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E-Commerce News
No Wiretap Violation For Reading Misdirected E-Mails; Connecting Laptop to Monitored Network Forefits Privacy Rights
February 5, 2008
NO WIRETAP VIOLATION FOR READING MISDIRECTED E-MAILS
Does a business violate the Federal Wiretap Act when it reads and uses e-mails sent in error by a competitor? The answer is "no" according to a federal court in the Western District of Pennsylvania.
The suit arose following the bankruptcy filing of a company called Carco Electronics. Carco manufactured missile simulators and motion sensors.
Ideal Aerosmith Inc. another manufacturer in the field hired many of Carco's employees after Carco ceased doing business. In a bankruptcy auction for Carco's assets, however, Acutronic, another competitor in the field (although they both sound like rock bands) was the winning bidder.
Included in the assets that Acutronic acquired, were the corporate "@carco-east.com" and "@carcoelect.com" e-mail addresses. This situation led to confusion (and ultimately the lawsuit) because many of the ex-Carco employees working for Ideal Aerosmith continued to mistakenly use their Carco e-mail accounts. All of that e-mail traffic went directly to Acutronic’s server, and Ideal Aerosmith never saw it. Acutronic read all of the e-mail received.
When Ideal Aerosmith found out what was happening, it sued, contending that Acutronic was violating the Wiretap Act and various state laws.
The court determined that the Wiretap Act did not apply. Liability under the Wiretap Act requires a finding that the defendant "intercepted" a communication. The statute defines "interception" 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." The court felt that in the case before it, Acutronic merely received the communications, but did not "intercept" them. According to the court, Acutronic "employed no device to acquire these e-mails, but was merely, as owner of Carco's system, a direct party to the communication." The court found that without interception, there was no violation.
But the court also decided that even if Acutronic was found to have intercepted the e-mail messages, it would be exempt from liability as a service provider.
Under the Wiretap Act, a "provider of wire or electronic services" may intercept or use any communication, so long as the use is in the ordinary course of business. Acutronic, as the owner of the Carco server, became the "provider" of Carco e-mail service, and had a right to monitor communications sent and received by the Carco addresses.
Even though the court let Acutronic off the hook for the alleged federal violation, however, it found that Acutronic could still face liability under Pennsylvania state laws governing trade secrets, unfair competition, and civil conspiracy.
As tempting as it may be to peek at misdirected communications, courts and juries don’t like it. The fact that this court allowed the state claims to survive illustrates this point.
CONNECTING LAPTOP TO MONITORED NETWORK FOREFITS PRIVACY RIGHTS
A laptop owner who knowingly connects a laptop to a monitored network, eliminates any reasonable expectation of privacy as to data accessible on that network, even if the laptop owner takes steps to prevent third party access. There is no Fourth Amendment interest when those prevention efforts fail. That’s the conclusion of the U.S. Court of Appeals for the 11th Circuit.
The case involved a prosecution for possession of child pornography. The defendant was a civilian contractor in Saudi Arabia. The defendant connected his laptop to the military's base network, which he knew was subject to monitoring. The defendant believed, however, that he had taken steps to secure his computer from access by third parties.
Unfortunately for the defendant, an enlisted airman searching the network for music files accessed the laptop's hard drive, only to discover files containing pornography. Investigators, tipped off by the airman, accessed the laptop via the network and found files they used to obtain a search warrant. That led to the discovery of evidence used to convict the defendant of child pornography offenses.
Most other circuits that have addressed workers' privacy expectations in workplace computers connected to monitored networks have concluded that such users' Fourth Amendment rights are not violated when investigators access their hard drives.
The key fact for the Eleventh Circuit was that the investigators accessed the defendant's laptop in the same manner that anyone else using the network could have used to access it. While defendant’s efforts to secure the information may have led the defendant to believe he had an expectation of privacy, the court found this was not "reasonable" for Fourth Amendment purposes.
The court compared the situation to a scenario where "items [are] stored in the unsecured common areas of a multi-unit apartment building or put in a dumpster accessible to the public."
The lesson is pretty simple. If you have something on your laptop you don’t want to share with the public, don’t hook up to a monitored network.
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.