In about two weeks, the Second Circuit will hold oral argument in the case of Hall v. Earthlink. In this case, an ISP cut off access to a customer’s e-mail account after wrongly concluding that the customer was a spammer. It took six days for the ISP to realize the error and apologize; rather than accept the apology and the ISP’s officer of free service, the customer sued the ISP for a million bucks plus attorney’s fees. The customer sued the ISP under a range of theories, including that the failure to deliver his e-mails was a violation of the Fedetal Wiretap Act. The district court rejected the customer’s arguments in an opinion available here.
I can understand why the customer sued under the Wiretap Act: the Wiretap Act has high statutory damages, and allows successful plaintiffs to recover punitive damages and attorney’s fees. (I go into the details of this remedial scheme in this article.) Still, the theory doesn’t work. The Wiretap Act prohibits use of a device to intercept a private communication sent between two parties; the point of the Act is to avoid snooping into another person’s private communications. (For more, see here.) To that end, the statute excludes from its protection any instruments, equipment, or facilities “being used by a provider of wire or electronic communication service in the ordinary course of its business”. 18 U.S.C. 2510(5)(a). The idea is that if there is no third-party snooping into private communications, the Wiretap isn’t implicated; the details of how an ISP does or does not deliver communications isn’t something the Wiretap Act regulates. Because the alleged failure to deliver the e-mail occured in the ordinary course of the ISP’s business, the exception pretty clearly covers this case and the Wiretap Act was not violated.
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