In the lawsuit, TorrentSpy claimed that the MPAA had illegally obtained confidential information about TorrentSpy by conspiring with Robert Anderson, a former associate of TorrentSpy owner Justin Bunnell, who "hacked" the company’s email server, turned on a “copy and forward” function in the system, and set it up so that all incoming and outgoing email through the server delivered to his Google Gmail address.
According to court documents, neither side contested the basic facts that led to the lawsuit — that Anderson hacked the email system and later sold 34 pages of documents to the MPAA for $15,000. The question was not whether Anderson did what he was accused of doing; the question was whether he violated the federal Wiretap Act in doing it.
The MPAA claimed that Anderson’s actions “were not an ‘interception’ because the emails were in storage at the time, and the 9th Circuit [Court] has held that a communication acquired while in ‘electronic storage’ is not ‘intercepted’” as that term is defined in the Electronic Communications Privacy Act (ECPA), 1986 legislation that amended the older Wiretap Act.
In her ruling, Cooper concurred with the MPAA, noting that courts previously have “rejected the argument that ‘intercept’ must apply to electronic communications in storage because storage is at some point necessary for the transmission of electronic communication.”
Cooper noted that the 9th Circuit has held that “Congress understood that electronic storage was an inherent part of electronic communication and still chose to craft the statute so that ‘storage’ and ‘interception’ do not coincide under the statute’s definition of the terms.”
It follows then, Cooper reasoned, that if Anderson “acquired plaintiff’s emails while they were in ‘electronic storage,’ plaintiff's claim under the Wiretap Act necessarily fails.”
Cooper further reasoned that the statutory definition of “intercept” meshes with “the ordinary meaning of the word, which is ‘to stop, seize, or interrupt in progress of course before arrival.’”
“Anderson did not stop or seize any of the messages that were forwarded to him,” Cooper wrote in the decision. “Anderson’s actions did not halt the transmission of the messages to their intended recipients. As such, under well-settled case law, as well as a reading of the statute and the ordinary meaning of the word ‘intercept,’ Anderson’s acquisition of the emails did not violate the Wiretap Act.
Ira Rothken, TorrentSpy’s attorney, told XBIZ that he believes Cooper got it all wrong.
“The email interception here was done by a programmatic method and in real-time,” Rothken said. “If that is not considered ‘interception’ under the Wiretap Act, then that act has no meaning in the digital age.”
Rothken noted that in amending the Wiretap Act and the ECPA by introducing the Email Privacy Act (EPA) in 2005, Senator Patrick Leahy, D-Vt., “expressly stated that it was designed to apply to the intercept of email communications.”
While Cooper’s decision calls attention to the fact that the definitions of ‘intercept’ and ‘storage’ do not coincide in the statutory definition of those terms, Leahy appears to have envisioned a broader protection for email privacy when he introduced the EPA in 2005.
Leahy introduced the EPA in large part due to the 1st Circuit Court of Appeals ruling in the case U.S. vs. Councilman. In a 2-1 ruling, a panel from that court held that it was permissible for an Internet service provider, without permission, to “systematically intercept, copy and read its customers’ incoming emails for corporate gain as the messages were being transmitted,” according to a statement issued by Leahy in April 2005.
Leahy took issue with the 1st Circuit’s ruling, calling it “clearly a strained reading” of the ECPA and asserting that the court had “condoned an unacceptable privacy intrusion.”
“I know firsthand that we wrote and enacted that law [the ECPA] with one purpose in mind — to ensure that Americans could enjoy the same amount of privacy in their online communication as they do in the offline world,” Leahy said at the time. “Our bill would restate and underscore Congress’ intent and restore the law to its full purpose.”
Rothken told XBIZ that he intends to appeal Cooper’s ruling to the 9th Circuit, where he is confident that Cooper’s dismissal of the case will be reversed.