STEVE JACKSON GAMES, INCORPORATED, et al., Plaintiffs-

Appellants, v.

UNITED STATES SECRET SERVICE, et al., Defendants,

United States Secret Service and

United States of America, Defendants

Appellees.

36 F.3d 457 (5th Cir. 1994)

RHESA HAWKINS BARKSDALE, Circuit Judge:

1) The narrow issue before us is whether the seizure of a computer, used to operate an electronic bulletin board system, and containing private electronic mail which had been sent to (stored on) the bulletin board, but not read (retrieved) by the intended recipients, constitutes an unlawful intercept under the Federal Wiretap Act, 18 U.S.C. s 25 10, et seq., as amended by Title I of the Electronic Communications Privacy Act of 1986, Pub.L. No. 99- 508, Title I, 100 Stat. 1848 (1986). We hold that it is not, and therefore AFFIRM.

. . .

II.

2) As stated, the sole issue is a very narrow one: whether the seizure of a computer on which is stored private E-mail that has been sent to an electronic bulletin board, but not yet read (retrieved) by the recipients, constitutes an "intercept" proscribed by 18 U.S.C. s 2511(1)(a).

3) Section 2511 was enacted in 1968 as part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, often referred to as the Federal Wiretap Act. Prior to the 1986 amendment by Title I of the ECPA, it covered only wire and oral communications. Title I of the ECPA extended that coverage to electronic communications. In releva nt part, s 2511(1)(a) proscribes "intentionally intercept[ing] ... any wire, oral, or electronic communication", unless the intercept is authorized by court order or by other exceptions not relevant here. Section 2520 authorizes, inter alia, persons whose electronic communications are intercepted in violation of s 2511 to bring a civil action against the interceptor for actual damages, or for statutory damages of $10,000 per violation or $100 per day of the violation, whichever is greater. 18 U.S.C. s 2520.

4) The Act defines "intercept" as "the aural or other acquisition of the contents of anywire, electronic, or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. s 2510(4). The district court, relying on our court's interpretation of intercept in United States v. Turk, 526 F.2d 654 (5th Cir.), cert. denied, 429 U.S. 823, 97 S.Ct. 74, 50 L.Ed.2d 84 (1976), held that the Secret Service did not intercept the communications, because its acquisition of the contents of those communications was not contemporaneous with their transmission. In Turk, the government seized from a suspect's vehicle an audio tape of a prior conversation between the suspect and Turk. (Restated, when the conversation took place, it was not recorded contemporaneously by the government.) Our court held that replaying the previously recorded conversation was not an "intercept", because an intercept "require[s] participation by the one charged with an 'interception' in the contemporaneous acquisition of the communication through the use of the device". Id. at 658.

5) Appellants agree with Turk's holding, but contend that it is not applicable, because it "says nothing about government action that both acquires the communication prior to its delivery, and prevents that delivery." (Emphasis by appellants.) Along that line, appellants note correctly that Turk's interpretation of "intercept" predates the ECPA , and assert, in essence, that the information stored on the BBS could still be "intercepted" under the Act, even though it was not in transit. They maintain that to hold otherwise does violence to Congress' purpose in enacting the ECPA, to include providing protection for E-mail and bulletin boards. For the most part, appellants fail to even di scuss the pertinent provisions of the Act, much less address their application. Instead, they point simply to Congress' intent in enacting the ECPA and appeal to logic (i.e., to seize something before it is received is to intercept it).

6) But, obviously, the language of the Act controls. In that regard, appellees counter that "Title II, not Title I, ... governs the seizure of stored electronic communications such as unread e-mail messages", and note that appellants have recovered damages under Title II. Understanding the Act requires understanding and applying its many technical terms as defined by the Act, as well as engaging in painstaking, methodical analysis. As appellees note, the issue is not whether E-mail can be "intercepted"; it can. Instead, at issue is what constitutes an "intercept".

7) Prior to the 1986 amendment by the ECPA, the Wiretap Act defined "intercept" as the "aural acquisition" of the contents of wire or oral communications through the use of a device. 18 U.S.C. s 2510(4) (1968). The ECPA amended this definition to include the "aural or other acquisition of the contents of ... wire, electronic, or oral communica tions...." 18 U.S.C. s 2510(4) (1986) (emphasis added for new terms). The significance of the addition of the words "or other" in the 1986 amendment to the definition of "intercept" becomes clear when the definitions of "aural" and "electronic communication" are examined; electronic communications (which include the non- voice portions of wire communications), as defined by the Act, cannot be acquired aurally.

8) Webster's Third New International Dictionary (1986) defines "aural" as "of or relating to the ear" or "of or relating to the sense of hearing". Id. at 144. And, the Act 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." 18 U.S.C. s 2510(18). This definition is extremely important for purposes of understanding the definition of a "wire communication", which is defined by the Act as any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) ... and such term includes any electronic storage of such communication. 18 U.S.C. s 2510(1) (emphasisadded). In contrast, as noted, an "electronic communication" is defined as "any transferof signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system ... but does not include ... any wire or oral communication...." 18 U.S.C. s 2510(12) (emphasis added).

9) Critical to the issue before us is the fact that, unlike the definition of "wire communication", the definitionof "electronic communication" does not include electronic storage of such communications. See 18 U.S.C. s 2510(12). See note 4, supra. "Electronic storage" is defined as

(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.... 18 U.S.C. s 2510(17) (emphasis added). The E-mail in issue was in "electronic storage". Congress' use of the word "transfer" in the definition of "electronic communication", and its omission in that definition of the phrase "any electronic storage of such communication" (part of the definition of "wire communication") reflects that Congress did not intend for "intercept" to apply to "electronic communications" when t hose communications are in "electronic storage".

10) We could stop here, because "[i]ndisputably, the goal of statutory construction is to ascertain legislative intent through the plain language of a statute--without looking to legislative history or other extraneous sources". Stone v. Caplan (Matter of Stone), 10 F.3d 285, 289 (5th Cir.1994). But, when interpreting a statute as complex as the Wiretap Act, which is famous (if not infamous) for its lack of clarity, see, e.g., Forsyth v. Barr, 19 F.3d 1527, 1542-43 (5th Cir.), cert. denied, --- U.S. ---, 115 S.Ct. 195, --- L.Ed.2d ---- (1994), we consider it appropriate to note the legislative history for confirmation of our understanding of Congress' intent. See id. at 1544.

11) As the district court noted, the ECPA's legislative history makes it crystal clear that Congress did not intend to change the definition of "intercept" as it existed at the time of the amendment. See 816 F.Supp. at 442 (citing S.Rep. No. 99-541, 99th Cong., 2d Sess. 13 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3567). The Senate Report ex plains: Section 101(a)(3) of the [ECPA] amends the definition of the term "intercept" in current section 2510(4) of title 18 to cover electronic communications. The definition of "intercept" under current law is retained with respect to wire and oral communications except that the term "or other" is inserted after "aural." This amendment clarifies that it is illegal to intercept the nonvoice portion of a wire communication. For example, it is illegal to intercept the data or digitized portion of a voice communication. 1986 U.S.C.C.A.N. at 3567.

12) Our conclusion is reinforced further by consideration of the fact that Title II of the ECPA clearly applies to the conduct of the Secret Service in this case. Needless to say, when construing a statute, we do not confine our interpretation to the one portion at issue but, instead, consider the statute as a whole. See, e.g., United States v. McCord, 33 F.3d 1434, 1444 (5th Cir.1994) (citing N. Singer, 2A Sutherland Statutory Construction, s 46.05, at 103 (5th ed. 1992)).

13) Title II generally proscribes unauthorized access to stored wire or electronic communications. Section 2701(a) provides: 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 electronic communication while it is in electronic storage in such system shall be punished.... 18 U.S.C. s 2701(a) (emphasis added).

14) As stated, the district court found that the Secret Service violated s 2701 when it intentionally accesse[d] without authorization a facility [the computer] through which an electronic communication service [the BBS] is provided ... and thereby obtain[ed] [and] prevent[ed] authorized access [by appellants] to a [n] ... electronic communication while it is in electronic storage in such system. 18 U.S.C. s 2701(a). The Secret Service does not challenge this ruling. We find no indication in either the Act or its legislative history that Congress intended for conduct that is clearly prohibited by Title II to furnish the basis for a civil remedy under Title I as well. Indeed, there are p ersuasive indications that it had no such intention.

15) First, the substantive and procedural requirements for authorization to intercept electronic communications are quite different from those for accessing stored electronic communications. For example, 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. See 18 U.S.C. s 2703(a). But there are more stringent, complicated requirements for the interception of electronic communications; a court order is required. See 18 U.S.C. s 2518.

16) Second, other requirements applicable to the interception of electronic communications, such as those governing minimization, duration, and the types of crimes that may be investigated, are not imposed when the communications at issue are not in the process of being transmitted at the moment of seizure, but instead are in electronic storage. For example, a court order authorizing interception of electronic communications is required to include a directive that the order shall be executed "in such a way as to minimize the interception of communications not otherwise subject to interception". 18 U.S.C. s 2518(5). Title II of the ECPA does not contain this requirement for warrants authorizing access to stored electronic communications. The purpose of the minimization requirement is to implement "the constitutional obligation of avoiding, to the greatest possible extent, seizure of conversations which have no relationship to the crimes being investigated or the purpose for which electronic surveillance has been authorized". James G. Carr, The Law of Electronic Surveillance, s 5.7(a) at 5-28 (1994).

17) Obviously, when intercepting electronic communications, law enforcement officers cannot know in advance which, if any, of the intercepted communications will be relevant to the crime under investigation, and often will have to obtain access to the contents of the communications in order to make such a determination. Interception thus poses a significant risk that officers will obtain access to communications which have no relevance to the investigation they are conducting. That risk is present to a lesser degree, and can be controlled more easily, in the context of stored electronic communications, because, as the Secret Service advised the district court, technology exists by which relevant communications can be located without the necessity of reviewing the entire contents of all of the stored communications. For example, the Secret Service claimed (although the district court found otherwise) that it reviewed the private E-mail on the BBS by use of key word searches.

18) Next, as noted, court orders authorizing an intercept of electronic communications are subject to strict requirements as to duration. An intercept may not be authorized "for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days". 18 U.S.C. s 2518(5). There is no such requirement for access to stored communications.

19) Finally, as also noted, the limitations as to the types of crimes that may be investigated through an intercept, see 18 U.S.C. s 2516, have no counterpart in Title II of the ECPA. See, e.g., 18 U.S.C. s 2703(d) (court may order a provider of electronic communication service or remote computing service to disclose to a governmental entity the contents of a stored electronic communication on a showing that the information sought is "relevant to a legitimate law enforcement inquiry").

20) In light of the substantial differences between the statutory procedures and requirements for obtaining authorization to intercept electronic communications, on the one hand, and to gain access to the contents of stored electronic communications, on the other, it is most unlikely that Congress intended to require law enforcement officers to satisfy the more stringent requirements for an intercept in order to gain access to the contents of stored electronic communications. . . .