US v. Councilman
Case Date: 08/11/2005
Docket No: UNITEDSTATESOFAMERICA,
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No. 03-1383 UNITED STATES OF AMERICA, Appellant, v.
BRADFORD C. COUNCILMAN, Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Michael A. Ponsor, U.S. District Judge] Before Boudin, Chief Judge, Torruella and Selya, Circuit Judges, Cyr, Senior Circuit Judge, Lynch, Lipez, and Howard, Circuit Judges. John A. Drennan, Criminal Appellate Attorney, U.S. Department of Justice, with whom Michael J. Sullivan, U.S. Attorney, Paul G. Levenson, Assistant U.S. Attorney, and Paul K. Ohm, Trial Attorney, U.S. Department of Justice, were on brief, for appellant. Andrew Good, with whom Matthew Zisow and Good & Cormier were on brief, for appellee. Patricia L. Bellia and Peter P. Swire on brief for Senator Patrick J. Leahy, amicus curiae. Marc Rotenberg and Marcia Hofmann on brief for Whitfield Diffie, Edward W. Felten, John R. Levine, Peter G. Neumann, and Bruce Schneier, amici curiae. Shayana Kadidal and Carlos E. Gonzalez on brief, pro sese, amici curiae. Orin S. Kerr on brief for Center for Democracy and Technology, Electronic Frontier Foundation, Electronic Privacy Information Center, American Library Association, American Civil Liberties Union, and Center for National Security Studies, amici curiae.
Opinion En Banc
LIPEZ, Circuit Judge. This case presents an important
question of statutory construction. We must decide whether
interception of an e-mail message in temporary, transient
electronic storage states an offense under the Wiretap Act, as
amended by the Electronic Communications Privacy Act of 1986, 18
U.S.C. §§ 2510-2522. The government believes it does, and indicted
Councilman under that theory. The district court disagreed and
dismissed the indictment. A divided panel of this court affirmed.
We granted review en banc and now reverse.
A. An Introduction to Internet E-mail The Internet is a network of interconnected computers. Data transmitted across the Internet are broken down into small "packets" that are forwarded from one computer to another until they reach their destination, where they are reconstituted. See Orin S. Kerr, Internet Surveillance Law After the USA Patriot Act: The Big Brother that Isn't, 97 Nw. U. L. Rev. 607, 613-14 (2003). Each service on the Internet -- e.g., e-mail, the World Wide Web, or instant messaging -- has its own protocol for using packets of data to transmit information from one place to another. The e-mail protocol is known as Simple Mail Transfer Protocol ("SMTP"). After a user composes a message in an e-mail client
program,
Once all the packets reach the recipient's mail server, they are reassembled to form the e-mail message. A mail delivery agent ("MDA") accepts the message from the MTA, determines which user should receive the message, and performs the actual delivery by placing the message in that user's mailbox. One popular MDA is "procmail," which is controlled by short programs or scripts called "recipe files." These recipe files can be used in various ways. For example, a procmail recipe can instruct the MDA to deposit mail addressed to one address into another user's mailbox (e.g., to send mail addressed to "help" to the tech support department), to reject mail from certain addresses, or to make copies of certain messages. Once the MDA has deposited a message into the recipient's
mailbox, the recipient simply needs to use an e-mail client program
to retrieve and read the message.
B. Facts Alleged in the Indictment Defendant-appellee Bradford C. Councilman was Vice President of Interloc, Inc., which ran an online rare and out-of-print book listing service. As part of its service, Interloc gave book dealer customers an e-mail address at the domain "interloc.com" and acted as the e-mail provider. Councilman managed the e-mail service and the dealer subscription list. According to the indictment, in January 1998, Councilman directed Interloc employees to intercept and copy all incoming communications to subscriber dealers from Amazon.com, an Internet retailer that sells books and other products. Interloc's systems administrator modified the server's procmail recipe so that, before delivering any message from Amazon.com to the recipient's mailbox, procmail would copy the message and place the copy in a separate mailbox that Councilman could access. Thus, procmail would intercept and copy all incoming messages from Amazon.com before they were delivered to the recipient's mailbox, and therefore, before the intended recipient could read the message. This diversion intercepted thousands of messages, and Councilman and other Interloc employees routinely read the e-mail messages sent to Interloc subscribers in the hope of gaining a commercial advantage. On July 11, 2001, a grand jury returned a two-count
indictment against Councilman. Count One charged him under 18
U.S.C. § 371, the general federal criminal conspiracy statute, for
conspiracy to violate the Wiretap Act, 18 U.S.C. § 2511,
The parties stipulated to certain undisputed facts: the procmail recipe worked only within the confines of Interloc's computer; at all times at which procmail performed operations affecting the e-mail system, the messages existed "in the random access memory (RAM) or in hard disks, or both, within Interloc's computer system"; and each e-mail message, while traveling through wires, was an "electronic communication" under 18 U.S.C. § 2510(12). Councilman moved to dismiss the indictment for failure to state an offense under the Wiretap Act, arguing that the intercepted e-mail messages were in "electronic storage," as defined in 18 U.S.C. § 2510(17), and therefore were not, as a matter of law, subject to the prohibition on "intercept[ing] . . . electronic communication[s]," 18 U.S.C. § 2511(1)(a). The district court initially denied the motion to dismiss. As trial preparation began, however, the district court sua sponte reconsidered its decision in light of the then-recently decided case of Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002). After further briefing, the district court granted Councilman's motion to dismiss Count One, ruling that the messages were not, at the moment of interception, "electronic communications" under the Wiretap Act. United States v. Councilman, 245 F. Supp. 2d 319 (D. Mass. 2003). A divided panel of this court affirmed. United States v. Councilman, 373 F.3d 197 (1st Cir. 2004). The majority concluded that, because the definition of "wire communication" includes "electronic storage" but the definition of "electronic communication" does not, the Wiretap Act's prohibition on "intercept[ion]" does not apply to messages that are, even briefly, in "electronic storage." Id. at 200-04. The full court granted the government's petition for rehearing en banc. 385 F.3d 793 (1st Cir. 2004) (per curiam). Because this is an appeal of an order dismissing an indictment on "purely legal" grounds, our review is de novo, United States v. Lopez-Lopez, 282 F.3d 1, 9 (1st Cir. 2002), and we assume the truth of the facts alleged in the indictment, see Bank of Nova Scotia v. United States, 487 U.S. 250, 261 (1988). The Wiretap Act of 1968
Councilman contends that the e-mail messages he obtained were not, when procmail copied them, "electronic communication[s]," and moreover the method by which they were copied was not "intercept[ion]" under the Act. Because these contentions raise important questions of statutory construction with broad ramifications, we discuss in some detail the Act's text, structure, and legislative history. We conclude that Councilman's interpretation of the Wiretap Act is inconsistent with Congress's intent. We then turn to whether Councilman had fair warning that the Act would be construed to cover his alleged conduct in a criminal case, and whether the rule of lenity or other principles require us to construe the Act in his favor. We find no basis to apply any of the fair warning doctrines. The government contends that "electronic communication"
means what it says, and no less: "any transfer of 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 that affects interstate or
foreign commerce," with four specific exceptions not relevant here.
18 U.S.C. § 2510(12). Councilman argues, however, that Congress
intended to exclude any communication that is in (even momentary)
electronic storage. In his view, "electronic communication[s]"
under the Wiretap Act are limited to communications traveling
through wires between computers.
We begin, as we must, with the statute's text. United States v. Rosa-Ortiz, 348 F.3d 33, 36 (1st Cir. 2003). As noted above, the statutory definition of "electronic communication" is broad and, taken alone, would appear to cover incoming e-mail messages while the messages are being processed by the MTA. Councilman argues, however, that the plain text of the
statute exempts electronic communications that are in storage from
the purview of the Wiretap Act. He contends that the definition of
"electronic communication" must be read alongside the definition of
"wire communication" and limited by what the latter includes but
the former does not. The ECPA amended the 1968 definition of "wire
communication" to specify that "such term includes any electronic
storage of such communication." 18 U.S.C. § 2510(1); ECPA
§ 101(a)(1)(D), 100 Stat. at 1848. By contrast, the definition of
"electronic communication" does not mention electronic storage.
See 18 U.S.C. § 2510(12).
As often happens under close scrutiny, the plain text is not so plain. The statute contains no explicit indication that Congress intended to exclude communications in transient storage from the definition of "electronic communication," and, hence, from the scope of the Wiretap Act. Councilman, without acknowledging it, looks beyond the face of the statute and makes an inferential leap. He infers that Congress intended to exclude communications in transient storage from the definition of "electronic communication," regardless of whether they are in the process of being delivered, simply because it did not include the term "electronic storage" in that definition. This inferential leap is not a plain text reading of the statute. Councilman's basis for making this leap is a canon of construction: "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Russello v. United States, 464 U.S. 16, 23 (1983) (quotation marks and citation omitted; alteration in original); see also Trenkler v. United States, 268 F.3d 16, 23 (1st Cir. 2001) (characterizing the maxim as a canon of construction). Reliance on a canon of construction to support the inference belies the availability of a plain text argument. Rather, it confirms that the text of the statute is ambiguous with regard to the communications at issue. The question, then, is whether Councilman's inferential leap, based on a canon of construction, is justified. The Russello maxim -- which is simply a particular application of the classic principle expressio unius est exclusio alterius -- assumes that Congress acts carefully and deliberately in including terms in one part of a statute and omitting them in another. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) ("We do not read the enumeration of one case to exclude another unless it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it."). Sometimes that is a reasonable assumption; sometimes it is not. "The general rule that the expression of one thing is the exclusion of others is subject to exceptions. Like other canons of statutory construction it is only an aid in the ascertainment of the meaning of the law, and must yield whenever a contrary intention on the part of the lawmaker is apparent." Springer v. Gov't of Phil. Islands, 277 U.S. 189, 206 (1928); United States v. Vonn, 535 U.S. 55, 65 (2002) ("[T]he canon . . . is only a guide, whose fallibility can be shown by contrary indications that adopting a particular rule or statute was probably not meant to signal any exclusion of its common relatives."). The maxim upon which Councilman relies is most apt when Congress enacts a new, self-contained statute, and two provisions of that act, drafted with parallel language, differ in that one provision uses a term, but the other provision, where it would be equally sensible to use that term if Congress desired it to apply, conspicuously omits it. Under such conditions, the maxim's interpretive value is at its apex because the underlying inference of legislative intent is most plausible. See Field v. Mans, 516 U.S. 59, 75-76 (1995) ("The more apparently deliberate the contrast, the stronger the inference, as applied, for example, to contrasting statutory sections originally enacted simultaneously in relevant respects.") If the statute's language, structure, or circumstances of enactment differ from that idealized picture, the canon's force is diminished. For example, if the language of the two provisions at issue is not parallel, then Congress may not have envisioned that the two provisions would be closely compared in search of terms present in one and absent from the other. "The Russello presumption -- that the presence of a phrase in one provision and its absence in another reveals Congress'[s] design -- grows weaker with each difference in the formulation of the provisions under inspection." City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 435-36 (2002); see also Clay v. United States, 537 U.S. 522, 529 (2003) (rejecting Russello-based argument because two statutory provisions were not parallel). Similarly, where the history of the two provisions is complex, the canon may be a less reliable guide to Congressional intent. For example, if the first provision was already part of the law, whereas the second is entirely new, Congress may have paid less attention to subtle differences between the two. Cf. Moreno Rios v. United States, 256 F.2d 68, 71 (1st Cir. 1958) (Magruder, C.J.) (the expressio unius inference "is pretty weak when applied to acts of Congress enacted at widely separated times"). In attempting to determine whether Congress intended the term "electronic communication" to exclude communications in momentary storage, the expressio unius maxim is not particularly helpful. Put differently, though it may be "presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion," Russello, 464 U.S. at 23, that presumption may be rebutted. That is the case here. First, the definitions of "wire communication" and
"electronic communication" in the Wiretap Act are not parallel.
The former is defined in a single lengthy clause that specifies
multiple independent criteria, with the electronic storage clause
tacked onto the end. See 18 U.S.C. § 2510(1). The revised
definition hews closely to its original definition in the 1968
Wiretap Act; the ECPA simply amended that definition by replacing
the phrase "communication" with "aural transfer," making certain
modifications not relevant here, and, of course, adding the clause
"and such term includes any electronic storage of such
communication."
Second, any expressio unius inference that can be drawn
from the presence of the electronic storage clause in one
definition and its absence from another is in tension with a much
more compelling -- and directly contrary -- expressio unius
inference drawn from the same statutory provisions: Congress knew
how to, and in fact did, explicitly exclude four specific
categories of communications from the broad definition of
"electronic communication." See ECPA § 101(a)(6)(C).
In short, the ECPA's plain text does not clearly state whether a communication is still an "electronic communication" within the scope of the Wiretap Act when it is in electronic storage during transmission. Applying canons of construction does not resolve the question. Given this continuing ambiguity, we turn to the legislative history. As we explain below, the purpose of the broad definition of electronic storage was to enlarge privacy protections for stored data under the Wiretap Act, not to exclude e-mail messages stored during transmission from those strong protections. Moreover, Congress's sole purpose in adding electronic storage to the definition of "wire communication" was to protect voice mail, and not to affect e-mail at all. By the early 1980s, the advent of electronic communications, principally e-mail, suggested to many that the Wiretap Act needed revision. To update the Act, Senator Patrick Leahy introduced the Electronic Communications Privacy Act of 1985. See S. 1667, 99th Cong. (1985), reprinted in 131 Cong. Rec. S11,795 (Sept. 19, 1985). That bill would have amended the Act by striking out the existing definition of "wire communication," substituting the phrase "electronic communication" for "wire communication" throughout the Act, and subsuming wire communications within the newly-defined term "electronic communication." See id. § 101. Shortly after the bill was introduced, the Congressional Office of Technology Assessment released a long-awaited study of the privacy implications of electronic surveillance. See Office of Technology Assessment, Federal Government Information Technology: Electronic Surveillance and Civil Liberties, available at http://www.wws.princeton.edu/~ota/disk2/1985/8509_n.html (Oct. 1985) ("OTA Report"). The report identified the different points at which an e-mail message could be intercepted: There are at least five discrete stages at which an electronic mail message could be intercepted and its contents divulged to an unintended receiver: at the terminal or in the electronic files of the sender, while being communicated, in the electronic mailbox of the receiver, when printed into hardcopy, and when retained in the files of the electronic mail company for administrative purposes. Existing law offers little protection. Id. at 48. It emphasized that "interception of electronic mail at any stage involves a high level of intrusiveness and a significant threat to civil liberties." Id. at 50 (emphasis added). The Department of Justice ("DOJ") was the principal opponent of the original bill. DOJ conceded that "the level of intrusion during [an e-mail message's] transmission is higher than when it is stored," but urged that "the interception of electronic mail should include some but not all of the procedural requirements of [the Wiretap Act]." Electronic Communications Privacy Act: Hearings on H.R. 3378 Before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice, House Comm. on the Judiciary, 99th Cong. 214, 230 (1986) ("House Hearings") (statement of James Knapp, Deputy Assistant Attorney General, Criminal Division, U.S. Dep't of Justice). DOJ asked Congress to treat prospective surveillance of electronic communications differently from surveillance of wire communications in three specific respects that are related solely to law enforcement and are not relevant here. See id. at 215, 232-33. DOJ's willingness to extend some of the Wiretap Act's protections to e-mail did not, however, extend to "the time after a specific communication has been sent and while it is in the electronic mail firm's computers but has not been delivered, or has been delivered to the electronic mailbox but has not been received by the recipient." Id. at 234. In such cases, DOJ suggested, the message should be treated like first-class mail, and law enforcement should be able to seize it with an ordinary search warrant. Id. A new version of the bill was introduced to meet some, but not all, of DOJ's concerns. See Electronic Communications Privacy Act of 1986, S. 2575, 99th Cong. (1986). The new bill rejected DOJ's preferred solution and instead added electronic communications to the Wiretap Act's existing prohibitions on interception of wire communications. As the House report made clear, Congress intended to give the term "electronic communication" a broad definition: The term 'electronic communication' is intended to cover a broad range of communication activities . . . . As a rule, a communication is an electronic communication if it is neither carried by sound waves nor can fairly be characterized as one containing the human voice (carried in part by wire). Communications consisting solely of data, for example . . . would be electronic communications. H.R. Rep. No. 99-647 (1986), at 35. By incorporating electronic communications into the Wiretap Act, the bill largely rejected DOJ's view that e-mail should receive no (or little) more protection than first class mail. See H.R. Rep. No. 99-647, at 22 (explaining why e-mail differs from regular mail). Nevertheless, because some of DOJ's specific concerns were addressed, DOJ acknowledged that "the bill has been substantially modified to accommodate our concerns" and supported it. Id. at 30-31. b.The broad definition of electronic storage Responding to concerns raised in the OTA Report, Congress sought to ensure that the messages and by-product files that are left behind after transmission, as well as messages stored in a user's mailbox, are protected from unauthorized access. E-mail messages in the sender's and recipient's computers could be accessed by electronically "breaking into" those computers and retrieving the files. OTA Report at 48-49. Before the ECPA, the victim of such an attack had few legal remedies for such an invasion. Furthermore, the e-mail messages retained on the service provider's computers after transmission -- which, the report noted, are primarily retained for "billing purposes and as a convenience in case the customer loses the message" -- could be accessed and possibly disclosed by the provider. Id. at 50. Before the ECPA, it was not clear whether the user had the right to challenge such a disclosure. Id. Similar concerns applied to temporary financial records and personal data retained after transmission. Id. Given this background and the evidence in the legislative history that Congress responded to the OTA Report in refining the legislation, see, e.g., House Hearings at 42-73, it appears that Congress had in mind these types of pre- and post-transmission "temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof," see 18 U.S.C. § 2510(17), when it established the definition of "electronic storage." Its aim was simply to protect such data. See infra Part II.C.1 (describing the Stored Communications Act). There is no indication that it meant to exclude the type of storage used during transmission from the scope of the Wiretap Act. c.The electronic storage clause in the definition of "wire communication" The original version of the ECPA of 1986 included the
definition of "electronic storage" as it reads today, but did not
include electronic storage in the definition of "wire
communication." 132 Cong. Rec. S7,991 (June 19, 1986). Neither
Senator Leahy's floor statement upon introducing the bill nor the
staff bill summary mentioned voice mail in the context of the
Wiretap Act amendments. See id.; cf. H.R. Rep. No. 99-647, at 63
(mentioning voice mail in the context of Stored Communications
Act). Voice mail had not, apparently, been a major subject of
discussion in the context of the ECPA.
Similarly, when Representative Kastenmeier introduced his
identical bill in the House, he did not mention voice mail in his
remarks. See 132 Cong. Rec. H4,039 (June 23, 1986). The
electronic storage clause in the wire communications definition
first appeared in Senate committee markup after the House had
already passed the bill without the clause. See 132 Cong. Rec.
S14,441 (Oct. 1, 1986). Senator Leahy, in his statement in support
of the amended bill, specifically mentioned voice mail, which he
had not done in his remarks earlier that year, and the staff
summary explained that one effect of the amended bill was that
"[w]ire communications in storage, like voice mail, remain wire
communications." Id. (emphasis added).
If the addition of the electronic storage clause to the definition of "wire communication" was intended to remove electronic communications from the scope of the Wiretap Act for the brief instants during which they are in temporary storage en route to their destinations -- which, as it turns out, are often the points where it is technologically easiest to intercept those communications -- neither of the Senate co-sponsors saw fit to mention this to their colleagues, and no one, evidently, remarked upon it. No document or legislator ever suggested that the addition of the electronic storage clause to the definition of "wire communication" would take messages in electronic storage out of the definition of "electronic communication." Indeed, we doubt that Congress contemplated the existential oddity that Councilman's interpretation creates: messages -- conceded by stipulation to be electronic communications -- briefly cease to be electronic communications for very short intervals, and then suddenly become electronic communications again. Cf. H.R. Rep. No. 99-647, at 35 ("The term 'electronic communication' is intended to cover a broad range of communication activities . . . . Communications c |
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