I've been mulling over yesterday's First Circuit en banc opinion in United States v. Councilman, an important Internet wiretapping case. I realize that this post isn't likely to be of much interest to general readers, as it's pretty technical stuff, but I wanted to offer some thoughts on the decision and where we go from here for readers who may have been following the case (all remarks are in my personal capacity, by the way).

  First, the First Circuit's opinion is remarkably narrow. The Court did not resolve the big question that many have believed was at the heart of the Councilman case, namely, the scope of "intercept" in the context of Internet communications. Instead, the Court construed Councilman's brief as only raising the question of whether a communication could both be in "electronic storage" and also constitute an "electronic communication." The majority quite properly concluded that the answer was yes, and thus reversed the district court. On the question of the meaning of intercept, the court concluded that Councilman had drafted his brief in such a way that the meaning of intercept was "simply a variation on, and entirely subsumed within" his argument on the meaning of electronic communication. Given that, there was no need to wade into the "morass" of issues raised by the definition of "intercept."

  This is a somewhat frustrating answer from an analytical perspective, as the meaning of "intercept" and the meaning of "electronic communication" are quite distinct. Further, Councilman's argument that a communication could not both be in storage and an electronic communication was always quite weak. Consider this: At the time of the conduct in Councilman, the Stored Communications Act, 18 U.S.C. 2701-11, the federal statute that protects the privacy of Internet communications in storage, applied only to electronic communications. Thus, if Councilman's argument on this point was right — and remarkably, judges Torruella and Cyr thought it was — the Stored Communications Act by definition could never apply to anything. (That is, the statute only applied to stored electronic communications, but the Councilman argument adopted by Judges Cyr and Torruella insists that Congress clearly intended that there could be no such thing as a stored electronic communication.) This reading of the statutory scheme would have been rather remarkable.

  In the end, then, the First Circuit answered a very easy question, and decided that given the defendant's brief it didn't need to decide the hard one. What this effectively does, I think, is put the ball back in Congress's court. The en banc opinion leaves the major issue open, and the issue is sufficiently central to the basic framework of Internet surveillance law that some kind of statutory solution seems very much needed. My own recommendation is for Congress to pass Senator Leahy's bill, S. 936, The E-mail Privacy Act of 2005, which I blogged about back in May. Leahy's bill is a very good fix, and will resolve the "morass" of issues that were briefed before the First Circuit but not resolved by its en banc opinion.