Sunday, July 27, 2008

DA's Brief Opposing Cuadra's Petition for Writ of Habeas Corpus (IX. Wiretap Related to Email)

IX. Wiretap Related to Email

“Retrieval of electronic mail message from intermediate or back-up storage while message is in course of transmission is ‘interception’ under the federal (and Pennsylvania) Wiretap Act; retrieval of message from post-transmission storage is not interception under the Act.” Fraser v, Nationwide Mut. Ins. Co., 135 F. Supp. 2d 623 (E.D. Pa, 2001). Furthermore, the “Stored Communications Act’s prohibition of unauthorized access to electronic communications does not apply to electronic mail (email) message stored post-transmission; rather, prohibition applies where message is stored in storage during the same interval.” 18 U.S.C.A. 25l0(17 and Fraser v. Nationwide Mut. Ins. Co.., 135 F. Supp. 2d 623 (RD. Pa. 2001).

The emails that the Commonwealth intends to introduce in the present case do not violate either the Pennsylvania or Federal Wiretap Acts. The emails to and from the victim, defendants, or third parties do not qualify as being ‘intercepted’. The transmissions of all emails to be presented were complete meaning the emails were sent, opened by the recipient, and either saved by the recipient or the recipient’s computer hard drive post transmission. Since the emails were not ‘intercepted’, they were not obtained in violation of the Pennsylvania or Federal Wiretap laws, therefore they are admissible.