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United States v. Szymuszkiewicz. wiretapping
David S. Szymuszkiewicz was a worried man. His driver's license had been suspended for drunk driving. His job as a revenue officer required him to drive to delinquent taxpayers' homes, and he was afraid that his boss would find out about his lack of a license. So he seized upon a plan to monitor her incoming e-mail. By using her computer, he was able to add a "rule" to her Microsoft Outlook settings so that all e-mails addressed to her would also be forwarded to his computer. Unfortunately, the boss took a class about Microsoft Outlook, and during this class, she discovered that her "rules" had been tampered with. Defendant was subsequently convicted in a Wisconsin federal court for violating the Wiretap Act, 18 U.S.C. 2511(1)(a), for intentionally intercepting an electronic communication.
Dissatisfied by this turn of events, he appealed the case to the Seventh Circuit Court of Appeals. The Court of Appeals concluded that the evidence was sufficient to convict.
The defendant also argued that he should have been charged under the Stored Communications Act, 18 U.S.C. 2701-12, rather than the Wiretap Act. He contended that the Government prosecuted under the wrong statute since the message was forwarded only after it "arrived". The Court concluded that the Wiretap Act does not have a contemporaneous requirement. But even if it did, the court reasoned, there were at least three separate "devices" (the defendant's computer, the victim's computer, and the server) that were involved in contemporaneously intercepting the message. Therefore, the conduct was covered by the Wiretap Act, even though that Act might overlap the Stored Communications Act.
No. 10-1347, 622 F.3d 710 (7th Cir. Sept. 9, 2010).
Please see the original opinion for the court's exact language.
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Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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