Jottings By An Employer's Lawyer

Wednesday, December 10, 2003

3rd Cir. Joins 5th Circuit Interpretation That Email At Rest Is Not "Intercepted" Under the ECPA

After an insurance company became suspicious of the actions of one of its agents it conducted a search of his email. What it found led it to terminate his services and caused him to file a claim for wrongful termination as well as for violation of the Electronic Communications Privacy Act because of its review of his email.

Reaching the issue for the first time the 2nd Circuit accepts the interpretation under the Electronic Communications Privacy Act adopted by the 5th Circuit and all other circuits to consider it, that an e-mail can only be "intercepted" when it is in actual transmission. Fraser v. Nationwide Mutual Insurance Co. (3rd Cir. 12/10/03) [pdf]. Here, since the e-mail was already resident in the company's e-mail system when it was reviewed by the company, there was no violation of the ECPA under Title I. Additionally, the Court found no violation under Title II since it excepts actions by the person or entity providing the electronic communications service. Since the insurance company provided the e-mail service that was in question, it had no liability under Title II as well.

The agent also lost his claim for wrongful termination, but at least got a second look on the forfeiture of deferred income because of his violation of a non-compete agreement based on some new Pennsylvania state case law.

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