## Facts

- Bradford C. Councilman was a vice president of Interloc, Inc., an online rare-book listing service that also provided email accounts to book-dealer customers and acted as their email service provider.
- The government alleged that, starting in 1998, Councilman directed employees to configure Interloc’s email system to copy and divert all incoming emails sent from Amazon.com to Interloc subscribers.
- The copying allegedly occurred while the messages briefly resided in Interloc’s system in temporary, transient electronic storage as part of the transmission and delivery process.
- Copies were delivered to Councilman’s email account, and Councilman and Interloc employees allegedly read thousands of messages to gain a commercial advantage.
- A federal indictment charged conspiracy to violate the Wiretap Act; the district court dismissed, and a First Circuit panel affirmed, concluding the alleged conduct did not constitute an “interception” of an “electronic communication.” The en banc court reheard the case.

## Issues

1. Whether acquiring the contents of email while it is in temporary, transient electronic storage intrinsic to the transmission process constitutes an “interception” of an “electronic communication” under the Wiretap Act, 18 U.S.C. § 2511(1)(a).
2. Whether the omission of “electronic storage” from the definition of “electronic communication,” 18 U.S.C. § 2510(12), excludes such transiently stored emails from Wiretap Act coverage.

## Decision

- The en banc First Circuit reversed the dismissal and reinstated the indictment.
- The court held that “electronic communication” includes transient electronic storage intrinsic to the communication process.
- The court concluded that acquisition of email content during that transmission-related transient storage can constitute unlawful interception under the Wiretap Act.
- The case was remanded for further proceedings.

## Legal Principles

- For purposes of the Wiretap Act, “electronic communication” can encompass email in temporary, automatic storage that is part of the transmission process.
- “Interception” under 18 U.S.C. § 2511(1)(a) may include acquisition of an email’s contents while the message is in such transmission-related transient storage.
- Statutory interpretation may consider text, structure, and legislative purpose where a literal inference (including expressio unius) would create a substantial gap inconsistent with Congress’s privacy-protective aims in the ECPA amendments.
- The holding is limited to transient storage intrinsic to transmission and does not definitively resolve treatment of emails stored after transmission is complete (a domain often addressed by the Stored Communications Act).

## Conclusion

The First Circuit held that email messages can be “intercepted” under the Wiretap Act while they are in transmission-related transient electronic storage, rejecting a reading that would exclude such messages from protection and reinstating the conspiracy indictment.


United States v. Councilman, 418 F.3d 67 (1st Cir. 2005) (en banc)