquisition'" of communication contents); §2510(2) (defining "intercept"); Konop, 236 F.3d at 1044 (noting absence of reference to contemporaneity in legislative history). Much of the confusion on this score arises from the Fifth Circuit's misreading and misapplication of Turk in Steve Jackson Games. Properly understood, Turk is about whether police "intercept" when they listen to an oral communication that someone else independently intercepted. In Turk, police seized and played a pre-recorded tape of a conversation lawfully intercepted by one of the conversation's participants. The Fifth Circuit was concerned that absurd results would follow if the officers' replaying the tape were an interception. Every time they listened, it would be another interception; even if only the first listening were an interception, it would be odd to say that there could be a room filled with officers, with only first-time listeners intercepting. Turk, 526 F.2d at 658 n. 4. Moreover, their acquisition of the contents derived from the original interception, to which they were not parties. Thus, their actions were passive: they used no device to seize the communication. To address these concerns, Turk required "participation by the one charged with an 'interception' in the contemporaneous acquisition of the communication through the use of a device." Id. at 658 & n.3 ("'interception' requires . . . involvement in the initial use of the device contemporaneous with the communication to transmit or preserve the communication"). Turk did not rule on "the precise temporal parameters" of interception, id. at 659, which makes perfect sense. Intercepting an oral communication is always contemporaneous; otherwise, the words vanish into thin air. Nothing in Turk changes if "contemporaneity" is deleted. The relevant element in Turk, therefore, was not contemporaneity, but the officers' uninvolvement in intercepting the communication. In short, the Turk court was mainly concerned with the line separating physical and mental acquisition of communication contents. Turk held that the crucial act for interception purposes was the latter. Because the officers were uninvolved in that act, they did not intercept. They did, however, violate the Fourth Amendment by playing the tape without a warrant. Turk, 526 F.2d at 666-667. For both wire and electronic communication, contemporaneity plays a quite different role than for oral communications. Thus, Steve Jackson Games presented an entirely different situation than Turk. In Steve Jackson Games, the government agents seized and destroyed unread e-mails. None of the issues that concerned the Turk court was present. There was only one act of acquisition, the seizure of the e-mails. That acquisition was not derivative; government agents seized the e-mails. The government agents were active, not passive: they used devices to acquire the contents. 36 F.3d at 459. The Fifth Circuit simply took Turk's "contemporaneity" language, which played no essential part of Turk's reasoning, and unthinkingly applied it to electronic communication.
As already explained, the Fifth Circuit erroneously found that stored electronic communications were not electronic communications for ECPA purposes and erroneously imposed a contemporaneity requirement on interception of electronic communications. In this section EFF explains the remaining flaws in the Fifth Circuit's construction of ECPA. First, the Fifth Circuit reasoned that, by using the word "transfer" to define "electronic communication," Congress intended that "intercept" not apply to stored electronic communications. Id. at 461-462 (footnote omitted). But ECPA defines "aural transfer" as "a transfer containing the human voice at any point between and including the point of origin and the point of reception." §2510(18). If "aural transfer" includes "the point of reception," so must electronic "transfer." Second, the Fifth Circuit found that Congress did not intend to change the definition of "intercept" under current law, believing that the Turk requirement of "contemporaneity" was part of current law in 1986. But it is unreasonable to believe that "contemporaneity" was part of 1986 law. Konop, 236 F.3d at 1044 & n.2 & n.3. Indeed, the legislative history only states that "current law" was relevant to wire and oral communications. Senate Report at 13 ("[ECPA] amends the definition of the term 'intercept' . . . to cover electronic communications. The definition of "intercept" under current law is retained with respect to wire and oral communications . . . .) (emphasis added). Obviously, ECPA itself was new law regarding electronic communications. Congress could not have intended to tie new forms of electronic communication to old definitions given its intent that ECPA address technological change. Third, the Fifth Circuit found that the applicability of Title II to the government's conduct militated against also finding Title I applicable. Id. at 462-463; id. at 463-464 (noting differences between requirements for intercepting electronic communications and "accessing stored electronic communications" ). This reasoning is both circular and based on an invalid premise. It is circular here because the Fifth Circuit assumed that Title I and Title II differ temporally, which is the question at issue. On this Court's "lesser included offense" approach in Smith, Title II applicability does not preclude Title I applicability. Title I violations add the element of acquiring communications contents by device. The invalid premise was that §2703 and §2511 are directly comparable. As discussed in more detail below, they target very different conduct. The Fifth Circuit's confusion is demonstrated by its statement that "a governmental entity may gain access to the contents of electronic communications that have been in electronic storage for less than 180 days by obtaining a warrant." 36 F.3d at 463 (citing §2703(a)). But §2703(a) is about requiring disclosure by a service provider of the communications contents. Compelling third-party disclosure of communications contents is different from directly acquiring those contents by device.
Moreover, the statutory structure strongly suggests that the panel's construction is correct. §2701 does not reach the conduct of acquiring electronic communications contents; it speaks mainly of "access" to a "facility." §2701(a)(2)'s mention of "access to a wire or electronic communication while it is in electronic storage" does not refer to their contents. Such access need not involve acquiring communications contents. Smith, 155 F.3d at 1058. Thus, there is no damage to the statutory scheme in recognizing that Title I covers "interception" of stored electronic communications, because Title II does not cover anything like "interception." Another portion of Title I strongly suggests that stored electronic communications may be intercepted. It is not unlawful "to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public." §2511(2)(g)(i). This provision would be unnecessary if communications stored on such systems could not be intercepted. Such communications are not "readily accessible to the general public" during transmission; they are readily accessible only when stored. In the modern Internet, an open, browsable website is "readily accessible to the general public." Thus, §2511(2)(g)(i) indicates that electronic communications on a private bulletin board like that in Steve Jackson Games or a private website like Konop's can be both intercepted and accessed. Under Hawaiian's temporal approach, however, such communications could not be intercepted because they would be stored and therefore subject only to "access" - rendering the word "intercept" meaningless. This Court's "lesser included offense" approach gives effect to both words. In short, §2511 and §2701 complement each other under this Court's approach in Smith and the panel decision in Konop. §2701 protects against unauthorized access into systems and therefore being in a position to acquire communications content. §2511 protects against unauthorized acquisition of the communications content.3
The panel's construction serves ECPA's constitutional goals of protecting privacy and free speech in light of Congress's express intent that federal law advance with technology.
that protects privacy.
ECPA was intended to protect constitutional rights. Congress originally wrote ECPA's predecessor "to meet the constitutional requirements" governing wiretapping prescribed in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967). United States v. U.S. District Court, 407 U.S. 292, 302 (1972). That intent was carried forward when Congress enacted ECPA. Senate Report at 1-2. Moreover, protecting communications privacy against "official eavesdropping" also protects free speech. U.S. District Court, 407 U.S. at 314-315. This Court's decision in Smith and the panel decision in Konop better protect these rights than the competing "temporal" approach. By framing the relationship between Title I interception and Title II access qualitatively, thus treating unauthorized access as a lesser included offense of unauthorized interception, the severity of the offense is more closely tied to the level of privacy intrusion and chilling of speech. Acquiring voicemail contents violates privacy more than merely "cracking" into a voicemail system. Whether communications are stored or "in transit" is irrelevant. One's privacy is as much violated, and one's speech as much chilled, by government acquisition of a telephone message during transmission as by such acquisition once it has been stored in voicemail. Konop took this approach to electronic communications. That an e-mail remains an electronic communication subject to interception whether it is in transit or in storage makes sense for two reasons. First, because e-mail is intermittently transmitted and stored, it makes no sense to say that it cannot be intercepted while in storage. Were that so, government would not need an interception order to obtain e-mail contents - they could be acquired at an intermediate storage site. Second, the e-mail is in electronic storage at its final destination. Again, if the panel's construction is rejected, then "cracking" into the system to acquire the e-mail contents would not be "interception." Here again, the fact of storage is irrelevant to the degree of privacy intrusion. And the relationship between §2701 and §2511 remains the same: the former controls the lesser included offense of accessing the system in which the e-mail is stored without or in excess of authority, while the latter controls the offense of actually acquiring contents. The panel's construction protects a person's privacy interest against interception for as long as the communication is stored.
for private electronic communication.
Konop's website is just one example of the growing use of websites for private electronic communication. Such websites are like private rooms in cyberspace where meetings or conversations are held. See, e.g., <http://intranets.com/> ("A private space on the web where your group can easily access and share documents, calendars and event information"); <http://www.superfamily.com/> ("At SuperFamily.com, your entire family can share a password protected website together from anywhere in the world.").
The government argues that the panel's construction nullifies Title II's governmental access provisions, apparently believing that Konop requires "law enforcement to obtain a wiretap order to compel stored electronic communications." Gov't Br. at 13. This argument ignores the statutory difference between interception and compelled disclosure. Under §2703, government obtains electronic communications contents from a service provider. Government is not involved in initially acquiring the contents. The situation is like that in Turk, where the conversation had been lawfully intercepted. But in Turk, where there was no government interception, warrantless government acquisition of the communication contents violated the Fourth Amendment. §2703's warrant requirement makes sense when contents are acquired without interception. It tells us what authority is needed for the government to compel disclosure of such contents from the service provider. The situation is entirely different when government seeks to acquire stored communications contents on its own. The authorization government must have to compel disclosure from the service provider is not the same as the authorization law enforcement (or other third parties) must have to intercept the contents of communications using a device via self-help. The government also argues that even if Hawaiian intercepted Konop's communications, it was a "party to the communication," making its interception lawful. §2511(2)(d). But one cannot transform oneself into a "party" by eavesdropping. Cases like United States v. Gallo, 639 F.2d 110 (9th Cir. 1981) depend on the initial validity of the police presence. Thus, Gallo found that an officer could intercept telephone calls even though the search warrant being executed did not specifically authorize telephonic interceptions because the telephone was "highly necessary" to the illicit business conducted on the premises. Id. at 114.
Senator Patrick Leahy, one of ECPA's sponsors, observed that new technology "left communications privacy law where Einstein's insights left Newtonian physics." Bill Unveiled to Patch Data Holes in Privacy Law, Wash. Newsletter (Data Communications), Oct. 1985, at 25. If so, the "temporal" approach of Hawaiian and amici is like the Ptolemaic earth-centric model, while this Court's "lesser included offense" approach is like the Copernican heliocentric model. Ancient astronomers who believed that the sun orbits the earth could, using a complex system of cycles and epicycles, reasonably predict celestial events. But the simpler and correct approach was to recognize that the earth orbits the sun. The same is true here: the correct approach is to recognize that Title I and Title II are qualitatively, not temporally, distinct. EFF respectfully submits that the panel decision correctly held that storage is irrelevant to interception, and should not be reheard. Respectfully submitted, 1EFF takes no position on any of the labor law issues in this case. 2All statutory citations are to the U.S. Code, Title 18, unless otherwise indicated. 3Hawaiian and amici argue that this Court endorsed Steve Jackson Games in Smith, but the Konop panel correctly found that Smith's approval was merely dicta.
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