This article examines the federal Wiretap Act and its application to online communications in light of the United States Court of Appeals for the First Circuit’s recent decision in United States v. Councilman. The federal Wiretap Act places legal limits on the surveillance of electronic communications, but courts struggle to make sense of its application to online communications. Formerly, courts held that the Wiretap Act did not apply to the retrieval of communications from places of electronic storage. However, in United States v. Councilman, the First Circuit suggests that retrieval of emails from temporary places of electronic storage fall within the Wiretap Act. In order to avoid liability, businesses that monitor customers online should seek customer consent and familiarize themselves with different interpretations of the federal statute as well as various state wiretap statutes.
Applying the Wiretap Act to Online Communications after United States v. Councilman,
2 Shidler J. L. Com. & Tech.
Available at: https://digitalcommons.law.uw.edu/wjlta/vol2/iss4/4