Bruce Boyden: Can a Computer Intercept Your Email?
Comment by: Marcia Hofmann
PLSC 2011
Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2028980
Workshop draft abstract:
Can a computer spy on you? Obviously a computer can be used to spy on you, but can the computer itself invade your privacy? This question, once perhaps metaphysical, has gained added urgency in recent years as email services such as Google have begun scanning their users’ emails in order to target advertisements and ISPs have begun using filtering to weed out viruses, spam, and most controversially, copyrighted material from their systems. Such automated scanning and handling of electronic communications arguably violates the federal Wiretap Act, which prohibits intentional interception of an electronic communication without the consent of a party.
Interception is defined under the Wiretap Act as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” Courts have long struggled to apply this definition outside of the context of the traditional wiretap or electronic eavesdropping situation. For example, early Wiretap Act cases involving recordings posed the challenge of determining when exactly the moment of interception occurred: when the conversation was recorded, in which case the circumstances of the act of recording would determine whether an interception occurred, or when the conversation was listened to, in which case the circumstances of playback would determine whether there was a violation. In other words, in recording situations, do machines intercept communications or do humans? Courts have generally answered that question by holding that it is machines that accomplish the interception, albeit as one early case put it, they do so as the “agent of the ear.” Subsequent decisions have held recordings or copied communications to be interceptions whether or not they are ultimately listened to or read by humans.
The conclusion that devices intercept, even if it makes sense for the recording context, should not be reflexively applied to all automated handling of communications. Even if “acquisition” can apply to a recording rather than perception, recordings and other copies enable human perception of the contents of a communication. It is the prospect of third-party perception of the contents of a private communication that is the harm the Wiretap Act protects against. Unmoored from that prospect of harm, automated handling of communications does not pose the relevant danger and should not fall within the definition of “acquisition.” It neither carries those contents to a human for perception, nor does it capture them for later perception. Advertising, filtering, blocking, and other actions in which the substance of the communication is not preserved should not be held to be a violation of the ECPA.