United States v. Councilman
Encyclopedia
US v. Councilman was a criminal case involving interception of e-mail
while in temporary storage en route to its final destination. Earlier rulings in the case had raised concerns about the privacy
of e-mail and the effectiveness of the Electronic Communications Privacy Act
of 1986 (ECPA).
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.
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. 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. The alleged object of the conspiracy was to exploit the content of e-mail from Amazon.com to dealers in order to develop a list of books, learn about competitors, and attain a commercial advantage for Interloc and its parent company.
affirmed. United States v. Councilman, 373 F.3d 197 (1st Cir. 2004). However, the First Circuit then reviewed the decision en banc and reversed.
The court held: "Although the text of the statute does not specify whether the term "electronic communication" includes communications in electronic storage, the legislative history of the ECPA indicates that Congress intended the term to be defined broadly. Furthermore, that history confirms that Congress did not intend, by including electronic storage within the definition of wire communications, to thereby exclude electronic storage from the definition of electronic communications."
reported. The case against him was based on claims by two Interloc employees that he had instructed them to keep copies of the mail. Councilman denied those claims, a detail not previously noted in press reports. In 2007 a Massachusetts jury agreed that the employees' claims were not credible, that Councilman had not instructed them, and dismissed the case.
E-mail
Electronic mail, commonly known as email or e-mail, is a method of exchanging digital messages from an author to one or more recipients. Modern email operates across the Internet or other computer networks. Some early email systems required that the author and the recipient both be online at the...
while in temporary storage en route to its final destination. Earlier rulings in the case had raised concerns about the privacy
Privacy
Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
of e-mail and the effectiveness of the Electronic Communications Privacy Act
Electronic Communications Privacy Act
The Electronic Communications Privacy Act is a United States law.- Overview :The “electronic communication” means 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...
of 1986 (ECPA).
Indictment
Defendant Bradford C. Councilman was Vice President of Interloc, Inc., which ran an online rare and out-of-print bookOut-of-print book
An out-of-print book is a book that is no longer being published. Out-of-print books are often rare, and may be difficult to acquire.A publisher will usually create a print run of a fixed number of copies of a new book. These books can be ordered in bulk by booksellers, and when all the...
listing service. As part of its service, Interloc gave book dealer customers an e-mail address
E-mail address
An email address identifies an email box to which email messages are delivered. An example format of an email address is lewis@example.net which is read as lewis at example dot net...
at the domain "interloc.com" and acted as the e-mail provider. Councilman managed the e-mail service and the dealer subscription list.
On July 11, 2001, a grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
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
Telephone tapping
Telephone tapping is the monitoring of telephone and Internet conversations by a third party, often by covert means. The wire tap received its name because, historically, the monitoring connection was an actual electrical tap on the telephone line...
Act, 18 U.S.C. § 2511. According to the indictment, in January 1998, Councilman directed Interloc employees to intercept and copy all incoming communications to subscriber dealers from Amazon.com
Amazon.com
Amazon.com, Inc. is a multinational electronic commerce company headquartered in Seattle, Washington, United States. It is the world's largest online retailer. Amazon has separate websites for the following countries: United States, Canada, United Kingdom, Germany, France, Italy, Spain, Japan, and...
, an Internet retailer that sells books and other products. The alleged object of the conspiracy was to exploit the content of e-mail from Amazon.com to dealers in order to develop a list of books, learn about competitors, and attain a commercial advantage for Interloc and its parent company.
Dismissal and reinstatement
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 granted Councilman's motion, United States v. Councilman, 245 F. Supp. 2d 319 (D. Mass. 2003), and a divided three-judge panel of the First Circuit Court of AppealsCourt of Appeals
A court of appeals is an appellate court generally.Court of Appeals may refer to:*Military Court of Appeals *Corte d'Assise d'Appello *Philippine Court of Appeals*High Court of Appeals of Turkey*United States courts of appeals...
affirmed. United States v. Councilman, 373 F.3d 197 (1st Cir. 2004). However, the First Circuit then reviewed the decision en banc and reversed.
The court held: "Although the text of the statute does not specify whether the term "electronic communication" includes communications in electronic storage, the legislative history of the ECPA indicates that Congress intended the term to be defined broadly. Furthermore, that history confirms that Congress did not intend, by including electronic storage within the definition of wire communications, to thereby exclude electronic storage from the definition of electronic communications."
Final Disposition
In February 2007, Councilman was acquitted of all charges, the Associated PressAssociated Press
The Associated Press is an American news agency. The AP is a cooperative owned by its contributing newspapers, radio and television stations in the United States, which both contribute stories to the AP and use material written by its staff journalists...
reported. The case against him was based on claims by two Interloc employees that he had instructed them to keep copies of the mail. Councilman denied those claims, a detail not previously noted in press reports. In 2007 a Massachusetts jury agreed that the employees' claims were not credible, that Councilman had not instructed them, and dismissed the case.
Source
- First Circuit Court of Appeals No. 03-1383
- EPIC page with links to amicus briefs
- Article reporting final dismissal