Seventh Circuit Holds that "Interception" Under Federal Wiretap Act Need Not Be Contemporaneous With Sending of E-Mail

October 6, 2010

By: Sanjeeve K. DeSoyza

The United States Court of Appeals for the Seventh Circuit’s recent decision in United States v. Szymuszkiewicz is yet another reminder that the law governing monitoring of electronic communications in the workplace is a rapidly evolving, and requires employers to regularly revisit their technology use policies. Szymuszkiewicz was an IRS agent in Wisconsin who was convicted under the federal Wiretap Act for intentionally intercepting an electronic communication. A jury found that he secretly activated the auto-forward “rule” on his supervisor’s Microsoft Outlook e-mail account. As a result, a copy of every e-mail the supervisor received was also sent to the agent. The Wiretap Act makes it unlawful for any person to intercept an oral, wire or electronic communication without authority or the consent of at least one party to the communication.

In challenging the conviction, the agent argued that a communication is only “intercepted” under the Act if it is caught “in flight” (before it reaches its destination). Because he merely forwarded e-mails that had already arrived at his supervisor’s computer, he argued, no “interception” occurred. The only crime he could have been charged with, he contended, was a violation of the Stored Communications Act. Noting the risk in “defend[ing] against one crime by admitting another,” the Seventh Circuit rejected the agent’s argument.

First, the Court found that the Wiretap Act does not require contemporaneous or “in flight” interception at all. Any acquisition of information using a device, including conduct which would violate the Stored Communications Act, can violate the Wiretap Act. The Court noted that the “in flight” analogy really does not work for e-mail messages, which are broken up into packets (segments of message) when sent, transmitted over different routes, at different times, and reassembled at the server. So there is no way to intercept the entire message “in flight.” In rejecting the requirement of contemporaneous interception, the Court declined to follow several other Circuit Courts which have held that the interception had to be “contemporaneous” with the communication.

Finally, the Court concluded that even if the statute imposed a contemporaneous interception requirement, it was met in the case before it because Microsoft Outlook’s default provides for automatic forwarding to occur at the server, not at the recipient’s computer. Because each e-mail to the supervisor was received in packets at, reassembled and sent from the IRS’s regional server in Kansas City almost simultaneously to both the supervisor and agent, the agent’s ‘copying at the server was the unlawful interception, catching the message “in flight”… .

Although Szymuszkiewicz involved the clandestine actions of an employee, its holding has applicability to employer monitoring of employee e-mails. Employers that routinely make copies of employee e-mails as part of their regular business activities (for example, by copying e-mails for archival purposes or auto-forwarding the e-mails of a departed employee so others may respond) can no longer assume that because they are acting on an already-received message they are not “intercepting” it. As noted above, as long as one party to the communication consents to the “interception,” the statute is not violated. For that reason, potential violations of the Wiretap Act can most easily be avoided by taking steps to obtain implied or actual consent. Technology use policies should, at a minimum, put employees on explicit notice that electronic communications created, sent or received using company equipment or via its network are company property and subject to monitoring, access, duplication, review and disclosure by the employer at any time. Employers should also obtain implied consent from employees to take such actions through a statement in the policy and/or log in screen that use of the technology constitutes consent to monitor. A signed acknowledgment from the employee is even better.