In the Courts

En Banc First Circuit Finds Wiretap Violation for Temporarily Stored E-mail

In United States v. Councilman, 418 F.3d 67 (1st Cir. Aug. 8, 2005), the First Circuit, sitting en banc, bucked the trend from other circuits and held that interception of temporarily stored e-mail is a violation of the federal wiretap laws.

The federal Wiretap Act, 18 U.S.C. ' 2511(a), prohibits “intentionally intercept[ing] … any wire, oral, or electronic communication.” The defendant attempted to distinguish electronic communication through a comparison of its definition and the definition of wire communication, but the court disagreed. The court called the defendant's argument an “existential oddity” in that, under the defendant's view, electronic communications would stop for storage for very brief intervals, lose their character as electronic communications, and then continue on, regaining their character. The court resolved the issue by turning to the legislative history of the term “electronic communication” and concluded that Congress intended for the term to have a broad meaning.

Second Circuit Upholds Money Laundering Conviction

In United States v. MacPherson, No. 04-4825 CR, 2005 WL 2212043 (2d Cir. Sept. 13, 2005), the court reversed the trial court's decision to set aside the jury verdict of guilty and enter a judgment of acquittal in a money-laundering case. At trial, the government presented evidence that the defendant made 32 cash deposits at three banks all under $10,000 and it argued that the transactions supported the inference that the defendant willfully structured currency transactions to avoid currency reporting requirements under the Currency and Foreign Transactions Reporting Act.

MacPherson, a police officer, supplemented his income through rental properties. At trial, it was shown that on a single day, MacPherson made 32 deposits into three bank accounts: Twenty-three of the deposits were for $9000 and the remaining nine were for amounts less than that. In reinstating the conviction, the court held that the circumstantial evidence supported an inference of MacPherson's knowledge and an intent to evade currency reporting requirements. The court also rejected the defendant's claim that it was improper for the jury to infer knowledge and intent from circumstantial evidence alone.

En Banc First Circuit Finds Wiretap Violation for Temporarily Stored E-mail

In United States v. Councilman , 418 F.3d 67 (1st Cir. Aug. 8, 2005), the First Circuit, sitting en banc, bucked the trend from other circuits and held that interception of temporarily stored e-mail is a violation of the federal wiretap laws.

The federal Wiretap Act, 18 U.S.C. ' 2511(a), prohibits “intentionally intercept[ing] … any wire, oral, or electronic communication.” The defendant attempted to distinguish electronic communication through a comparison of its definition and the definition of wire communication, but the court disagreed. The court called the defendant's argument an “existential oddity” in that, under the defendant's view, electronic communications would stop for storage for very brief intervals, lose their character as electronic communications, and then continue on, regaining their character. The court resolved the issue by turning to the legislative history of the term “electronic communication” and concluded that Congress intended for the term to have a broad meaning.