Archive | Wiretap Act

Is Gmail Illegal?

Last week, Judge Koh handed down a significant decision about the legality of e-mail scanning in the case of In Re: Google, Inc Gmail Litigation. In this class action, a class of Gmail users and people who sent e-mail to Gmail users complain that their e-mails were unlawfully wiretapped in violation of the Federal Wiretap Act as well as state wiretapping laws. This post will focus on a key part of the ruling and explain why I think it’s wrong.

Specifically, Judge Koh denied Google’s motion to dismiss the claims under the Federal Wiretap Act on the ground that there was insufficient evidence of consent from Gmail’s terms of service. According to Judge Koh, the TOS didn’t make clear that Gmail was going to scan in order to create user profiles or provide targeted advertisements. As a result, the notice under the TOS didn’t generate consent for purposes of the Wiretap Act:

Google points to its Terms of Service and Privacy Policies, to which all Gmail and Google Apps users agreed, to contend that these users explicitly consented to the interceptions at issue. The Court finds, however, that those policies did not explicitly notify Plaintiffs that Google would intercept users’ emails for the purposes of creating user profiles or providing targeted advertising.

. . . The Court finds that Gmail users’ acceptance of these statements does not establish explicit consent. Section 8 of the Terms of Service suggests that content may be intercepted under a different set of circumstances for a different purpose — to exclude objectionable content, such as sexual material. This does not suggest to the user that Google would intercept emails for the purposes of creating user profiles or providing targeted advertising. Watkins, 704 F.2d at 582 (“[C]onsent within the meaning of section 2511(2)(d) is not

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It’s Such a Great TV Show That Even The Criminals Like It

From the facts of United States v. Cross, a decision from Chief Judge Garland handed down yesterday involving a wiretap that targeted a large-scale heroin conspiracy:

On the wiretap, the agents overheard a series of conversations between Toure and appellant Cross. On several occasions, Cross used coded language to place narcotics orders. Cross and Toure also discussed purchasing prepaid cell phones to escape detection by the police. In one conversation, Toure told Cross about a police raid on a stash house where Toure had kept some of his drugs; Toure expressed concern that an individual arrested in the raid might become a police informant. And, in a moment of supreme irony, the two shared their admiration for The Wire, an HBO television series about drug dealers being monitored by a wiretap. Supp. App. 15 (“Yea season three is my favorite.”)

Thanks to Michael Scarcella for the link. [...]

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Ninth Circuit Holds That Intercepting Unencrypted Wireless Internet Communications is Covered by the Wiretap Act

The decision is Joffe v. Google. From the introduction:

In the course of capturing its Street View photographs, Google collected data from unencrypted Wi-Fi networks. Google publicly apologized, but plaintiffs brought suit under federal and state law, including the Wiretap Act, 18 U.S.C. § 2511. Google argues that its data collection did not violate the Act because data transmitted over a Wi-Fi network is an “electronic communication” that is “readily accessible to the general public” and exempt under the Act. 18 U.S.C. § 2511(2)(g)(i). The district court rejected Google’s argument. In re Google Inc. St. View Elec. Commc’n Litig., 794 F. Supp. 2d 1067, 1073–84 (N.D. Cal. 2011). We affirm.

For a previous post on this case, see here; for a related previous post on the “readily accessible” exception, see here. [...]

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Does Congress Have the Power to Enact A General Ban on the Use of Bugging Devices?

Since 1968, federal law has prohibited the use of bugging devices — secret microphones — to record private conversations. Here’s the relevant text:

[A]ny person who . . . intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any . . . oral . . . communication [is guilty of a crime and commits a civil violation] [18 U.S.C. 2511(1)(a)]

Here are the definitions of two key terms, “oral communication” and “intercept”:

“oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation [18 U.S.C. 2510(2)]

“intercept” means the aural or other acquisition of the contents of any . . . oral communication through the use of any electronic, mechanical, or other device [18 U.S.C. 2510(4)]

The basic idea is to criminalize listening in on someone’s private conversation using a recording device. The law applies both to the government and to private parties, and it provides for both criminal and civil remedies. On the whole, it’s a sensible criminal and civil law.

But is it constitutional? Does Congress have the power to broadly prohibit the use of bugging devices? I don’t think it does. In this post I’ll explain why.

It’s helpful to start in a somewhat unusual place, with the legislative history. It’s helpful because it shows that the drafters of this provision knew perfectly well that they were on constitutional thin ice with this law. Here’s the remarkable discussion from the 1968 Senate Report:

The broad prohibition of [18 U.S.C. 2511(1)(a)] is also applicable to the interception of oral communications. The interception of such communications, however, does not necessarily interfere with the interstate or foreign communications network, and the extent of the constitutional power of Congress

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Szymuszkiewicz Update

Back on September 10, I had a long post criticizing some dicta in a wiretapping opinion by Judge Easterbrook: The Perils of Interpreting Statutes With Multiple Remedial Schemes: A Comment on the Dicta in United States v. Szymuszkiewicz. Apparently DOJ wasn’t very happy with the language, either, as I understand the government filed a motion to amend the opinion. In any event, I’m pleased to say that the panel in that case recently entered an order deleting the relevant paragraphs. That’s good news. [...]

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The Perils of Interpreting Statutes With Multiple Remedial Schemes: A Comment on the Dicta in United States v. Szymuszkiewicz

The Seventh Circuit decided an interesting Wiretap Act case today that was largely a replay of United States v. Councilman, the First Circuit case that I blogged about here a bunch of times back in 2004 to 2005. In the new case, United States v. Szymuszkiewicz (glad I don’t have to pronounce that one), the panel reached the right result. It agreed with the result of the en banc Councilman decision (if not its precise reasoning, given the curious narrowness of the Councilman decision) that it violates the Wiretap Act to go into someone else’s e-mail account and secretly program it to forward a copy of all of their e-mails to you.

After reaching the right result in this case, Judge Easterbrook then added some dicta in which he argued that other courts had misconstrued the Wiretap Act by imposing a requirement that the Wiretap Act only applies to “real-time” acqusiition and not one-time access to stored contents. Judge Easterbrook is a brilliant guy, but his dicta badly misunderstands the Wiretap Act. Fortunately, Easterbrook’s errors raise some conceptually interesting questions about what leads judges to misread statutes. In particular, I wanted to post on one aspect that is a recurring issue in statutory privacy law: Whether judges can overcome the blinders imposed by the remedial context of the case before them.

To understand the problem, let’s start with the basic structure of the statutory privacy laws. Such laws generally follow the following structure:

1) Anyone who intentionally does privacy-invading thing “X” commits a crime,
2) However, the government can do “X” if it has an appropriate court order based on a certain level of cause, and
3) Victims of “X” have a civil remedy against whoever does “X.”

Because of this structure, statutory privacy laws generally serve three distinct [...]

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