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U.S. v. COUNCILMAN

No. 03-1383.

418 F.3d 67 (2005)

UNITED STATES of America, Appellant, v. Bradford C. COUNCILMAN, Defendant, Appellee.

United States Court of Appeals, First Circuit.

Decided August 11, 2005.

Attorney(s) appearing for the Case

John A. Drennan, Criminal Appellate Attorney, U.S. Department of Justice, with whom Michael J. Sullivan, U.S. Attorney, Paul G. Levenson, Assistant U.S. Attorney, and Paul K. Ohm, Trial Attorney, U.S. Department of Justice, were on brief, for appellant.

Andrew Good, with whom Matthew Zisow and Good & Cormier were on brief, for appellee.

Patricia L. Bellia and Peter P. Swire on brief for Senator Patrick J. Leahy, amicus curiae.

Marc Rotenberg and Marcia Hofmann on brief for Whitfield Diffie, Edward W. Felten, John R. Levine, Peter G. Neumann, and Bruce Schneier, amici curiae.

Shayana Kadidal and Carlos E. Gonzalez on brief, pro se, amici curiae.

Orin S. Kerr on brief for Center for Democracy and Technology, Electronic Frontier Foundation, Electronic Privacy Information Center, American Library Association, American Civil Liberties Union, and Center for National Security Studies, amici curiae.

Before BOUDIN, Chief Judge, TORRUELLA and SELYA, Circuit Judges, CYR, Senior Circuit Judge, LYNCH, LIPEZ, and HOWARD, Circuit Judges.

Opinion En Banc

LIPEZ, Circuit Judge.

This case presents an important question of statutory construction. We must decide whether interception of an e-mail message in temporary, transient electronic storage states an offense under the Wiretap Act, as amended by the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2522. The government believes it does, and indicted Councilman under that theory. The district court disagreed and dismissed...

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