The Seventh Circuit Court of Appeals in U.S. v. Szymuszkiewicz recently affirmed the criminal conviction of an employee under the federal Wiretap Act, 18 U.S.C. § 2511, after he auto-forwarded emails from his supervisor’s email account to his own. The Court concluded the use of the auto-forward feature constituted an “interception” in violation of the Act.
Szymuszkiewicz shows the application of traditional criminal statutes like the Wiretap Act to Internet-based modes of communications such as email, but also to voice-over IP phone communications. The case also is an example of the courts’ continuing struggle with applying the Act to modern communications technologies such as email. Szymuszkiewicz is an instructive reminder for employers, however, about the remedies applicable under the Act to employees who misuse an employer’s email system actions, in addition to traditional remedies such as discipline or termination. In light of the length of time in which Szymuszkiewicz forwarded his supervisor’s emails without her knowledge, 3 years, the case also highlights a need for review and audit of employer technology systems and education to employees to monitor their accounts for privacy purposes.
Szymuszkiewicz was an IRS employee worried about his job because of a drunk-driving conviction. For a period of three years, he monitored his supervisor’s emails by having them auto-forwarded to his computer, where he reviewed them and stored them in a personal folder in Microsoft Outlook. After the supervisor discovered the forwarding, the employee was charged with violations of the Wiretap Act, which prohibits the intentional interception of the contents “of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.” 18 U.S.C. § 2510(4). The employee was subsequently convicted in federal district court in the Eastern District of Wisconsin.
Szymuszkiewicz appealed on grounds that his forwarding was “a mistake” and that he did not know how to set up auto-forwarding rules. The Court rejected this argument based on evidence that Szymuszkiewicz was highly trained in computers and kept his personal folder of all the forwarded emails. The Court additionally determined that although Szymuszkiewicz had not retrieved any emails of value, it was the intentional interception of the emails by him that mattered for liability under the Wiretap Act—the value of the communication did not matter.
Szymuszkiewicz also contended he should have been charged under the Stored Communications Act, 18 U.S.C. § 2701-12, on grounds that he did not “intercept” anything because emails had to arrive in his supervisor’s inbox before they were forwarded to him. He also pointed to other Federal Circuit Courts that have held that interceptions must be “contemporaneous.” The Court rejected the defendant’s football analogy that “interception” means catching a thing in flight, and that any message would have reached its destination (his supervisors’ inbox) before a copy was made for him. Further, the Court stated that a communication being contemporaneous is different from being “in the middle” or any football metaphor:
even if [the supervisor’s] computer (rather than the server) was doing the duplication and forwarding, it was effectively acting as just another router, sending packets along to their destination, and the conclusion in [United States v. Councilman, 418 F.3d 67 (1st Cir. 2005) (en banc)] that the Wiretap Act applies to messages that reside briefly in the memory of packet-switch routers shows that the Act has been violated.
The Court concluded the Stored Communications Act covered different conduct.
In a comprehensive discussion of modern Internet-based packet communications, the Court determined that the evidence showed the supervisor’s emails were routed through a server, which dispatched two copies of any communication it received within seconds of the receipt: one to the supervisor and one to Szymuszkiewicz. Under Microsoft Outlook’s forwarding rules, forwarding is implemented at the server, which generates two copies of any communication to be forwarded.
The Court also noted, “there is no timing requirement under the Wiretap Act;” and was careful to state that it was not concluding that an interception must be contemporaneous. To drive home this point, the Court provided the following example:
Perkins, the phone subscriber with an answering machine, could call his own number and key in a code to have his messages replayed from the tape. Suppose Smith learned the code, called Perkins’s number, and listened to all of the messages on the answering machine. That means of acquiring the contents of a phone call is as effective as placing a “tap” on the phone line outside Perkins’s house, or placing a hidden transmitter on the bottom of Perkins’s phone, and comes within the definition of “interception” in §2510(4) even though the acquisition is not contemporaneous with the message. Under the statute, any acquisition of information using a device is an interception. And if getting access to an answering machine’s contents is an interception, so is getting access to an email inbox’s contents by automated forwarding.
Determining that the employee acquired emails by using his supervisor’s computer, by using the server to forward her emails, and by using his own computer to read and store the forwarded emails, the Court affirmed the judgment.