For many years, a serious uncertainty in regards to the scope of the Federal Wiretap Act has been the way it applies to the repeated however discrete entry that may usually happen with digital communications. Phone wiretapping happens in actual time; the eavesdropper listens in. However digital wiretapping will be periodic however discrete. An eavesdropper can entry an account discretely however repeatedly over time. The query is, does the Wiretap Act, with its sturdy privateness protections, nonetheless apply?
Here is how I phrased the query within the LaFave Felony Process treatise, for which I’ve written the digital surveillance chapter, Chapter 4:
[A]n acquisition happens below the Wiretap Act provided that the gathering of the communication is ‘in flight’ in real-time, throughout potential surveillance of an ongoing communication. Precisely what this implies will be difficult in instances involving digital communications, as digital communications will be saved or transmitted for very brief intervals of time. The fundamental query is that this: If a device makes copies of a communication shortly after it arrives at its vacation spot, is that acquisition contemporaneous with transmission or is it solely after the transmission has been accomplished? Put one other manner, can surveillance circumvent the Wiretap Act by buying communications instantly after they’ve arrived at their vacation spot? If an e-mail account is accessed as soon as an hour, is that an intercept? What about one a minute, as soon as a second, or as soon as a milli-second?
2 Wayne LaFave et al, Crim. Proc. § 4.6(b).
I requested the identical query in my laptop crime legislation casebook:
[T]he Wiretap Act regulates potential surveillance and never retrospective surveillance.
On the identical time, the road between potential surveillance and retrospective surveillance can turn into fuzzy. Think about a authorities agent has entry to a suspect’s e-mail account, and he can click on a button and obtain an replace with all new incoming or outgoing messages. Is the entry potential or retrospective if the federal government agent clicks the button each hour? Each minute? Each second?
Orin Kerr, Pc Crime Legislation 667 (fifth ed. 2022).
It seems this hypothetical has become an actual case, at the moment pending within the New Jersey Supreme Courtroom, with oral argument scheduled for March 13. The query: Can the federal government keep away from the Wiretap Act by having access to an account each quarter-hour? New Jersey state prosecutors obtained Communications Information Warrants (CDWs) that required Fb handy over the contents of the suspects’ accounts each quarter-hour for 30 days. Fb objected, saying that the orders violate the Wiretap Act.
The decrease courtroom opinion held that Fb was required to adjust to the CDWs as a result of compliance was not an “intercept” below the Wiretap Act:
[T]he CDWs didn’t grant entry to the contents of potential communications on Anthony’s and Maurice’s Fb accounts whereas they have been both “en route,” or “throughout the identical second,” that they have been positioned on Fb’s servers. Reasonably, police wouldn’t have entry till, at earliest, fifteen minutes after any digital communication’s transmission. Although the CDWs compelled Fb to reveal the complete saved contents of every goal’s Fb account for thirty potential days, that didn’t make the disclosures contemporaneous with transmission. Luis, 833 F.3d at 627. Reasonably, as soon as the communications would come to “relaxation” on Fb’s servers, they’d be in “digital storage,” and thereby topic to not the wiretap acts, however to the SCA and the provisions of the NJWESCA that mirror that statute. Ibid.
The courtroom then dominated that Fourth Modification considerations restricted this process to 10 days:
In formulating an appropriate constitutional resolution to the disclosure of that info, we select to use a sensible strategy to the discharge of potential electronically saved communications below a CDW. To stay throughout the parameters of state warrant process, the CDWs will be issued, assuming possible trigger is as soon as once more established, and served on Fb requiring that any info recognized within the warrant and saved by Fb throughout the interval as much as the day it’s served with the warrant should be turned over. As well as, incorporating our state warrant procedures below Rule 3:5-5, going ahead, if the State serves a CDW on Fb for the disclosure of potential digital communications, no disclosures could also be compelled past ten days from the issuance of the warrant. And, Fb can adjust to that requirement by producing the saved info on the day of or after the digital communications have been saved.
Any additional try to safe info from potential time intervals should be based mostly upon new CDWs issued on new showings of possible trigger. We consider that this sensible strategy, which modifies the trial courts’ inclinations, is according to the federal and state constitutions and our warrant procedures, comports with the relevant statutes, and pretty balances the pursuits of the events earlier than us.
The New Jersey Supreme Courtroom then accepted evaluate.
I feel the decrease courtroom Wiretap Act’s evaluation is incorrect, and that the Wiretap Act applies to repeated entry each quarter-hour. That is one challenge I felt strongly sufficient about that I included it within the LaFave treatise once I joined it, round 2008 or so. Here is how I like to recommend answering this challenge within the LaFave treatise, with emphasis added:
The caselaw on the query means that copying inside a short while of receipt counts as contemporaneous and is due to this fact regulated by the Wiretap Act. [FN28] This reply is according to the Fourth Modification ideas that ought to information the reply. The Wiretap Act’s heightened protections past the unusual Fourth Modification warrant have been impressed by Berger v. New York. Berger indicated that the Fourth Modification triggers heightened scrutiny when surveillance is undertaken as “a sequence or a steady surveillance” somewhat than as “one restricted intrusion.”Below Berger, a statute that regulates “a sequence or a steady surveillance” should embody particular privateness protections or danger facial invalidity below the Fourth Modification. Given the Wiretap Act’s shut connection to Berger,31 the which means of “intercept” ought to mirror the excellence drawn by the Supreme Courtroom in Berger. Acquisition is an intercept when it’s a part of “a sequence or a steady surveillance,” akin to ongoing potential surveillance or its useful equal. Actual strains might be tough to attract, however the important query needs to be whether or not the technique of monitoring is the useful equal of steady surveillance or whether or not it’s extra like a one-time or in any other case restricted entry to communications.[FN32]
One slender exception to the requirement of acquisition contemporaneous with transmission entails entry to wire communications below the model of the statute in impact from 1986 to 2001. Throughout this era, Congress tried to guard the privateness of voicemail by the definition of “wire communication” somewhat than the extra wise protections of 18 U.S.C.A. § 2703. By including communications in storage to the definition of wire communication, Congress appeared to have wished to manage entry to saved wire communications below the Wiretap Act.The passage of Part 209 of the USA Patriot Act eliminated this language from the definition of wire communication, nonetheless, such that the idea of “intercept” is now constant and applies solely to entry contemporaneous with acquisition.
[FN28: United States v. Szymuszkiewicz, 622 F.3d 701 (7th Cir. 2010) (Easterbrook, J.) (copying within a second counts as “contemporaneous” and therefore regulated by the Wiretap Act); Lazette v. Kulmatycki, 949 F.Supp.2d 748 (N.D.Ohio 2013) (Carr, J.); Luis v. Zang, 833 F.3d 619 (6th Cir. 2016) (claim in pleading that WebWatcher surveillance tool “immediately and instantaneously” copied communications deemed sufficient to satisfy intercept standard). In Boudreau v. Lussier, 901 F.3d 65 (1st Cir. 2018), the First Circuit rejected a “functional approach” to contemporaneity, in which the test would have been if the surveillance occurred using “technology linked to the fleeting moment in which the victim sent the electronic communication.” However, Boudreau ultimately leaves unresolved how the First Circuit’s understanding of contemporaneity would apply to a software program that took repeated screenshots on the technical ground that, at the summary judgment stage, the plaintiff did not provide expert evidence that was required to explain on how the program worked. The New Jersey Supreme Court also has an important case pending on the meaning of intercept involving review of the Superior Court’s decision in Facebook, Inc. v. State, 471 N.J. Super. 430, 273 A.3d 958 (App. Div. 2022).]
[FN32: The Ninth Circuit’s decision in Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir.2002) could be read as drawing the line between a communication that is collected “during transmission” versus one that is collected “while it is in electronic storage.” Konop, 302 F.3d at 878. To the extent Konop is so read, this line is not exactly correct. The scope of the Wiretap Act should be defined by whether the surveillance is undertaken as “a series or a continuous surveillance” rather than as “one limited intrusion,” Berger, 388 U.S. at 57, not whether the communication was moving or at rest at the moment of acquisition. The confusion may result from the Ninth Circuit’s conclusion that a communication cannot be both stored (and therefore subject to the Stored Communications Act, 18 U.S.C.A. §§ 2701 to 2722) and yet also subject to interception under the Wiretap Act. However, the two statutes can in some circumstances regulate access and copying of the same communication. The Wiretap Act regulates prospective continuous surveillance of an account that may result in a particular communication being copied, while the Stored Communications Act regulates a single intrusion to access and copy that communication. The peaceful co-existence of the two statutes is aided by 18 U.S.C.A. § 2702(b)(2) of the Stored Communications Act, which explicitly permits a provider to disclose the contents of communications “as otherwise authorized” in Sections 2511(2)(a) or 2517 of the Wiretap Act.]
2 Wayne LaFave et al, Crim. Proc. § 4.6(b).
To essentially actually date myself, this is similar place I took in an amicus temporary within the First Circuit’s Councilman case in 2004, though the First Circuit did not attain the problem. Nearly twenty years later, the problem is lastly teed up in a case that squarely raises the problem. As at all times, keep tuned.
Full disclose: I as soon as did a brief authorized mission for Fb, and I’ve represented a shopper in a case towards Fb, too.
UPDATE: For previous Volokh Conspiracy weblog posts on the identical authorized challenge, see my posts from 2004 and 2005 on the First Circuit’s Councilman resolution collected right here, and my 2010 posts on the seventh Circuit’s Szymuszkiewicz resolution right here and right here.