United States v. Councilman: An Appropriate Expansion of Internet Privacy Rights?

Authors

• Robert Roll

Abstract

The technological advances of the last quarter century that permitted the explosion of the Internet simultaneously generated significant abuses of this technology. Congress and the courts responded to each innovation by creating what has become a broad patchwork of remedies intended to deter Internet crime. Though e-mail does not enjoy the same expectation of privacy as other mediums of communication, these remedies overlap to provide recourse in the event of unauthorized access or viewing. To date, the Electronic Communications Privacy Act ("ECPA") represents one of the most effective of these deterrents by imposing civil and criminal penalties on those who attempt to capture the Internet communications of others. For several federal circuits, however, adapting the language of the Act to the shifting landscape of Internet communication has been a cumbersome effort.

The most recent and most perplexing of these cases is the First Circuit's attempt to untangle the statutory language in United States v. Councilman. The defendant, Bradford Councilman, served as Vice President of Interloc, Inc., a rare books business on the Internet. As an ancillary service to the rare books business, Interloc offered its customers e-mail addresses to which it acted as the Internet service provider (ISP). To gain a competitive edge, Councilman instructed Interloc employees to write a program that would gather incoming e-mails sent to Interloc's customers from Amazon.com. This program successfully captured its target e-mails by removing them from the random access memory within Interloc's computer system. After emails were collected by the program, Councilman and others read many of the messages, allegedly gaining a commercial advantage. On July 11, 2001, Councilman was indicted for conspiracy to violate the ECPA. Facing the indictment, Councilman argued that the government's construction of the ECPA's relevant provisions, under which he was charged, ran contrary to the interpretation settled on by the courts. To understand Councilman's contention, some background on the ECPA is necessary.

Recommended Citation

Robert Roll, United States v. Councilman: An Appropriate Expansion of Internet Privacy Rights?, 10 Computer L. Rev. & Tech. J. 207 (2006)