Skip to content

Menu

Jackson Lewis P.C.  logo
HomeAboutServicesContactSubscribe
Search
Close

Workplace Privacy, Data Management & Security Report

Interception Does Not Include Access to E-Mail Account

By Jason C. Gavejian on March 28, 2014
Posted in Monitoring

The United States District Court for the Middle District of Alabama recently held in Bruce v. McDonald that the “mere access” of an e-mail account and subsequent printing/possession of e-mails from the same account did not constitute an “interception” in violation of the federal Wiretap Act.

Under the Wiretap Act, as amended by the Electronic Communications Privacy Act, criminal and civil liability is imposed on any person who intentionally intercepts any electronic communication. The Wiretap Act also imposes liability on any person who intentionally discloses,” or “intentionally uses, the contents of an electronic communication “knowing or having reason to know” the communication was intercepted in violation the Wiretap Act. Thus, “interception” is a necessary element for each type of violation.

The plaintiffs, Michael and Tanya Bruce, alleged that defendant, Joshua McDonald (who was Ms. Bruce’s ex-husband), and his attorneys violated the Wiretap Act when in connection with a custody battle, McDonald accessed three of the Bruces’ e-mail accounts and shared e-mails he printed with his attorneys. In essence, they argued that McDonald “intercepted” their personal emails and messages by logging into the three accounts without their authorization. In response, defendants argued there was no interception within the meaning of the Wiretap Act.

The Wiretap Act defines “intercept” broadly, 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.” However, the Eleventh Circuit Court of Appeals has adopted a “narrow reading” of “interception” in the context of electronic communications. In United States v. Steiger (318 F.3d 1039 (11th Cir. 2003), the court concluded that to constitute an interception, the electronic communications must have been acquired “contemporaneously with their transmission.”

The court here found that although McDonald accessed the e-mail accounts repeatedly, there was no proof he acquired any of the e-mails contemporaneously with their transmission. Although the plaintiffs asserted that McDonald’s continuous access to the email would have allowed him to view any given message as soon as it was sent or received, the court found no evidence indicating that had actually occurred. Despite acknowledging that such an action could constitute interception, the court granted summary judgment to defendants holding that the unauthorized access to an account, standing alone, does not qualify as an interception.

As we have previously highlighted, the Wiretap Act has implications that are potentially far reaching.

Tags: 11th Circuit, access, Alabama, Bruce v. McDonald, Contemporaneous, decisions, District Court, e-mail, Electronic Communications Privacy Act, email, Intercept, Intercepted, monitoring, personal email account, privacy, Steiger, Wiretap Act
Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is the office managing principal of the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and a member of the firm’s Board of Directors. He is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is the office managing principal of the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and a member of the firm’s Board of Directors. He is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Jason focuses on the matrix of laws governing privacy, security, and management of data. Jason is co-editor of, and a regular contributor to, the firm’s Privacy blog.

Jason’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Jason helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Jason assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Read more about Jason C. Gavejian
Show more Show less
Related Posts
3D render of AI and GPU processors
Igor Omilaev, Unsplash
AI Regulation Continues to Grow as Illinois Amends its Human Rights Act
August 14, 2024
Doctor Holding Cell Phone. Cell phones and other kinds of mobile devices and communications technologies are of increasing importance in the delivery of health care. Photographer Daniel Sone
National Cancer Institute, Unsplash
Getting Healthcare in 2023 and Beyond…Virtually…and Securely
January 16, 2023
Fruitful - Free WordPress Responsive theme source code displayed on this photo, you can download it for free on wordpress.org or purchase PRO version here https://goo.gl/hYGXcj
Ilya Pavlov, Unsplash
HIPAA Regulated Entities: Website or App Tracking Technologies, Pixels Can Create Significant Compliance and Litigation Risks
January 2, 2023
Jackson Lewis JacksonLewis.com

Stay Connected

Subscribe to this blog via RSS Follow Us on Twitter Add us on Facebook View Our LinkedIn Profile

Topics

Archives

Editors

  • Jason C. Gavejian
  • Joseph J. Lazzarotti

Contributors

  • Christopher E. Hoyme
  • Damon W. Silver
  • Michael R. Bertoncini
  • Marlo Johnson Roebuck
  • Nathan W. Austin
  • Nicky Jatana
  • Jeffrey M. Schlossberg

Blog Authors Show/Hide

  • Joseph J. Lazzarotti
  • Jason C. Gavejian
  • Maya Atrakchi
  • Jackson Lewis P.C.
  • Mary T. Costigan
  • Damon W. Silver
  • Jeffrey M. Schlossberg
  • Michael R. Bertoncini
  • Robert Yang
  • Christopher E. Hoyme
  • Eric J. Felsberg
  • Rachel E. Ehlers
  • Sean Paisan
  • Melissa Pascualini
  • Jody Kahn Mason
  • Frank J. Fanshawe
  • Gregory C. Brown Jr.
  • Delonie A. Plummer
  • Richard I. Greenberg
  • Michelle L. Duncan
  • Jerel Pacis Agatep
  • Cecilie E. Read
  • Catherine R. Tucciarello
  • Todd R. Dobry
  • Susan M. Corcoran
  • Phillip A. Baggett
  • Dorothy Parson McDermott
  • Ryan J. Soscia
  • Ronald V. Sgambati
  • Nathan W. Austin
  • Joshua D. Allen
  • Jason Selvey
  • Michelle T. Hackim
  • Daniel J. Moses
  • Amanda A. Simpson
  • Yvonne Arvanitis Fossati
  • Teri Wilford Wood
  • Shannon Bettis Nakabayashi
  • Paul A. Friedman
  • Nikolas S. Dean
  • Marlo Johnson Roebuck
  • Melissa Ostrower
  • Michael H. Neifach
  • Joseph J. Lynett
  • Kevin B. Hambly
  • Jennifer Shoaf Richardson
  • Jackson Biesecker
  • Francis P. Alvarez
  • Christopher T. Patrick
  • Cheyna Galloway
  • Amy L. Peck
  • Zachary A. Ahonen
  • John A. Snyder
  • Sierra Vierra
  • Stephanie L. Adler-Paindiris
  • Richard F. Vitarelli
  • Kathryn J. Russo
  • Rachel A. Jacob
  • Philip M. Duclos
  • Laura A. Mitchell
  • Michael D. Ridenour
  • Michael A. Giarratano
  • Maryam Shokry
  • Leo P. Norton
  • Kevin D. Holden
  • Kelly E. Eisenlohr-Moul
  • Julia Bover
  • Joshua M. Henderson
  • Jonathan J. Spitz
  • Jamie L. Levitt
  • Valerie K. Jackson
  • Howard M. Bloom
  • Greg Alvarez
  • Erik J. Winton
  • Ena T. Diaz
  • Elizabeth S. Walsh
  • David R. Golder
  • Craig W. Wiley
  • Clifford R. Atlas
  • Cindy Y. Huang
  • Chai Williams
  • Chad P. Richter
  • Brian L. McDermott
  • Ashley Solowan
  • Angelika Avagian
  • Alec Nealon
  • Theron Velazquez
  • Terri Bowman
  • Robert Pfeifer
  • Regan Harrison
  • Paige
  • Nicky Jatana
  • Nicole A. Trotta
  • Mei Fung So
  • Mariama Keita
  • lbarksdale
  • Lara Hamm
  • Kourtney Goebel
  • Kendall Melidosian
  • Gayla Kirkland
  • Kelly Heber
  • Katharine C. Weber
  • Joanne Marsh
  • Jessica Poot
  • Jenifer M. Bologna
  • Jen Starken
  • Jonathan L. Crook
  • Haley Nystrom
  • Camille​​​​ Garcia‑Mendoza
  • Ann Albertson

Recent Upates

  • Top 10 Privacy, AI & Cybersecurity Issues for 2026
  • Florida’s Digital Wiretapping Surge: What Businesses Need to Know About FSCA Litigation
  • New CCPA Regulations Go Into Effect, Updated FAQs Summarize Key Compliance Requirements
  • The Hidden Legal Minefield: Compliance Concerns with AI Smart Glasses, Part 4: Data Security, Breach Notification, and Third-Party AI Processing Risks
  • The Hidden Legal Minefield: Compliance Concerns with AI Smart Glasses, Part 3 –Privacy, Surveillance, and Labor Law Violations

Jackson Lewis

Subscribe to this blog via RSS Follow Us on Twitter Add us on Facebook View Our LinkedIn Profile
Privacy PolicyDisclaimer

About Jackson Lewis

Focused on employment and labor law since 1958, Jackson Lewis P.C.’s 1,100+ attorneys located in major cities nationwide consistently identify and respond to new ways workplace law intersects business. We help employers develop proactive strategies, strong policies and business-oriented solutions to cultivate high-functioning workforces that are engaged and stable, and share our clients’ goals to emphasize belonging and respect for the contributions of every employee.

Read More...
Copyright © 2026, Jackson Lewis P.C. All Rights Reserved.
Law blog design & platform by LexBlog LexBlog Logo