U.S. v. Councilman

The 1st. Circuit Court of Appeal’s decision in U.S. v Councilman on August 11th., according to a recent Law.com article, was acknowledged even by the bench majority as having broad ramifications. “The significance of the latest Councilman ruling,” the article stated, “can only be fully appreciated by tracing the origins of the litigation, for it was not decided in the vacuum of a single case. Rather, the numerous decisions issued by both the federal trial and appellate courts during the course of this prosecution were interwoven within the tapestry of other court rulings issued across the country.”

Bradford Councilman, vice president of an online “rare & out-of-print book listing service,” had his employees intercept and copy incoming communications to subscriber dealers from Amazon.com, in the hope of gaining a commercial advantage over competitors. A grand jury returned a two-count indictment charging wiretap violations, which Councilman had moved to dismiss, arguing that the intercepted e-mail was in “electronic storage” and therefore not subject to the prohibition on “intercepting electronic communications” under 18 U.S.C. §2511(1)(a). The trial court initially denied the motion, but then reconsidered in light of the 9th. Circuit’s recent decision in Konop v Hawaiian Airlines.

“For law enforcement purposes,” the article concludes, Councilman may solve many problems. It appears to provide a bright-line standard that an electronic communication is not considered to be in ‘electronic storage’ until it arrives at its final storage destination…. (still), it demonstrates that our system of government is still years, if not decades, away from developing a full technological & legal grasp of the very difficult issues raised when creating a legal framework consistent with long-standing privacy issues conceptualized by American society.”