SUPPLEMENTAL POST-ARGUMENT LETTER BRIEF

     The Secret Service's primary argument is structural: Title I
and Title II of the Electronic Communications Privacy Act of 1986
("the ECPA"), concern entirely different matters, and never the
twain shall meet.  See Brief for Appellees, pages 11-16.  The
parties agree that Title I of the ECPA amended what is commonly
known as the Wiretap Act (18 U.S.C.  2510, et seq.) to cover
interception of electronic as well as oral and wire
communications. Title II of the ECPA enacted a new chapter,
Chapter 121 (18 U.S.C.  2701, et seq.), protecting stored wire
and electronic communications.

     According to the Secret Service, however, Congress intended
no overlap between Title I and II, and to recognize that the
seizure of the Illuminati BBS violated both Title I and Title II
would create an "unjustifiable collision between Title I and
Title II."  Brief for Appellees at 15.  At oral argument, the
Secret Service insisted that the Wiretap Act is concerned solely
the capture of "data streams" -- that is, the ongoing capture of
masses of data as it moves through a wire or fiber.  Title II, on
the other hand, is solely concerned with electronic
communications "at rest."  Although this argument might be
logically attractive, it simply is not consistent with the law
Congress actually passed in 1986.  In fact, the language of 
2701 anticipates overlap between the two provisions.  Here's how:

     Section  2701(a) enacts the main prohibition against
accessing electronic communications while in storage.  It is the
core of Title II:

          (a)  Offense. -- Except as provided in subsection (c)
of this section whoever --

               (1)  intentionally accesses without authorization 
                    a facility through which an electronic
                    communication service is provided; or

               (2)  intentionally exceeds an authorization to
                    access that facility;

          and thereby obtains, alters, or prevents authorized
          access to a wire or electronics communication while it
          is in electronic storage in such system shall be
          punished as provided in subsection (b) of this section.

     As the government correctly notes, communications in
"electronic storage" include (but are not limited to)
communications that are in temporary electronic storage
"incidental to the electronic transmission thereof."  See 
2510(17)(A).  The unauthorized seizure of such communications
violates  2701(a).

     Subsection (c) of  2701(c) enacts exceptions to subsection
(a)'s prohibition against unauthorized access to electronic
communications:

          (c)  Exceptions. -- Subsection (a) of this section does
          not apply with respect to conduct authorized -- 

               (1)  by the person or entity providing a wire or
                    electronics communications service;

               (2)  by a user of that service with respect to a
                    communication of or intended for that user;
or

               (3)  in section 2703, 2704 or 2518 of this title.

 2701(c).  Note that  2518 is the Wiretap Act provision
setting forth the procedures for the authorized "interception of
wire, oral, or electronic communications."  Section 2518 requires
law enforcement officials to meet a number of requirements before
getting authorization to intercept electronic communications,
including first exhausting other investigative alternatives, and
then obtaining a court order carefully limiting the scope of the
government's investigation.

     If, as the Secret Service argues, Title I's amendments to
the Wiretap Act were strictly limited to regulating the capture
of data streams, there would be no need for Congress to enact an
exception to  2701(a) for law enforcement officers who had
obtained a court order authorizing the interception of
communications.  The government's logic makes a court order
entirely irrelevant to any violation of  2701(a), because 
2701(a) only applies to unauthorized access to electronic
communications that are "at rest."  A "data stream" wiretap would
not result in the seizure of stored or "at rest" communications
-- it taps into a wire that is transmitting, not storing,
communications.

     Rather, the inclusion of  2518 as an exception to the
unauthorized access prohibited by 2701(a) recognizes an area of
overlap between Title I and Title II -- sometimes, an
interception of electronic communications will result in the
seizure of stored communications.  These are exactly the facts of
this case:  the intentional seizure and destruction of in-transit
electronic communications while in temporary storage incident to
transmission.  The facts indisputably show an "interception" as
defined in  2501(4), and indisputably show the seizure of
stored communications incident to transmission.  Had the Secret
Service obtained a valid court order under  2518 to intercept
the Appellants' private mail, it would have been immune from
liability under both  2511 and  2701(a).

     This overlap recognized in  2701(c) indicates that when
seizing in-transit electronic communications from a live
communication system (and thereby shutting down the system), law
enforcement officials must meet the higher procedural
requirements of  2518.  When seizing only stored communications
(for example, from off-line communications systems, or storage
devices such as diskettes or back-up tapes) law enforcement must
meet only the lower requirements of  2703 and 2704.  If the
government intends to seize both types of electronic
communications, the statute demands that it meet the higher
standard before proceeding.

     Rather than dealing with the statute Congress actually
passed, the Secret Service scrupulously avoids analyzing the
language of the relevant provisions.  The Secret Service never
disputed, in its brief or at oral argument, that its seizure of
in-transit e-mail falls within both statutory and common-sense
definitions of "interception."  See 18 U.S.C.  2510(4). 
Rather, the Secret Service seeks a judicial amendment of 
2510(4) to narrow the scope of the definition of "interception"
to exclude its seizure of the Illuminati BBS, and to free it from
the responsibility of obtaining court orders before seizing
active electronic communications systems. 

     By failing to obtain any authorization to satisfy  2518,
 2703 or  2704, the Secret Service violated both  2511(1)
and  2701(a).  Any other outcome will leave this Court amending
the Wiretap Act to satisfy the Secret Service's vision of
legislative symmetry, rather than enforcing the actual language
of the law as passed by Congress.

     For these reasons, and the reasons stated in Appellants'
main and reply briefs, this Court should reverse the District
Court's judgment and render judgment in favor of Appellants
against Appellees for their violation of 18 U.S.C.  2501, et
seq.

[end]