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Tuesday, February 01, 2005

We're really sorry about dropping your e-mail service, but oh, by the way, we're not liable

FindLaw's Modern Practice chronicles the legal saga of independent filmmaker Peter Hall. After completing his film, Delinquent, Peter signs up for an Earthlink e-mail account and uses it as his primary promotional vehichle. Earthlink accidently identifies Peter as a spammer and terminates his account. Earthlink retracts its allegation that Peter is a spammer, but fails to reactivate his account. A year after the Delinquent premier, Earthlink forwards to Peter all of the e-mail that his account accumulated, many of which were questions related to his movie.

Peter
sues Earthlink for, among other things, breach of contract and violation of the Electronic Communications Privacy Act ("ECPA") for wrongful interception of e-mail.

Unfortunately for Peter, he
loses (PDF).

We agree with the district court’s conclusion that EarthLink did not violate 18 U.S.C. § 2511(1)(a) but write to further clarify the proper interpretation of this section.

Through the enactment of ECPA, Congress amended the Federal wiretap law in order to “update and clarify Federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies.” ...

Section 2511(1)(a) states that, except as otherwise provided, anyone who “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any . . . electronic communication” violates ECPA. 18 U.S.C. § 2511(1)(a). The district court held that EarthLink did not “intentionally intercept anything” in violation of Section 2511(1)(a) because EarthLink “merely received and stored e-mails precisely where they were sent–to an address on the EarthLink system.” ... We hold that EarthLink’s continued reception of e-mails sent to lot99 did not constitute an “interception” under ECPA because it was conducted as part of the “ordinary course of [EarthLink’s] business.”

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