What are the Federal wiretapping laws, and does Gmail implicate them?
The Electronic Communications Privacy Act (ECPA) was passed in 1986 as an update to the law governing the interception of electronic communication, including e-mail. Title I of ECPA (The Wiretap Act) (18 U.S.C. ยง 2511) governs communications “in transit.” The federal Wiretap Act only requires one of the parties to consent to the acquisition of the communication. However, the Ninth Circuit Court of Appeals has indicated (in construing the authorization provision of the Stored Communications Act) that an ISP will not be insulated from liability if it “procures consent by exploiting a known mistake that relates to the essential nature of his access.” Theofel v. Farey-Jones, 341 F.3d 978, 983 (9th Cir. 2003). Therefore, even the Gmail subscriber herself has consented to the acquisition of her communication, thus negating the application of the Wiretap Act, only if Gmail has adequately revealed and explained the “essential nature” of their access to the e-mail communications.
