United States v. Councilman

Bradford C. Councilman (defendant) was vice president of Interloc, Inc., which ran an online listing service for rare and out-of-print books. Interloc gave each subscribing book-dealer customer an email address at the domain interloc.com, with Interloc acting as the email provider. Councilman personally managed both the email service and subscriber list. According to the United States government (plaintiff), Councilman directed Interloc employees to intercept and copy all emails from amazon.com (Amazon) to Interloc’s subscribers. This was done by arranging for incoming Amazon emails to be copied while they were being temporarily stored in Interloc’s system, prior to being delivered to the intended subscriber addressees. The copies were sent to Councilman’s email inbox. In this manner, Interloc intercepted thousands of emails, which Councilman and Interloc employees routinely read to try to get a competitive advantage. The government obtained an indictment of Councilman for violation of the Wiretap Act, as amended by the Electronic Communications Privacy Act of 1986 (ECPA), reasoning that the interception of a message while it was temporarily being stored stated an offense under those acts. The district court disagreed and granted a motion from Councilman to dismiss the indictment. On appeal, a divided panel of the United States Court of Appeals for the First Circuit affirmed. However, the First Circuit granted en banc review of the panel decision. Councilman argued that the Wiretap Act did not apply to stored communications, because the ECPA amended the Wiretap Act’s definition of “wire communication” to include electronically stored communications, whereas the ECPA’s definition of “electronic communication” did not mention electronic storage, and that therefore, pursuant to the statutory-construction maxim expressio unius est exclusio alterius, Congress intended to exclude interception of stored communications from being an actionable offense under the ECPA.