9th Circuit Affirms Electronic Storage/Transmission Distinction

Published On January 31, 2018 | By Marc Zwillinger | Data Security
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In affirming the dismissal of the Wiretap case against Apple for its handling of iMessages from former users, the 9th Circuit yesterday affirmed the distinction it first set out in 2002 in Konop v. Hawaiian Airlines, Inc., 302 F.3d 868. In Konop, the 9th Circuit found that data in temporary electronic storage was covered by the Stored Communications Act, and not the Wiretap Act, and thus was not capable of being intercepted. By contrast, the 1st Circuit, in United States v. Councilman, 373 F.3d 197 (1st Cir. 2004) held that the statutes could co-extensively cover the same conduct. On January 29, 2018, the 9th Circuit re-affirmed its own approach to these cases, ruling that iMessages temporarily stored in Apple servers because they were misclassified as iMessages instead of texts, could not be intercepted by Apple because such messages were not in transmission. Thus, plaintiffs’ claims that Apple had intercepted such messages were properly dismissed. Although the decision was non-precedential, and not intended for publication, it reveals that the 9th Circuit intends to continue to follow its approach to these cases, and is not persuaded by the contrary holding in Councilman, thus giving significant comfort to California-based technology companies facing similar claims.


About The Author

Marc is the founder and managing member of ZwillGen PLLC and has been regularly providing advice and counsel on issues related to the increasingly complex laws governing Internet practices, including issues related to Electronic Communications Privacy Act (“ECPA”), the Wiretap and Communication Acts, privacy, CAN-SPAM, FISA, spyware, adware, Internet gambling and adult-oriented content. He also helps Internet Service Providers and other clients comply with their compliance obligations pertaining to the discovery and disclosure of customer and subscriber information.