Tatsuya Akamine

This Note argues that the Federal Wiretap Act (Title I of the Electronic Communications Privacy Act of 1986) protects the privacy of e-mail, even if e-mail is stored in an internet service provider computer. By its nature, e-mail is stored in a service provider computer until e-mail is retrieved by its recipient. Thus, the denial of the protection by the Federal Wiretap Act of the stored e-mail leads to abuse by police to circumvent the Federal Wiretap Act by accessing e-mail stored in a service provider computer.

In 1994, the Fifth Circuit held, in Steve Jackson Games, Inc. v. United States Secret Service, that the Federal Wiretap Act is not applicable to the unauthorized access to e-mail stored in a service provider computer. The court stated that an "interception" of an electronic communication prohibited by the Federal Wiretap Act must occur contemporaneously with the transmission of e- mail. However, in 1998, the Ninth Circuit held, in United States v. Smith, that an "interception" does not have to be contemporaneous with the transmission, thereby rejecting the Fifth Circuit's narrow reading of an "interception" in Steve Jackson Games. This Note illustrates that the legislative history supports the position that e-mail stored in a service provider computer is subject to the Federal Wiretap Act, and proposes, in support of that position, an alternative statutory interpretation more consistent with the overall structure of the Federal Wiretap Act.