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.