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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
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Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason 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 Workplace Privacy, Data Management & Security Report 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.

Jason represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. He negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Jason represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. He regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Jason’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Jason’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Jason regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Jason is the co-leader of Jackson Lewis’ Hispanic Attorney resource group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. He also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Jason served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.

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